Comment: Liberalism, Federalism and the Origins of Confederation

Comment: Liberalism, Federalism and the Origins ofConfederation The past decade has witnessed a renaissance in interest about the ideological originsofConfederation. The new literature on Confederation, much of which has been produced by political scientists and legal historians rather than conventional political historians, is frankly revisionist in spirit. Its goal is to counter the well-worn view that Confederation was a political settlementthat responded to various identifiable interests but elicited little reflection about basic political and constitutional ideas. As an historian once put it to me: "The Fathers ofConfederation were a prettygrubby bunchofmid-Victorian politicians with real constitutional problems to solve, an important Northwest to acquire and railways to bail out or build. Why chart their supposed voyage in search of first principles?" Theanswer, as BryceWebersays so well, is that even if the Confederationists did not overtly or consciously pose as "Founders" their actions reflectedcertain commonly held ideas about politics and government. They reflected, morespecifically, a liberal understanding ofthe appropriate limits to governmental action. By this account liberalism depends on maintaining the integrity of a private sphere of action in which free, autonomous andjuridically equal individuals act in ways that correspond to their desires, preferences and aspirations. For this ideal to beachieved, the powersofgovernment have to becarefullycircumscribedand limited. In the name ofindividual liberty, certainquestions have to be"organizedout"ofpolitics by ensuring that they do not reach the political agenda; in this sense, according to Weber, liberalism is laissez-faire. This caricature of liberalism is conventional enough. What is unconventional, indeed novel, about Weber's presentation is the suggestion that this basic liberal distinction between public and private spheres informs the federal division ofpowers setout in the Constitution Act, 1867. Weber wants to argue that the Fathers ofConfederationgave 104 the federal government jurisdiction over those matters that fell legitimatelyand clearly within the"public" realm, while leaving to the (weaker) provinces those matters that were perceivedto beessentially privateand which, therefore, had to be insulated from publicor political control. Thus, while the federal government was given clear authority to foster national economic development, the provinces were generally given sovereignty over"cultural, genderand market relations." Itmadesense to relegate thesequestions to the provinces, argues Weber, because the Confederationists assumed that the provincial governments, being weaker, "would be less capableofintervening in the areas ofconcern that were assigned to it." In this sense "the provincialgovernments wereestablished by the (Constitution) Act as laissezfaire governments "; their weakness was a function not merely of the Confederationists' welldocumented centralism butoftheir liberalism as well. The Constitution Act thus both created a federal division ofpowers and reinforced a liberal limitation on power. This is a provocativeinterpretationofthe originsofCanadian federalism. Yet precisely because it is historically situated and claims to provide insight into the organizing principle which structured the actual division of powers, itseemsfair tojudgethe thesis by the evidence. Is this a plausible (rather than merely a possible) interpretation of Confederation in lightofthe empirical evidence? Canone really inferat leastan implicitlaissezfaire -ism from the original division of powers? Weber's argument is historically sweeping . He contends that the laissez-faire paradigm dominated Canadian federalism from 1867 until the 1930s, although heseems to accept the conventional judgment that the Fathers ofConfederation were particularly important because they set the terms of the debate. Weber follows conventionas well in assuming that John A. Macdonald encapsulated the Fathers'"intentions."To the extent that he refers to primary sourcesat all, Weber cites Macdonald's speeches (and other commentators' references to Macdonald). In fact, Macdonald's vision ofCanadian federalism is perhaps the least plausible Revue detudes canadiennes Vol. 26, No. 2 (Eti 1991 Summer) evidence for theargument. Weber argues that the original division of powers between federal and provincial governments reflected a desire to provide the widest scope for unregulated privateor market activity, and he wants to say as well that this sphereofprivate activity essentially coincided with provincial jurisdiction. Provincial governments would be"weaker"and hence less able to initiatestate action in these large areas (including social welfare, labour regulation, gender relations, culture, and education) that liberals believed ought to remain unregulated. Perhaps, but it seems rather bizarre to ascribe this view to Macdonald. Sir John expected that the provinces would be weak, not so much because they would be unable to initiate...