Reason to be glad we have the Senate we do

Unlike the American one, it does not get in the way of the democratic process. Slate's Timothy Noah explains why the US would be better off without its powerful, unrepresentative upper house

History of lathing, or History as lathing

When I was an undergrad thirty years ago all the old profs gave you a history, and all the young profs gave you a methodology when one asked them what they were.

Is one a historian of France or the Canadian prairies or the Renaissance, or rather a social historian, a cultural historian, a quantitative historian? Edge of the American West thinks it's mostly the second these days, and suggests historians should be addressing problems in history rather than simply practising a method. (The comments are good too)

Update, November 2: Jim Belshaw comments:

Cultural history is just as much a field as any geography or time limited area. My personal view is that there is remarkably little discussion on history method. I think that it’s partly because historians lack the skills required to discuss either history philosophy or methodology.

The problem, I think, is that these discussions actually threaten historians because they challenge their competence in their craft.

Franklin mystery solved again

Robert Grenier, Parks Canada's indefatigable marine archaeologist, will explain it all in a lecture at Greenwich, England, tomorrow, but The Guardian Online has it already. (Hint: they all died.)

Words you never thought you'd see in the media:

I don’t know about you, but I’d sure like to read more about Sir Robert Borden.

It's how Paul Wells launches his review of John English's new Trudeau book in the Literary Review of Canada.

Update Nov 2: Wells points out that English has pointed out that English has already written a Borden biography. Wells must have meant Bowell, it's Mackenzie Bowell he really needs to read about.

What credentials should the historian of 1989 have?

Timothy Garton Ash knows:

The time has come for a brilliant young historian—at home in many languages; capable of empathizing both with powerholders and with so-called ordinary people; a writer of distinction; tenured, but with few teaching obligations; well-funded for extensive research on several continents; Stakhanovite in work habits; monastic in private life—to start writing this necessary, almost impossible masterpiece: a kind of Wagnerian Gesamtkunstwerk of modern history.

(I was thinking it would probably be Garton Ash himself.)

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.)

Canadian wikipedia?

There are various wiki-type projects relating to Canadian history, but I had not seen this thoughtful analysis of Wikipedia's APOV (American point of view) until today. Participant Historian, sadly, seems no longer to be, well, participating, but this post won a Cliopatria Award for best single post for 2006.

The argument is that there are Wikipedia in English, French, Russian, German, Basque, even Klingon, but within the English-language one, American interests and perspectives generally dominate, or at best, non-American perspectives have to accept being labelled as such. Not that the problem is uniquely Canadian. As PH says, the Basques get a Wikipedia, but the Mexicans don't.

Book Notes

Myrna Kostash launches The Frog Lake Reader at the Hudson's Bay building in Fort Qu'Appelle on Wednesday. (Bannock and tea will be served).

John English will be launching the second (1968-2000) volume of his Trudeau biography, Just Watch Me, just about everywhere.

And Marni Jackson launched Cabin Fever, her anthology of recent Canadian short non-fiction from the Banff School program, months ago, but I came across it in the bookstore the other day.

Live-blogging the Quebec conference #17

Wednesday, October 26, 1864:

A resolution affirms the independence of the judiciary -- and confirms that superior court judges shall be federally appointed.

Then John A. Macdonald gets approval for an ambition still unrealized in the 21st century. The federal legislature shall be entitled to codify one single body of law on property and civil rights (otherwise a provincial responsibility), but only for the common law provinces, not in Quebec. A lawyer, Macdonald aspires to a single body of law and jurisprudence and a unified bar throughout common-law Canada. But there's a rider: it won't happen in any province without the consent of the provincial legislature. So for at least another century and a half, lawyers will still get called to the bar of Ontario or Alberta or Prince Edward Island and practice the law of their own province. (Though Macdonald sort of gets his way: in fact, barriers to interprovincial law practice have become vanishingly low, and there is much overlap between provincial statutes in many areas.)

They fix the capitals of the new provinces of Ontario and Quebec, and make Ottawa the national capital. Bilingualism: they confirm the use of both French and English in the national parliament, and in the legislature and courts of Quebec.

