The Canadian Founding: John Locke and Parliament

By Janet Ajzenstat
McGill-Queen’s University Press
199 pp.
$29.95

The study of Canadian identity has preoccupied many Canadian political, sociological and historical scholars. Like Canadian unity, it is a topic that virtually has its own industry. Scores of books have been written and conferences convened on the subject, and yet still no one has found a definitive answer to the question of what Canadian identity actually is.

When we hear the term Canadian identity, it usually connotes something cultural. Since the Pearson era, Canada’s nationalist left has sought to construct a cultural identity based on ideas such as peace-keeping and multiculturalism and words like tolerance and inclusiveness. The political right has scarcely tried to fight back this statist social engineering, though since the Conservative government’s election in 2006, signs of a mild counter-offensive have appeared. Think of the Stephen Harper’s increased emphasis on historic military symbols, his championing of Arctic sovereignty and the quiet de-emphasis of the Charter of Rights in the political discourse. But how about challenging the very notion that any kind of collective cultural identity is required, or even desirable?

In The Canadian Founding: John Locke and Parliament, Janet Ajzenstat, professor emeritus of political science at McMaster University, does just that. Ajzenstat asks us to fundamentally rethink the intellectual underpinnings of the Canadian founding and to recommit to the vision she believes Canada’s Founding Fathers adhered to. Ajzenstat is one of the few Canadian political historians today who promotes an in-depth examination of the ideas of the founders which, she argues, are too often ignored — and when they aren’t, are gravely misunderstood.

Mainstream contemporary political historians accept the argument that our founders were somewhat influenced by Locke, but they argue the predominant strain of thought was the inspired by Edmund Burke, and thus more collectivist and Tory in nature. This conception of the Canadian founding is where the erroneous view comes from that Canada is inherently a less “individualist” country than our southern neighbours. We’ve all heard the dichotomy: the Americans are the “life, liberty and the pursuit of happiness” country while we adhere to the kinder, gentler “peace, order and good government” mantra.

A more careful examination of the debates from the pre-Confederation period reveals something different, says Ajzenstat: the country’s founders subscribed to the Lockean doctrine of popular sovereignty, the notion that the government can only govern with the consent of the governed. In other words, they were true democrats. The proof can be gleaned from reading the transcripts of the provincial legislatures’ debates surrounding the ratification of the British North America Act. Until now, the content of these debates has been ignored, a fact which Ajzenstat, who examined the documents, calls “scandalous.”

Ajzenstat’s view puts her squarely at odds with most other Canadianists, such as Peter Russell, who reject the idea that the founders were united by a common vision of the country they were building. She believes the constitution’s central purpose was to “allow the contestation of different views.” She posits that the populations of the colonies would “identify” with the new country because they had consented to it at confederation and to institutions like parliament. The idea of a common cultural identity was eschewed deliberately:

The Canadian founders rejected the idea of a national cultural identity not only because those meeting at Quebec in 1864 represented different political constituencies and not only because they required the agreement of Liberals and provincial rights advocates as well as dyed-in-the-wool Conservatives. They also rejected it because a substantive identity is inevitably exclusive, favouring the founding peoples over late-comers, the majority over minorities. The founders’ rejection of the collective national identity was considered and deliberate. They expected the population of the new nation to take pride in their “identity” not because it was distinctive, not because it encapsulated a social vision, not because it incorporated a particular history or expressed particular social and economic values. Rather, they expected the population to be proud that the country’s Constitution and laws would allow it to do well the things that all countries should do: promote equality, non-discrimination, the rule of law, justice, civil peace, and prosperity. (Page 108-109).

Ajzenstat therefore sees political identity rooted in popular sovereignty as the great unifier in Confederation. Cultural identity is inherently exclusionist; the founders deliberately avoided creating a social or cultural identity and left that up to the provinces, precisely because no unifying vision could be agreed upon.

Ajzenstat’s historical survey is rather convincing; she produces many quotes from the pre-Confederation transcripts to back up her claims of Lockean inspiration. Just as interesting or even more, however, is her examination of how today’s Canadian political consciousness has moved away from this founding notion of parliamentary sovereignty. To Ajzenstat’s dismay, Canadians have come to look to extra-parliamentary structures (in particular, the Charter) as the guarantors of rights. As she notes:

Canadians have lost confidence in their democratic Constitution’s “protection.” We have forgotten that parliamentary government was designed to secure our right to life, liberty and property. We can no longer bring into our minds without great effort the idea that Parliament’s inclusiveness and freedom of deliberation protect dissent, political opposition, political minorities, and thus our political and legal equality. We can say the words “free governments encourage human rights; illiberal governments discourage rights.” The formula still has resonance. But the means, the mechanism, by which parliaments and representative assemblies foster individual liberties lies under a cloud of unknowing. (p. 65).

Ajzenstat even points to the Charter’s notwithstanding clause, which essentially says that sometimes, parliament ought to prevail over the courts. But this notion has imbibed Canadians with a sense of parliamentary sovereignty or rights dichotomy – as if it’s one, or the other. The Canadian founders believed parliamentary sovereignty was there to secure rights and if parliamentary sovereignty is breached, so are rights.

All this is to say that the modern Canadian operates today in a way the founders wouldn’t even recognize. Ajzenstat laments the decline of legislative supremacy and the shift toward institutions – the courts, for example, or international tribunals – that disregard parliament, are less accountable, and to which voters do not give their consent. What’s more, the federal and provincial division of powers are not respected and an activist Supreme Court routinely steps in for parliament to alter public policy.

Ajzenstat’s advice on how to turn back the clock is simple: stop ignoring Locke and the founders’ vision, restore parliamentary supremacy, stop trying to invent (read: impose) cultural identity, and recommit to first principles. Aside from obvious questions such as whether or not national cultural neutrality is an attractive idea, the most serious one is whether Ajzenstat’s project is even feasible. Too few Canadians know enough about or care what the founders had to say (myself included, until I read this book) to create any demand for change. With the sweeping demographic changes that have occurred and continue apace, this phenomenon will no doubt continue. Second, given the prevailing wisdom amongst Canadianists in the academy, the next generations of Canadian political historians will unquestionably adhere to the conventional “Tory” view of the founding that Ajzenstat persuasively debunks. Third, and perhaps most importantly, any move toward an embrace of Ajzenstat’s ideas would take the existence of a political will: Federal politicians would have to abandon the course they’ve been on for a half century. Most pragmatic observers would likely agree that this is impossible because we’ve travelled too far away from the originalist idea to ever return to it. To my regret, I think they would be right.

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