Courtesy of Sir Francis:
(Rebutting David Mader's proposal for Electing a Governor General here)
David’s forcefully argued piece objectively outclasses mine in one undeniable respect: it puts forward its thesis far more concisely than I do. While writing, I found myself having to run over the mutually-agreed-upon maximum allowable paragraph length (which we had set at ten)—fully expecting that David would avail himself of the same licence. He kept himself in strict conformity with the rules, however—perhaps to the detriment of his argument. Having claimed an unfair advantage at the first stage, I shall atone for my sin by offering only a brief critique of David’s post, one that shall take as general a view of the topic as did his own.
If we proceed from the general to the specific, we stumble first upon the statement of principle which appears to under-gird David’s thesis. The Lockean precept that, as David says, “a modern state derives its just power from the consent of the governed” needs to be rightly understood and carefully applied to the reality of actual political phenomena if we have any hope of grasping the true nature of the “social contract” which is assumed to be that precept’s classic embodiment.
The Social Contract theory of government has been the most philosophically powerful body of constitutional thought for at least two and half centuries (and is now virtually uncontested by any serious theoretical rival, at least in the West), but the conventional approach to it tends to be facile, or at least incomplete. What we often miss is that the “consent” which operates as the formula’s key concept is not an active consent—as the phrase suggests—but is virtually always a latent or implied consent, and very possibly something so nebulous as to be unidentifiable as consent at all. There are, in fact, very few freely available mechanisms by which those living in advanced liberal democracies like Canada’s may express their explicit consent to the overall constitutional norms under which they live. That those norms enjoy wide public consent is a conclusion that can only be lazily deduced from the fact that Canada has been spared outright rebellions and large-scale public upheaval (a blessing that has also been conferred on such illiberal, anti-Lockean jurisdictions as Saudi Arabia and Jordan, I might add). I would argue that such a conclusion is eminently refutable on a variety of levels, the most accessible and immediately relevant of which being the atrophy besetting mainstream political participation in North America today: the widespread and possibly terminal political apathy and low voter turnout we’ve been witnessing for decades in America and here in Canada can hardly be taken as symptoms of active “consent”. There’s really no hard evidence that most Americans do consent to being governed by the kind of system David is proposing. Are Americans “consenting” to an electoral system in which so few bother to participate? Is an empty classroom, or one full of slumbering students, “consenting” to the expertise of the professor speaking to the chairs, or is the absence of students not rather an indictment of the professor’s total lack of authority? Is an empty concert hall, or one full of snoring patrons, “consenting” to the spellbinding skills of the orchestra? Thus, the electoral reforms David espouses do not appear to me to be sufficient, or even necessary, conduits or signifiers of overall public consent.
We can assume for the sake of argument, of course, that the kind of passive, silent consent we detect in the American constitutional status quo does meet an acceptable minimum empirical standard for consent. In that case, we need to acknowledge that Canada meets and in fact surpasses that kind of standard—given that our federal and provincial voter turnouts have tended to be significantly higher than the American average. Clearly, if widespread but passive consent to our current constitutional modality is any indication, Canada satisfies the key criterion for consent quite comfortably—even with our unelected head of state. Our appointed Governor General and the method of her appointment both seem to enjoy precisely the kind of implied consent enjoyed by the electoral component of our system. In fact, Governors General have consistently polled with higher popularity rates than our prime ministers have managed to scrape together, at least since Trudeau. Recent surveys of public attitudes to the prorogation and to Stephen Harper’s leadership suggest that taking an independent, anti-prorogation tack would have made Michaëlle Jean even more popular than she is and would have meshed with public wishes far more closely than Harper did. All this suggests that public consent is really attracted by, first, a constitutional corpus that is seen as fundamentally equitable (such as ours) and, second, public actors who make executive decisions that respect the integrity of that system. This seems to me much more important than the appointed/elected dichotomy which takes up so much of our discourse (for those few who bother to engage in it, of course).
I see equally serious problems with many of the specifics of David’s proposal. For instance, when he says, “we can’t hand executive power to a political appointee,” he appears to be forgetting that, under his system (and like the American one), the Governor General’s cabinet would be composed of people many of whom would be, in fact, unelected political appointees. The unelected (and fundamentally irresponsible) status of the American President’s cabinet is, to many Canadians, one of the oddest and most patently undemocratic features of America’s executive system. I doubt many Canadians would be willing to see one appointed executive with relatively narrow powers replaced by, say, twelve appointed executives with wide powers. It seems like a regressive, rather than progressive, step. David foresees an executive system in which cabinets would be composed of both the unelected and the elected, but this attempt to infuse the system with some democratic legitimacy would be deeply problematic. It would give us a two-tier cabinet system, with an elected level of ministry and an unelected level. Those ministers languishing on the latter level would suffer a serious credibility deficit, as their incumbency would violate the principle for the sake of which David’s reforms occurred in the first place. This would prove a serious handicap for those unlucky appointees, especially around the table in cabinet meetings, where elected ministers would not be likely to treat their unelected colleagues as true peers. Such a cabinet would be highly dysfunctional and would carry only doubtful legitimacy in the eyes of many Canadians.
Equally doubtful would be the public appetite for the kind of power David wishes the Governor General to have. He foresees that “her signature would be needed for a bill to become law—subject, of course, to a legislative over-ride”. Philosophically, it would be difficult to justify placing this kind of veto power into the hands of a single person, even an elected person: Canadians tolerate the need for Royal Assent as a vestigial Elizabethanism within our system precisely because we know it shall never be refused, either by the Queen or her representative. Canadians can barely stomach watching the Senate frustrate the passage of bills: even the Upper House’s mild power of legislative revision (for it has no power to kill a bill) makes many Canadians deeply uncomfortable. Allowing the will of the House to be denied by one man or woman acting alone is alien to the Canadian tradition, would seem deeply unnatural to a vast majority of Canadians, and would present far too radical a change in our governmental culture for most of us to assimilate. Here again, I think most Canadians would see this as a regressive step.
Finally (and to return to generalities), I’m not as confident as David seems to be that “it wouldn’t be so hard to present the Queen with a list of one (1) name selected by the Canadian people”. In that respect, we’re back to the conundrum I mention in my post—that the monarch’s representative would be far more constitutionally legitimate than he or she whom she represents and therefore could not logically be placed under the monarch in our executive hierarchy. With the Queen effectively removed as our head of state, she would be nothing to us (constitutionally speaking), and we would then be under no obligation to present her with a list of any kind. We would have given ourselves, in effect, a president and a Congressional system. It is certainly not impossible to bring us to that stage (if we so desired to go there), but it would require a dreadful constitutional ordeal. I doubt if many Canadians would see it as worth the trouble. Given our basically conservative nature, we would be more apt to assay the infinitely more modest, more constitutionally feasible, and (I think) more effective reforms I’ve put forward.
Filed under DebateJan2010 and SirFrancisEntry