Canadian and U.S. Constitutions: Evolutionary and Revolutionary Nationbuilding and Nationmaintaining

Abstract

Canadian and U.S. Constitutions: Evolutionary and Revolutionary Nationbuilding and Nationmaintaining Willi Paul Adams (bio) Marian C. McKenna, ed. The Canadian and American Constitutions in Comparative Perspective. Calgary, Alberta: University of Calgary Press, 1993. xlvi 219 pp. Bibliography and index. $18.95. One way to examine the extent of American uniqueness is to compare the organizational histories of the United States and Canada as reflected in their constitutions. The comparison shows almost instant nationhood fought for and confirmed in two wars in one case and evolutionary nationhood — still without definite closure — in the other. Search for the underlying causes reminds us that the North American frontier environment did not predetermine the American type of democratic government pace Frederick Jackson Turner. The New World of cheap land, scarce labor, faraway imperial government, and militarily inferior aboriginal inhabitants left room for the European migrants to decide how to govern themselves — and to become Americans, Canadians, and Canadiens in the process. Some opted for military resistance to colonial rule, for unilateral proclamation of independence and a revolutionary change of regime; others felt compelled to move by small steps toward “responsible government” within the British Empire. The same English political and legal culture spawned both the Constitution of the United States of 1787/91 and the British North America Act of 1867 with its recent substantial amendment by the Constitution Act of 1982 that includes a Canadian Charter of Rights and Freedoms. Since a constitution is an agreement to distribute power, comparing the Canadian and American constitutional orders should be a standard practice to analyze both systems of government. But because of the nation-centered mindset of most lawyers and constitutional historians such investigations remain rare. 1 It is certainly not a crowded field to which University of Calgary historian Marian C. McKenna adds her substantial anthology; it can actually well serve as an introduction to the field. Her own article-length introduction sets the stage for the newcomer with an analytical outline of the issues that are dealt with in greater detail by the following nine articles, six of which are [End Page 545] published here for the first time. Most of them are written by political scientists in Canada, two by Canadian judges, two by political scientists in the United States. The conference at Calgary with which this fruitful scholarly enterprise began was inspired by the self-congratulatory bicentennial of the U.S. Constitution on one side of the border and by the ongoing struggle on the other side over recognizing Quebec as a “distinct society” in order to ward off the Parti Québécois’ push for more or complete independence of the largely Frenchspeaking province. 2 Hence Peter H. Russell of the University of Toronto’s political science department and former president of the Canadian Political Science Association aptly concludes the volume with the somber question “Can the Canadians Be a Sovereign People?” 3 His answer at the end of a trenchant outline of the neglected role of the people as a source of legitimate government in Canadian constitutional politics since the 1860s is unmitigated skepticism; “So deep are their current differences on fundamental questions of political justice and collective identity that Canadians may now be incapable of acting together as a sovereign people” (p. 186). When in 1980 the voters of Quebec were given a chance to express themselves directly on the supreme constitutional question — it was the first time since their intensely remembered conquest in 1759 — they clearly rejected the Parti Québécois’ requested mandate to negotiate some combination of political independence and economic cooperation. But two years later, Quebec’s Assemblée nationale rejected Prime Minister Trudeau’s historic achievement, the Constitution Act of 1982, because it did not sufficiently recognize the special status the legislature’s majority aspired to. Enacted by the British Parliament, signed into law by Queen Elizabeth, and agreed to by the nine remaining provincial legislatures, it became the law of the land nevertheless. When five years later Quebec’s demands had been largely recognized in the Meech Lake Accord of 1987, hammered out behind closed doors by the ten provincial premiers and the prime minister the legislatures of Manitoba and Newfoundland...