Can John Locke Help Canadians Avoid a Constitutional Crisis?

John von Heyking

December 1, 2008

Last Thursday, Canada’s Governor-General “prorogued” Parliament, closing the current session at the request of Prime Minister Stephen Harper. Parliament is set to resume activity at the end of January, when the Harper government will introduce a formal budget, which will be subject to a vote of confidence of the House. Between now and then, Harper hopes the coalition of Liberals, NDP, and Bloc will fall apart and no longer threaten his minority government.

The decision to prorogue has not been received well by the Prime Minister’s opponents. According to one political scientist, the Governor-General, in caving into to Harper’s request, has inadvertently created a “violent situation” because prorogation appears to be illegitimate. Harper, it is believed, is acting extraconstitutionally.

One Liberal Member of Parliament compared Harper’s request to prorogue to Hitler’s burning of the Reichstag. Worse, by appealing to public opinion and democratic values in his public opinion battle against the coalition, Harper appeals more to the values of the American political system than to the Canadians. Harper, the alleged neoconservative (and stooge of George W. Bush and protégé of a cabal of Calgary-based Straussians [who are not even Straussians!]), is acting extraconstitutionally and is un-Canadian. At least for some segments of the Canadian population, to be conservative means to be American means to be a Nazi. Reductio ad Hitlerarum. The milder version of this argument, one shared by most who identify themselves as “progressive,” still implicitly questions Harper’s patriotism. Free markets and other things Harper’s Conservatives believe in are said to be American, not Canadian. Only a “Red Tory” (a term invented by the Left in the 1960s) is an acceptable conservative (much in the same vein that Arthur Schlesinger kept the friendly and stodgy conservative Russell Kirk as a kind of pet for liberals to enjoy but never to respect).

As bad as Stephen Harper’s alleged sins are, perhaps his worst sin is that he raised the specter of Quebec separatism by criticizing the coalition’s inclusion, and dependence on, the Bloc Quebecois. How dare he question the patriotism of a group of “progressives” (NDP and Liberal) forming a coalition with the Bloc? “They’re no longer separatist!” responded the coalition and its supporters. “They’re now sovereigntist!,” as if the difference between a “separatist” or “sovereigntist” is meaningful. For his part, Gilles Duceppe, the leader of the Bloc and king-maker of the coalition, stated this doublespeak perfectly when he joined Stephane Dion and Jack Layton, the leaders of the Liberal Party and NDP respectively, in announcing the formation of the coalition: “Every gain we’re making here is good for Quebec… for a sovereign Quebec.” Of course, “sovereigntist” is synonymous with “separatist” but just sounds nicer. Even so, the Opposition and its allies point out that Harper himself courted the Bloc in a bid to take over from former Liberal Prime Minister Paul Martin’s minority government in 2004. What a hypocrite!

These considerations point to two constitutional aspects that reveal important things about Canada’s constitutional regime. The first, concerning the question of the legitimacy of the prorogation of Parliament, points to the nature of Canada’s constitution, and specifically, the nature of what philosopher John Locke called “prerogative” and how it operates in the Canadian regime. The second concerns the Bloc Quebecois, and the place of Quebec in the federation. This essay considers the first aspect, and a subsequent essay will consider the second. But the two are related.

Governor-General Michaelle Jean has the authority to accept Harper’s request to prorogue Parliament, which she did. Constitutional experts largely state she made a decision consistent with constitutional convention, even though some, like former Governor-General Edward Shreyer, stated they would have decided against proroguing in favor of handing power over to the coalition. That conventions offer no clear guidance illustrates how limited they are. Schreyer, it should be noted, ran for the federal NDP in the 2006 election. Some constitutional lawyers think proroguing forms a “dangerous” precedent because it empowered the sitting Prime Minister to delay his day of reckoning. That this day is only six weeks into the future seems too long.

The Governor-General exercised her power of dissolution. Americans who have learned from John Locke will recognize this power as one of the prerogative powers the executive has. Canada, a parliamentary democracy in the Westminster mode, is as much a descendent of John Locke as is the United States. However, Canadians just do not realize it, although some scholars like Janet Ajzenstat have argued persuasively that Locke was at the Canadian Founding as much as, say, Edmund Burke was.

