The Canadian Federalist Experiment: From Defiant Monarchy to Reluctant Republic (review)

The subtitle of this book provides a fair indication of its content. The Canadian Federalist Experiment chronicles the progress (here, actually, the collapse) of an idea - monarchical government dressed in North American federal finery succumbing to republican, that is, rights-conscious, limited government. This account of nineteenth-century intent and twenty-first-century reality is presented less in the tone of lament (see by contrast George Grant's 1965 indictment of the Canadian establishment's failure of will in its relations with the United States) than as an inventory of what has been lost of Canada's original exceptionalism.

At one level it is a familiar tale. The Fathers of Confederation sought to escape the restraints and near-paralysis of colonial politics through consolidation, but not on the model of the United States. To their mind states rights had led to the Civil War, but US democracy fed demagoguery all the time. This was to be expected because in republics political virtue, they believed, flowed up from the bottom; in monarchies the movement was reversed - all was top down. And Canada, notwithstanding its size and social complexity, was to be a very top-down country, beginning with monarchy.

In Victorian politics, here and in Britain, executive power arose from and was responsible (only) to the legislature. The theorist of this centralized constitutional vision was the seventeenth century's Thomas Hobbes, as Frederick Vaughan is at some pains to demonstrate. There is no shortage of examples of high centralization in Canada, among them the federal government's power of appointment, reservation, and disallowance, and Parliament's declaratory and unlimited taxing powers. Still, academics fail to appreciate what this concentration of power signifies. According to the author, diffusion of authority associated with federalism sits uneasily, which is to say not at all, with monarchical government. It was for that reason that proponents of Confederation at Quebec minimized the first and stressed the second characteristic of their work.

In his introduction, Vaughan says he wants to rehabilitate the Fathers, because their enterprise was virtuous and they were heroic in its pursuit. He proffers a second, more mundane, reason: to understand the present one must know the past. Worthy as this latter ambition may be, its execution is unhelpful when Vaughan comes to that indefatigable subject of Senate reform. He gives a good account of the considerations that led to the structure of the Senate, beginning with the fact that neither Ontario nor Quebec would accept the principle of equality of representation of provinces, for the obvious reason that there was no equality between them and the Maritime provinces. Yet he also says that the Senate 'failed to serve the ends for which it was devised ... because it was not a national forum for the expression of provincial interests.' The composition and purposes of the Senate are more complex than he allows. At the same time, to opt, at least implicitly, for a classical federalist standard against which to measure Canada's upper house contradicts his earlier advocacy of Hobbesian theory.

However, in this book, inconsistency is the least of the ailments afflicting Canada's political arrangements. The constitution is under attack, Vaughan maintains, and a measure of the offensive's success is the decline of Parliament. The enemy are rights enthusiasts, the Charter of Rights and Freedoms, and the Supreme Court of Canada, who have willingly grasped and enunciated a new first principle of the constitution - judicial supremacy. The result, says the author, is that 'the transformation to republican government has taken hold in the public mind.' The Supreme Court's judgments on abortion, pornography, and religious observance are discussed critically, the last being described as 'the thin edge of the wedge leading to separation of church and state.' The Court's presumptions in the era of the Charter are engendering a separation-of-powers mentality on the bench too, and thus challenge the theoretical understanding of 1867. Vaughan leaves no doubt that...