TABLE OF CONTENTS.

NO.1 - Introduction:-	NO.2 - The Constitution of a Country:-
NO.3 - The Rule of Law:-	NO.4 - The Constitution of the United States:-
NO.5 - The Constitution of the Canada:-	NO.6 - Conclusion:-

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Introduction:-

The difficulty is, that as soon as average persons hear the word, constitution, their eyes glaze over. While the subject, esoteric in the extreme, is studied1 endlessly, generally, people, including those in our legislatures, do not understand what a constitution is, nor do they understand the importance of it.2 The necessity and its power was summed up by Balfour in these words, the constitution appeals "respectively to the intelligence of the few and the emotions of the many."3 In its palpable form, the constitution is this -- "the mass of the people yielding obedience to a select few."4

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The Constitution of a Country:-

A constitution is a settled arrangement by which a country's parts or elements, within a geographical district, combine themselves because of some common traits or particular features of mind or character of those in the combined group (a country) and which distinguishes it from other combined groups (other countries). It is not so much that a constitution of a country determines its nature and character; but, rather, that a constitution reflects a country's nature and character. It is a mode in which a state is constituted or organized, and, by which, its physical nature or character is determined and which ultimately determines a country's healthiness, strength and vitality. The OED defines a constitution as the "system or body of fundamental principles according to which a nation, state, or body politic is constituted and governed." In the case of a written Constitution, the name is sometimes applied to the document embodying it. In either case it is assumed or specifically provided that the constitution is more fundamental than any particular law, and contains the principles with which all legislation must be in harmony.

Most everything that goes into the makeup of a constitution (and the traits and character of one constitution, when compared with others, will be as varied as the people it is intended it should govern) can come, and go, and be modified in degree; but, as sine qua non, it governs all who occupy a geographical area, a country. The OED defines a country as a "tract or district ... inhabited by people of the same race, dialect, occupation, etc." The desire to be part of a group likely springs, naturally and deep from within each one of us, from a fundamental need for a situation, controlled just enough, so as to allow each within the group to be able to get on with life, without being molested. Threats to a person's security can come both from within the group and from without the group. The group, particularly if it is to successfully deal with threats from without, must organize itself, by means of patriotic feelings, into a large and powerful group, which, sets for itself, and which is generally recognized by all, both from within and from without, a geographically defined area.

A country is more than a collection of people with patriotic feelings. A country is kinsfolk, or kindred. A country is the friendly feelings to which such kindred gives birth. A country is the feeling of confidence that people have when sharing similar habits and customs. A country, says Ernest Renan, a nineteenth Century French writer, is "the historic consequence of a series of facts converging towards the same point."

"At all times such formations have been guided by the urge of some deep-seated reason. ... But what, then, is a nation? Why is Holland a nation, while Hanover and the Grand Duchy of Parma are not? ... Why is Switzerland, with its three languages, its two religions and three or four races, a nation, when Tuscany, for example, which is so homogeneous, is not? Why is Austria a state and not a nation? In what does the principle of nations differ from that of races? ...
Man is the slave neither of his race, nor his language, nor his religion, nor of the windings of his rivers and mountain ranges. That moral consciousness which we call a nation is created by a great assemblage of men with warm hearts and healthy minds ...
What makes populations fuse, to come together? History shows that it is not race. Search the history books, one will not find where a nation has been founded on race. One will find where a race runs through numerous nations; and a nation may consists of numerous races. Charlemagne reconstructed in his own way what Rome had already built, viz., a single empire composed of the most diverse races.
Ethnographic considerations have, therefore, played no part in the formation of modern nations. France is Celtic, Iberic and Germanic. Germany is Germanic, Celtic and Slav. Italy is the country in which ethnography finds its greatest difficulties. Here Gauls, Etruscans, Pelasgians and Greeks are crossed in an unintelligible medley. The British Isles, taken as a whole, exhibit a mixture of Celtic and Germanic blood, the proportions of which are particularly difficult to define.
The truth is that no race is pure, and that to base politics on ethnographic analysis is tantamount to basing it on chimera. The noblest countries, England, France and Italy, are those where breeds are most mixed."5

"The political importance ascribed to languages comes from regarding them as tokens of race. Nothing could be more unsound. In Prussia, where nothing but German is now spoken, Russian was spoken a few centuries ago; in Wales, English is spoken; in Gaul and Spain, the original speech of Alba Longa; in Egypt, Arabic; and we could cite any number of other examples."

