The Canadian Federalist Experiment: From Defiant Monarchy to Reluctant Republic (review)

Reviewed by: The Canadian Federalist Experiment: From Defiant Monarchy to Reluctant Republic Michael D. Behiels The Canadian Federalist Experiment: From Defiant Monarchy to Reluctant Republic. Frederick Vaughan. Montreal and Kingston: McGill-Queen's University Press, 2003. Pp. xii, 230, $65.00 It was only a matter of time before another disillusioned political scientist analysed the evolution of Canada's experiment with federalism in light of the impact of the Canadian Charter of Rights and Freedoms since 1982. Frederick Vaughan's reasoned and judicious contribution to the growing school of charterphobes is rooted in the history of political and constitutional thought. Unlike much of the current ranting and raving that passes for serious analysis, his approach deserves close attention. Contrary to most of his fellow charterphobes, Vaughan does not lament the decline of the 'defiant monarchy,' nor does he call for the [End Page 117] weakening of the Charter by placing overly ideological containment measures on Canada's Supreme Court justices. Instead, he counsels Canadians to understand how and why the decline occurred and encourages them to design and embrace a truly distinctive and bold Canadian republic. The 1867 Dominion of Canada, according to Vaughan, should be viewed as a 'monarchic federation,' with the emphasis on the monarchic element. He demonstrates, in a series of inspired and inspiring chapters based on a close scrutiny of British and French intellectuals of the eighteenth and nineteenth centuries, that over many decades the British North America (BNA) colonies were moulded very consciously into a separate nation-state, using the constitutional thought and policy that lay at the very core of the British monarchy. The BNA Act - a 'made-in-Canada' federal constitution hammered out by our enlightened and farsighted Fathers of Confederation and turned into law by supportive British mandarins and parliamentarians - was imbued with the philosophical and political principles of Thomas Hobbes. His ideas constituted the body and soul of the reformed monarchy, the prerogative power of the executive, and an energetic and effective sovereign parliament that countenanced neither oversight by the courts nor interference from the church. The dreaded American constitution - trumpeting 'Life, Liberty, and the Pursuit of Happiness' and resonating with the excessively individualistic and republican philosophical and political ideas of John Locke - was emphatically rejected. The theories of federalism - analysed in what is no doubt Vaughan's best chapter called 'The Ambiguous Embrace of Federalism' - were well understood by the Founding Fathers. They deliberately designed Canadian federalism to function in a highly centralist, almost unitary fashion, thanks to Ottawa's taxing, spending, declaratory, and residual powers. Furthermore, the appointed Senate was intended to reinforce private property, the existing social structure, and most important, the monarchy by tempering the excessive democratic and republican impulses of the elected House. Vaughan argues convincingly that the Fathers promised and set out to deliver, in sound Hobbesian fashion, 'Peace, Order and Good Government' using the full panoply of executive powers allocated to a highly centralist state. Why? Because they remained wedded to the British monarchy and sound, stable, executive-dominated parliamentary government, one based on commercial and industrial capitalism and capable of forging a strong nation-state north of the forty-ninth parallel, one united by a strong desire for internal self-government and a fervent allegiance to the Crown. At all costs, the Founding Fathers sought to avoid the terrible calamity they were witnessing south of the border - the brutal and [End Page 118] devastating US civil war, one set off by the secessionist, pre-industrial Confederate southern states. How and why did Canada evolve from a 'defiant monarchy' into a 'reluctant republic'? Vaughan attempts, with rather limited success, to explain this evolution in three underdeveloped and unsatisfactory chapters. The first chapter deals with the role of the Judicial Committee of the Privy Council and the Law Lords' nefarious role in the reshaping of Canadian federalism by severely weakening the central state and transferring increasing sovereignty and powers to the provinces by misinterpreting sections 91 and 92. His mono-causal explanation is that the Law Lords acted politically, not judicially. But why did British parliamentarians tolerate judicial politics vis-à-vis the dominions while ranting against it on the home front? No doubt, their contradictory...

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