Looking at 1867 from 1967 and 2017

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This is the first of two posts responding to “Debating the Confederation Debates of 1865” a two-week series we ran in partnership with Canada Watch.

By Christopher Moore

During the constitutional wrangles of the 1980s that became known as “Meech Lake,” one of the premiers supposedly remarked that the fathers of confederation were fine men for their time but didn’t know much about telecommunications or the environment. Whatever expertise the first ministers of the 1980s may have had about telco and enviro policy, however, they eventually proved themselves far less successful than the original confederation-makers in the more significant skill of actually drafting and getting ratified a constitution that might last a century and a half.

I have known and admired for years several of the authors whose essays I have been asked to comment on for this collection. All the authors have made valuable contributions to historical knowledge of Canada. But when I read these essays, I heard again that premier. We read here a much longer list of things the confederation delegates did not know much about — the environment, solely “a resource for exploitation,” being just one. They “were not thinking a great deal” of Canada’s constitutional future and proposed “a fixed set of rules” for contemporary problems. They failed to mention Jews and Baha’is and other religious communities. They failed “miserably” on minority rights. They had a view of Canada that was “more caricature than reality” and lived in “an agrarian dream.” They insisted on a limited electoral franchise that privileged them. They denied that indigenous territories had to be “negotiated and acknowledged.” They were not democrats and indeed viewed democracy with hatred and contempt. By and large, this collection declares that the crucial thing we need to understand about the confederation process is not the constitutional issues it brought forth, but rather the class, race, and gender biases that drove the politicians involved.

It may be that the contributors’ attitudes have been shaped and encouraged by the source they were asked to use: Confederation Debates, Peter Waite’s 1963 abridgment of the Province of Canada parliamentary debate on confederation, which includes only a twelfth of the original debate, and nothing from any other legislature. (Some contributors did use the full record of the province of Canada debates, not just Waite’s selection.) Waite reports he sought “force, relevance, shrewdness, and wit” in making his selections, but his choices were also shaped by the early 1960s consensus that confederation was a conservative, top-down, centralizing project driven by local economic forces and temporary political crises, and did not involve any deep constitutional thought or “voyage of discovery for first principles” (as Donald Creighton put it). Waite’s introduction and selections, which emphasize local rivalries, railroad politics, and temporary foreign threats over constitutional principles, presumably shaped the consensus view of this collection that the politicians of the 1860s had prejudices to be exposed and denounced but no serious constitutional ideas to be engaged.

For more than fifteen years, an alternative compilation of confederation debates has been available to scholars and students. The collection entitled Canada’s Founding Debates, edited by the political scientist Janet Ajzenstat and others and first published in 1999, has the advantage of including contributions not only from Waite’s single province but also from the legislatures and constituent assemblies of Atlantic Canada, Red River, and British Columbia.[1] Furthermore, its organizing principles are the classic themes of constitutional thought – liberty, nationality, minority rights, and democracy in both representative and direct forms – of which the contributors here generally declare the founders to have been oblivious, but which the editors of Canada’s Founding Debates find in abundance in the debates they edited and published.

Such claims to philosophical depth in the debates over confederation can themselves be debated, obviously, and it is valuable to be aware, and to make students aware, of the class privileges, racial biases, and gendered perceptions with which nineteenth century politicians approached the task of constitution making. But some exposure to constitutional ideas and principles – foregrounded much more in Canada’s Founding Debates than in Waite’s Confederation Debates – might suggest that an unrelenting emphasis on nineteenth-century bias and prejudice actually obscures Canadian constitutional choices that were more sophisticated than this collection suggests.

A few examples:

