Whenever sophisticates advocate "modernizing" Canada by turning it into a republic, I think of political scientist David E. Smith's persistent reminder that section 9 of the 1867 Constitution Act lodges executive power in the Crown. Executive power does not only consist of applying and administering laws passed by Parliament; it includes the power to prorogue and dissolve Parliament as well as those emergency powers that can suspend parts of the Constitution.
While it is to our advantage that the public face of the Crown consist largely of its "dignified" aspects, namely the Queen and Her Representative, it is important to remember that one of the reasons our current Governor General, David Johnston, was appointed was the possibility that Canada would face a long period of minority governments, whereby the Governor General would possibly be called upon to dissolve Parliament. We needed a Governor General not only competent in constitutional arcana but also one having the appearance of competency that would enable authoritative action.
The great advantage of our present Constitution is that the Crown enjoys widespread authority to do its part in maintaining the equipoise of our nation. She cannot be claimed by any single faction in our country and thus can act on behalf of all of us.
I doubt an elected president of a Republic of Canada could live up to the Crown's dignified and efficient roles because Canada is too divided among factions, especially along regional lines. If you wanted a president who could duly represent Canada's political and economic centre, it would have to be an executive from Calgary who owns major shares in the oil sands, the fountain of much of Canada's economic blessings. Ladies and gentlemen, rise to welcome President Murray Edwards!
This possibility might be attractive to some Albertans but probably not to the rest of Canada. Most would prefer to keep the Duke and Duchess of Cambridge in their white Stetsons than to have a real cowboy/oilman as their head of State. Indeed, Albertans do fare pretty well in helping to run the efficient roles of our Crown anyway, and their influence is only increasing.
The problem of executive power gets us to the nub of Frank Buckley's new book, The Once and Future King: The Rise of Crown Government in America. Buckley argues that the rise of the administrative State has increased the power of the executive in Anglo-American democracies to the extent that, at least in the United States, the original vision of a "filtrated" president—one chosen by legislators who know him and check him better than voters because the former can see him close up—has given way to an elected king. A Canadian and a professor of law and economics at George Mason University in Arlington, Va., Buckley argues that the United States has fulfilled the nightmare of his university's namesake of having an elected king, which is far more threatening to individual liberties than a jugeared hereditary king.
The same concentration of power has been going on in Canada and Great Britain, but the Canadian system of Westminster government is better equipped to check executive power than is the U.S. or other form of presidential system. Buckley's book focuses mostly on the United States and the arbitrary powers the president now claims. The immediate causes of this problem reside in the 20th century with the rise of the welfare state, media and the "logic of political power" that favours a single powerful executive over and above a multitude of small (congressional) powers.
However, the roots of this problem derive from the U.S. Constitution itself, with its separation of powers that induce different parts of government to act irresponsibly because no single agent needs to act responsibly. Nothing gets done because no one can be trusted that the other side is serious in keeping commitments. The Americans would have been better off adopting the Virginia Plan, which Buckley claims was essentially parliamentary government with its "filtrated" means of choosing a president who would have been left a creature of Congress.
Buckley's analysis of the pathologies of American constitutionalism and politics, and his proposals for reform, need not concern us here. What is more interesting for Canadians is his argument that our Westminster system protects individual liberty more effectively. While Americans view their exceptionalism in terms of theirs being the model liberal democracy for the world, Buckley points out that it has been the Westminster system that "came to be followed by 50 countries with a combined population of more than two billion people, and that is no small thing."
Our Westminster parliamentary system protects liberty better because responsible government gives members of the House of Commons more means to check and remove government, and it gives dissenting Cabinet members the powers to remove an unpopular prime minister. Whereas American politics must continually endure impotent and largely frivolous shrieks for impeachment, the "nuclear" option of American checks and balances, it is no big deal for the prime minister to receive the boot. Canadians can afford to be blasé when there is no head of government, whereas the prospect of presidential transition in the United States is seen as downright apocalyptic.
The U.S. president is seen as the central figurehead of American society: he is head of State and head of government, which leads to unnecessary piety towards the office. No such piety exists for Canadian prime ministers nor for the Crown, whose dignified powers reside at sufficient distance from its efficient powers to keep it insulated from the combination of overweening piety and hatred that American presidents face.
Buckley's argument is unfamiliar if not hokum for Canadians who have accepted the Jeffrey Simpson view that our system produces "friendly dictators," Lawrence Martin's Harperland of control, or the more academic versions in Donald J. Savoie's Governing From the Centre (whereby the political executive "governs by thunderbolts") and the late Peter Aucoin and colleagues' Democratizing the Constitution: Reforming Responsible Government.
Canadian conservatives especially have become accustomed to drawing inspiration from the American Constitution and conservatism and thus regard Buckley's reading of Canadian constitutionalism and conservatism with skepticism. As one conservative recently snarked at him, "If America's so bad, why not just go teach at Ryerson instead of staying at George Mason?" They view his Toryism as a form of Upper Canadian snobbery.
Buckley's argument for the excellence of the Canadian parliamentary system is comparable with (and relies somewhat on) Christopher Moore's account in 1867: How the Fathers Made a Deal and the work of Janet Ajzenstat, including her most recent Discovering Confederation. Moore and Ajzenstat are best known for debunking the "Tory Touch" thesis that views Canadian history as progressing from aristocratic paternalism, such as that of Sir John A. Macdonald's Tories, to socialism. Moore and Ajzenstat present a Whiggish reading of Confederation by arguing that the Fathers were Lockean liberals through and through who thought in terms of government by consent and for the purpose of individual liberty. For a Whig like Moore, David E. Smith's argument for the centrality of the Crown and for the authority of the House of Commons as the people's voice is Tory bunk.
