A blupete Essay

Notes, to blupete's Essay
"A Country's Constitution"

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.


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Peter Landry
2011 (2019)