So, we take our first notion of what a constitution is from the dictionary, "to settle, fix, or enact; to establish; to form or compose: to make up; to make a thing what it is." A constitution is what a country is. It is not, -- and certainly not in any country with British traditions such as Canada -- to be found in any one document. And while the essentials may well be written up in one document, no one document can be comprehensive in describing every tradition and all the cultural aspects of a country's makeup. It is for this reason, that written constitutions are expected to be short; they need only stick to the essentials. Constitutions should settle and fix values such as life and liberty; and, critically, the form of government it elects for itself.

Government, my trusty dictionary tells me: "regulation; control; restraint; the exercise of authority; direction and restraint exercised over the actions of men in communities, societies, or states; the administration of public affairs; the system of policy in a state; the mode or system according to which the sovereign powers of a nation, the legislative, executive, and judicial powers, are vested and exercised; ... etc. etc." Nowhere, in this dictionary of mine, does it say that government is a biological identity; its not a person, or anything else that is capable of individualistic thought; its a theoretical concept.

"Government has no rights; it is a delegation from several individuals for the purpose of securing their own rights." (Shelley, 1812.)

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The Rule Of Law:-

The roots of "The Rule Of Law" sink deep into the days when most believed in the supernatural. It is, these days, sufficient to assert that the doctrine is derived from theories of natural law; and, is applied in order to control the exercise of arbitrary power. We all, including elected and appointed officials of government, must be subordinated to impartial and well-defined principles of law. In English law,8 there exists this concept that the day-to-day exercise of executive power must conform to general principles as administered by the ordinary courts. Thus, there stands a primary law in respect to the state that there does exist legal limitations upon its own sovereign will -- this, of course, comes about because of the application of Lockian principles. The undisputed authority when it comes to the definition and analysis of the Rule of Law, is, of course, A. V. Dicey, and we now turn to him:

"When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. ...
"... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person."9

Prior to the revolution, the American colonies were independent of one another. Their union was necessary if they were to win the war with Britain; this union continued long after. Each state, however, within the union, continued to be sovereign and completely in charge of their own affairs, except, of course, in those areas which had been transferred to the central, or federal government.10

(Unlike the American constitution, the Canadian constitution, when framed, a hundred years later, did not bring together existing identities into a union. In fact, new identities were created, Ontario and Quebec. These new identities were joined to existing identities, Nova Scotia and New Brunswick.)

During the revolutionary era, each of the states, former colonies of England, developed their own state governments. There were three main types: the "Virginian," the "Pennsylvanian", and the "Massachusetts" type.

The constitution in Virginia was drawn by people who were fresh with the revolting experiences of a colonial administration, and, in particular, an arrogant royal governor. The Virginians, in their setup, gave supremacy to the legislature. The Governor in this new constitution could do nothing on his own, he had to do things "in counsel." In times of emergency, such as a war against a powerful adversary, what is needed, is a leader who is in control, and, if need be, one who is in a position to call the shots in a hurry. This "Virginian" government, this government by committee, was a mistake; on account of it, Virginia suffered during its fight with the British.

The most democratic and progressive of all the constitutions of the infant states was set up in Pennsylvania; it provided for a single-chamber legislature11 with -- instead of a Governor -- an elective executive council. (Pennsylvania was Benjamin Franklin's home turf: "rotation in office was enjoined; none could serve as a representative for more than four years in every seven ... the election every seven years of a Council of Censors, whose duty was to enquire whether the Constitution has been preserved inviolate in every part, to order impeachments, and to summon a constitutional convention if necessary.") This "Pennsylvanian" form of government was, all and all, the finest example of a "popular front" government as likely as has ever been seen in history12 -- it did not work.13

In the competition among the American constitutional writers of the time, it was John Adams from Massachusetts who won out; it was his theory of "mixed government" or a government of "checks of balances" that was adopted,14 and enshrined in the Constitution of the United States. It consisted of only a preamble and seven articles, - "it was brief, essential, and flexible." It set up a form of government that had never been tried before, anywhere. The Constitution of the United States has now endured for over two centuries, longer than any other in recorded history.

