Far beneath the ongoing public upset over Prime Minister Harper’s decision to appoint an unelected Montrealer to the Senate and the Cabinet, and to persuade a former Vancouver Liberal to cross the floor is public confusion about the nature of our constitution and the concept of democracy.
As if by instinct many of us, myself included, were perturbed to see our freshly-minted PM behaving like the liberals we had just thrown out. Encouraging a liberal to betray his electors by crossing the floor as had Belinda Stronach? How can that be responsible behaviour in a democracy? Appointing an unelected man as Senator after years spent campaigning for an elected Senate? It all had the stink of party politics and maudlin revenge. That is the surface of things. But far beneath is the truth of our own history that must be revisited in order to understand what appear as shenanigans today.
Turn on the TV. Open a newspaper. Inevitably you will be treated to some impassioned American or Canadian insisting: “we live in a democracy!” But the truth is, we don’t, and were never meant to.
The Founding Fathers (FF) of both nations were by their lights justly terrified by democracy. All the elegant and impassioned American arguments against it can be revisited in The Federalist Papers (Penguin, 1987) by Madison, Hamilton, and Jay. What a storehouse of moral and political insight awaits us there! And what determination to avoid the perils of raw democratic rule. After the 1776 War of Independence (it was not a revolution) the 13 colonies suddenly became 13 states. The emphasis then was on the word “states” and not on the word “united”. And all hell broke lose accordingly. Most of the states raised their own navies, often to fight each other, and also fought interminably over their own state boundaries and rights to new lands in the Territories. Many of the state legislatures also proceeded to eliminate their own Senates on the grounds of interference with the democratic will of “the people”. And so the people – mostly angry indebted farmers, began to flood the legislatures and demand forgiveness of their debts or the printing of fiat money to pay them, which they got. In other words, they democratically conspired to legally cheat their lenders. In the state of Vermont, the legislature conspired against what was intended to be the independent voice of justice and overturned about 90% of all the decisions of its own courts. Democracy in action looked pretty bad. In Massachusetts, direct democracy had gone so far that individual towns actually declared a right to invalidate laws from their own state legislatures!
The Canadian FF knew a lot about the American situation, and were very well instructed in the horrors of radical democracy as it had played out in the French Revolution. For their equally elegant thoughts, I am proud to offer Canada’s Founding Debates (University of Toronto Press, 2003), by Ajzenstat, Romney, Gentles, and Gairdner. There are wonderful speeches in it about how Canadians must beware of democracy and American republicanism and seek a balanced constitution on the British Model. One FF, the French Canadian Joseph Cauchon, set a magnificent tone on March 2, 1865 when he implored us all to “have the courage to rise superior to passions, hatreds, personal enmities, and a miserable spirit of party, in order to allow our minds to soar more freely in the larger sphere of generous sentiments, and of great and noble aspirations.”
What does all this have to do with the PM’s actions? Wasn’t he so obviously offending democracy by urging David Emerson to cross the floor and so blatantly abusing the will of the electors who sent Emerson to Parliament?
Not if you see it from the side of the British Constitution rather than from the side of the unfettered democratic will of the people. Cauchon, once again, this time on March 6, 1865 puts it in the proper perspective: “Our Constitution is constructed upon the model of the British Constitution, and … members do not and cannot receive an imperative order from their electors. Each representative, although elected by one particular county, represents the whole country, and his legislative responsibility extends to the whole of it.”
This is the British model – and there is a lot of precedent for floor-crossing in British as well as Canadian history – under which Harper and Emerson felt justified by something that seen solely under the magnifying glass of radical democracy appeared so abusive of the will of Emerson’s electors.
So on two grounds, Emerson and Harper were in the clear. A representative under our constitution is elected locally, but then his legislative responsibility is immediately transferred from them to the whole people. Our own first PM John A. Macdonald, put it sharply: “We, in this House are representatives of the people, and not mere delegates [of our electors].” In other words, Macdonald and the other FF were standing for a form of British Constitutional democracy that they deemed far higher and nobler than the mere direct form that had torn apart the 13 states.
The second ground that clears Harper, if not the optics of his actions in today’s milieu, is that a Cabinet Minister in the British model acts in the name of the Crown, and not in the name of the people. A PM may freely appoint any citizens of ability he wishes as advisers to his Cabinet. Election by the people is not a requirement to be a Cabinet Minister. In principle he could appoint a whole Cabinet of unelected Ministers, but would not do so as that would be both unwise and against unwritten constitutional precedent.
As for an elected Senate in Canada? Here, too, we must heed our own history. The reasoning behind an unelected house was that the passions underlying the new legislation of the people in the Commons ought to be subjected to a Chamber of “sober second thought.” And that requirement was based on a metaphor of the cool mind calming a hot body. For anyone truly alive has felt the war between mind and body themselves. It was also grounded in the ideal of the Great Man, so to speak: the idea that it is possible to fill a Senate with older, wiser, nobler, and above all impartial people above the stink of party politics whose job it was to help us reflect on our own legislative will.
So now, in a different time, these two conflicting models of democracy rear their heads once again. What is to be thought and done?
On the matter of crossing the floor, we could accommodate both systems by agreeing that under our model a representative must not be tied directly to his electors and may indeed for the good of the whole people cross the floor. But we could modify that right by saying that the right to do this is limited to one year from the crossing, after which the electors may force a by-election to democratically legitimize or invalidate the crossing.
For there is no getting around it: the democratic imperative has increasingly asserted itself as against the higher democratic British form for about a hundred years now. Examples are the American Senate, which began its existence with appointed Senators on the British model, but was altered in the early years of the 20th century to an elected chamber. The American FF must have rolled in their graves! And in Canada, the increasingly loud call for a “Triple E Senate” – Equal, Elected, Effective – will not diminish. So what are Canadians to do about the conflict of models and their Senate?
We could compromise by allowing each Canadian Province to present a list of candidates, elected if they wish, from which the PM may then appoint Senators. This way, we preserve the right of the PM to select Senators, but we control his choices and avoid the problem of filling the Senate with his personal friends or party hacks.
In closing, here is a sobering thought. The modern surge of insistence for “democratic rights,” which as often as not these days are identified with personal rights, is not an expression of our higher faith in the people - ourselves.
It is an admission that people of greatness, statesmanship and noble sentiment who are capable of standing above all base political interests are now much harder, if not impossible to find. It is an admission of loss of faith in ourselves.