The Innate Parochialism of Canada’s Modern Constitutional Consensus

A review of Christopher
Manfredi and Mark Rush’s
Judging Democracy

Broadview Press, 152 pages,

“If there is one constant theme in the scholarly literature concerning American and Canadian constitutional laws, it is that the two nations are quite different.” That opinion, from which the authors of Judging Democracy will dissent, is the scholarly consensus formed around the notion that the American constitutional tradition “promote(s) individual rights and place(s) substantial restrictions on the capacity of government to legislate for the common good. By contrast the Canadian Charter is much less individualistic in both text and interpretation.” The authors then explain that they “have written this book in part to refute this analysis.”1

1 While the authors believe “the desire to demonstrate some distance between Canada and the United States is plausible” they see the scholars as having overstated “the differences between the American and Canadian regard for rights in general, and electoral rights in particular.” In fact the American Court has
been “more willing than Canadian critics have admitted to engage the elected branches in a dialogue about constitutional development” while “the Canadian Supreme Court is not as disposed to engage in a dialogue with the federal and provincial legislatures as some Canadian scholars suggest.”

The principal target of criticism here is Patrick Monahan and the scholars who have followed in his wake (Feasby, MacIvor, Hiebert). Monahan, the authors say, has attempted to distinguish Canadian constitutionalism from its American counterpart by asserting that the “value of community” has always received a “particular emphasis” in Canada in contrast to “the overriding individualism of the American

The conception of judicial review which animates the Canadian Charter then is “democratic” and therefore much broader that “the individualistic vision that informs the American constitution.” As a corollary of this notion the Canadian judiciary is expected to show more restraint in its decision-making in order that “the elected branches of the government can engage the polity in a sustained discussion of issues and policy.” Especially important for the “Monahanian” case is the priority of property rights under the United States Constitution. The suggestion is that when it comes down to an either/or between the common good and the
right to property, the former will be sacrificed to the latter under the American jurisprudential tradition.

All of this is too much for Manfredi and Rush to accept. They point out that there is a longstanding American tradition of subjugating “the contract clause and property rights associated with it to the common weal” and the “the American Court has never regarded the property right as an insurmountable barrier to pursuing the collective or community interest.” In fact there is a “strong current in American constitutional thought” epitomized by Justice Stephen Breyer that is sympathetic to what Monahan claims is the “uniquely Canadian” vision of democracy.

Indeed, the authors’ purpose in part is to show the extent to which Justice Breyer “agrees with Monahan.”3 In other words, Professor Monahan has failed to recognize the extent to which his vision of Canadianism is deeply embedded in the American tradition. The new or democratic Canadian jurisprudence post-1982 was in fact old hat south of the 49th parallel.4

2 The Monahanian view is premised on the notion that “democratic politics trusts the legislature to generate good (if not right) results over time.” But the authors aim is to show that this approach has been more radically called into question in Canadian as contrasted to United States cases. Thus they say “that, in some
ways, the American Court’s approach to the political process appears to be more Canadian and dialogic than that taken by the Canadian Court.” Canadian scholars may make their assertions about American individualism but for all that, the United States Supreme Court “has balanced competing conceptions of rights, engaged in dialogue with the Congress and state legislatures concerning the definition of voting rights, and respected the incremental process of legislative deliberation.” However, the Canadian Court’s “impatience with the deliberative legislative process presents in some cases an ominous threat to the dialogue envisioned by the Charter.”

3 They note that, “A host of decisions from the (US) Supreme Court dating back to the early nineteenth century indicates that, contrary to Monahan’s characterization, the Court did not promote the protection of individual property rights at the expense of the public good. In fact the opposite is true.”

4 As an example here Manfredi and Rush cite the case of US v Carolene Products (1938) which in fact resonates nicely with Monahan’s very own “assertions of the need for courts to constrain individual rights in favour of the public interest and to promote democratic participation.” As far back as the 1930’s then, Monahan’s “collectivist spirit of … mandat(ing) that the courts refrain from using individual rights to stop the community from pursuing its collective rights and will” was already well entrenched in the United States. For Monahan the “impulse to freeze into place, through constitutional fiat, a particular set of economic, social, and political arrangements” should be resisted at all costs. Rather a modest dialogic
approach to judicial review should be adopted in order to “protect the political process and the robustness of democracy.”

The issues around which Manfredi and Rush’s case revolve are those to do with campaign spending, political speech, redistribution, and prisoners’ voting rights. On these matters the ongoing conversations on both courts have “been remarkably similar” and at the end of the day “the differences emphasized by critics seem to have been overcome by the intractability of democratic rights.” The case law shows just “how much Canadian and American law have converged despite assertions that the jurisprudential traditions of both countries are quite different.” Our authors are especially struck by the “common terms of the debate” on the two courts “because they arose within the context of a scholarly consensus about the stark differences in the two courts’ theories of rights and democracy.”5

Thus Manfredi and Rush argue that “it is no longer accurate to say” that the jurisprudential traditions of the two countries lie at “opposite extremes of a libertarian-egalitarian spectrum.” There are members on both courts (led by McLachlin in Canada and by Kennedy, Scalia and Breyer in the United States) who “are now willing to offer only qualified deference to the legislature when dealing with the regulation of the electoral process.” So, sadly for the Monahanian case that Canada’s is a deferential, communitarian, constitution rather than an individualist, rights-oriented one, a convergence of the two courts has precisely developed around “judicial scrutiny and solicitousness of rights of individuals and minority groups and balance their claims against the legislature.”

