Stories

Founded not floundered

Tim Anderson
October 26, 2013
Ridiculing the Senate has become all too easy in recent time, but as Tim Anderson explains, critics would do well to understand why the Fathers of Confederation made heavy weather of installing it.
Stories

Founded not floundered

Tim Anderson
October 26, 2013
Ridiculing the Senate has become all too easy in recent time, but as Tim Anderson explains, critics would do well to understand why the Fathers of Confederation made heavy weather of installing it.
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Many Canadian pundits, media and college professors like to narrate the Senate as a chamber of political cronies and unelected bagmen. It lacks democratic legitimacy, they contend, and so it merely rubber-stamps the Commons’ legislation. Sure, some concede, it is supposed to provide “sober second thought” and does fine committee work. Regardless, they maintain that the Senate is a waste of taxpayer money. They often supplement this with the idea that it ought to be abolished; such is the position of the Official Opposition in Ottawa. Recent stories about illicit Senate expenses have intensified this narrative and buoyed its advocates. To that end, polls in May and June of 2013 show that support for Senate abolition continues to grow; it has doubled since 1990.

Not only is this narrative incorrect, it is also an ignorance of the truth. Theoretically and historically, the Senate plays and has played an integral role in our federal polity. This short review of Senatorial theory and history shows that Canada would not function were it not for the Senate. Indeed, some provinces would not have entered the federation without it. 

Theoretically speaking, it is worth considering the intent of Canada’s Fathers of Confederation, and in particular who was influencing their attitudes toward political institutions. John Stuart Mill was the most important political theorist in the Anglo-American world during the 19th century. He was an early champion of women’s equality, individual freedom, utilitarian ethics, liberal economics and democratic governance. His ideas also influenced some of the Fathers; many drew on him in the Confederation debates. In Canada’s 19th-century debates, he played a role similar to if not quite as important as that played by John Locke in the founding of the U.S. regime a century earlier. This makes him an apt theorist to consider in these circumstances. 

In Considerations on Representative Government, Mill initially argued against a second chamber, since he believed it was possible to arrange the Commons in such a way as to check the radical excesses of the majority. However, when it comes to a federal regime, Mill supported the “exceedingly judicious” U.S. constitution, which requires two legislative bodies. He feared that having sub-national units of significantly different size could endanger a federation. If one is larger than the rest, the federation will find that one province is unstoppable when it resolves to act. If there are two larger than the rest, no one can stop those provinces when they decide to work together; if two outsized units disagree, politics dissolves into the members taking sides on the dispute. 

Mill noted that New York is considerably larger than Rhode Island and that the U.S. Senate addressed his concerns. The House represents the people based on population, and the Senate allocates equal representation to all states. In this, the U.S. constitution “precludes any undue power from being exercised by the more powerful states,” while ensuring that legislation cannot pass unless it attains the approval of the majority of the people through the House of Representatives and the majority of the states through the Senate. One way to keep a federation together and protect it from self-destruction is through a Senate where its constituent members share in the execution of power. 

Whether or not Mill actually had Canada in mind, these writings are a perfect fit for Canada’s situation. Our federation contains – at least over most of its history – two large sub-national units that drive federal policy: Ontario and Québec. When Ontarians and Quebeckers agree on an issue, such as the election of Brian Mulroney’s Progressive Conservatives in 1984, it becomes immaterial how the rest of the country votes. When they disagree, as they did over the patriation of the Constitution, politics resembles a game where everyone else has to pick sides. The fact that every other province eventually sided with Ontario in 1982 and passed a new constitution without the support of Quebeckers led directly to the 1995 referendum that nearly destroyed Confederation. Canada has vindicated Mill’s concerns. Modern demographic trends suggest that the Western provinces will replace Québec as the second 900-pound gorilla; however, the concept remains unchanged. 

This theoretical discussion leads to two logical reasons why Canada’s Senate is relevant. First, we have the notion of divided power. Now, the West, Ontario and Québec all have 24 senators, while the Atlantic provinces have 30. In order for legislation to receive Royal Assent, it requires the approval of the Senate, which means a majority of the representatives of the regions agree to a particular bill. While I am sympathetic to a reformed Senate that provides every province with an equal number of senators, the abolition of the Senate leaves Canadians with just a House of Commons based on population. In that scenario, any time the Ontario and Québec MPs decide to pursue a particular course of action, the other eight provinces will be powerless to stop them.

