Current Canadian Constitutionalism and the 1865 Confederation Debates

Abstract

The purpose of this article is to examine the debates of 1865 in the hope of illuminating some dark corners of the exhausting constitutional quarrels that have dominated Canadian politics for the past two decades. By the Confederation debates of 1865, I mean the debates of the 8th Provincial Parliament of Canada, which were held during February and March of 1865 in Quebec City. These debates focused on a set of resolutions adopted by delegates from Canada, New Brunswick, Newfoundland, Nova Scotia, and Prince Edward Island at a conference also held in Quebec City during the previous October. These resolutions led eventually to the British North America (BNA) Act of 1867. The reader might wonder why I turn--of all places--to the debates for enlightenment on a contemporary crisis. Having read all 1,032 pages of these debates, I harbor the suspicion that I belong to a very exclusive club of North American academic eccentrics and, as an American, I expect that mine is a very small subset of this club. My most recent work has analyzed contemporary problems in terms of certain themes evident in the founding periods of the United States and of the Fifth French Republic.(1) Following the lead of Hannah Arendt, I believe that, for many western nations, founding periods are normative and that those who study such periods often discover events, arguments, and principles that illuminate a nation's subsequent development.(2) To apply this idea to Canada presents a problem I did not encounter in studying the United States or the Fifth Republic. Despite the importance of the Declaration of Independence in American history, it is the drafting of the Constitution of the United States in 1787 and the subsequent debates over its ratification that define the founding of the present American Republic. Although the origins of France itself trail off into some dim and distant past, there can be no doubt that the Fifth Republic was founded in 1958. In studying the founding of the present regimes in France and the United States, I knew at once where to turn. With Canada, it was not as simple. The Proclamation Act, the Quebec Act, and the Act of Union present worthy challenges to as the founding period of Canada and, even if these challengers are ultimately exposed as impostors, the period itself harbors enough important events--most notably, the crucial meeting in Quebec City in October 1864--to make the debates something less than the sole contender for serious study of Canada's founding.(3) Despite these methodological problems, I shall focus exclusively on the debates of 1865.(4) I do so because no other event from the period has records as complete as these and, more importantly, because these records reveal a sustained level of serious--and at times profound--public argument which, I believe, is unequalled in Canadian constitutional history. In the months preceding the 1995 Quebec Referendum, considerable attention was lavished upon the precise wording of the text to be submitted to the people. At first, the debate focused on the speculative question of what it would be and, once this was known, what it should have been.(5) Federalists argued that their opponents had deliberately muddied the waters, misleading Quebeckers into thinking that they could live in a sovereign Quebec that somehow remained part of Canada. The federalist strategy was to reduce the question to a stark dichotomy: either you are in or you are out--a formulation sovereigntists wisely ignored. Both sides invoked such powerful symbols as Canadian passports and currency to support their respective positions. Post-election analysis revealed that substantial numbers of Yes voters thought that a sovereign Quebec would in some way or other remain part of Canada, despite the scoldings they received from stern federalists for being so illogical. Although no end to the crisis is in sight, I cannot help thinking that when the end comes, it will appear--much to the chagrin of ideologues of all stripes--in some hopelessly illogical compromise, whose sole merit will be that it works. …