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Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fail*

  • Michael Lusztig (a1)

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Abstract. The primary lesson to be learned from the failed Charlottetown Accord is that substantive constitutional reform in Canada is not possible, and will not be for some time. This claim is structurally grounded—a reflection of inherent limitations to successful constitutional negotiations. Specifically, it contends that the requirement of mass input/legitimization of constitutional bargaining in deeply divided societies is incompatible with successful constitution making. There are two reasons for this conclusion. First, mass legitimization serves to undermine effective elite accommodation. The degree of compromise necessary to forge a constitutional agreement at the elite level among different societal groups alienates too many mass supporters of each group. As a result, elites cannot deliver the support of their constitutional constituents. Second, constitution making, by virtue of providing certain groups with almost perpetual special privileges, provides an incentive for groups to seek constitutional status. Mass input into the constitutional process lowers the costs associated with seeking constitutional status, thereby facilitating the creation of new constitutional orientations. In this article, a theoretical argument about the incompatibility of consociational constitutionalism and mass input/legitimization is developed. This argument applies to the Canadian context, detailing the prevailing “mega-constitutional” orientations (MCOs) in Canada, emphasizing their inherent irreconcilability. Based on evidence from the Charlottetown referendum campaign, empirical support is provided for the argument developed. Finally, the conclusion summarizes the findings and forecasts failure for constitutional initiatives, in Canada and elsewhere, where consociational constitutionalism occurs in tandem with the requirement of mass input/legitimization.

Résumé. La première leçon à tirer de l'échec de l'Accord de Charlottetown, c'est qu'une réforme constitutionnelle en profondeur n'est pas possible, et ce pour un avenir prévisible. Cette prémisse s'appuie sur des éléments structured, reflétant des limites inhérentes aux négotiations constitutionnelles. Plus précisément, cela présume que l'exigence de légitimation par les masses du marchandage constitutionnel dans des sociétés profondément divisées représente un obstacle majeur pour le succès des négotiations. On invoquera deux motifs pour justifier cette conclusion. D'abord, la légitimation populaire contribue à empêcher les accommodements entre les élites. L'ampleur des compromis nécessaires à l'émergence d'un accord au niveau des élites entre différents groupes sociaux aliène trop de citoyens dans chacun des groupes. Conséquemment, les élites ne peuvent garantir l'appui de leurs mandants. En deuxième lieu, le bricolage constitutionnel, qui procure à certains groupes des privilèges sociaux perpétuels, encourage les groupes à rechercher un statut constitutionnel. La participation des masses au processus diminue les coûts associés à la quête de statut constitutionnel, facilitant ainsi la création de nouvelles orientations constitutionnelles. Cet article propose une argumentation théorique à propos de l'incompatibilité entre le constitutionnalisme consociationnel et la légitimation par la participation populaire. La thèse est appliquée au cas canadien, approfondissant les orientations macro-constitutionnelles dominantes ou pas, et en en faisant ressortir l'irréconciliabilité. En s'appuyant sur l'expérience référendaire d'octobre 1992, l'article étoffe ensuite concrètement l'argumentation. Par-delà le résumé des principaux résultats, la conclusion prédit l'àchec des initiatives constitutionnelles, au Canada et ailleurs, partout où le constitutionnalisme consociationnel sera accompagné par l'exigence d'une légitimation par la participation populaire.

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1 For especially useful work on South Africa see Gann, L. H. and Duigan, Peter, Hope for South Africa? (Stanford: Hoover Institution Press, 1991); and Horowitz, Donald L., A Democratic South Africa? Constitutional Engineering in a Divided Society (Berkeley: University of California Press, 1991).

2 For more on the problems of the Belgian Constitution see Covell, Maureen, “Agreeing to Disagree: Elite Bargaining and the Revision of the Belgian Constitution,” this JOURNAL 15 (1982), 451469; and Witte, Els, “Belgian Federalism: Towards Complexity and Asymmetry,” West European Politics 15 (1992), 95117.

3 Smith, Dale L. and Lee Ray, James, eds., The 1992 Project and the Future of Integration in Europe (Armonk, N.Y.: M. E. Sharpe, 1993). For more on constitution making in Eastern Europe see Mueller, Dennis C., “Choosing a Constitution in East Europe: Issues from Public Choice,” Journal of Comparative Economics 15 (1991), 325348; and Elster, Jon, “Constitution-Making in Eastern Europe: Rebuilding the Boat in the Open Sea,” Public Administration 71 (1993), 169217. For English-language discussions of the recent Russian constitutional bargaining see The Current Digest of the Post-Soviet Press (various issues), 1993–1994.

4 Russell, Peter H., Constitutional Odyssey: Can Canadians be a Sovereign People? (Toronto: University of Toronto Press, 1992), 75.

