Tuesday, October 27, 2009

Live-blogging the Quebec conference #18

Thursday, October 27, 1864:

“All right!!! Conference through at six o’clock tonight – constitution adopted – a most creditable document – a complete reform of all the abuses and injustices we have complained of!! Is it not wonderful? *French Canadianism entirely extinguished!! They are crying to me to hurry and my baggage is gone down. There they are again! You will say our constitution is dreadfully Tory – and it is – but we have the power in our hands (if it passes) to change it. Hurrah!
-- George Brown describing the end of the conference in a letter to his wife.

That’s it. They are done: 72 resolutions moved and adopted. There is some wrapping up in Montreal a couple of days later, and the official record of the resolutions is a bit of a mess. But the ideas the delegates have worked through since October 10th are still the fundamentals of the Canadian constitution.

(There will be a huge political fight in 1865-66 to get the Quebec deal ratified in enough provincial legislatures to make it worth proceeding with the plan. PEI and Newfoundland will opt out. Quebec's resolutions will have to be tweaked by the delegates in London in December 1866 and by the legislative drafting process for the British North America Act. But those are other stories.)

As the delegates hit the road to promote their deal, where did they stand on some of the big issues that still drive our constitutional debates?

On federalism? There is a powerful historiographic tradition that the centralists held sway at Quebec, that the delegates had no real appreciation of federalism, that it was the Judicial Committee of the Privy Council that invented federalism and made the provinces into serious actors in Canadian politics.

It's true the JCPC often hobbled the feds vis-a-vis the provinces. But they also hobbled the British government vis-a-vis Canada whenever the vestiges of British authority became an issue. The JCPC didn't know much about Canada, perhaps, but they knew English constitutional principles, and those deep principles sustained the authority of responsible governments against supervisory authorities of all kinds. The Quebec conference, for all its gestures at legislative union and its sympathy for disallowance and such, established that kind of responsible-government federalism; the JCPC just sustained it.

On French-English relations and the national question in Quebec? It's striking how little this issue comes up in the official record: just minority education rights and some bilingualism in legislatures and courts. What's more important on this topic is the agreement that local matters, cultural matters, will be handled locally. Language, education, property law, social services, agriculture -- all the hot-button community subjects are broadly provincial. Even with only a minority in the national parliament, a linguistic or cultural community with a provincial base can assert its interests. (Quebec, yes, but Alberta too, they might have said.) It was not to be the seat count in the Commons that mattered (Senate seats even less).

On rights? The kind of rights that are so powerful for us really don't get a mention. The idea of rights charters is available at Quebec: the American Bill of Rights, the English one from the 1690s. But they mostly see rights as political -- rights are defended in and by legislatures full of independent representatives vigilant against incursions by the state. Judges could decree the existence of rights rooted in the English common law and "the rights of Englishmen." But the ruling idea was that rights were civil rights, to be defended by citizens -- by political action.

It didn't work that badly for a while, but it didn't work that well either. By the 20th century, it was clear that legislatures were quite capable of ignoring minorities, and the developing stranglehold of political parties made legislatures less and less inclined to challenge governments, anyway. But the idea that courts could hold government accountable to the constitution existed in the Quebec resolutions, and by the 1950s Supreme Court of Canada judges were attempting to create and enforce an "implied Bill of Rights," by declaring that the responsible government principles of the BNA Act pre-supposed and could not function without freedom of speech, of assembly, and so on. In the end, the one great revision Canadians have made to the Quebec principles was adding on a written Charter of Rights in 1982.

Plug: I've been using Rex Woods's copy of Robert Harris's "The Fathers of Confederation" for the logo of this series. Today, I've substituted my own 1867: How the Fathers Made a Deal, where some of the material here was worked out in rather different form. Still in better bookstores everywhere, at least the online ones....

* Does George Brown need defending? "French-Canadianism" was a nasty slogan he had developed in a decade and more of arguing that in pre-confederation union of Quebec and Ontario, the big francophone bloc had been able to interfere in Upper Canada’s affairs at will. He was a pungent controversialist, but he did not mean “French Canada extinguished”! (Funny, though, his idea that the constitution would be easy to amend.)
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