Buckley identifies himself more with the Tories—his hero is Donald Creighton—but his argument tries to combine both Whig and Tory views of Confederation. He regards Loyalists, the founders of responsible government (e.g., Baldwin and LaFontaine), and the Fathers of Confederation as essentially Lockean liberals for whom consent of the governed is the only basis for government, and individual liberty its main purpose. Even the governors general before Lord Elgin saw their main purpose (other than riding their horses) to be promoting Canada as preferable to the United States, with individual liberty being one of the keys to that.
Buckley's synthesis of Whiggism and Toryism is therefore a restatement of Sir John A. Macdonald and Georges-Étienne Cartier, who thought that responsible government is secured by the Crown. The difference, then, between Whig and Tory is not over ends, about which they agree, but over means, including the efficacy of the Crown in protecting liberty. Unlike the Whigs, Buckley's heroes include Lords Simcoe and Dorchester.
Buckley agrees with Macdonald's friend, Walter Bagehot, who thought the key to the puzzle was the distinction between the Crown's efficient and dignified roles. Elsewhere I have called the subtle and reciprocal relationship between these roles the "white Stetson monarchy." One of the key reasons Buckley thinks Canadians have been able to synthesize Whig and Tory is historical circumstance. Canada could follow the example of adopting the British Constitution, especially the form it took after the 1832 Reform Act. Such mimicry was not available to the Americans in 1789. They had to invent something new.
Buckley's concern is to show how the prime minister is held to account. He reproduces the Hansard recording of Lester B. Pearson's defence of the St. Laurent government's invocation of closure in the 1956 pipeline debate. This is a prime example of a prime minister facing the music and skilfully responding with wonderful parliamentary rhetoric (in which Pearson otherwise did not excel). It is a wonderful example of "government by talking," Churchill's description of parliamentary democracy. Moreover, Buckley observes that despite Pearson's eloquence, the Liberals were defeated in the subsequent 1957 election. "When criticized, [the Liberals] had seemed touchy and petulant, and almost begging to be taken down a notch; and the voters obliged."
In Canada, petulant politicians get voted out of office or are removed by their own caucuses. Conversely, petulance seems to be a defining feature of a president or elected king when faced with the kind of disrespect to which prime ministers are accustomed. Parliamentarians are more ironic than presidents and, therefore, afforded greater opportunity for moderation.
Many would criticize Buckley for overestimating the extent to which prime ministerial power can be limited in Canada; or he at least fails to consider the expansion of that power since Trudeau. However, Canadians generally fail to appreciate how frequently members of caucus act against the "logic of political power" and give their prime minister or provincial premier the boot. Acting against this logic is difficult but by no means impossible. So beholden are Canadians to the romantic view of American separation of powers that even those who have given their boss "the boot" fail to appreciate the significance of their own power.
Canadians, too, have failed to notice smaller-scale responses to prime ministerial power, including the Conservative caucus advisory committees that vet bills coming from ministers and the Prime Minister's Office (PMO) and offer caucus members significant input into the legislative process. Their Chatham House rules enable freer caucus debate than what backbenchers may wish to risk by challenging their government publicly in the House of Commons. Moreover, they lack the same kind of grandstanding that plagues parliamentary committees. The fact remains that the power of the prime minister and provincial premiers resides ultimately in their caucuses, regardless of how many Harper-Jugend staffers are sent by the PMO to order caucus members around. Alberta's blue-eyed sheik, Peter Lougheed, knew his power was based upon his caucus, and several of his successors did not, which explains the difference between his longevity in office and that of some of his recent successors.
Buckley's focus on Confederation provides little guidance to those concerned about curtailing prime ministerial power in its current instantiation. The book focuses more on the United States and his prescriptions are tailored for their system. His prescription for greater use of referenda will find favour in Canada, but this measure may actually undermine the prime strength of the Canadian system, which is the role of the House and caucus in limiting executive powers.
The most effective way to restrain prime ministerial power is simply for members of Parliament to do their job. The 1867 Constitution, most notably in the Preface and sections 53 to 55, establishes responsible government. MPs have this power. They may use it if they choose to exercise their freedom and creativity.
If MPs feel daunted by the prospect of confronting the "logic of political power," they should consult the social mores that Buckley identifies that accompany procedural rules of Parliament, namely the social clubs and parties that promoted amity and co-operation during the American Constitutional Convention and the Fathers' time spent journeying to and in Charlottetown.
The serious work of the Charlottetown Conference was surrounded by a great spirit of convivium. This is why, in the famous photograph of the Fathers on the steps of Government House, Sir John A. looks so rough: He was hungover! And not just him. "The highlight was the Bachelors Ball, where the members of the Canadian cabinet showed themselves to be indefatigable dancers" with the Maritime and French Canadian ladies. Our MPs should recall that Macdonald was "devoid of meanness and possessed gifts of friendship and empathy" that his rivals lacked. Thus do the ties of love and friendship hold our polity together. Tyrants do not want their underlings to practise friendship, and Buckley helpfully shows at times how the rise of Crown government undermines social trust. So MPs should cultivate love and friendship with one another and with their relations.
Buckley reminds us that parliamentary democracy, "government by talking," is the best guarantor of liberty. Moreover, it is sustained by individuals who talk and who share a common life together. Dare I say it is the highest form of political friendship we can obtain?