5 Lijphart, Arend, The Politics of Accommodation: Pluralism and Democracy in the Netherlands (Berkeley: University of California Press, 1968). See also McRae, Kenneth, ed., Consociational Democracy (Toronto: McClelland and Stewart, 1974);Lijphart, Arend, Democracy in Plural Societies: A Comparative Exploration (New Haven: Yale University Press, 1977);Barry, Brian, Democracy, Power and Justice (Oxford: Clarendon Press, 1989), chaps. 4–5; and Tsebelis, George, Nested Games (Berkeley: University of California Press, 1990), chap. 6.

6 Skowronek, Stephen, Building a New American State (Cambridge: Cambridge University Press, 1982), 10.

7 See Krasner, Stephen D., “Approaches to the State,” Comparative Politics 16 (1984), 223246.

8 Buchanan, James, The Limits of Liberty (Chicago: University of Chicago Press, 1975), 7879.

9 See Downs, Anthony, An Economic Theory of Democracy (New York: Harper & Row, 1957), 5560; and Muller, John E., War, Presidents and Public Opinion (New York: John Wiley and Sons, 1973), 247249. For more traditional discussions of constitutional change see Wheare, K. C., Modern Constitutions (London: Oxford University Press, 1951);Livingston, William S., Federalism and Constitutional Change (Oxford: Clarendon Press, 1956); and Bryce, James, Constitutions (Aalen: Scientia Verlag, 1980).

10 The concept is similar to Tsebelis’ notion of games of institutional design, see Tsebelis, Nested Games, chap. 4.

11 In game-theoretic terms, consociational government is an iterated Prisoner's Dilemma with no endpoint and a high discount parameter. Each group knows that it must continue to play the game with the same group of players. There is no incentive, therefore, for any player to end cooperative behaviour provided each player continues to derive benefits from the consociational arrangement.

12 See Tsebelis, Nested Games, chap. 6.

13 Cairns, Alan C., “Constitutional Minoritarianism in Canada,” in Watts, Ronald L. and Brown, Douglas M., eds., Canada: The State of the Federation 1990 (Kingston: Institute of Intergovernmental Relations, 1990).

14 Ibid., 78. In addition, the case can be made that other organizations, specifically those representing disabled Canadians, achieved sufficient popular support and legitimacy for constitutional status during the Charlottetown round.

15 Mallory, J. R., “The Five Faces of Federalism,” in Meekison, Peter J., ed., Canadian Federalism: Myth or Reality (2nd ed.; Toronto: Methuen, 1971), esp. 5758, 62–64; Smiley, Donald V., The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987), 177178; and Cairns, Alan C., “Constitutional Change and the Three Equalities,” in Watts, Ronald L. and Brown, Douglas M., eds., Options for aNew Canada (Toronto: University of Toronto Press, 1991).

16 Russell, Constitutional Odyssey, 156.

17 The reason for distinguishing territorial from nonterritorial collectivities is that the former tend to feature the most mobility. It is far easier to move from region to region, for example, than to change gender, ethnicity, or even social class. This is one reason why liberal democracies retain the quasi-feudal feature of territorial representation. Moreover, territories are bounded. As discussed below, a characteristic of nonterritorial collectivities is the lack of clearly articulated boundaries.

18 It is recognized that the Aboriginal lobby, while subsumed under minoritarianism, actually entails a territorial component. However, Aboriginal demands extend be yond territorially-based constitutional status. Moreover, as of now, there is no sovereign Aboriginal territory.

19 See Pelletier, Gerard, “1968: Language Policy and the Mood in Quebec,” in Axworthy, Thomas S. and Trudeau, Pierre E., eds., Towards a Just Society, trans, by Patricia Claxton (Toronto: Penguin, 1992); and Pierre E. Trudeau, “The Values of a Just Society,” in ibid., 404–12.

20 The NEP, by virtue of its dual (domestic and international) pricing system and taxation measures, constituted a massive subsidy for petroleum consumers. Because production was centred in western Canada, the policy was portrayed by western politicians as a massive wealth transfer from western Canada to the more populous (and politically influential) centre. For more on the NEP see Glen Toner and Francois Bregha, “The Political Economy of Energy,” in Whittington, Michael S. and Williams, Glen, eds., Canadian Politics in the 1980s (Toronto: Methuen, 1984);Bruce, G.Glen Toner, Doern, The Politics of Energy (Toronto: Methuen, 1985);Nome, Kenneth, “Energy, Canadian Federalism, and the West,” in Waller, Harold, Sabetti, Filipo and Elazar, Daniel, eds., Canadian Federalism (Lanham: University Press of America, 1988);Uslaner, Eric M., Shale Barrel Politics (Stanford: Stanford University Press, 1989);James, Patrick, “The Canadian National Energy Program and Its Aftermath,” Canadian Public Policy 16 (1990), 174190, “Energy Politics in Canada, 1980–1981: Threat Power in a Sequential Game,” this JOURNAL 26 (1993), 31–59, and “A Reply to ‘Comment on “Energy Politics in Canada, 1980–1981: Threat Power in a Sequential Game, this JOURNAL 26 (1993), 65–68; and Jeffrey Church, “Comment on ‘Energy Politics in Canada, 1980–1981: Threat Power in a Sequential Game,’ “this JOURNAL 26 (1993), 61 -63.