Even so, when the Governor-General deliberated how to wield her power of dissolution, she likely did not consult Locke. Instead, she would have consulted her staff, constitutional experts (law professors who hit the airwaves offering their opinions, many of which were partisan), and the privy council, which “is made up of all current and former federal Cabinet ministers, the Chief Justices of Canada, former governors-general and others appointed by the Governor-General.” Her primary consultants would have been the Prime Minister himself, as well as the clerk of the Privy Council, Kevin Lynch. It’s curious both are trained as economists.

The Governor-General and her consultants would have drawn their understanding of the constitutional conventions involving dissolution from constitutional scholar Eugene Forsey, whose Royal Power of Dissolution in the British Commonwealth (1943) remains the classic statement on the problem. Forsey, an NDPer who was able to transcend partisanship, examined a series of cases of dissolution throughout the British commonwealth. He drew from Edmund Burke to frame the conceptual problem of dissolution. The aim of the Governor-General must be to keep the House of Commons and Cabinet in counterpoise (with one another, and also with the monarch). Forsey, drawing on the Burkean notion of counterpoise, argues that with the monarchy receding from importance in modern times, the aim must be from preventing Cabinet (governed by the Prime Minister) from dominating the House, and from dominating society in a plebiscitary fashion.

Forsey appeals to Burke to make a non-Burkean argument. Appealing to precedents (or prescription, to use Burke’s term), he argues that the aim of counterpoise is best achieved in modern times by keeping elected members directly accountable to the people, but that governments (i.e., Cabinet, including the Prime Minister) must be prevented from abusing their enhanced power by constantly threatening to call elections (since the monarchy is receding in light of rising popular sovereignty). This point is non-Burkean because it is an argument for popular sovereignty, with the populace having greater power to assert its sovereignty than Burke may have allowed.

By arguing this way, Forsey does not appeal to the later “radical democats” that made up the utilitarians and Fabian socialists within the British and Canadian traditions. He actually reaches further back into the history of liberalism by appealing to John Locke’s theory of prerogative power. It should be noted he does not cite Locke. However, his arguments work within Locke’s orbit. Moreover, his arguments must necessarily work within Locke’s orbit, as must the deliberations of Canada’s Governor-General. It has been noted that the current crisis is unprecedented. If so, then appealing to precedents to guide current policy is a bit beside the point. One must appeal to what stands behind precedent, which is Founders’ intent and behind that, natural right. In the case of using prerogative during a constitutional crisis, Founders’ intent and natural right might actually be the same thing. This must be what constitutional expert David E. Smith meant when he claimed: “The exercise of the prerogative [by the Governor-General] is surely fact-specific.”

For Locke, the executive exercises prerogative power, which is “nothing but the power of doing public good without a rule.” Prerogative power is meant to protect the commonwealth, which is founded by the consent of its constituent members. The legislative power, Parliament, by acting according to majority will, acts as a kind of footprint of the original consensus of the commonwealth’s founding. Parliament does not legislate in the sense of creating laws anew, but its act of legislation is one of making the natural law more effective (is this close to Burke’s notion of prescription?).

There is some debate among Locke scholars as to which power is actually more important, legislative or executive. However, the representative function of Parliament is crucial, according to Locke, as is its function as expressing the people’s sovereignty. Prerogative power, then, serves the people’s sovereignty. Moreover, as Parliament acts by majority, and the commonwealth is created by consensus, Locke’s theory is actually more democratic than standard practice in either the U.S. or Canada. Locke appears to counsel consensus in ratifying a constitution (which constitutes the commonwealth), where as neither Canadian nor American constitutions were ratified by the public at large.

Of course, there is a “coercive” element in Locke’s theory: those who do not join the consensus are welcome to go someplace else, or they can remain in a state of war with the commonwealth. This illustrates the sad plight of aboriginals on the North American continent. Some English-Canadians have claimed, with some brutality of temperament, that “we won the war” against the French on the Plains of Abraham. Subsequent Canadian history has been an attempt to incorporate French-Canadians, and later and more specifically, francophone Quebecers (francophone Canadians are dispersed throughout Canada, though their greatest concentration and political efficacy is in Quebec) into the Canadian regime so as to make it fully legitimate. Quebecers, therefore, seem to be neither fully inside nor fully outside of Canada, a source of constitutional and electoral wrangling for time immemorial, as well as a resource for Quebec political elites to exploit.

