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Howard Anglin: Canada and the Constitution: Trudeau’s rational folly

Commentary

Earlier this year, to mark the 40th anniversary of the patriation of the Canadian Constitution, UBC law professor Brian Bird wrote a four-part seriesThe Charter at Forty: The road to 1982 https://thehub.ca/2022-01-19/the-road-to-1982/ for The Hub tracing Canada’s constitutional history from Confederation to the present, ending with some thoughts about our constitutional future. It is an erudite and accessible journey through more than a century and a half of legal history, which I recommend to anyone interested in understanding the significance of 1982 as an inflection point in the modern history of Canada. In my own rather more polemical series, I make the case that by 1982 Pierre Trudeau’s constitutional vision, which was grounded in the Enlightenment values of liberal rationalism, was already outdated and that Canada’s new Constitution has thrived not on Trudeau’s intended terms, but as a broadly illiberal exercise of irrational judicial power. Here is part one, with the other three parts to follow each day this week.


With apologies to Virginia Woolf,The Hogarth Essays: Mr. Bennett and Mrs. Brown http://www.columbia.edu/~em36/MrBennettAndMrsBrown.pdf on or about June 1967, human nature changed. As with the birth of modernism observed by Woolf, “[t]he change was not sudden and definite … [b]ut a change there was, nevertheless” and “when human relations change there is at the same time a change in religion, conduct, politics, and literature.” So it was in the Summer of Love.

It was one of those moments in history when a subculture becomes a zeitgeist. The communal flophouses of San Francisco, so grimly chronicled by Joan Didion and Tom Wolfe, may have been the most unlikely place for a cultural revolution since the rat-infested cafes of Paris’s Latin Quarter, but that is where the eyes of the world alighted in 1967 and they remained there long enough to imprint permanently a psychedelic distortion of reality onto the Western consciousness.

The climax of this cultural moment was the Monterey Pop Festival, which ran from June 16-18. John Phillips wrote the flower-child anthem “San Francisco (Be Sure to Wear Flowers in Your Hair)” for the festival. The song begins with a dreamy invitation to join the “gentle people with flowers in their hair” in a summertime love-in, but then abruptly shifts to an urgently prophetic voice, proclaiming that “all across the nation…there’s a new generation with a new explanation.” The singer promises not just floral reverie but “people in motion,” a generation on the march.

Almost exactly one year later, on June 25, 1968, Pierre Trudeau became Prime Minister of Canada. In the Canadian mythopoetic imagination, the two events—Trudeaumania and the 1960s counterculture—are usually linked, but with the benefit of distance we can see that Trudeau was an unlikely and unconvincing avatar of the 1960s.

Trudeau was no hippie. Like his near contemporary, John F. Kennedy (who, had he lived, would have loathed the hippies), he was a well-preserved relic of the world the young baby boomers sought to wash away in a trippy haze of peace, love, and sandalwood. He was a balding lawyer, older than most of their parents, and he wore his flowers in his tailored lapel rather than in his thinning hair. Far from being a new-age spiritualist or a cosmic thinker, he was a Catholic who believed in reason and its promise of scientific and social progress. About the only thing he had in common with the hippies was the age of his girlfriends.

The confusion, which was there from the beginning, is understandable. Because Trudeau’s liberalism shared many of the emancipatory goals of the younger generation—most obviously the overthrow of sexual mores (hippies, in the name of free love against repression; liberals in the name of reason against irrational tradition)—it was easy to see them as part of a common project. In fact, they were two branches of the Enlightenment that were diverging so rapidly that the newer one was turning back on the other, not to reinforce it but to devour it.

The hippies shone the light of Enlightenment skepticism back on its own premises and found a void at the heart of liberalism. Whether Trudeau realized it or not, by 1968 the Age of Reason had met its backlash in the Age of Aquarius and was on the way out. The tension between his faith in “La raison avant la passion”La Raison Avant La Passion 1968 https://www.aci-iac.ca/fr/livres-dart/joyce-wieland/oeuvres-phares/la-raison-avant-la-passion/ and the tuned-in and turned-on generation who believed in magic and good vibrations could be ignored as long as they were both sweeping tradition and convention before them. But the underlying philosophical divide was real. It was exposed most memorably during the FLQ crisis when Trudeau made it clear he had no time for bleeding hearts when they got in the way of his tanks.