The second function of the Senate is the maintenance of regional perspectives and identities. The interests of people in the Gaspésie are not the same as those in Kamloops or Lunenburg, but Canada as a federal project is meaningless if not all of them can be accommodated by some just and predictable mechanism. The Senate exists to ensure that no one region can decide the Canadian identity; it can emerge through constructive federal politics.

Nevertheless, we can go even further. The Canadian federation might not survive without the Senate and the minority vetoes described above. The federation would come to reflect the world described by Thucydides in the Melian Dialogue: “[R]ight, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.” I wonder if Canadians would be pleased to see Athenian provinces such as the West and Ontario run the country however they wished while Melian provinces such as the Maritimes and the smaller Prairie provinces simply endured their dictates. Would such a federation be sustainable? I doubt it. 

A further consequence that Senate abolitionists may not have considered is that the only remaining checks on the tyranny of the majority within the federal government would be the Crown and the Courts. Although each province has its own legislature, the legislatures cannot act as an appropriate counterweight to federal initiatives outside of their constitutional jurisdictions. That leaves the Crown and the Courts. Now, since the Crown would almost certainly lack public legitimacy, the Supreme Court might well acquire more authority and latitude to act. Indeed, multiple polls show that the Court has the trust, support and admiration of Canadians; I do not foresee any turn in those numbers if the Court began to apply itself as a defender of minority rights for smaller provinces in addition to individuals. Judicial behaviours are difficult to predict, and it is easy to invest in a particular prediction, but on the face of it, an eliminated Senate would yield a more powerful Court. Ironically, the step to dissolve one “undemocratic” body might simply empower another one. 

Beyond theory, the Senate played a pivotal role in the founding of Canada; it is an important part of our heritage. Historian Donald Creighton noted that the Fathers, especially Sir John A., realized that the support of the Atlantic provinces – particularly the mainland ones – was necessary if British North America was to form its own proper polity. Because the House of Commons was to be apportioned according to population, and because Canadas East and West were much larger, the Atlantic provinces looked to the Upper House as their best chance to prevent Canadians from imposing their untrammelled will on the new country. The Canadas proposed a chamber where all three regions were represented equally: Ontario, Québec and Atlantic Canada. The Atlantic delegates were unwilling to accept this arrangement and protested for many days at the Québec City Conference. Eventually, they won the concession that Newfoundland’s four senators would be outside of the Atlantic reckoning, giving that region more members than the others. Furthermore, the governor-general would appoint each province’s senators rather than that decision resting in the hands of the people or their provincial legislatures. 

Atlantic politicians were still unhappy. Prince Edward Islanders, already unpleased that their proportion of MPs was so small, railed against the proposed form of the Senate. In Canada’s Founding Debates, one sees that the Islanders feared that senators appointed by Ottawa rather than Charlottetown would not be truly representative of the people’s interests. The Islanders both appeared and felt ignored at this stage of the negotiations. Newfoundland too felt miffed; legislators such as George Hogsett did not like that the province would get only four senators who, at their appointment, would be independent of the colony and advocates for the federal government. In the end, PEI and Newfoundland did not enter Confederation in 1867.

The evidence suggests that at least one cause of this was that each province disliked the arrangement of the Senate as it pertained to them. Creighton stated that the PEI delegates were so unhappy that they voted against the Newfoundland concession mentioned above because they resented the fact that this was the compromise from the Canadas. Clearly, the Senate was a relevant body to the Fathers insofar that some would-be provinces opted not to join Confederation in part because of its construction.

Furthermore, discussion of the Senate dominated the London Conference; there was no way to increase the number of senators needed to break a deadlock between the House of Commons and the Senate. Creighton wrote that Macdonald had to act quickly here, since talk of the Senate had nearly “wrecked” the negotiations at Québec City and were derailing things again. It was agreed that the governor-general could ask the queen to appoint three or six additional senators if needed, and they had to represent each region equally.

