MASTHEAD-1Canada’s Fathers of Confederation carried out a practical demonstration of how to solve constitutional and political problems, writes Leonid Sirota. As such, the mid-1860s were a true Constitutional moment in Canada.

By Leonid Sirota, May 17, 2017

From a government that seems uninterested in celebrating Confederation in its sesquicentennial year to legal scholars that decry it as un undemocratic bargain struck by a bunch of white men, many in Canada denigrate the constitutional compromise that gave birth to this country. For instance, in an interview with the Globe and Mail given when he was about to retire from the Supreme Court, Justice Ian Binnie insisted that we could not possibly consider ourselves bound by the original meaning of the Constitution Act, 1867 because – unlike Americans –

[w]e don’t have a Jefferson or an Alexander Hamilton or a Benjamin Franklin, for us to read their views on what the Constitution does or doesn’t mean. At the Quebec conference, Sir John A. Macdonald’s most memorable reflection was: “Too much whisky is just enough.” That was the guidance we got as to our Constitution.

Actually, the Quebec conference was held behind closed doors, so we don’t actually know, except in outline, what memorable reflections were made there. But we have plenty of other sources to consult, if we take an interest in the thought of the Fathers of Confederation. (Many of these sources are now easily available on the Macdonald-Laurier Institute’s Confederation Project’s website, thanks to the hard work of my friend, MLI Munk Senior Fellow Alastair Gillespie.)

Their constitutional endeavours involved a great deal of compromise and concession, as they openly acknowledged.

Now, I think it’s fair to say that, on the whole, the Fathers of Confederation did not quite have the philosophical depth or literary talent of Alexander Hamilton and James Madison. But that is a rather absurd standard by which to measure any group of statesmen. Considered in their own right, they were much more serious thinkers, not to mention better expositors of their ideas, than they are usually given credit for. Their constitutional endeavours involved a great deal of compromise and concession, as they openly acknowledged (in contrast, perhaps, to the self-assured Publius). But if failing to meditate on the meaning of separation of powers, or advance theories of federalism, or leave cryptic thoughts on judicial review for us to decipher, they carried out a practical demonstration of how to solve constitutional and political problems that was, in its own way, no less impressive – and has arguably better stood the test of time, for now anyway.

As Mr. Gillespie’s work shows, the accomplishments of Confederation are perhaps best appreciated if presented in the words of those who made them possible. Consider, for example, the following excerpt from George Brown’s speech during the “Confederation Debates,” during which the legislature of the then-Province of Canada considered whether to support the plan developed at the Quebec Conference. Having noted that the candidates supporting the confederation plan have been receiving wide popular support in recent elections, Brown goes on to argue that people outside Canada – which is to say, mostly, in the United Kingdom and in the United States – have been noticing too:

And well, Mr. Speaker, might our present attitude in Canada arrest the earnest attention of other countries. Here is a people composed of two distinct races, speaking different languages, with religious and social and municipal and educational institutions totally different; with sectional hostilities of such a character as to render government for many years well-nigh impossible; with a Constitution so unjust in the view of one section as to justify any resort to enforce a remedy. And yet, sir, here we sit, patiently and temperately discussing how these great evils and hostilities may justly and amicably be swept away for ever.

We are endeavouring to adjust harmoniously greater difficulties than have plunged other countries into all the horrors of civil war. We are striving to do peacefully and satisfactorily what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland, could only crush by the iron heel of armed force. We are seeking to do without foreign intervention that which deluged in blood the sunny plains of Italy.

We are striving to settle for ever issues hardly less momentous than those that have rent the neighbouring republic and are now exposing it to all the horrors of civil war. Have we not then, Mr. Speaker, great cause of thankfulness that we have found a better way for the solution of our troubles than that which has entailed on other countries such deplorable results?

Now the last paragraph strikes me as an exaggeration. Were the differences between Upper and Lower Canada, British and French Canadians, Protestants and Catholics, truly comparable the conflict over slavery that caused the American Civil War? But Brown was also in a self-congratulatory mood (and readers of Mr. Gillespie’s paper on Brown will understand why he had cause for self-congratulation just then), and no doubt a boastful one, as any politician trying to sell others on his dearly held idea.

The Fathers of Confederation found a way, not to sweep them away forever, admittedly, but to create a constitutional framework within which opposing forces could be accommodated.

Yet despite his rhetorical excess, Brown was fundamentally right. It is true that the differences of religion, to say nothing of the forces of nationalism, had – and have since he spoke – often led to hatred, to open conflict, to outright war. The Fathers of Confederation found a way, not to sweep them away forever, admittedly, but to create a constitutional framework within which opposing forces could be accommodated, and indeed made to work together, in a way that not only kept them at peace, but created one of the most successful polities of the last century and a half.

Contrary to what the denigrators like to say, the mid-1860s (and perhaps the longer period from the late 1850s to the mid-1870s) were a true “constitutional moment” in Canada. It deserves our respect, and our attention. We need not be uncritical of those who made this moment possible. But we profit, to this day, from their practical wisdom and political talents. We should not forget that.

Leonid Sirota teaches at the Auckland University of Technology Law School and publishes the constitutional law blog Double Aspect. A version of this post first appeared at Double Aspect.