21 Section 1 reads: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

22 Smiley, Donald V. and Watts, Ronald L., Intrastate Federalism in Canada (Toron to: University of Toronto Press), 7.

23 Specifically, the report insisted that greater taxation powers be returned to the provinces to permit them to carry out their constitutionally determined mandates. See Kwavnick, David, ed., The Tremblay Report (Toronto: McClelland and Stewart, 1973).

24 The PQ's historic constitutional position has been more devolutionary than in-dependentist. The major weakness of the independence movement in Quebec has been the province's economic reliance on the rest of Canada. This was why the PQ sought “sovereignty-association” rather than outright independence during the 1970s (Quebec, Quebec-Canada: A New Deal [Quebec: Editeur Officiel, 1979]). In order to overcome this economic reliance, since the early 1980s the Parti Queébeécois has supported initiatives such as the Canada-US Free Trade Agreement as a first step to lessening Quebec's economic dependence on Canada (Thomas Courchene, “Market Nationalism,” Policy Options 7 [1986], 7–12; and Hudson Meadwell and Pierre Martin, “Is Free-Trade Nationalism an Antinomy? The International Economy and Nationalist Movements,” paper presented at the annual meeting of the Canadian Political Science Association, Ottawa, 1993). On the other hand, PQ leader Jacques Parizeau has consistently maintained that an independent Quebec would retain Canadian currency, seek a voice in the Bank of Canada, and retain other economic ties with Canada as well.

25 Taylor, Charles, “Shared and Divergent Values,” in Watts, Ronald L. and Brown, Douglas M., eds., Options for a New Canada (Toronto: University of Toronto Press, 1991), 6672.

26 Lougheed, Peter, “The Rape of the National Energy Program Will Never Happen Again,” in Gray, Earle, ed., Free Trade, Free Canada (Woodville: Canadian Speeches, 1988), 151154.

27 Taylor, “Shared and Divergent Values,” 68.

28 Ian Brodie and Neil Nevitte, “Evaluating Citizens’ Constitution Theory,” this JOURNAL 26 (1993), 235–60; and Ian Brodie and Neil Nevitte, “Clarifying Differences: A Rejoinder to Alan Caims's Defence of the Citizens’ Constitution The ory,” this JOURNAL 26 (1993), 269–72.

29 Cairns, “Constitutional Minoritarianism,” 75–78.

30 Although compare Ian Brodie, “Competition for Charter Equality Rights Status: The Rational Choice Dynamic,” paper presented at the annual meeting of the Canadian Political Science Association, Ottawa, 1993.

31 It is ironic that the stimulus for the emergence of the Minoritarian MCO in Canada was the Charter of Rights and Freedoms, a fundamental priority for Trudeau during the patriation round.

32 Brian Mulroney, Speech at Sept-Iles, Quebec, August 6, 1984. Quebec was the only province not to endorse the 1982 Constitution Act, and the province's symbolic exclusion was seen by many to undermine the legitimacy of the Constitution.

33 See Doern, G. Bruce and Tomlin, Brian, Faith and Fear (Toronto: Stoddard, 1991), 298. After 1984, Mulroney sought to effect an electoral realignment that would allow the Conservative party to supplant the Liberals as the dominant federal party in Quebec, while retaining traditional Conservative support in western Canada. For a discussion of the concept of electoral realignments see Key, V. O., “A Theory of Critical Elections,” Journal of Politics 17 (1955), 318.

34 The exception is the government of Manitoba. However, Manitoba Premier Gary Filmon was not a signatory to the Meech Lake Accord (having come to power in 1988). Moreover, much of Filmon's opposition to the Accord can be traced to the fact that he led a minority government supported by parties opposed to the Meech Lake Accord.

35 Johnston, Richard, Blais, Andreé, Brady, Henry E. and Crete, Jean, Letting the PeopleDecide (Montreal: McGill-Queen's University Press, 1992), 254.

