The Canadian Founding: John Locke and Parliament (review)

Ours is a curious constitutional narrative. In the first place, the event of 1867 has, over time, become figured in both scholarly and popular imagination as something very much other than a founding. According to this view, the Fathers of Confederation were less national visionaries than provincial reactionaries who, in response to what they took to be the rapid republicanism threateningly afoot elsewhere on the continent, mounted a stodgy, stolid Tory defence of the status quo in Britain's remaining North American colonies, elite distributions of communal power and influence especially included. So understood, our constitution is collectivist in origin and by impulse. Thus appears a second curiosity. Since the content of the Fathers' collectivism is a dead letter historically, proper constitutional practice subsists in making anew the social values that constitute Canada and distinguish Canadians from the individualistic republican rabble to the south. Since the 1960s especially, a whole host of social values has been nominated and defended for this purpose by national political, scholarly, and, most recently, judicial elites, and though no single value has yet to win the day, their joint effect has been to declare Canada a state defined and guided by consensus on social values constitutionally rendered and enshrined. And here resides a final curiosity: according to this understanding, Canada is, alone among the liberal democracies, a Kulturstaat, a state that by dint of its constitutional origin and practice is constituted, not by its liberal political commitments, but rather by a cultural consensus that its constitutional politics exists to serve and preserve.

It is Ajzenstat's purpose in this welcome and timely volume to prove the first curiosity false and to declare the other two, and the statist social vision they offer, a path to national ruin. She marshals two tools to this task. The first is historical. Unlike the cultural identity scholars who, as she rightly puts it, scandalously ignore the historical record, Ajzenstat bases her understanding of the significance and meaning of 1867 on the ratification debates on Confederation that occurred in the legislatures and assemblies of the British North American colonies between 1864, when delegates to the Charlottetown and Quebec Conferences were chosen, and 1873, when the Parliament of Prince Edward Island finally made its decision. The second is conceptual and resides in the well-established distinction between civic and cultural identity that finds wider expression in the distinction, so important here, between a political state and a Kulturstaat. These tools render rich and important results.

So far as the Fathers are concerned, she uncovers them as philosophically literate and impassioned partisans of nation building, as in fact and by deed founders, and with that she puts paid the notion everywhere else on scholarly sale that they were mere elite deal-brokers. So far as the founding itself is concerned, she convinces that their constitutional intention and accomplishment was to erect what in a nice turn she terms a 'barebones constitution' devoted to the peculiarly political and unabashedly Lockean principles of limited government – moral and political equality, individual rights, the rule of law, and the primary and independence of social life – principles that their constitution anchors in a national Parliament and in a shared national political identity. As part and parcel of her argument in these regards, she offers a wonderfully Lockean reading of the British North American Act – in the Sovietspeak of cultural constitutionalism now rendered as the Constitution Act 1867 – that both inspires and lays fully and finally to rest constitutional collectivism and its illiberal cultural identity.

Ajzenstat's argument on the consequences of cultural constitutionalism, though suggestive, is less precisely and certainly less conclusively put. The first, indeed causative, consequence is clear. We have embraced the cultural view, she claims, because we have abandoned, through ignorance, our real constitutional history. We no longer understand the Constitution of Confederation, as did the founders, as a democratic pledge to the protection of rights to life, liberty, and property; and with...