And then they get back to the money -- delegated since several days back to a committee, but now speedily passed. It is the same basic rules, but with a hodge-podge of special grants and accomodations for the provinces with the most adept finance ministers, it seems. (Leonard Tilley, we're looking at you. Charles Tupper, what were you doing the last few days?) A per capita grant of $0.80 will provoke the complaint that Nova Scotia has been sold to Canada for eighty cents a head.

According to the notes of A. A. Macdonald, a Prince Edward Island delegate, the islanders put forth a motion for the federal government to provide funds to the buying out of the large landed estates that hold most of the property on the island. The official minutes have nothing of that, and the Islanders get nothing, which pretty much kills Confederation's prospects in PEI. The island votes no on the financial resolution. The minutes for today have nothing about a proposal to fund the Intercolonial Railway from Quebec to the Maritimes -- but a resolution to this effect will be in the final list of motions passed. Did they vote on it today, or simply agree later they had meant to?

They will meet again tomorrow, but you know what? They are damn near done, and getting a bit giddy about it. We'll wrap up tomorrow.

Live-blogging the Quebec conference #16

Tuesday, October 25, 1864:

[If constitutional history makes you crazy with boredom, let me say the conference only has a couple of days to run. But I'm enjoying this - and the numbers seem to be holding up.]

So today they get back to the list of provincial powers, having concluded that there will be enumerations of both federal and provincial powers.

They make a number of seemingly minor adjustments, reserve on a detail or two (why "weights and measures"?), and pass the whole thing. But D'Arcy McGee offers a consequential amendment on the "education" heading:

Saving the rights and privileges which the Protestant or Catholic minoriy in both Canadas may possess as to the denominational schools at the time when the constitution act goes into operation.

Eventually this will spawn a lot of debate (and recently an Ontario provincial election campaign disaster for John Tory) as to whether it is a sensible compromise or a disgraceful special pleading in favour of a couple of favoured religious minorities. On McGee's motion, however, the minutes simply say, "Agreed to."

In the evening they pass a motion that says "the laws of the federal parliament shall control and supersede those made by the local legislature and the latter shall be void so far as they are repugnant to or inconsistent with the former." Disallowance -- the power of the feds to stamp out any provincial act they don't like -- enters the equation. Does this entitle the feds to legislate freely even on the subjects just entrusted to the provinces? And how would that square with the right of responsible governments to act on behalf of the people to whose representatives they are accountable. A million constitutional law lectures and nearly as many trips to the Supreme Court and the Judicial Council will be floated on these issues.

They also add some federal responsibilities seemingly forgotten on the original list: Indians. Foreign Affairs.

And they take up some hardly insignificant process questions. The judges of the superior courts, run by the provinces, shall "aid assist and obey" the federal government in criminal law and other matters of federal jurisdiction, "and for such purposes shall be held to be judges and officers of the general government." This may be the germ of principle behind the odd fact that the superior courts are provincially-run, but their judges are federally appointed and paid. (A less principled reason may be that a lot of the delegates are lawyers who expect to be in the federal government and who like keeping open a route to judgeships for themselves and friends.)

Another biggee passes: The House of Commons shall not pass any money bill not first recommended by the cabinet. The government can't spend money without consent of the assembly -- but the assembly can't spend money in ways the responsible ministry doesn't support. Janet Ajzenstat will tell you this is why a lot of prominent political scientists and historians are dead wrong when they repeat that the fundamentals of Canadian parliamentary practise are unwritten conventions.

And another couple of resolutions to shore up the power of disallowance by the feds of "any bill passed by a local legislature." These two will also come up against responsible government principles: can it be legitimate for one government simply to cross out the legislation of another government that is enacting the popular will within its defined sphere of responsibility?

Finally they go back to the resolution of October 13, the one that started with the language about "our colonial condition." They reemphasize they will make no declaration which might fetter them in doing what is best "for the general and local government of the country"

All in all, a substantial day's work. They adjourn at midnight. Back tomorrow.

A bunch of country lawyers

Paul Wells in two minds about what we now call the Constitution Act, 1867:

Unfortunately, some people are preoccupied with what a bunch of country lawyers wrote in a constitution 36 years before the Wright Brothers’ first flight. (UPDATE: That’s badly phrased. It should have said, “Unfortunately, some people want to duck their responsibilities based on a culpably sloppy misreading of a constitution a bunch of country lawyers wrote 36 years before the Wright Brothers’ first flight.”