36 Cairns, “Constitutional Minoritarianism”; Cairns, Alan, “Passing Judgement on Meech Lake,” in Williams, Douglas E., ed., Disruptions: Constitutional Strugglesfrom the Charter to Meech Lake (Toronto: McClelland and Stewart, 1991); Alan Cairns, “Citizens (Outsiders) and Governments (Insiders) in Constitution-Making: The Case of Meech Lake,” in ibid.; and Richard Simeon, “Why Did the Meech Lake Accord Fail?,” in Watts and Brown, eds., Canada: The State of the Federation 1990.

37 See Jeffrey, Brooke, Strange Bedfellows, Trying Times (Toronto: Key Porter, 1993), chap. 4.

38 These were the Quebec and Western MCOs.

39 Some qualifications are necessary. Aside from the obvious caveat that MCOs are ideal types to which few subscribe exclusively and wholeheartedly, Wells was in sistent upon the western demand for constitutional equality among the provinces. Similarly, like the other New Democratic party premiers, Michael Harcourt of BC and Roy Romanow of Saskatchewan, Rae was sensitive to the Minoritarian MCO.

40 On the other hand, new provinces would not have a voice in the constitutional amending process, nor would they be allowed increased representation in national institutions without unanimous provincial consent. Thus, there was an inherent asymmetry involved in this provision.

41 The Reform party noted during the referendum campaign that the Accord contained 48 points that were subject to “political accords” or future first ministerial negotiations (Reform Party of Canada, The Reformer[Fall 1992]).

42 Mulroney began the referendum period by suggesting that opponents of the Accord were “enemies of Canada,” thereby seeking to cast the debate in terms of the degree of patriotism voters had for their country (The Globe and Mail, September 19, 1992). He also scoffed at suggestions that Canadians should see copies of the legal text before the referendum vote, implying that most voters would not understand the wording (ibid., September 30). Finally, rather than focusing on the substance of the Accord, Mulroney emphasized the irreparable damage to the economy and perhaps the integrity of the country that could result if the referendum were defeated (ibid., September 9,25,29,30 and October 14, 1992).

43 More than in any other province, the constitution is one of the defining issues in Quebec politics.

44 Ibid., August 28,1992.

45 Ibid., October 2,1992.

46 Ibid., September 9,1992.

47 Ibid., September 16,1992.

48 Ibid., October 8,1992.

49 The guaranteed representation provision was designed to compensate Quebec for allowing its share of seats in the Senate to fall from roughly one fourth to about one tenth. However, the powers of the “Iess-than-2 E Senate” (Reform Party of Canada, The Reformer [Fall 1992]) were so emaciated that many felt the West had actually lost ground within the proposed new Parliament.

50 The Globe and Mail, September 28, 1992.

51 See Mendes, Errol P., “Sinking again into the Quagmire of Conflicting Visions, Groups, Underinclusion, and Death by Referendum,” in McRoberts, Kenneth and Monahan, Patrick, eds., The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto: University of Toronto Press, 1993).

52 NAC is an umbrella organization representing 560 women's groups in Canada.

53 The Globe and Mail, September 14 and 17, 1992. See also Day, Shelagh, “Speaking for Ourselves,” in McRoberts, and Monahan, , eds., The Charlottetown Accord, the Referendum, and the Future of Canada.

54 The Globe and Mail, September 7 and 17, 1992.

55 Sanders, Douglas, “The Indian Lobby,” in Banting, Keith and Simeon, Richard, eds.,And No One Cheered (Toronto: Methuen, 1983), 302.

57 In August 1992 the Federal Court of Appeal had held that talks among government and Aboriginal leaders which did not include representatives of Native women violated the Constitution (The Globe and Mail, October 13,1992).

58 Ibid., September 24, 1992.

59 Ibid., September 25, October 9 and 22, 1992.

60 Ibid., October 7 and 9, 1992.

61 Ibid., Septembers 1992.

62 Ibid.

63 Ibid., August 28, 1992.

64 Trudeau, Pierre E., A Mess that Deserves a Big No (Toronto: Robert Davies, 1992), 17.

65 The Globe and Mail, September 21, 1992.

66 Trudeau, A Mess, 12–13.

67 The Globe and Mail, October 13,1992.

68 Ibid., September 8, 1992. The Canadian Labour Congress, while not enthusiastic about the deal, also lent its “cautious” support in the name of constitutional reconciliation (ibid., September 1,1992).

69 Ibid., October 9, 1992.

70 Trudeau, A Mess.

71 Taylor, “Shared and Divergent Values”; and Russell, Constitutional Odyssey.

* This article was written when the author was at the Department of Political Science, Florida State University. The author gratefully acknowledges the support of SSHRC for a postdoctoral research fellowship, and thanks Janet Ajzenstat, Natalie Amar, Peter Aucoin, Ian Brodie, Alan Cairns, Patrick James, Douglas Lemke, Christopher Manfredi and Peter Russell for their helpful comments on this article.

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Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fail*

  • Michael Lusztig (a1)

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