Charter Hyperbole: The New Politics of Heresy

Rainer Knopff
March 19, 2012
Law, especially rights-entrenching constitutional law, has become a new sacred text, allegedly defining the legitimate community and putting apostates beyond its pale. In Canada, the pulpit hyperbole that cast Wilfrid Laurier as a heretic in late 19th Century Quebec has been replaced by the “Charter Hyperbole” now used to demonize Stephen Harper.

Charter Hyperbole: The New Politics of Heresy

Rainer Knopff
March 19, 2012
Law, especially rights-entrenching constitutional law, has become a new sacred text, allegedly defining the legitimate community and putting apostates beyond its pale. In Canada, the pulpit hyperbole that cast Wilfrid Laurier as a heretic in late 19th Century Quebec has been replaced by the “Charter Hyperbole” now used to demonize Stephen Harper.
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In 1982, Prime Minister Pierre Elliott Trudeau realized his dream of a constitutionally entrenched Charter of Rights and Freedoms. Thirty years later, Trudeau’s son Justin, Liberal MP for Papineau, excoriated Prime Minister Stephen Harper for turning his back on the Charter. If Harper had his way, Justin suggested, Canada would be “going against abortion” and “going against gay marriage.” On both of these issues, Charter politics had taken Canada to the libertarian pole of the international policy continuum – abortion on demand and full same-sex marriage – and Harper wanted to take us back. Indeed, for Justin, Harper is intent on “moving backwards in 10,000 different ways.” Fortunately, the real Canada, the Canada significantly defined by the fruit of Charter politics, had thus far resisted Harper’s reactionary plans. “If I believed that Canada was really the Canada of Stephen Harper,” Justin declared, “I would think of wanting to make Quebec a country.”

Justin’s “Charter hyperbole” – one of many examples witnessed during our 30-year sojourn in Charterland – is a new, less dangerous (but still troublesome) version of the age-old politics of heresy. In this version, the Charter is rhetorically employed as a sacred text that defines the community of “real” Canadians and puts unCanadian apostates “beyond the pale.”

There is a delicious irony in Justin’s Charter hyperbole. While Trudeau père expected the Charter to unify the country, its imposition on an unwilling Quebec had from the beginning fueled Quebec separatism. Now, according to Trudeau fils, Quebec might have to separate to preserve Charter policies that “Harper’s Canada” – i.e., Canada outside Quebec – wanted to abandon. Quebec, which had so strongly resisted the Charter, had become its truest child. What lesson should Quebecers draw from the imposition of the Charter against the province’s wishes? Separate! What lesson should they draw from Harper’s opposition to Charter policies? Separate! Funny how the separatists get to have their cake and eat it, too.

Funny also how Harper’s opponents, both in Quebec and throughout the rest of Canada, keep invoking his “hidden agenda” on such Charter issues as abortion and same-sex marriage. Given Harper’s manifest allergy to these issues, this charge has always been laughable, but it was easier to maintain during his minority government years, when his alleged desire to move Canada “backwards” on these issues would have provoked defeat in the House of Commons. Electing a majority Conservative government, opponents maintained, would liberate the “hidden agenda” and see it implemented. After all, the increasing dominance of Canadian prime ministers in majority parliaments – a dominance Harper is said to have taken to entirely new heights – allegedly allows him to do whatever he wants.

Well, even with a majority government, Harper apparently wants to run as fast and as far as possible from the abortion and same-sex marriage issues. It is true that his first minority government held a free vote on whether legislatively to reinstate the traditional heterosexual definition of marriage, but Harper surely knew he would lose that vote and arguably was happy to lose it. In any case, he has since avoided the issue. It is also true that backbenchers have launched some socially conservative gambits on abortion, but Harper always quickly disavows them. The government intends no backtracking on either abortion or same-sex marriage, he regularly insists. Surely a majority prime minister who can do what he wants has no hidden agenda with respect to issues he assiduously avoids. Right?

Wrong! In light of Stephen Harper’s iron willed and micromanaging control over his caucus, those socially conservative backbench initiatives must be his own carefully managed trial balloons, intended to gauge public receptivity to the first incremental steps in implementing the “hidden agenda.” Only the resistance of the “real Canada,” the one that keeps Justin Trudeau from jumping ship, punctures these trial balloons and prevents them from maturing into reactionary policy. Even in a majority government context, the hidden agenda charge survives.

The hidden agenda claim was trotted out when Justice Department lawyers recently argued in court that same-sex marriage tourists who wedded in Canada could not also divorce here. That there were plausible legal and policy reasons for this position was ignored in what Andrew Coyne called a “disgraceful” initial “media meltdown over same-sex marriage for foreign tourists.” More to the present point, the courtroom arguments were widely portrayed as the Harper government’s official position, again presumably because government employees, like backbenchers, do nothing without this PM’s knowledge and endorsement.

That the government immediately ducked – expressing surprise at its lawyers’ arguments and promising to fix the law to equalize same-sex marriage and divorce opportunities for foreigners – was no doubt seen by Harper opponents as an insincere reversal, attributable to the outrage of “real Canadians” rather than to Harper’s genuine desire to avoid the issue. Certainly, Justin Trudeau, whose above quoted remarks came after this episode, was not led by it to reconsider his conviction that Harper was intent on “moving backwards” on same-sex marriage. It is impossible to argue with conspiracy theorists; like separatists, they insist on having their cake and eating it, too.

