The commentary below is one citizen’s best effort to see the road ahead from the road behind.
In asking Parliament to endorse a motion “that this house recognize that the Québecois form a nation within a united Canada” our Prime Minister has dictated the terms of what will be a protracted debate over sovereignty. The fact that he also hobbled his liberal and separatist enemies and befriended the wily province (or is it “the nation”?) of Quebec with a single stroke was fascinating. But it was immaterial to the much larger question that has plagued both American and Canadian federalism from the start. Namely, can there be a state within a state? Harper was careful to head off this question when he added: “Do the Quebecois form a nation inside Canada? The answer is yes. Do the Quebecois form an independent nation within Canada? The answer is no, and the answer will always be no.” But to understand what he is up to, the long-term stakes, we need to revisit the constitutional logic of our own history.
As it happens, the Constitution of the United States of America, thrashed out in 1787-8, and Canada’s British North America Act of 1867 were both among the boldest efforts ever undertaken to resolve the ancient problem of imperium in imperio, or “sovereignty within sovereignty.” The challenge recognized by both nations was to find a solution, and both were certain they had done so. But in this writer’s opinion both sets of founders, were they here today would say that the fondest hopes and intentions for their constitutions – their respective solutions – have been betrayed.
The background for the American settlers, and by extension for Canada was the relationship of the original American colonies to the sovereignty of mother England. The Americans at first attempted to gain independence without severing their ties to the Crown. But their British masters insisted that imperium in imperio is a solecism – a contradiction in terms that can never work: the colonies could not be governed by England, and also by themselves, because sovereignty is by its nature indivisible. In words that were as prophetic for them as they are now for us, the loyalist Thomas Hutchinson asked: “How can there be a subordinate power without a power superior to it?” George Mason, too, had insisted that “two concurrent powers cannot exist long together; the one will destroy the other.” And Patrick Henry declared that a mutual concurrence of powers “will carry you into endless absurdity.” No one had ever squared the sovereignty circle before because it cannot be squared, the Englishman James Galloway had warned; it is “unintelligible jargon, and horrid nonsense,” simply because “the notion of two sovereign authorities in the same state is a contradiction, a monster!”
These warnings were still ringing in the air when the Americans achieved their Independence in 1776, an independence made inevitable largely due to the fact that a sovereign America under a sovereign England had indeed proved a monstrous idea. So once free of Britain the thirteen colonies began to operate as thirteen independent democratic states. And for a decade, chaos ensued. Most of them immediately raised their own armies and navies, and some seized each others ships. Seven of them printed their own money (including inflationary fiat money if that suited them), fought interminably over borders, passed tariff laws against each other and, on several occasions mobs of angry farmers swarmed their own legislatures demanding that laws be passed to forgive their debts. Some of the new states even eliminated their own senates (because they wanted to remove all obstruction to their will), and in one state the mob called even for the elimination of its own legislature: each town could rule itself! Alexander Hamilton, one the brightest lights among the American framers of the new Constitution aiming to end this madness, famously complained that the thirteen independent states had become “wretched nurseries of unceasing discord.”
So it was high irony indeed when the founders met in the summer of 1787 to frame a constitution for their vast territories and found themselves making the same arguments England had made with respect to the former colonies. For how was a single government to administer America? Were its officers expected to travel 3,000 miles of wilderness to do their business? Of course not. Now they could see why the Frenchman Montesquieu, whose teachings were at the time so influential had already warned that a unitary democratic government can only work in a small country. And then there were the facts: the thirteen states were already sovereign in their own right. They would be meeting now to delegate, to surrender, powers they already had over themselves to a new general, or central government. This meant the newly United States would need two levels of elected government – state, and federal, which in turn meant there would be two sources of popular will that could erupt in conflict any time. And that is why the debates over the very shape of the new Constitution of the United States came to center on the problem of how to tame the monster. The system the Americans eventually settled upon became the background for Canada’s rather different solution in 1867.
