Constitutions organize and constrain the exercise of political authority. They name the institutions through which that authority is to be deployed, and they define the parameters outside of which authority should not stray. Charters of Rights are the most visible such parameters. But they coexist with others.
There is a variant of political conservatism according to which the constraints on the exercise of political authority cannot all be explicitly codified. Rather, such constraints are embodied in traditions, customs, and habits, which crystallize the accumulated wisdom and virtue of political predecessors. For a conservative of the kind I am describing, such constraints, rooted in history rather than codification, have normative weight. That is, a conservative political agent would see himself as bound by these constraints just as powerfully as he is by the codified rules of political practice.
Another way of putting this point is that there are both written, and unwritten constitutional norms. Our constitutional system is a hybrid one, consisting of both written and unwritten norms.
That such rules coexist, the latter complementing the former, is actually a requirement of the Westminster form of parliamentary democracy we have inherited. Unlike our neighbours to the South, the written Constitution is not the only source of constraint upon the use of political authority. The US Constitution was built on the assumption that it was important to the preservation of liberty from overweening political authority to economize upon political virtue. The Founders of the American constitution built numerous checks and balances into the political system itself, rather than relying on the internalization by politicians of customary norms. Given the status of the United States as a new kind of political system, one built upon an explicit rupture with the past, that may very well have been the only sensible solution to the problem of containing political authority.
Checking political authority through institutional checks of course has its costs. I am after all writing these lines minutes before the equipoise created by the US Constitution between different orders of government is about to give rise to a shutdown of governmental operations!
Our democracy does not explicitly burden the exercise by political authorities in quite the same way. It is often said, for example, that the Office of the Prime Minister in a Westminster-style democracy is, when the government party holds a majority of seats in the legislature, the most concentrated site of political authority in any democratic system. Indeed, the combination of the lack of a real executive branch that might check the legislature, on the one hand, with the institution of party discipline that makes the prime minister [End Page 228] sovereign over the legislature, on the other, is indeed a recipe for concentration of political authority unrivalled in any democratic political system of which I am aware.
This is where traditional constraints on the exercise of political authority, voluntarily taken on and internalized by office holders, and in particular by the prime minister, are of great constitutional importance. Such constraints, rooted in the history of the exercise of political authority, in effect prevent our system from lapsing into the kind of tyranny that the relative lack of checks, combined with party discipline, at least in principle allow.
The government of Stephen Harper, despite its claim to allegiance to political traditions, exemplified most obviously by our prime minister’s mawkish celebration of the institution of the monarchy, shows absolutely no signs of caring about these traditional constraints. This unconcern is surprising, coming from a political party that still calls itself “conservative,” and which, one would have thought, would be more favourably inclined than politicians of more tradition-defying, leftist stripe, toward the normative pull of historically channeled wisdom.
Two examples that illustrate our Prime Minister’s obliviousness toward the traditional constraints that have over time effectively constrained the power vested in the office of the prime minister come to mind.
First, Stephen Harper has made a usage of the prime minister’s power to prorogue parliament that has raised eyebrows, and that has attracted the opprobrium of even such Conservative-friendly news outlets as The Economist. But it is worth pondering...