Thus, in the United States, there evolved a "presidential" form of government; where one group, the group responsible for making laws (the legislature) is separate from the executive group (the president) which is bound to administer the laws. Thus, a separation of powers15 exists, - a separation of the power to make laws from the power to enforce laws. The elected President has a check in the form of a veto over legislation; he has the power to appoint most of his administrative officials, and the power to select judges, subject, however, to approval by the senate, its check against the President. Into this "presidential" form of government was added the balancing wheel of an independent judiciary.

The Constitution of the Canada:-

Canada has a "parliamentary" form of government where the same group is largely involved in the performance of both the legislative function and the executive function - there is, unlike the United States, a fusion of power. This form of government also exists in other countries, including: Great Britain, Germany, Italy, and Israel.

The texts refer to Canada, like that of Great Britain, as having a "Cabinet Government," a form that is "imbedded in the very center of constitutional practice ... (and) has never been recognized by statute; nor can any man tell us exactly when it became fully effective."16 The cabinet is the government; and while it is selected from the elected House of Commons, and while it is entirely dependent on it; the fact is, that the cabinet is not selected by the legislature but rather by the Prime Minister who presides over it. The Prime Minister is all powerful within the cabinet, and most powerful in the House of Commons by virtue of being the head of the political party holding the most seats in it. Thus, we are governed by a Prime Minister who, depending on the composition of the House, practically speaking, has, while proceeding under our constitution, during his elective term, something approaching absolute power. We are, thus, a Republic, albeit, a disguised one.17

Sir J. G. Bourinot sums up:

"The object of the British North America Act of 1867 is neither to weld the provinces into one nor to subordinate provincial governments to a central authority, but to create a federal government in which they should be represented - a government entrusted with the exclusive administration of affairs in which they all have a common interest, while each province retains its independence and autonomy. That object is accomplished by distributing between the Dominion and the provinces all executive and legislative powers and all public property and revenues which had previously belonged to the provinces, so that the Dominion government should be vested with such of those powers, property and revenues as are necessary for the performance of its constitutional functions, and that the remainder should be retained by the provinces for the purpose of provincial governments.18
The Dominion parliament and the provincial legislatures are sovereign bodies within their respective constitutional limits. While the Dominion parliament has entrusted to it a jurisdiction over matters of national import, and possesses besides a general power to legislate on matters not specifically reserved to the local legislatures, the latter nevertheless have had conferred upon them powers as plenary and ample within the limits prescribed by the constitutional law as are possessed by the general parliament. ...
But great caution must be observed in distinguishing between that which is local and provincial, and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial, and has become matter of national concern in such sense as to bring it within the jurisdiction of the parliament of Canada. ...
On the other hand, the local legislatures, whose powers are limited compared with those of the general parliament, must be careful to confine the exercise of these to the particular subjects expressly placed under their jurisdiction, and not to encroach upon subjects which, being of national importance, are, for that very reason, placed under the exclusive control of parliament."19

And the last words we give to Walter Bagehot:

"It is often said that men are ruled by their imaginations; but it would be truer to say they are governed by the weakness of their imaginations. The nature of a constitution, the action of an assembly, the play of parties, the unseen formation of a guiding opinion, are complex facts, difficult to know, and easy to mistake."20

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NOTES:

¹ "'On all great subjects,' says Mr. Mill, 'much remains to be said,' and of none is this more true than of the English Constitution. The literature which has accumulated upon it is huge. But an observer who looks at the living reality will wonder at the contrast to the paper description. He will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory." [Bagehot's opening paragraph in his, The English Constitution, 1867 (Oxford University Press, 1928).]

² That the masses of men and women, who must devote full days to the business of supporting themselves and their families, are ignorant of the subject, is one thing: that our educators, journalists and politicians are just as ignorant - is another. This very serious problem of political ignorance that runs straight through from the bottom to the top can be laid at the feet of the educational system.

³ Arthur James Balfour (1848-1930), in his introduction to Bagehot's The English Constitution, op. cit..

⁴ Bagehot, op. cit.

⁵ Ernest Renan (1823-92), "What Is a Nation? (1882). Also see Edward A. Freeman (1823-92), "Race and Language."

⁶ Canada is a nation which does not conform to the language rule. We may well ask, "Why?" The answer lies in Canada's historical roots.

