Janet Ajzenstat is the greatest scholar of our generation on Confederation and on the moral basis of Canadian parliamentary democracy. In Discovering Confederation and other writings, she points out how the Fathers of Confederation were deeply divided over the proper manner to ratify the Quebec Accords that were the basis of confederation and the British North American Act of 1867 (now named the Constitution Act, 1867). Some argued that the act of forming a country was of such magnitude that only a referendum would grant the new constitution legitimacy. Others argued that it was sufficient for provincial legislatures to ratify and grant legitimacy. The latter argument won the day.
These same arguments are now being made concerning the Trudeau government’s plan to reform Canada’s electoral system. The Liberal government wishes to replace the current “first past the post” system (whose more formal title is “single member plurality”) with some form of proportional representation and/or preferential ballot.
The Liberal government has announced the changes will be enacted through Parliament, which they dominate on account of their majority. Opponents of the changes, and even many who support electoral reform, argue that reform is illegitimate without some form of direct public input such as a referendum. Both sides reflect the original Confederation debates concerning the ratification and legitimacy of our founding document.
Ajzenstat argues that both sides in 1867 had moral weight and both could refer to the political philosophy of the founding giant of liberalism, John Locke. His Second Treatise of Government was published in 1689 and its influence on Anglo-American liberal democracies cannot be overestimated. One might go so far as to claim that without Locke, there would have been no Confederation or American Revolution.
According to Locke, the founding of political society – if it is to be legitimate – must be consensual. Conquest is unjust. Majority government obtains its legitimacy from this basis. He writes: “When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one
body politic, wherein the majority have a right to act and conclude the rest.”
Regarding the founding of political society, Locke gives some weight to granting Parliament legitimacy in ratifying a constitution, but he seems to give greater weight to having “any number of men” (and today, women) the authority to ratify. This would likely mean referendum as some of the Fathers of Confederation argued.
Locke’s argument informs the contours of the current debate over electoral reform. Those who argue for referendum appeal ultimately to Locke’s argument for “any number of men” (and women). The Liberals have the precedent of how our 1867 constitution was actually ratified. If ratifying a constitution via Parliament is legitimate, then surely reforming the electoral system, which is of lesser magnitude than a constitution, is also legitimate. Perhaps the Trudeau government’s mantra should be, “because it’s 1867.”
The moral basis of electoral reform is therefore a bit murky. There’s nothing in the constitution that prohibits the Trudeau government from reforming the electoral system by parliamentary statute.
But everyone knows electoral reform, even though it is in statute law, has greater significance than other kinds of statutes. But is it great enough to raise it to the level of a referendum? The evidence is unclear.
Those who argue for referendum do so on the basis of history. It’s no longer 1867. In effect, they’ve taken hold of Trudeau’s claim, “because it’s 2015” (except now it’s 2016). The times, they argue, give greater weight to Locke’s referendum argument. So maybe it’s 1689 all over again! But “the times” is not an argument, just as claiming you’re on the “right side of history” is not an argument. Moreover, experience shows how difficult it is to translate the “voice of the people” in these situations. We have representative government precisely because it’s the most effective means we’ve yet to come up with for representing the public weal.
When referendum was chosen, as it was in British Columbia in 2005 and again in 2009, electoral reform was defeated. Trudeau understands that referenda can yield results other than what the government wishes, which is likely his main reason for wanting to reform the electoral system through Parliament.
Complicating matters was that in B.C. too, the referenda were preceded by extensive public consultations by the Citizens’ Assembly on Electoral Reform. The assembly was authorized by the government to consult citizens and to develop changes to their electoral system. As a “citizens’ assembly,” it was meant to have greater legitimacy than the provincial legislature. However, that proposition is highly dubious on Lockean grounds because if Parliament or a provincial legislature lacks legitimacy to reflect the public weal, then a panel authorized by Parliament or provincial legislature would be less legitimate.
What can be concluded? The two competing arguments on the legitimacy of electoral reform – by Parliament or by referendum – both owe their moral basis to the foundations of liberal democracy, as explained by John Locke. In effect, both are true and each side, by making its argument, is trying to influence public opinion and form the conventions by which we follow our constitution. They cannot “prove” their case so much as “make” it.
Because both sides are right, my recommendation would be to leave the electoral system well enough alone. Our situation is somewhat reminiscent of a medieval logic puzzle. Like Buridian’s ass who starves to death when faced with two equally tantalizing morsels of food but cannot choose, Canadians are better off sticking with the single member plurality system that has served them well, however imperfectly. We’re far better off with our imperfect system than what Buridian’s ass faced.
Perhaps the greatest advantage of our electoral system, and with our constitution, resides in the fact that it a new majority government can reverse the bad decisions of the previous majority government, and the next majority government can reverse the bad decisions of the present majority government. That’s how parliamentary democracy works, and that’s probably its greatest virtue.
John von Heyking is a professor of political science at the University of Lethbridge.