Justin Trudeau’s demonization of a hidden Conservative agenda to return Canada to a stained pre-Charter past is far from new. An early and dramatic example occurred during the 2000 federal election, in which Canada’s Right was divided between Joe Clark’s Progressive Conservatives and Stockwell Day’s Canadian Alliance. As part of his campaign rhetoric, Prime Minister Chrétien portrayed the Charter as reflecting the truly Canadian values of the Liberal Party, values the Alliance would undermine by using the Charter’s section 33 “notwithstanding” clause. Ignoring his own leading role in the development of section 33 and his previous enthusiastic defence of the provision, Chrétien castigated it as making the same appeal to the “dark side of people” that the fascists of World War II had made. The Alliance, in short, wanted to take Canada back to a truly “dark” and obviously unCanadian past, a foreign, fascist one that Canadians had sacrificed so much to defeat. Paul Martin and Stéphane Dion would later charge Stephen Harper with similar unCanadian hostility to the Charter, though they did not go quite as far as Chrétien’s thinly veiled charges of fascism.

Such partisan hyperbole is by no means confined to one side of the political spectrum. Conservative MP Larry Miller recently echoed Chrétien’s reductio ad Hitlerum when he reminded Canadian gun control advocates that they shared this policy preference with Adolf Hitler. And who will forget Public Safety Minister Vic Toews’ claim that to stand against warrantless Internet snooping by government officials is to stand with child pornographers? As James Madison famously put it in “Federalist No. 10,” partisan zealotry is rooted in human nature, and it cannot be eradicated without destroying liberty. Among other things, this means that we must expect politicians of all partisan stripes to make inflated claims that rhetorically put their opponents “beyond the pale.” Here, however, we are concerned only with how the Charter is used as a cudgel in this kind of rhetoric. Larry Miller’s analogy to Hitler’s gun control policies may be hyperbolic, but it is not Charter hyperbole. Nor is Toews’ association of Bill C-30 opponents with child pornographers. Castigating opponents as harbouring an unCanadian hostility to the Charter has been mostly a rhetorical tactic used by Canada’s Left against its Right.

Historically speaking, religion has been the archetypical and most dangerous basis of rhetoric that places opponents “beyond the pale,” which is why religion heads Madison’s list of the causes of factional zealotry. In Canada, such religious politics remained significant for some time after Confederation, especially in Quebec, where ultramontane theocrats portrayed the Liberal Party as heretical, a charge the young Wilfrid Laurier laboured mightily to rebut, most prominently in his masterful 1877 speech, “Political Liberalism.” Laurier’s success on this front made it possible for him eventually to become Canada’s greatest prime minister.

Laurier, like Madison, sought to move politics from its religious preoccupations to less dangerous, more easily manageable economic ones. The hope was that with respect to matters less serious than ultimate salvation, ways could be found to forestall the natural tendency toward political intransigence and violence. True, as Madison acknowledged, even “the most frivolous and fanciful distinctions have been sufficient to kindle … [the] most violent conflicts.” Nevertheless, a shift away from religion (and religion-like concerns) to commerce promised a softer and gentler partisanship in practice, if not always in rhetoric.

This promise has been substantially fulfilled in Western democracies. While the politics of religious heresy still haunts the modern world, it does not dominate the public life of liberal democracies, whose citizens tend to lead safer, more peaceful lives as a result.

But not lives free from the rhetoric of partisan demonization. Our more “frivolous and fanciful distinctions” may no longer – or at least not as often – “excite [the] most violent conflicts,” but they continue to excite enflamed rhetoric. We regularly hear accusations of new kinds of “heresy,” accusations designed to turn reasonable disagreements into clashes of irreconcilable absolutes. As Harvard law professor Mary Ann Glendon notes, law (especially rights entrenching constitutional law) often replaces religion as a new and dominant way of alleging heresy in diverse and secular modern societies. In Canada, Charter hyperbole (like Glendon’s “rights talk” more generally) is a new politics of heresy.

This politics of heresy certainly characterizes Justin Trudeau’s suggestion that questioning existing Canadian abortion policy amounts to an unCanadian hostility to the Charter. In fact, the 1988 Morgentaler decision, which triggered the current policy, pointedly left the door open to more regulation than we have currently. Most of the Morgentaler judges would have had no difficulty recognizing as legitimately Canadian the kind of middle-ground policies on abortion that exist in many Western democracies. They thought there was room for reasonable disagreement and hence for parliamentary policy-making on this issue.

However, judicial moderation does not inoculate against Charter hyperbole in the wider political process. For Justin, policies that seemed legislatively eligible to the judges would put Canada beyond the pale, making it a country he could no longer “recognize” and might have to leave. Reasonable disagreements and middle-ground compromises – e.g., civil-union options for gays and lesbians – also exist with respect to same-sex relationships and have been adopted in other liberal democracies.

The point here is not to take sides on these policy questions (or to encourage Harper to do what he manifestly wishes to avoid). The positions favoured by Justin Trudeau are legitimate options in the policy debate. What is objectionable is the claim that other positions are unCanadian heresies that would take us back to the “dark ages.”

That swords are generally not drawn nowadays to back up such intemperate claims shows that they are typically not meant as seriously as the claims of true religious zealots (past and present). The seedlings planted by Madison and Laurier, among many others, have borne sweet fruit. Yet, Madison and Laurier, while never expecting to see the end of inflationary rhetoric, would have seen dangers in even its emptier or less serious forms. They would no doubt counsel the ongoing watchful critique of the pretentions and distortions of demonizing rhetoric, including the Charter hyperbole that three decades in Charterland have taught us to expect.

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