It's often said that the Fathers of Confederation were not political thinkers. They were practical men, men who could make a "deal." E.R. Black's comment is typical: "Confederation was born in pragmatism without the attendance of a readily definable philosophic rationale."

The Fathers had their pragmatic side. Who would deny it? But when they bent their thoughts to the task of making a constitution for British North America they had to think of principles and philosophy. They were designing a great and innovative political constitution modeled on the fundamentals of the European Enlightenment.

Now I hear from an eminence in the field of national history: why is Ajzenstat always complaining about that comment by Black? "What's wrong with being pragmatic? There's nothing wrong with it; there's nothing shameful."

And I feel a pang. I think of all the times I've lectured students on the necessity of give and take in politics; all the times I've tried gently to persuade some admirably principled young woman or man that politics works best for everyone when it's seasoned with a hefty dash of pragmatism.

I agree that politics requires "doing deals," making concessions, horse-trading, if you like. But Confederation was not about politics per se. It was about making a constitution to facilitate the doing of politics. The difference between statutes and constitutions is exactly that statutes are "deals," and as "deals" can be amended, trashed, reviled, or indeed, rehabilitated, as the political seasons change.

Constitutions, in contrast, set out the conditions for deal making and for exactly this reason are supposed to be difficult to change. The Fathers of Confederation and the legislators in the ratifying parliaments speak of the process of making and ratifying the British North America Act as lawmaking "for all time." The phrase recurs in the debates in several provinces: "for all time." The question was whether ordinary lawmakers, elected to their colonial parliaments for a limited term, could make law "for all time."

In the Legislative Assembly of the Province of Canada (March 8, 1865), James O'Halloran says: "You sir, and I, were sent here to make laws, not legislatures." It's one of my favourite quotations. Here's another, addressing the same issue while conceding the necessity of a degree of pragmatism even in constitution making: "Where there are two great parties in a nation – as there have been with us – it is clear that, when they agree to effect a settlement of the constitutional difficulties which have separated them, this can only be accomplished by mutual compromise to a greater or less extent" (Alexander Mackenzie, in the Legislative Assembly of the Province of Canada, February 23, 1865).  Yes, there was a principled debate on pragmatism at Confederation.

[From The Idea File]

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