“A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never look backward to their ancestors.”
– Edmund Burke, Reflections on the Revolution in France
For all of my adult life (and, I realize, pretty much since Confederation) the question of what to do with Canada’s Senate has been tossed about in our country’s public discourse. For readers who don’t know about our particular bicameral Parliament: Our Upper House, The Red Chamber, The Senate, is a body whose members are appointed by the Governor General to near lifetime terms, unlike the House of Commons, whose members are elected by the people for limited terms.
Apart from the regular news stories about this or that scandal involving some sort of parasitism on the part of a Senator, much of the question surrounding the Senate concerns the very fact that, like Supreme Court Judges, Senators are appointed (through the Governor General) by the Government of the Day and remain in their positions, virtually immovable, long after the Government which appointed them has been replaced. Is there a place in a modern democracy for un-elected legislators? Should the Senate be reformed to require fixed, short terms for Senators? Should Senators be elected? Should there be a division of legislative authority between elected houses? Or should the Senate simply be eliminated, leaving Canada with a unicameral Parliament such as the Provinces have and some notorious historical systems have had?
Upfront I will confess that I see absolutely no reason to do anything more than tinker carefully with the Senate. As I ramble on I will try to explain why I swim so perversely against the current current of political thinking in my country. Despite the occasional abuses of individual Senators and despite the astonishing lack of wisdom displayed by some Prime Ministers in their appointments, I contend that the Senate continues to provide invaluable services and protections to Canadian democracy, to our Constitution, and to the citizens of our country. And I don’t for a moment believe that these services and protections would be provided by either an elected or an abolished Senate or by any substitute I’ve heard imagined.
Wait! What about democracy?
Some might ask how a person so supportive of #IdleNoMore’s call for the honouring of Treaty Rights could be so in favour of an “undemocratic” body such as the Senate. How could I, a long time supporter (but no more) of the New Democrats, Canada’s defenders of civil rights, argue in favour of this unelected bunch? The Senate is, after all, just the sort of institution so condemned by Tom Paine in The Rights of Man. How can someone like me not cry out for the reform or abolition of the Senate? Well, the simple truth is that I think Tom Paine was a hopelessly Utopian idealist with absolutely no understanding of the implications of his imaginings if they were to actually be put into practice. Unlike Paine, I do not at all imagine that Rights depend on the sort of libertarian democracy he hoped would manifest itself in the French Revolution. Indeed, Paine’s arch-rival, Edmund Burke criticized Paine’s sort thus:
The French faction considers as an usurpation, as an atrocious violation of the indefeasible rights of man, every other description of government. Take it or leave it: there is no medium.
– An Appeal from the New to the Old Whigs
The real world is more messy than Paine pretended, and his beloved French Revolution proved that messiness amply. Burke, the pragmatist mistaken for a waffler because he supported the American Revolution but dreaded and condemned the French, was supported by history. There must be a medium, and it is Burke’s pragmatic ideas about the middle grounds of government which helped to solidify my support for a Canadian Senate in which Senators are appointed for terms stretching over the tenures of a great many elected Governments, even if some appointees, due to the foolishness or malice of Prime Ministers appointing them, will inevitably be useless parasites. Every human institution is, I think we can all agree, doomed to host its share of parasites, whether that institution is elected or not.
But, don’t we have a right to elect our government?
I have myself alluded to Apartheid in South Africa. I’ve suggested that the argument that “those people can’t govern themselves” is specious (and racist, of course, wherever applied) as, regardless of ability or education, “those people”, whoever they are, always have the Right to govern themselves. The fact is, however, that any people will inevitably make democratic blunders, some of them catastrophic. I quite happily argue that “pure” democracy is no more a panacea than is any other form of government. Burke wrote:
It is said that twenty-four millions ought to prevail over two hundred thousand. True; if the constitution of a kingdom be a problem of arithmetic. This sort of discourse does well enough with the lamp-post for its second; to men who may reason calmly, it is ridiculous. The will of the many and their interest must very often differ, and great will be the difference when they make an evil choice. A government of five hundred country attornies and obscure curates is not good for twenty-four millions of men, though it were chosen by eight and forty millions, nor is it the better for being guided by a dozen of persons of quality who have betrayed their trust in order to obtain that power.
— Reflections on the Revolution in France
Abolition, Election, What?
Certainly at times – perhaps often as Burke suggests – the stated wishes of the electorate may differ from what is best for them, individually and/or collectively. A democracy must have some mechanism of stability to act as a check on the whimsy of the electorate, the ideology of the representatives, and, most importantly, on the ambition of the Executive. If Canada were to eliminate the Senate, such checking mechanisms would be reduced to: 1) appeal to the appointed courts; 2) the conflicting interests of the ten Provincial Legislatures, and; 3) the symbolism of the Governor General. Indeed, the abolition of the Senate would give Canada a Parliament very similarly constituted to that of Weimar Germany.
We all, I hope, remember how that system worked out.
An elected Senate, if it were made up simply of members elected in a general election every five or so years, would be little other than a second House of Commons. Does anyone really want to duplicate that? What would be the point? Would Parliament really be bicameral then? or would it not just be another Weimar Parliament which happened to occupy two rooms instead of one?