Trudeau’s political project, which he had been developing in the pages of Cité Libre since the 1950s, could not have been more different than the consciousness-raising revolution of the 1960s dropouts. Unlike the hippies, who sought transcendence in the intentional irrationalism of mind-altering psychedelics, spiritualism, and ersatz Eastern mysticism, Trudeau still believed in objective truth knowable through reason. So much so that he worked with law professor Barry Strayer for more than a decade to develop a modern constitutionalism for Canada grounded in a belief that politics could be rationally ordered and directed under the supervision of neutral, apolitical judges.

It is hardly spoiling the end of the story to reveal that this is not what happened. With ultimate responsibility transferred a few hundred yards down Wellington Street from Parliament to the Supreme Court, the Canadian Constitution began to evolve apart from, and with only indirect influence from, the political work necessary to hold together an irrational society.

After 40 years of such hothouse evolution, Canada’s legal Constitution now resembles an exotic cultivar bred by an eccentric recluse. Like Des Esseintes’ flowers in A Rebours, the “living” Constitution often appears more artificial than alive, as befits a form of government driven by a liberal rationalism that is not naturally and organically tied in theory or practice to the social reality of custom, morality, and public expectation.

Howard Anglin: Elizabeth II, Queen and servant

Commentary

She was not a queen, but the Queen. Few of her subjects in the United Kingdom or in any of the Commonwealth realms where she remained head of state are old enough to remember a time when she was not the Queen. As a result, her place in our minds, and in the minds of billions of people around the world for whom she was a foreign but familiar figurehead, extended well-beyond her official duties. She represented stability in a changing world, order in chaotic times, and constancy in a relentlessly progressive age. More importantly, she embodied it. 

The last century began with the death of Queen Victoria, whose longevity was second only to that of Elizabeth II’s and whose reign was synonymous with British hegemony and a cultural and military power unrivaled since the Roman Empire. The 50 years that followed, which included two world wars and four British kings, were the most violent and disruptive in modern history. One can almost imagine that the diminutive but sturdy Victoria had personally been holding back the tide of modernity, which was unleashed upon her demise with devastating fury. 

Elizabeth II’s accession after World War II restored peace to the monarchy and to her country, but it could not bring back their former glories. She was crowned in the afterglow of the sunset of the British Empire. Four years earlier, her father had dropped the imperial suffix “Indiae Imperator” from his title. Three years into her reign, the Suez crisis exposed Britain’s true impotence. Over the next twenty years, independence movements across the third world would see more than a dozen countries exit the Commonwealth and drop from her official title. 

Elizabeth II was powerless to reverse her country’s eclipse by new global superpowers, but through the turbulence she maintained her regal and personal poise. Almost single-handedly, she kept Britain “great” in the eyes of the world. She occupied the idea of 20th-century royalty—friendly without being familiar; touching but still untouchable—so completely that one almost forgot that the title of Queen is not eternal. It will take some time before singing “God Save the King” and hearing references to the Court of King’s Bench and King’s Counsel won’t be jarring. 

In her Canadian constitutional role, for more than 70 years she did almost nothing, and she did it perfectly. She delivered the Speech from the Throne at the opening of Canada’s parliament twice, first in 1957 and again in 1977, but otherwise the symbols of her office presided silently over her government. She was present in law, if not in person, at every court hearing, every cabinet meeting, and every speech, debate, and intemperate outburst in parliament. This was most obvious when her representatives granted royal assent to our laws—a reminder that, unlike vulgar republics, our democracy is ordered constitutionally from above as well as below.