We are led to the conclusion that in respect of the subject area covered by Manfredi and Rush the opposite of the Monhanian case by and large turns out to be the truth. At least in respect of the criminal disenfranchisement cases “the Canadian Court was the most theoretically rigid and correspondingly least
deferential toward the legislature’s reasoning.”

In fact, the Canadian Court “chose one version of democratic theory and overruled competing visions that offered reasonable (but not necessarily popular) bases for criminal disenfranchisement.” In Sauve 2 the Canadian Court claimed “to have a clearer vision of democracy than the legislature, going so far as to dismiss countries that disenfranchised criminals as ‘self-proclaimed’ democracies.” 6 In other words, the Canadian court went much further in the allegedly American direction than the American court itself has

5 According to Manfredi and Rush the decisions regarding electoral regulations should be especially unsettling to those committed to a “dialogic vision of constitutional interpretation” because it “undermines two important premises of this view,” firstly that there must be “mutual respect between the judiciary and
the rest of the government” and secondly that there should be a willingness on the part of the judiciary “to defer to the legislature based on a trust of the latter’s motives.” Manfredi and Rush are at odds then with “Canadian critics such as Colin Feasby, Heather MacIvor, and Janet Hiebert (who) have asserted that the two nations’ campaign spending decisions were rooted in fundamentally different conceptions of individual rights and theories of democracy and political equality.” The authors argue that the Monahanian vision of a Canadian approach to constitutional questions which is more egalitarian than that of the United States has foundered on the shoals of cases (Libman, Figuroa and Harper) which are “too complex to fit neatly into one egalitarian category.” In McConnell v. Federal Election Commission “Justices Scalia and Kennedy arrived at the same conclusion that Justice McLachlin would make six months later in her dissent in Harper.”

6 In the Sauve 2 case dealing with criminal disenfranchisement Madam Justice McLachlin structured her judgment “in such a way as to preclude any further legislative response to judicial nullification short of formal constitutional amendment.” In other words the Chief Justice of the Canadian court rendered nothing short of a “super U.S. style” opinion in Monahanian terms. So while in this respect Canadian courts have tended to act along all-American lines we observe Chief Justice Rehnquist on the United States court playing the Ultra-Canadian in insisting that the “states have complete discretion on criminal disenfranchisement.”

ever dared to go. In fact the Canadian court is in some sense so American (in Monahan’s terms) that it’s “approach to the democratic process threatens the dialogic method of constitutional interpretation and the integrity of the democratic process it promotes.”

The broader question raised by the conclusions to which Manfredi and Rush were drawn by their research has to be: Why did the Canadian scholars get it all so wrong? How could they have missed the target by such a wide margin and been guilty of such a gross misinterpretation of the historical-jurisprudential record?
The answer here I think has to do with a certain kind of parochialism. The Monahanian perspective is limited by its Canada-First focus. Rather than stress the fact that, rooted as they are meant to be in human nature itself, the Rights of Man are universal phenomena or they are nothing, Monahan suggests that the Charter of Rights and Freedoms is “a uniquely Canadian document.”

Actually, the Canadian Charter is a fish that cannot survive outside of Canadian waters. It becomes meaningless if considered in the context of an “alien culture” and outside the parameters of “the Canadian political tradition itself.” Those who would interpret it correctly need not be detained by considerations rooted in American, British or European political philosophy but instead should interpret the Charter in terms of fundamental Canadian values. In other words, Monahan’s purpose is to hive off Canadian liberalism from the great western tradition of natural rights stretching as it does from Hobbes and Locke to Paine and Jefferson and in some sense down to “the profoundly individualistic philosophies of Ronald Dworkin and other American fundamental rights theorists.” Monahan prefers an insular, local approach where rights are not fundamental but negotiable and the individual is demoted from his godlike status in fundamental rights theory to a member of a community who will be dealt with according to the collective good as defined by the legislature.7

Let us not be reticent here to describe the Monahanian characterization of the comparative political traditions of Canada and the United States as presented by Manfredi and Rush, as a claim to Canadian moral superiority. The authors paraphrase Monahan as insisting that “Canada promotes a communal vision
of rights that contrasts markedly with the ‘impoverished’ vision of community that inheres in the United States” and as maintaining that while the Canadian Charter is “aimed at collectively enhancing and protecting the integrity of the Canadian democracy” the American Constitution is “designed to protect individual rights at the expense of the collective good.”8

The impression is unmistakable that Monahan is suggesting that Canadians somehow live on a higher ethical plane than their neighbours to the south. Indeed, only a conviction in Canada’s more elevated moral status could explain the intellectual laxness concerning the jurisprudential record of each country which
Manfredi and Rush have demonstrated to be involved in the scholarly consensus.