What Britain needs: a Senate like Canada's

Thomas Bingham, delivering a prestigious lecture in Britain last week, pondered how to replace the House of Lords with something truly useful. His proposal: it should be appointive and advisory, principally a chamber for expert review and sober second thought, able to block the will of the Commons only in narrowly specified circumstances.

Pretty much what the Canadian confederation-makers proposed in the 1860s.

Live blogging the Quebec conference #15

Monday, October 24, 1864:

They zipped through the list of federal powers a couple of days ago. Today Oliver Mowat of Ontario moves the resolutions on the provincial powers. The provinces get: agriculture, education, emigration, sale and management of public lands, property and civil rights, municipal institutions, inland fisheries, penetentiaries, hospitals and charities and eleemosynary* institutions, local works, the administration of justice and the constitution and the courts, local offices and local officers, direct taxation, borrowing on the province's credit, licensing of shops and saloons and taverns and auctioneers, and "private and local matters," soon to be rephrased "generally all matters of a private or local nature."

It will become a Canadian historical tradition that the constitution-makers were centralizers determined to make the provinces distinctly minor and secondary. But this is a pretty impressive range of powers: not just agriculture (though the feds also have authority here) and hospitals and education, but also the administration of justice and local government and local business. The provinces take ownership of crown lands. They will control property and civil rights (though civil rights was generally understood to mean matters of private law such as contracts and the right to sue and so on, rather than freedom of speech and the other personal rights we call civil rights.) They have taxation powers ("direct" mostly means property taxes) Then there is that residual clause. How much authority can be gathered up under "generally all matters of a private or local nature"? Link this to the confirmation that provincial governments will be responsible governments (that is, accountable to elected legislatures) and it's hard to deny that they are conferring a lot of power on the provinces.

They barely get started on a point-by-point discussion today. Instead, they get into a discussion of whether provincial powers should simply be all those not specifically granted to the federal government -- or the reverse, and this leads into discussions of what's wrong with the American constitution, and much else. More on the provincial powers tomorrow. One notable point: they do seem to foresee that future disputes over the constitution will be subject to judicial, not just political, review. A couple of delegates specifically refer to a Supreme Court for such matters.

* Eleemosynary = just a big word for "of or pertaining to almsgiving,charitable."

History in the 'hood

Dave LeBlanc, the Globe's Architourist, visits the West Toronto Junction neighbourhood to promote the terrific historical work of the Toronto Public Library system and to salute the cool events the Junction Historical Society dreams up. The Society's latest, the Wild Wild Junction, will be a guided pub crawl to commemorate the last night before the district went dry. That's this Sunday afternoon, and tickets, as they say, are still available.

Live-blogging the Quebec Conference #14

Sunday, October 23, 1864:
It's Sunday. The conference does not meet. But that's not to say no work is being done.

Mercy Coles, the daughter of Prince Edward Island opposition leader and ex-premier George Coles, keeps a diary during the conference (actually the best we have, though there is very little actual politics in it). On Sunday night, she notes, John A. Macdonald dines with her family. "After dinner he entertained me with any amount of small talk," she writes.

But Macdonald's real interest is surely her father, who has been both pro- and anti-confederation, and at this point seems to be concluding that it can never be sold to Island voters and that by opposing it he may well be able to ride the anti-confederate tide back to power. (Indeed, he does.) When Macdonald leaves the dinner, it's to get to yet another soirée, doubtless to sound out more options and allies.

This is Macdonald's greatest strength -- working the room, keeping in touch, keeping even his enemies close, never writing off any possible source of support. He does not love the confederation idea; as recently as last June he voted against a Canadian parliamentary committee report endorsing federalism. It was the Brown-Cartier deal -- federalism and rep-by-pop together -- that launched the confederation coalition, and Macdonald had to go along with a plan he himself would never have initiated.

But Macdonald is good at going along, and once in, he puts his intuitive political sense and immense powers of persuasion and negotiation to work. The ideas may not have been his, but nobody does more to turn the political wheels that will drive them forward.