This historical review provides us with some important points for reflection. The Senate mattered greatly to the Fathers of Confederation. To some, it mattered so much they rejected the project of Confederation. To others, it was such an important piece of governmental machinery that many hours and days at the Québec City and London Conferences were spent on the Senate. This serves as a warning to those declaring that the Senate is useless and ought to be scrapped: They should, at the very least, seek to understand why the Fathers exercised so much effort on it.

On the other hand, keeping the Senate and continuing to change aspects of it connects us with our Founders. A modification made in one generation may need to be altered or counterbalanced in the next. The very process of debating and trying to improve the Senate encourages Canadians to build upon the Fathers’ work rather than whiting out their views.

There is one obvious objection to my general argument, viz. that if the Senate is such an important body for the protection of regional interests, then how do we explain the institution of the National Economic Plan (NEP) that harmed Western Canadians, for example? In brief, despite its designed purpose, the Senate has not been the effective champion of regional interests. I think there are a few answers here. First, the Senate lacks a real veto over legislation – the Commons can override the Senate’s objections after a waiting period if it so desires. As such, when in the Commons there is a majority government, even when a regional bloc in the Senate persuades enough senators to oppose the legislation, the Commons can still carry the day. Trudeau had such a majority in the early 1980s when the NEP was instituted.

Second, there is the question of numbers. Although the Senate is composed of regions, no group has a large enough representation to defeat a bill – a bill that is good for many regions of the country but bad for one region is likely to pass. Furthermore, the regions are composed of different provinces, each with unique political interests such that a particular law might be acceptable to the people of Manitoba but unacceptable to Alberta. The concerns of Albertans can be voiced, but they alone cannot stop legislation.

Third, there is the problem of partisanship in the Senate. Too often, political issues in Ottawa are framed in terms of party agendas. Indeed, members of the Senate caucus are often affiliated with particular parties, and need to be appointed by partisan prime ministers. As such, the pressures of party can outweigh or push aside regional concerns. The Senate does not require partisanship; it probably would be a more effective body without parties.

What these three explanations demonstrate is not that the Senate is useless, but that it does require reform. Moreover, this could rekindle Canadians’ appreciation for it. My earlier discussion argued that the Senate plays an important role in the Canadian regime, and its failure as a strong defender of the regions stems from particular problems that need amending. Changes that could be made without constitutional reform could resemble the abolition of political parties in the Senate; this would ensure that each senator is unaffected by party in his or her defence of the region. The prime minister could also ensure that he or she appoints only senators indirectly elected by the provincial legislatures; this would provide a deeper connection between the senator and his or her province than the current model does. Eventually, even the most stubborn province would capitulate and select senators if their interests went unrepresented too long; the politics of the empty chair has little currency in Canada.

While these changes would have a positive effect on the regional tenor of the Senate and bring it closer in line with the Fathers’ vision, it does not fully solve the issue of numbers. If we are serious, it would likely require constitutional amendment that would make the Senate resemble the U.S. Continental Congress where each region has only one vote. If there is a deadlock between senators from a region, they do not vote. This would encourage compromise between the senators from different provinces within a region insofar as the senators would have to meet together frequently to hear each other’s perspectives and attempt to come to a decision about their votes. One could also simply amend the membership of the Senate so that every province has equal representation in the Senate. Any of these changes would be an effort in continuing the Fathers’ work on providing Canada with a necessary second chamber that would effectively represent the regions of the country.

Many pundits, leaders and members of the population actively deny that the Senate plays a useful role. Instead, the argument goes that it is a waste of money and is staffed with unaccountable political hacks; we would do better without a senate. They may be right on some counts, but they miss the wider context. The theoretical and historical justifications for the Senate are nuanced, and the Fathers of Confederation carefully considered them; we should be extending rather than abandoning those considerations.

~

Tim Andersonis a PhD candidate in political science at the University of Calgary. His interests include political philosophy, Canadian politics, federalism, law & politics, classical liberalism, and pragmatism. He is originally from the Halifax area.

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