I’m an outlier

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I say this because of something Steve Pakin of TVO posted on social media:

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I believe the Star is correct … almost every Canadian I know loves the Charter; I don’t. I don’t exactly hate it, but I do think that it is a colossal waste of paper. I think much the same about the great and revered Constitution of the United States. Both documents are masters of the obvious and both a focused on the problems of the past. Consider, for example the oft discussed 2nd Amendment to the US Constitution …

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… now, in 18th century America a “well regulated militia” was a necessity and the right to keep and bear arms had been increasingly restricted in Britain since the 17th century and, already, in the newly independent republic there were some who wanted to restrict firearms in America, too. But it is no longer the late 18th century and Red Dawn was just a movie …

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… and a bunch of kids with hunting rifles are not needed, in the 21st century to beat back a Cuban (or North Korean) invasion. That was not the problem that confronted American legislators in 1791 but they made a local, temporary issue a mater of an enduring, even fundamental right.

Ditto in Canada: §16 through §23 (nine of the Charter’s 34 sections, or more than ¼ of the whole document) deals with language rights. Now, in the second half of the 20th century language was a hot button issue in Canada and it had been, long before that, a top of mind issue for Pierre Elliot Trudeau and he made sure that a 1970s problem became part of what is intended to be an enduring constitution, going so far as to specify that …

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… except that:

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My suspicion is that an overwhelming number of Canadians love their Charter of Rights and an equally overwhelming majority of them have little, if any, idea about what’s in it … or why it’s there.

My problem is not with either the American or Canadian constitutions, alone, nor with those of e.g. Australia, Germany, India or South Africa. I agree, for example, that federal states need laws to define, just for example, the areas of responsibility of the national and the provincial or state legislatures. My problem is that I think ALL formal, written constitutions get something, often most things, wrong.

My favourite constitutions are Britain’s, Israel’s and New Zealand’s. They are all constitutions that exist only “in an abstract sense, comprising a host of diverse laws, practices and conventions that have evolved over a long period of time.” The fundamental event for Britain was “the Bill of Rights (1689), which established the supremacy of Parliament over the Crown following the forcible replacement of King James II (r.1685–88) by William III (r.1689–1702) and Mary (r.1689–94) in the Glorious Revolution (1688).” That, of course, is why there is some debate, right now, in Canada, as wiser men than I have explained …

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… and what Premier Doug Ford of Ontario seems to be trying to do is to reassert that old principle that Parliament is supreme. Pierre Trudeau and a majority of Canadian provincial premiers disagreed over 35 years ago. I believe they were wrong then and I hope that Premier Ford will be proven right, today … not because I give even the slightest damn about the size of Toronto’s city council but, rather, because I believe that the Canadian Constitution (1982) is flawed and that it needs to be replaced.

Almost no one shares that view.

 

2 thoughts on “I’m an outlier”

  1. Further to my last:

    After reading some of the comments at Spector I sense that there is an argument to be made that the Not Withstanding Clause, and more particularly, the unwillingness to have it be seen as part of the regular commerce of debate in this democracy, sets a tone that implies the supremacy of the courts. The wise folks of the courts interpreting the charter vs the venial trained seals of parliament.

    Personally I prefer the notion of free and sovereign parliamentarians pragmatically deciding on how to resolve the conflicts of the day.

    Parliament: the original source of social license.

    Right, wrong, truth and justice have nothing to do with it.

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