History of the Common, no "s"

One of Halifax's many assets is its beautiful and civilized Common (not, apparently, "Commons.") It was set aside in 1763 "for the use of the inhabitants of the Town of Halifax forever" (and the occasional Paul McCartney concert). When they built a high school on part of it recently, people started to say, Huh?

Turns out less than a third of the Common now survives, and some people want to hold on to what remains. Tomorrow Friends of the Halifax Common are going to chalk around the Common -- literally draw a chalk line on the sidewalks to mark out the original boundaries. Wish I were there.

Live-blogging the Quebec conference #13

Saturday, October 22, 1864:

"That the confederation shall be vested at the time of the union with all cash, bankers' balances, and other cash securities of each province.... The confederation shall assume all the debts and liabilities of each province." The money, at last they are getting down to the money.

Alexander Tilloch Galt, the Quebecker who is the Canadian cabinet's financial expert, presents a long resolution proposing financial structures for confederation. Publicly owned works like canals and railroads will go to the federal government, but crown land in general will be provincial. Galt, following on Macdonald's federal-powers resolution, foresees the central government as the taxing power: "In consideration of the transfer to the general legislature of the powers of taxation, a grant in aid of each province [based on population] shall be made... in full settlement of all future demands upon the general legislature for local purposes, and to be payable half yearly in advance to each province."

It ain't to be that cut-and-dried -- though the federal transfer grant clearly has a long pedigree. They discuss Galt's resolution all day, but most of the discussion goes unrecorded, and they adjourn without a vote, delegating the matter to a financial committee of delegates from all the provinces.

More on that head of state thing

Andrew Cohen, journalist, thinker, new head of Historica-Dominion, says we need to talk about it. (h/t Andrew Smith)

Last week in the same paper, Dan Gardner argued we need the queen because otherwise the federal government will get to appoint the lieutenant governors. But the feds always have named the lieutenant governors, and it "hasn't tipped the balance" -- as discussed in live-blog #11 on the 1864 Quebec conference.

October 27. Dan Gardner responds:

Your short blog post on my short blog post (which was reprinted in the Ottawa Citizen for some reason) misrepresents what I wrote. I know how L-Gs are appointed. It's a relic of the original vision of the constitution, in which the federal government was clearly the superior of the provinces.

I stuck with the formulation "constitutional symmetry" because, one, it's accurate, and two, it avoided a long detour into constitutional history.

Dan blogs here.

Neverendum

A referendum brought New Zealand its MMP version of proportional representation in the early 1990s. Now they're planning another on whether to keep it. Fruits and Votes (mandate: tree fruits, electoral systems, and a little baseball) has the info. In Canada, by contrast, the voters always say no, but the question keeps coming back.

Live-blogging the Quebec conference #12

Friday, October 21, 1864:

Federalism. This one is huge. One might think they would spend weeks on this one. John A. Macdonald introduces the future Section 91, the long list of powers assigned to the national government. He moves that the general government hold authority for trade and commerce, customs and excise, taxation, currency, public credit, banking, bills of exchange, interest rates, legal tender, weights and measures, postage, bankruptcy, lighthouses, ocean shipping, sea fisheries, patents, copyrights, telegraphic communications, naturalization, marriage and divorce, census, military and militia, immigration, agriculture, criminal law, interprovincial roads and railroads, other works declared for the general advantage, a general court of appeal, grants to local governments, public debt and public property, “and generally all matters of a general character.”

Trade and commerce? Banking and finance? Taxation? Marriage and divorce? Roads and bridges? What do all these powers imply for the scope of the new national government's authority in the future? Nobody says, nobody asks. There has been quite a bit of work in the Canadian cabinet on what's appropriately national and what's appropriately local (as we will see when the list of provincial powers comes up). But, almost two weeks in, the delegates seem to be a bit punchy. Maybe it was smart to let them wear themselves out for days on an irrelevancy like the Senate. There really is not much discussion today.

They go through the list, ask a few questions, raise a few points, make a few changes (this list is not exactly the future Section 91). But they approve it unanimously by four in the afternoon, and go off to get ready for another party. No meeting tonight.