The American camps were divided into “federalist” who wanted power to be more centralized (the emphasis was on the word “united”), and “anti-federalists” (emphasis on the word “states”) who wanted more powerful local rights because they were terrified of all forms of centralizing power. This, they equated with the English tax slavery from which the colonies had just escaped; they were not going to set up the same despotism in their own house! So in the end the states delegated a list of specified general powers to the new central government, and kept all their own local powers. The individual states also retained all “residual” powers, or the right to any unforeseeable future powers that might be required. As a further restraint their Constitution rested on the novel idea of “checks and balances,” of breaking sovereignty into pieces through a division, a balancing, and a sprinkling of it between competing institutions of government – the courts, the legislature, the senate, and the executive – so that none of them could amass too much power and become a tyrant over the people. Even so, in a wonderful phrase a sorrowful critic of this new arrangement decried the powerful new office of a President who was given the power to veto laws and declare war, as “the fetus of monarchy.”
But the abiding faith was that this new two-level sovereignty-within-sovereignty would be limited by carefully defined and restricted powers, each in its own realm. States would look after things internal to themselves, while the feds would look after all things general, or external to the states. For the one thing feared by all – federalist and anti-federalist alike – was the idea of any government that could creep into every corner of the country, that would “wait upon the ladies in their toilett … accompany them to the ball, the play, and the assembly … enter the house of every gentleman, watch over his cellar, wait upon his cook, attend him to his bed-chamber, and watch him while he sleeps.” In today’s lingo, the common enemy was any tax-harvesting, over-regulating government; which is to say, they all feared precisely what America and Canada both now have. (Then, taxation hardly existed. Today, the average Canadian family forks over 46% of income annually in total taxes, for a lifetime.)
On paper at least, the plan seemed to make sense for governing a widely-dispersed people. And because the lesson of the bloody French revolutionary experiment with democracy and also the wretched discord of the thirteen states themselves were both still fresh in memory, the “democratic element” to be included in the Constitution would be democracy by delegation. The expression of the popular will via “representation” was invented as a way to keep the rabble from direct law-making. That is, to prevent too much democracy. The new Americans (and later, the Canadians) wanted instead a “filtered” democracy, relying on a “natural aristocracy” of wise and elected reps expected to make laws for the whole people, not merely for their own local electors, and who would have unelected senators presiding over them to further chasten the popular will. There would be no more mobs of farmers swarming legislatures and directly changing the laws to suit themselves.
So what became of this noble experiment across the line? History has provided the sad story of America’s losing battle with the monster. The first, and most dire wake-up call was the dreadful, nation-splitting outcome of the Civil War, which although ostensibly fought over slavery, was at bottom a struggle between states rights (among them, the right to pass local laws about slavery), and federal rights (the right of a central government to forbid state laws). Very few of the new centralizing powers invoked to win that war have since been repealed. Then came the nation-mobilizing pressure of two world Wars with their new taxing powers. Between the wars there was the even more centralizing reality of relief efforts during the Great Depression. But perhaps the coup de grace to states’ rights was constitutional dickering such as the 14th amendment which gave the U.S. federal government massive powers – a constitutional primacy – permitting it to disallow state laws. And more recently there have been huge increases in the dictatorially intrusive powers of the courts which, against the founders’ intent have now set themselves up as the sole authority on the Constitution. Prior to this change, the people (via the amendment procedures), and even the President were acknowledged as the principal interpreters of the Constitution, and not the courts. The consequence of all this is that America has become something very close to an invasive, hyper-regulatory unitary state – a monster. The contradictions of imperium in imperio have been borne out there, the superior powers of Washington, Congress, and the courts having extended a net of control over all subordinated powers.
And what happened to Canada? We began with a sense of superiority and a prideful optimism that we would tame the monster better than the Yankees had done. In a speech of 1865 John A. Macdonald set the Canadian tone: “Ever since the [American] union was formed, the difficulty of what is called ‘States Rights’ has existed, and this had much to do with bringing on the present unhappy war in the United States. They commenced, in fact, at the wrong end. They declared by their constitution that each state was a sovereignty in itself ….”