The ubiquity of technology meant that we were able to see behind the “mystery” and the “magic,” which the constitutional journalist Walter Bagehot insisted were essential to the preservation of monarchy, and occasionally glimpse the humanity of our sovereign. What we saw was a woman who exemplified the unfashionable virtues of duty, faith, service, and sacrifice, which are easy to scoff at but whose absence we feel elsewhere in our society and our politics. The outpouring of stories of her small kindnesses gives a glimpse into the private person who cheerfully did her bit during the war in the unglamourous role of a truck mechanic. 

Elizabeth II lived among archaic splendour in a world of arcane ritual, and yet in some ways she had more in common with her people than many democratic politicians. When the Daily Mirror sent a reporter undercover to Buckingham Palace posing as a footman, the exposé revealed the surreal mix of the baroque and the ordinary in royal life. The Queen’s cornflakes were served in Tupperware containers and, on the top of the pile of national newspapers, she wanted the Racing Post. It took three servants to deliver the morning coffee, but during breakfast she fed toast to her corgis under the table.

Her formal and honourary titles capture both the anachronism and the thoroughly modern scope of her life. In England, she was Her Majesty, but also Seigneur of the Swans; in New Zealand, she was Te Kotuku Rerengatahi, the “Rare white heron of single flight”; in the Jamaican patois she was Missis Queen; in Rhodesia, she was the Great White Mother of Africa; to the Cantonese in Hong Kong she was “Boss Lady.” She was even a Duke (two dukes if you include the semi-official title of Duke of Normandy).  

She was a tireless patron of more than 600 organisations during her reign. She was Colonel-in-Chief, Captain General or Air Commodore-in-Chief of 17 units in the Canadian Armed Forces, Commissioner-in-Chief of her beloved Royal Canadian Mounted Police, and patron of another 18 Canadian charities and organizations. She first toured Canada as Princess Elizabeth in 1951, and made 22 official visits as Queen. Although age later curtailed her travel, she continued to offer messages of condolence and hope to Canadians, as during the “catastrophic flooding” in 2021 in British Columbia when she thanked responders and volunteers.

The obituary films of her life will show what a different country she inherited, and what a changed world she has left. The geopolitical and technological revolutions are obvious, but it was the social revolution that posed the greater threat to her position. When she became Queen, a divorced person was not permitted in her presence at the Royal Box at Ascot. Now three of her four children are divorced. Yet somehow her dignity amid her family’s scandals and the obvious pain of her “annus horribilis” only endeared her more to her people.

FILE – Britain’s Queen Elizabeth II sits alone in St. George’s Chapel during the funeral of Prince Philip, the man who had been by her side for 73 years, at Windsor Castle, Windsor, England, Saturday, April 17, 2021. Jonathan Brady/Pool via AP, File.

The only time public opinion appeared to turn against her was after the death of Princess Diana, when the mawkish Tony Blair and his ghastly wife colluded with the nastier elements in the British press to seize the spotlight and portray the Her Majesty’s reserve as out of step with the new Cool Britannia. In hindsight, we can see the episode for it was: crass opportunism from a congenital constitutional wrecker. The Queen, quite rightly, knew that it was her job to lead by example, to gently adapt the monarchy to the age, but not to follow it. This may be her greatest legacy: changing the Crown to fit the times, without anyone noticing she had done it. 

Longevity often conduces to love; we are naturally fond of the familiar. The Queen’s face is probably the most reproduced in history and she played a comfortably reassuring role in our lives, mostly in the background, but always there and apparently always the same. Countries need that. People need that. When ballet dancers perform a series of pirouettes, they maintain their balance and place by focusing on a fixed point at the beginning and end of every spin. The Queen was our focal point, a constant to which we could look for steadiness as events seemed to spin out of control around us. 

It is fitting that her last official act was to welcome a new prime minister—her 15th—to Balmoral. For more than seven decades she never wavered from her early public declaration “that my whole life, whether it be long or short, shall be devoted to your service.” She was our Queen and our servant, to the last. “Well done, good and faithful servant.”