⁷ W. S. Holdsworth, History Of English Law, 1923.

⁸ The International Commission of Jurists considers that the basic idea uniting lawyers in many different legal systems is a conception of the rule of law.

⁹ Dicey's Law of the Constitution, 1885 (London: MacMillan, 9th ed., 1950), p. 194. Dicey, incidently, was very much concerned about governmental incursions being made into The Rule of Law.

¹⁰ The United States came into being after a war; Canada after a governmental edict. In both cases, the central authority, or federal government found, within its new international borders, groups which were, back then, though not near as much these days, quite different from one another, different for all those reasons sketched out at the first of this paper. It seems, in such situations, a federal form of government is the only form that might work. (It has in the United States, for a long time now.) These different groups, previously independent on one another, each wanted, though being part of a collective union, to keep their own group government (provincial or state). In comparison, Great Britain having evolved, progressively, from a medieval monarchy to modern democracy, is a unitary country. France, Italy and China are, also, examples of unitary systems. The opposite of a unitary system is a confederation, something which in the beginning America had. Today confederations are rather rare, simply because a country is hardly a country, - and certainly will not hang together as a country - without some real strength at the center; Yugoslavia was an example of a confederation.

¹¹ The "Pennsylvanian" form of government was of one body, viz. unicameral. Bicameral consists of two bodies, in earlier days one assembly was peopled with propertied aristocrats, the other elected by "the common people". John Adams of Massachusetts defended the bicameral system as being "necessary to protect the people against unwise, hasty, and proscriptive legislation, and defending a strong executive as necessary to enforce the laws and give the government leadership."

¹² Franklyn introduced his form of government to the French, they adopted it, with the bloodiest of results.

¹³ A Pennsylvanian wrote to Thomas Jefferson, "You would execrate this state if you were in it ... The supporters of this government are a set of workmen without any weight of character." The legislature managed to disfranchise Quakers by a loyalty test oath to which they could not subscribe; and the assembly, controlled by the leather-aproned boys, frontiersmen, and the less prosperous Germans, expended more energy during the war in plundering Tories, jailing profiteers, and persecuting conscientious objectors than in supporting the army.

¹⁴ Adopted during the Federal Convention of 1787, held in Philadelphia; And only after much difficulty and some compromise.

¹⁵ The theory of the separation of governmental power was developed by a Frenchman by the name of Montesquieu, a theory I briefly deal with in my page "On Government."

¹⁶ Balfour, in his introduction to Bagehot's The English Constitution (1927).

¹⁷ The same can be said of the provincial Premiers. While it was written into the B.N.A. Act that it was the desire of the Canadian people "to follow the British constitution" the provinces have abolished their upper chambers. "In this respect the Dominion is less English than the United States, where the congress of the federal union and all the state legislatures have rigidly adhered to two houses." [Bourinot's A Manual of the Constitutional History of Canada, 1901 (Copp, Clark) pages 162-3.] This statement of Bourinot's, however, needs to be updated. One of my correspondents, writes: "One US state, Nebraska, has a unicameral legislature. Its first session was held in 1937 ..."

¹⁸ A government must have power, as is derived from its constitution, to act in every situation. One of the primary problems faced by our founding fathers, was to distribute sovereign powers, in layers, between the federal, or central government; and the district, or provincial governments. It is not possible, in a written constitution, to cover off every possible situation which, in the future, might arise. The question soon comes to be asked; Which level of government is to act in situations not thought of in the beginning, or new situations that will most certainly arise as future events unfold? In a federal, or a two level form of government, such as Canada or the United States, one level or the another (federal or provincial) must have power, "residual power" to deal with situations which were not dealt with by those who originally wrote the constitution. In the United States this "residual power" lies at the state level; in Canada, at the federal level. Incidentally, this idea of leaving "residual power" with the individual states (state sovereignty) led, in the United States, to civil war. The American Civil War was fresh on the minds of our founding fathers here in Canada, when, in 1867, they sat down to sign Canada's constitution. "We have thus avoided that great source of weakness which has been the cause of the disruption of the United States. We have avoided all conflict of jurisdiction and authority, ..." (Sir John A. Macdonald, Confederation Debates, 1865.)

¹⁹ See Bourinot, op. cit., page 136-8.

²⁰ The English Constitution, op. cit., at p. 30.