For the present crisis, the issue of being either inside or outside strikes at the heart of whether the Bloc can form a legitimate partner in a government coalition. The Governor-General would likely have considered this problem and whether the coalition could be viable, regardless of the declared intent (in the form of a signed letter) of the coalition partners. In order fully to be a legitimate coalition partner, the Bloc would have to renounce explicitly its raison d’etre of separation or sovereignty. This is what I see as the implication of the Lockean theory of consent, and I think it is consistent with Forsey’s understanding.

With prerogative serving the people’s sovereignty, Locke gives impetus to a process of greater and greater democratization. Political actions simply have a tough time getting legitimated these days without some direct input by the populace. This notion of the constitution as a “living tree” (usually invoked by “progressives” to justify leftish decisions by the Supreme Court) led some commentators to suggest the prospective coalition of Liberal-NDP-Bloc would have to seek election immediately. The parliamentary convention that a government may be legitimate on the Governor’s-General prerogative alone no longer seems to hold muster. It is unclear what the effect this movement toward viewing the demos as the source of legitimacy has on the institution of the Governor-General itself. What is the future of the Governor-General if its days as a source of legitimation are ending, and if, with its roots in the British monarchy, its function as the unifying principle for Canada stops at the Quebec border?

Supporters of the coalition attempted to appeal to the Lockean principle of popular sovereignty by arguing that their combined vote in the October 2008 election is greater than that obtained by the Conservative minority. But this argument fails unless its “progressive” supporters can prove Canadians think being progressive outweighs allegiance to the laws (as the Bloc’s aim is Quebec sovereignty), and it is also uncertain how many Liberal supporters would support a coalition with the NDP. Coalition supporters argue the October 2008 election democratically legitimates their prospective government; supporters of the Conservative government have argued the constitutional convention would require an election within six months if the coalition takes over. Despite the nonsensical argument that Harper appeals to “American-style populism” when he appeals to the electorate, supporters of BOTH sides appeal to Lockean arguments, which have informed both Canadian and American practice.

Finally, some have argued, appealing to the Lockean and modernist spirit of increasing “democratization” (or more accurately: greater popular sovereignty), that Canada should get rid of the Governor-General and become a republic (for its unlikelihood, see here). Whatever the long term prospects of Locke’s understanding of history and democratic legitimacy, the office of Governor-General, with its Lockean prerogatives, has come through this crisis without much criticism. This is a bit surprising since it is almost the nature of Governor-General decision-making to make decisions hated by all.

Even so, some constitutional experts—among one of the three groups whom the Governor-General consults—have picked up on this democratic movement of history by criticizing the veil of secrecy over the decision to prorogue. Canadians have not been told the reasons she chose to accept Harper’s argument to prorogue. This has led to calls by some constitutional experts to open up the office for greater transparency. Such a move would require the executive power to reveal its hold over the arcana imperii (mysteries of state), which it might not want to do. For their part, Canadian citizens may not like what they would see. Even so, such an argument for transparency is Lockean in spirit because it results from the argument Locke makes that the executive serves the purpose of popular sovereignty. However, revealing the secrets of arcana imperii may not be what Locke had in mind in treating executive power as the servant of popular sovereignty. As Machiavelli, who stands behind Locke on this point, shows, the arcana imperii deal with the way the executive handles subjects and friends, as well as enemies. What distinguishes these groups is not always obvious, especially for Machiavelli.

The question of the Governor’s-General authority to exercise prerogative power for the public good involves what constitutes the commonwealth. Thus, the argument over whether the Bloc can be a “legitimate” partner of the prospective coalition thus reflects the foundational question of whether Canada includes Quebec. Can Quebec be fully party to the commonwealth if a major segment of its population wants out? Can Quebec be fully party to the commonwealth if it sends politicians to Ottawa who either seek to use their federal power to initiate independence or at least to extract concessions from English-Canada under threat they will initiate independence proceedings? If Locke’s constitutional arrangement involves greater “democratization,” and even increasing transparency on some level, does it not also induce a corresponding demand for transparency on the working assumptions of how the partners of the Canadian federation relate?

The question of democracy and transparency, which involves the ambiguity of the Bloc and Quebec, will be the topic of my next installment.

John von Heyking is an associate professor of political science at the University of Lethbridge in Alberta, Canada.