In short, Canadians wished above all to avoid the clash of sovereignties that had reduced the United States to the rubble of civil war. So of the many differences invented, perhaps the most significant would be our special way of dividing powers, not as in the republic over the line, but in a novel Confederation. The Yankee states had delegated a list of specified general powers to their general legislature but had, the Canadians thought, mistakenly left everything else – all the things unspecified – to the local legislatures. The Canadians thought it better to specify the limited and exclusive powers of both legislatures. In the new Canada there would be a list of general powers for the general government, and a list of local powers for the provinces. Ours would be a system of coordinate sovereignty, with neither entity sovereign over the other in its own realm. It was thus that through a pragmatic division of powers in what became the BNA Act of 1867 Canada’s founders were satisfied that they had tamed the monster once and for all by restricting the sovereignty of provinces to what was “assigned exclusively” to them (their “list”), but also by permitting the general government to make laws for “peace, order and good government” in relation to all matters not among those assigned exclusively to the provinces. It was no small condition, either, that in order to prevent excessive local power gotten by spending beyond their means, the borrowing power of all the provinces was to be restricted by law to their “sole credit.” Also in contrast to the American system, our federal government (rather than local governments) would look after all unspecified general matters.
Canada’s monster-taming scheme worked well for almost 100 years. By that time – 1968, the advent of the modern liberal effort to socialize Canada – we had a total debt after an entire century of only some sixteen billion dollars. But as in America, the mobilizing force of imperium in imperio is always the lust for superior sovereignty. Indeed, for total sovereignty. And the trend over time is always that the superior power will find ways, however devious, to slowly gobble up the subordinate ones. (It is a process that has also been at work at lower levels, where the provinces have been gobbling up municipal powers.) At any rate, the Federal-provincial gobbling in Canada has been achieved in a variety of ways, including, of course, by direct legislation; but especially via so-called “shared-cost” programs in which the federal government has circumvented the wise constitutional constraints of our founders on provincial borrowing. It has done this by harvesting money through exorbitant taxation of individuals and their corporations (a corporate tax is just a pass-through tax on individual consumption), and then offering to share with the provinces the cost of many things that under our Constitution were intended to be controlled “exclusively” by provinces (such as health care). This they have offered to do this in exchange for the provinces submitting to central control in those matters. In other words, this form of central control has been gained through bald fiscal bribery aiming at a flagrant evasion of the very constitutional prohibitions – the wisdom – intended to prevent it. Perhaps the most disturbing expression of this impulse to control local jurisdictions and ideologically to reshape even the most venerable customs and traditions of Canada, has been via Supreme court rulings since the creation of the 1982 Charter of Rights and Freedoms. Many of these rulings have in effect rewritten our Constitution by repealing wise common law judgements and customs centuries old, but especially by “reading into” the abstract words of the Charter meanings that unelected judges who represent no one simply believe should be there. This autocratic centralizing process began gradually in Canada, but accelerated with a vengeance during the 1960s. It was then that Lester Pearson, his Justice Minister Pierre Trudeau alongside, remarked that in effect being the Prime Minister of Canada was the closest thing to being a dictator, if you wanted to be one. In 1969, when asked by a reporter:“What society would you like to make Canada? Socialist or capitalist?” Prime Minister Pierre Trudeau replied: “Labour party socialist – or Cuban socialism or Chinese socialism – socialism from each according to his means.” By the time he ended his time in power Canada had two hundred billion dollars in federal debt alone, and another trillion in unfunded government liabilities (promises to pay future benefits). That two hundred billion, at the rate of interest since then comes to the almost six hundred billion in federal debt we carry today. By this socialist process of taking from each according to his means, and giving to each according to his need (the most famous slogan from Karl Marx) the regions of Canada had by then been divided by fiat into giver provinces, and taker provinces. The country had also experienced one of the most massive and rapid expansions of civil service of any free nation in history. Ottawa informs us that today we have one full-time government employee for every five Canadian citizens. But if we think only of taxpayers, it comes to something more like one full-time government employee for every two or three taxpayers.
It was into this pregnant history, this top-heavy consequence of imperium in imperio that Stephen Harper walked when he first entered political life as a Reform Party member in 1990. Now he is our Prime Minister. What kind of man is he? By training he is a free-market, if not a libertarian (anti-statist) economist. By religion he is an observant Christian who feels in his bones the importance of individual moral agency and personal and local responsibility. He holds dear the crucially important social role of marriage and the traditional family, values the importance of self-reliance and meaningful work for all, and looks for a strict observance of law. For all these reasons and more he believes as deeply that the best government is the least, and the more local it is, the better. Which is to say that our new Prime Minister belongs to a venerable “anti-federalist” (in the sense of anti-statist) tradition, through and through. By instinct and where possible he will choose “subsidiarity” as his moral and political guide: let us solve our problems first at the lowest possible level, and then rise for help to each successive level only when absolutely necessary or specified by the constitution. Let us fight back against big-taxing, hyper-regulatory socialism, and bring about a devolution of power, placing responsibility locally where it belongs, where it operates most efficiently, and … where Canada’s own founding fathers were certain it would stay if Canadians simply chose to abide by their own constitutional constraints.