At one point in their treatment Manfredi and Rush indicate the intellectual roots of Monahan’s parochialism. They describe him as arguing that the individualism which has been introduced into Canada by the adoption of the Canadian Charter of Rights and Freedoms has been “tempered by Tory (or communitarian) traditions of Canada.”

7 For Dworkin the very term “right” may well imply an absolute claim against the state but according to Manfredi and Rush “the American court has not adhered to this vision of individual rights.” So from their point of view Monahan has confused the theorizing of Dworkin with the actual jurisprudence of the United States Supreme Court.

8 If the notion of community is identified with the concept of the state then it becomes possible to say that if “The American vision of rights is suspicious of any attempt by the state to assert a particular vision of the public interest” then this vision must be at odds with the ideal of the good society.

This Tory-touch thesis concerning the nature of Canadian political culture, usually associated with the ideas of Louis Hartz and Gad Horowitz, emerged out the demise of British North America or of the “Dominion of Canada” famously described in George Grant’s Lament for a Nation (1965). Canada’s distinctiveness from the United States as a part of Britain’s God-given mission to spread liberal civilization throughout the world was replaced by the idea of a Tory-touch being brought north by the losing party in the American Revolution. The unhappy experience of the United Empire Loyalists with the politics of the Rights of Man
ensured that pure Lockeanism would have a limited appeal in British North America.

Not surprisingly perhaps, the new Tory-touched Canada which emerged in the 1960’s and which has been taught in virtually all Canadian Politics 101 university courses since that time turned out to be less concerned with throne and altar than with an interpretation of rights far in advance of those referred to by Jefferson when he announced that “All eyes are opened, or opening, to the rights of man.”9 Indeed, the new Tory-touched Canada can only shudder when it looks back on the old Victorian Canada with its God-given mission to help take the Union Jack and liberal civilization to a suffering mankind.

So we see post-1960’s Canadian nationalism with its inevitable anti-American touch at work in the field of jurisprudential scholarship covered by Manfredi and Rush. This nationalism (or dare we call it patriotism) has led to the misrepresentation of the history of United States Supreme Court jurisprudence and to a misunderstanding of the relationship between fundamental rights on the one hand and the power of the judiciary on the other. The scholars criticized by Manfredi and Rush have been shown to be unknowing about their own country’s philosophical and political traditions and to have latched on to an ad hoc theory of
a more egalitarian version of democracy in Canada.

But as with all such theories that are confected as responses to the prevailing now a look at the hard evidence points to their inaccuracy. What Manfredi and Rush have shown is that historically speaking the differences between Canadian and American liberalism are more or less entirely to do with time and circumstance but never to do with any deep disagreement over a vision of democracy or the ends for which the liberal democratic constitutional order has been established.

But it is possible that the claims of a fundamental divergence between Canadian and American conceptions of the political good put forth by the constitutional scholars critiqued by Manfredi and Rush just might turn out to be a self-fulfilling prophecy. The lead investigator for the Canadian Human Rights Commission, Dean Steacy, has recently been quoted as saying that “Freedom of speech is an American concept, so I don’t

9 Thomas Jefferson, letter to Roger C. Weightman, June 24, 1826. What has been missing from the post- 1960’s narrative about Canadian political culture has been an adequate accounting of the influence of the British utilitarian tradition in Canada and with it a due sense that Bentham and Mill have been to Canada what Locke and Jefferson have been to the United States This utilitarian tradition is famous for insisting that all talk of human rights is “nonsense upon stilts” precisely because when it comes to practical politics all legislative and policy questions come down to the problem of assessing the requirements placed on all
members of the community be the need to secure the common good In other words, at the end of the day all talk of rights comes down to metaphysics and is merely a distraction from the hard-nosed process of distributing the costs and spreading the benefits of any legislative choices as widely as is practicable
throughout the community. This was implicitly the basis of the Canadian tradition (and not so implicitly in the case of someone like Frank Underhill who acknowledged the influence of Mill on his generation). In the light of this background the insertion of an American style Charter of Rights into the Canadian mixture in 1982 represented a step backward from the nineteenth to the eighteenth century. Needless to say John Stuart Mill had little time for Toryism.

give it any value.”10 Whether this is just an isolated remark or a swallow truly bringing a new spring is open to question. But whatever the case there is a sense in which we could say that all Mr. Steacy has done is push the Monahanian thesis to a logical conclusion which even Professor Monahan himself might find shocking.

Biography of author
Colin D. Pearce holds a PhD in political science from the University of Toronto. He has published numerous articles on politics, philosophy, and literature in a wide variety of journals, including Humanitas, The Canadian Journal of Political Science, The Journal of the History of Ideas, Interpretation, Perspectives on Politics, The Kipling Journal, The Simms Review, The Explicator, Nordicum-Mediterraneum, Clio, Appraisal, Quadrant, and The South Carolina Review. He recently held the William Gilmore Simms Professorship at the University of South Carolina, served as the President of the South Carolina Political Science Association, and has taught at a variety of universities and colleges. He is currently at the University of Guelph-Humber

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