  1. The Franchise: This collection rightly emphasizes that the politicians of the 1860s excluded women, some men, and most Indigenous peoples from the franchise. It fails to note anywhere, however, that they declined to constitutionalize those prejudices and provided a constitution tolerant of electoral reform proposals. Far from blocking further progress, confederation-era politicians, already operating under one of the widest franchises in the world at that time, would themselves introduce the secret ballot and near-universal manhood suffrage within a few years. Voting for women, Indigenous people, and minorities was contested longer, but that too was largely a political not a constitutional challenge. Patriarchy and class were very real in 1867’s ideas about voting, but also very incompletely constitutionalized.
  2. Religion: David Koffman’s essay on religion, while noting the tolerance that the 1867 constitution would eventually encourage, regrets the exclusion of religious minorities from it. Surely omitting religious minorities from special treatment – that is, guaranteeing them the same treatment as other citizens – was the much more progressive constitutional strategy, whatever prejudices these Roman Catholic, Anglican, and Presbyterian politicians nursed. As Marcel Martel describes, the constitution sought to protect the existing confessional school systems of some minority Catholic and Protestant communities, but not the religions themselves, and it established no state religion – thereby constitutionalizing the then quite recent disestablishment of state churches.
  3. Indigenous rights: Unlike religion, the British North America Act did constitutionalize a special situation for First Nations. Had the constitution-makers followed their racial prejudices and eurocentric biases, as described in these essays, they might have included a clause repealing the operation of the Royal Proclamation of 1763 and extinguishing the recognition of Indigenous rights in the new nation. Instead, their much disparaged clause “Indians and lands related to Indians,” brief as it is, made First Nations the only constitutionally-identified community regarding whom special obligations were imposed on the federal government: effectively, to acknowledge Indigenous land interests and to negotiate with leaders and representatives of the First Nations. Indigenous self-government and entitlement to territory have not been claims of the First Nations alone, that is, but are actually acknowledged in the British North America Act, drawing on the Proclamation, the Treaty of Niagara, and other agreements. This part of the Canadian constitution was obviously breached and ignored by Canadians and Canadian governments in a thousand ways for a century and more, but in recent decades the language inserted in the constitution by the politicians of the 1860s has become the basis of many successful court actions against Canada in Canada’s own courts. Several contributors here deplore the denial of the vote to Indigenous peoples, but none notes that, for all its pernicious consequences, the exclusion of First Nations in Canadian elections could also imply recognition of them as separate polities – a glimpse at the possibility of self-governing First Nations dealing with Canada through treaty relations rather than as a very marginal voting bloc.
  4. Marriage and family: Even on gender issues, the constitutional choices of the 1860s were more subtle than is suggested by the focus on masculine privilege and the indissolvable patriarchial family emphasized by Waite’s debaters, notably Joseph Cauchon, as Kathryn McPherson observes. The constitution balanced provincial control of “the solemnization of marriage” against federal authority over divorce, which made divorces (somewhat) available even in Cauchon’s Quebec, where the political climate long remained intensely hostile. Here too, the undoubtedly patriarchal preferences of “the fathers” were only incompletely expressed in their constitution, permitting continuing evolution of the political meaning of marriage and family as society has changed.
  5. Federalism: Elsbeth Heaman’s essay has interesting suggestions about the confederation makers’ instinctive preference for limited government, and their likely expectation that giving the provinces most social welfare responsibilities, while the federal government kept most of the readily available revenues, would be an effective way to limit social spending. But here too there was no constitutional straightjacket. As provincial politicians discovered direct taxation, resource royalties, and federal-provincial cost-sharing programs, it turned out that obstacles to big government could be overcome without massive constitutional amendment.
  6. Democracy: Dennis Pilon has fun quoting the attacks on “democracy” abundantly available in the Waite excerpts, even when it is clear that the speakers meant something like authoritarian populism when they said “democracy.” He does not engage, however, with the exchanges – more evident in Canada’s Founding Debates than in Waite’s Confederation Debates – in which politicians in several legislatures offered a much more nuanced discussion on the merits of representative and direct democracy. They debated at length – Locke versus Rousseau, in effect, sometimes with citations – whether in a parliamentary system a constitution should be ratified by the people’s elected representatives or had to be put directly to the people. The Cameron-Krikorian-Vipond essay engages the debate between protecting rights through parliamentary and common-law means versus constitutional entrenchment (making a strong case for the latter), but mostly the hegemony of the class-race-gender analysis of confederation in these essays leaves little room for their consideration.

Historians of the 1960s often described – and approved of – a confederation that was conservative, dignified, traditional, patrician, and almost devoid of sophisticated constitutional thought. In this collection of essays, we can see how the 1960s interpretation and the selection of sources it provided continue to be useful to many historians of the 2017 era, who use the same materials to dismiss confederation and its makers as patriarchial, masculine, racist, and reactionary. What is missing from this alliance of 2017 with 1967 on 1867, however, is some of the intervening scholarship, which has proposed that, whatever the attitudes of its makers, the 1867 document actually reflected a more liberal and sophisticated constitutional settlement, one that left Canada open to substantial social and political evolution even without mega-constitutional reform, a living tree more than a dead hand.