I’ve also heard the suggestion of modelling a Senate on the U.S. version, with a division of legislative powers between Senate and House. Apart from the constant deadlock we see to the south, do we really want to abandon the Canadian experiment begun by those who rejected the rebellion against Britain? And I, for one, am not interested in having our Parliament reduced completely to what Burke calls “an auction of popularity”:
. . . when the leaders choose to make themselves bidders at an auction of popularity, their talents, in the construction of the state, will be of no service. They will become flatterers instead of legislators, the instruments, not the guides, of the people. If any of them should happen to propose a scheme of liberty, soberly limited and defined with proper qualifications, he will be immediately outbid by his competitors who will produce something more splendidly popular. Suspicions will be raised of his fidelity to his cause. Moderation will be stigmatized as the virtue of cowards, and compromise as the prudence of traitors, until, in hopes of preserving the credit which may enable him to temper and moderate, on some occasions, the popular leader is obliged to become active in propagating doctrines and establishing powers that will afterwards defeat any sober purpose at which he ultimately might have aimed.
— Reflections on the Revolution in France
Indeed, much of the best and highest work of our Parliament is done by Senators who no longer have to win the auction of popularity. The late Senator Eugene Forsey wrote:
The Senate’s main work is done in its committees, where it goes over bills clause by clause and hears evidence, often voluminous, from groups and individuals who would be affected by the particular bill under review. This committee work is especially effective because the Senate has many members with specialized knowledge and long years of legal, business or administrative experience. Their ranks include ex-ministers, ex-premiers of provinces, ex-mayors, eminent lawyers and experienced farmers.
In recent decades, the Senate has taken on the task of investigating important public concerns such as health care, national security and defence, aboriginal affairs, fisheries, and human rights. These investigations have produced valuable reports, which have often led to changes in legislation or government policy. The Senate usually does this kind of work far more cheaply than Royal Commissions or task forces because its members are paid already and it has a permanent staff at its disposal.
— How Canadians Govern Themselves, pp. 34-5
Do we really want to discard the research and information gathering — the wisdom, in fact — that the Senate provides, at a more modest expense than it could be had any other way, to the Government of our country?
I read somewhere that the great British Prime Minister Benjamin Disraeli was once questioned (with an undertone of ridicule) about his weekly meeting over tea with Queen Victoria. The Right Honourable gentleman replied to his interlocutor that Her Majesty had been in daily contact with the governance of the Empire through the administrations of six Prime Ministers before him: he would be an utter fool not to seek Her Majesty’s advice on the affairs of the Realm. Disraeli’s reply, whether apocryphal or not, is, I think, the single most compellingly cogent argument for the retention of Canada’s Senate as a body with virtual life membership. The Senate is our Parliament’s living history. Senators are the lingering voice of past governments, of past generations of electors, continuing to speak to the issues of today. They provide vital historical context to the government of the day and they bring a deeper memory, a longer view to the consideration of new legislation and the amendment of old laws.
Tom Paine wrote in The Rights of Man that no generation has “the right or power of binding and controlling posterity to the end of time.” I certainly agree. Oddly, when Paine wrote those words, he was claiming to be criticizing Burke’s position on such matters. But Burke actually argued, like Paine, that Constitutional change definitely should be made when necessary, but, unlike Paine that such change should be made cautiously, with great deliberation, and with a desire to preserve rather than simply to innovate. I would argue that dread of unanticipated consequences, concern for future generations of Canadians, and knowledge of and respect for our history should spur us all to have a sober second thought about radical change to the institutions of our venerable Parliament.
(The above was written in some haste with frequent interruptions this afternoon during brief moments of calm in the storm of a fairly messy bout of my daughter’s chronic illness. Please forgive me for its sketchiness. Someday I hope to have long, idyllic stretches of time in which to compose carefully crafted philosophical and historical arguments about all manner of things. Today, alas, was not fated to be one of those idylls)
Update, November 16, 2013: A few days ago, squeezed between breathless coverage of Toronto Mayor Rob Ford and shocked coverage of Toronto Mayor Rob Ford, the Toronto Star published an opinion piece by Carol Goar titled “Let Canadian Senate die of attrition”. Ms. Goar makes the apparently obvious suggestion that Prime Ministers simply stop appointing Senators and Voila! the Senate will disappear in a decade or two with no need of Constitutional amendment or messy conversations with the Provinces. My eventual reaction to this suggestion was “do you really think Mr. Harper hadn’t thought of this?” My immediate reaction was “No. That won’t work.” And here is precisely why it wouldn’t work:
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is “to say, —
Never mind the rest. The important part is “With the Advice and Consent of the Senate”. That’s it, right there in Section 91 of the Constitution Act 1867. No Senate to give consent, no legislation by Parliament. Sure, I guess one could leave the Red Chamber empty, but without a Constitutional Amendment, every Member of the House might as well go home as well.
Last one out, turn off the lights of Canada’s experiment.
Update, June 12, 2015: Now Michael Den Tandt, a political columnist with the National Post, has made a truly creative and absurd proposal to reform the Senate by simply having the Prime Minister appoint sitting Members of the House of Commons to the Senate, having them hold seats in both chambers. “there is no explicit rule, that I am aware of, that prevents the prime minister from appointing an MP to the Senate, should he choose” Den Tandt writes. The obvious reason that Den Tandt is unaware of any such explicit rule is that he has never bothered to read Canada’s Constitution, specifically Section 39 of the Constitution Act 1867: “A Senator shall not be capable of being elected or of sitting or voting as a Member of the House of Commons”. That a “political columnist” in a rag that bills itself as a national newspaper can get away with commenting on Constitutional issues with such evident ignorance of the Constitution is, frankly, disgusting.