The case shaping up here is that Mr. Harper, like this writer, I confess, is, in the Canadian context, a conservative revolutionary. He believes that nations ought to live by their own constitutional commitments, and if they want to change those commitments it should be by proper constitutional means and not by the sort of cheating legal stealth and fiscal bribery that has been used to convert Canada from a well-balanced constitutional confederation into a centralizing welfare state now carrying a total debt (including unfunded liabilities) of over three trillion dollars. He knows this is a system that cannot sustain itself. No such system has ever succeeded beyond a few generations. They are always taken down by structural debt they cannot escape, by the demoralization that always follows the removal of essential individual and community bonds and responsibilities, and by the politics of regional envy – the war between have and have-not regions – leading to fluctuating allegiances (Am I a Canadian? A Quebecer? An Albertan? A hyphenated-Canadian?) and hence a loss of any true national identity. Which is to say, by imperium in imperio. So it must be undone. There must be a rebalancing, devolution, and restoration of assigned constitutional powers; a restoring of states rights, so to speak. Canada must be returned to something resembling its original constitutional framework by withdrawing federal powers from all places where they have never by right or by law belonged.
Such an initiative, which I submit has just begun will – has the potential – to turn Canada back from its foolish reliance on a socialistic model, to something more in keeping with the vision of our founding, a Confederation. A good real-world example of this at work today, which produces an extremely high standard of living, is Switzerland, where most of the conservative moral, fiscal and political principles outlined here have held sway for many centuries, and where peace, productivity and freedom are maintained in a democratic nation that has 21 provinces (called cantons) and five distinct language groups.
And yet it must seem ironic in the extreme that Quebec has never followed the socialist model imposed on ROC – the Rest of Canada. And that is because Quebec has always insisted on building the socialist model within Quebec. However, for socialism to work, it must always be total, and no small total state can survive inside a larger one. That is why Quebec has fought to the brink for its own constitutional provincial rights, and more, and in exchange for its block voting power and four or five billion a year in transfer payments from the rest of us, it has gotten them. She has fought for the right to control her own language laws, her own pension plan, her own immigration selection, education policy, and a hundred other matters large and small. In effect, Quebec has merely done what all the provinces ought to have been doing all along: fight to preserve all those provincial rights “assigned exclusively” under our Constitution, and push back all centralizing intrusions of power wherever possible. For entirely different reasons, this initiative is catching on elsewhere in Canada, too. For the past two decades, Alberta has been flirting with the same anti-centralizing psychology, though far less successfully because it has less to whore with in voting power. But because Alberta has always been a giver and not a taker province, many Albertans are today pushing for just such a devolution or rebalancing of sovereignty, including a restoration of provincial control over their own exclusively provincial matters, such as for the privatization of medical care, for a provincial pension plan, and more.
So in conclusion, what we have before us under the rubric of a qualified nationhood for Quebec is in fact the first bold step in reversing the Canadian welfare state. Harper is keenly aware that no one will now dare to deny Quebec its new “nation” status. He is also aware that Quebec will now likely support him for a majority government in the next election. And he knows that Quebec will continue to push for the powers appropriate for a nation. But he will hold them to what he said: Quebec will be considered a nation “within a united Canada.” And he will then slowly apply that condition to all other provinces that want it, because under our Constitution provinces were intended to have provincial sovereignty over their own list, and the feds were to meant to keep their hands off. To respect provincial sovereignty in a united Canada. Of course, the other provinces not so dominated by a single ethnic and linguistic group will not care if they are called a “nation,” but it will have to be by some label just as chummy. What they will insist upon is “equal” provincial rights and sovereignty. Thus, through a long process of reversing the workings of the monster – to include reducing taxes wherever possible, eliminating the national debt, removing nanny-state federal tentacles from all places in which they have never by right belonged, and of course by removing transfer payments – he will undertake to restore provincial constitutional rights. Harper has just commenced the deconstruction of our rusty welfare state. He aims to slay the monster and restore us to our own constitutional truth and honesty.