One of the Canada Watch essays imagines a worker of the 1860s saying, ‘Who cares about their confederation?’ Who should care? Historians, including those in this collection, should care, and their students, too. And citizens too, since the constitution we live with remains very largely the surprisingly flexible one set down in 1867. Marlene Shore reports that the confederation politicians “held a typically nineteenth-century view of history as the unfolding of progress.” But simply by living in the twenty-first century, we have not in fact solved all the problems of confederation, nor proven ourselves wholly superior to the “small-town lawyers and businessmen” who drafted the constitution with which we still grapple.

Christopher Moore (www.christophermoore.ca) is the author of 1867: How the Fathers Made a Deal (1997) and Three Weeks in Quebec City: The Meeting that Made Canada (2015).

[1] Janet Ajzenstat, Paul Romney, Ian Gentles, William D. Gairdner, eds., Canada’s Founding Debates, Toronto, Stoddart, 1999, republished by University of Toronto Press in 2003. A French-language edition is also available.

6 thoughts on “Looking at 1867 from 1967 and 2017

  1. Sean Kheraj

    Christopher:

    It’s not yet 2017, but we are off to a fulsome start to thinking about Confederation and its long-term implications 150 years later. I’ll leave it to the other contributors to respond to the other parts of your remarks. I want to ask about my own contribution on the role of the environment in the constitutional debates of the 1860s.

    When I wrote my article, I wanted to analyze how nature or the natural environment figured in the debates. I did not strive to demonstrate that the mid-nineteenth-century legislators in Canada were oblivious to the environment, but that they spoke and thought about nature quite a bit. This, however, required me to turn to the full text of the debates rather than Waite’s abridgement. As you point out, Waite’s selections reflect particular views of Confederation prevalent in the 1960s. He excluded most of the discussion of natural resources and geography.

    Looking through the full debates, I found that legislators (both pro- and anti-Confederation) discussed the environment mainly in two ways: as a resource for exploitation and nation building; as evidence of a geographic logic for the proposed country. One point I should have emphasized was that these legislators were not anomalies. Most men of their class and ethnic backgrounds would have shared similar views of the environment. Few British North Americans of the mid-nineteenth century would have disagreed with the idea of nature as a resource for exploitation and the benefit of people. Even nascent conservationists would have sought the protection of natural resources for the purposes of more rational and efficient exploitation. And many British North American settlers would have admired the scenic beauties of nature (especially the artists and poets who attempted to capture those beauties). However, this aesthetic appreciation seemed not to play much of a role in the Confederation debates. Perhaps Indigenous peoples would have held the most divergent views of the environment. Certainly those who lived in the Northwest had more accurate understandings of the environments coveted by expansionists from Canada West.

    I’m curious to read your views on the role of the environment in the Confederation debates. I hoped to find more discussion of the division of powers between the provinces and the central government. There were a handful of remarks from a few legislators who argued that the local governments were best equipped to manage public lands and resources. What do you think?

  2. Elsbeth Heaman

    I too cannot resist jumping in. Fascinatingly different approaches but to my mind they come close to the same destination. The key players, above all Macdonald, wanted as few formal rules and rights as possible. Rights check power; Macdonald had little interest in writing serious checks into the constitution, and our constitution had few serious checks before revision. The plasticity and lack of checks let Macdonald build up a powerful governing alliance but when he died that same plasticity facilitated the rights-based revisions that we’ve seen; no wonder scholars highlight the contrast of not-rights and rights. My only real disagreement with that analysis is that it’s fairly vacuous on the question: if not rights in 1867, then what? I do buy the highbrow language of Locke versus Rousseau on sovereignty, for example, but don’t think it comes even close to explaining what Macdonald was up to: that’s a question to be learned from Macdonald’s practices, not his statements. The highbrow analysis (ie Ajzenstat) insists that the founders tried to rise above bullying, partyism, and corruption. That’s romanticized piffle and it’s not the story you get when you look beyond the debates to practices of government. The BNA Act effectively enabled so much bullying, partyism, and corruption that rights became more valuable after 1867 than they had seemed before.

