In The Law of the Constitution, Dicey contends that parliamentary sovereignty guarantees rights. An absurd claim? Perhaps. But sympathetic exploration shows he is relying on assumptions central to liberal constitutionalism about the power of free speech and partisan debate to effect good laws. He expects rights guarantees to emerge from the contest among parties in the legislature. Reading Dicey today shows how deep-seated is the loss of confidence in parliamentary deliberation, and raises an awkward question: Is the very idea of parliamentary democracy in jeopardy?

Philip Resnick argues that Montesquieu is seminal for an understanding of Canadian institutions. We find in nineteenth-century Canada, he says, not Montesquieu's separation of powers doctrine, so influential in the United States, but his teaching about the mixed constitution, that is, government by a combination of monarchic, aristocratic and democratic institutions. He argues that this influence shows in such typical features of our political culture as acceptance of hierarchical patterns, deference to authority and so on; these are reflections of the “disdain for democratic excesses” inherent in the mixed constitution. He then goes on to suggest that we have grown out of the mixed constitution in the twentieth century, but that as a result of the Charter of Rights and Freedoms relations between the political and judicial powers in Canada have so come to resemble the American that we are justified in saying that Canada in this one respect is now characterized by the separation of powers. We have moved from the Montesquieu of the mixed constitution to the Montesquieu of the separation of powers.

Eighteenth-century British Whig and Tory accounts of mixed government and the balanced constitution are examined together with the similar doctrine favoured by British liberals of the Great Reform Bill period, among them Lord Durham. Durham's Report of 1839 is particularly interesting, it is argued, since it purports to demonstrate the superiority of mixed government to the kind of majoritarian democracy put forward in those years by British and colonial radicals. Durham's proposal to curtail the powers of the democratic branch of government in Lower Canada—the Legislative Assembly, he wrote, had “endeavoured to extend its authority in modes totally incompatible with the principles of constitutional liberty”—is compared to the eighteenth-century “court” party argument for a strong political executive. It is suggested that Durham and the eighteenth-century thinkers together provide grounds for supposing that even today the egalitarian aims of modern societies are furthered by a political system that recognizes man's natural inequalities.

Pierre Bédard, leader of the French Canadian party in the Legislative Assembly of Lower Canada from 1792 until 1812, and a staunch defender of British political institutions, is compared with two of his compatriots whose opinion of the British system is less admiring. To understand the dilemma of colonial politics Bédard attempts to reconcile the idea of tolerance and freedom that he finds in British constitutional authorities like Locke and Blackstone with his perception, illuminated by those same authorities, that British rule in Lower Canada was intolerant. What emerges is an unmatched description of the constitutional principle enabling free criticism of government in Parliament and in the press. Blanchet and Taschereau, in contrast, provide an argument that promotes reflection on the limits of political dissent even in an essentially tolerant polity.

Underlying Matthew Mendelsohn's plea for popular participation in constitution making is a tradition of democratic thought that Jennifer Smith calls “anti–partyism.” This is not the place to describe types of anti–partyism, or trace its roots in Rousseau; I will say only that in Canadian history, and still today, anti–partyism is critical of parliamentary government. In the mid–nineteenth century its proponents argued for the rule of the demos, “the many”; they called their philosophy, “democracy.” They were not calling merely for an extension of the franchise; they criticized the very idea of representative and responsible institutions, contending that responsible parliamentary government empowered “the few” at the expense of “the many.” Today, most scholars regard parliamentary government as a form of democracy, and usually remember that “democracy” has more than one definition. In his article, Mendelsohn unfortunately uses “democracy” to describe only views inclining to anti–partyism.