  3. Christopher Moore

    I appreciate these comments! But I am travelling in Yukon, and both actually and psychologically offnet muchof the time. Let me ponder awhile and I will try to respond in about 10 days. Thanks to Parks Canada Dawson’s wifi for enabling this communication — now that’s active history!

  4. Christopher Moore

    Sean,

    Certainly I accept your proposition that 19th century British North Americans did think about nature, and that the politicians mostly assumed that managing the environment meant exploiting the environment. (Though one can think of some exceptions: in the 1860s, access to east-coast fisheries was already being managed with some awareness that fish — at least local stocks – were a scarce resource, and that was an important issue in relations with the United States.) In the 21st century, simply exploiting the environment has become more problematic, given the range of environmental issues that directly threaten human life/prosperity/quality of life.

    But environmental politics (as opposed to environmental consciousness) is still mostly a problem of management, I think – a never-ending set of political choices rather than something that could have been solved by a binding constitutional imperative.

    So I think you are right in suggesting that as a constitutional question, action on environmental questions comes back to the division of powers.

    The confederation makers chose to divide authority for managing the environment, I think. Ocean fisheries became a federal power, for example, but resources like mines and forest products became provincial, and so on. When Canada takes seriously the constitutional standing of indigenous government, there is a three-way division of powers.

    Some might argue that if all resource and environmental matters had been assigned to federal authority, the feds might have been less hostage to local industrial lobbying than local governments and could have managed the environment better. But it’s hardly a proven case. It is long been asserted that Newfoundland, given its great reliance on the fisheries, would have managed the ocean environment less carelessly than the feds did.

    I guess what I am groping toward saying is that I don’t think our mid-19th century constitution is a key obstacle to better environmental policy in 21st century Canada. It is political and social and economic choices, not a constitutional clause that should be there or not be there, that matter.

    One might wish that 19th century politicians had felt more reverence and respect for the environment (one might wish that for a lot of 21st century politicians too!), But despite their attitudes, I’m not convinced that the constitutional structures they devised prevent Canada from addressing environmental issues. Mostly that’s a political challenge, not a constitutional straitjacket. Is that plausible?

    Elsbeth,

    I’ve been reading and rereading your closing line: “The BNA Act effectively enabled so much bullying, partyism, and corruption that rights became more valuable after 1867 than they had seemed before.”
    I think parliamentary theory holds that politicians are always tempted to get ahead by bullying, partyism and corruption, but that the parliamentary process is supposed to have ways to check that, since a system of government should not depend for its good functioning on the innate integrity of political actors.

    I think the mid 19th century rise (coincident with confederation) of powerful, disciplined, organized political parties did indeed undermine the ability of parliaments, not only in Canada, to restrain unaccountable governments and concentration of power in leaders rather than legislatures. We still live with that problem. But I think that is an issue of parliamentary government, not a specific result of the terms of the BNA Act.

    Sure, Macdonald’s centralizing interpretation of the BNA Act enhanced Macdonald’s power, and he had the first quarter century of confederation to push that interpretation hard. But the Macdonald version has not held up so well in the longer term, and problems of unaccountable governments and leaders still exist – and in parliaments worldwide. Rights-based modifications of parliamentary power respond to that, I would guess, more than to any specific written constitution.

    In conclusion, thanks to both of you. It’s probably evident you have both made me think. I fear I am beginning to sound like a defence lawyer arguing, “Yes, it’s a crime but someone else done it. Not my client!” — which is not where I intended to be. But….

  5. Dennis Pilon

    Christopher,

    I am well aware of the Canada’s Founding Debates volume and its arguments but I don’t find them very compelling, either historically or theoretically. Rather, the volume represents the triumph of ideology over informed historical enquiry. At the most basic level, its contributors tend to confuse responsible government or the parliamentarization of the executive for democracy. This confusion does not help us understand the social forces or events that actually contributed to Canada becoming minimally democratic. Comparative work on this question, particularly that which is rooted in the historical democratization literature, is much better (see, for instance, Klaus von Beyme’s work on parliamentarization in Europe). Of course, I didn’t comment or engage with this volume because that was not the purpose of this article. However I do engage with them in a paper I delivered to the CPSA in 2014 which I would be happy to forward to you.

    Dennis

  6. T Middlebro'

    Christopher Moore,

    I am a long-time fan of your writing. Love the comments on the selection of debate documents! And I’m a Aboriginal-positive left-wing francophile feminist!

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