Abolishing the Crown of Canada: Political Difficulty versus Constitutional Significance


Christopher Moore, a Canadian author and historian, runs a blog called “History News,” which used to appear on my blogroll until I reciprocated Moore’s gesture of deletion. Yesterday, he wrote “Abolishing the Monarchy – What, Like It’s Hard?” in response to my analysis of the Macdonald-Laurier Institute’s Debate on the Crown: John Fraser vs Michael Bliss. The debate took place on 14 March 2012; John Fraser spoke against the resolution “monarchy as a dangerous anachronism” and defended constitutional monarchy, while Michael Bliss supported it and advanced his republican arguments. Chris and I find ourselves on opposite sides of the debate.

Chris objected to one of my main arguments and criticisms against Michael Bliss.

So where is the need to throw out and rewrite the whole Canadian Constitution?  No doubt the lawyers would be kept busy for a while, but it’s a technical exercise more than a substantial constitutional revision, surely.

The abolition of the Crown of Canada would require not merely an amendment to the written constitution; it would entail the elimination of our entire constitutional framework (both the written and conventional constitutions) because the Crown currently forms the basis of authority, power, and sovereignty through the Sovereign/Governor-General, Crown-in-Council, and the Crown-in-Parliament, respectively.[1] The abolition of the Crown would in fact be more similar to a “substantial constitutional revision” than to a “technical exercise.”

The third paragraph reveals that Chris and I were also in large part discussing two distinct issues: I explained the constitutional significance of abolishing the Crown of Canada, while he wrote about the political difficulty of following the unanimity amending formula of the Constitution Act, 1982, in which all 10 provincial legislatures and the Parliament of Canada must agree on  a resolution. I find this statement problematic for several reasons.

But if a political consensus were reached, how difficult would it be make the amendments that would transfer what remains of the Queen’s powers and responsibilities to the duly selected Canadian head of state (presumably the governor general)?  

First, a mere constitutional amendment cannot logically eliminate the underpinning of the entire constitution: the Crown. I’m not arguing that it is impossible to eliminate the Crown of Canada; I’m arguing that its elimination would require the drafting of a new written constitution that replaces the Crown, the first principle in Canadian government, with a new legal-constitutional Sovereign, likely either the people or the new republican constitution itself. Chris acknowledges the difficulty of arriving at such a political consensus through the constitutional amending formula. Indeed, I would argue that obtaining the approval of all 10 provincial legislatures and the Parliament of Canada would be highly improbable because the debate over abolishing the Crown of Canada would consume all the oxygen of political discourse and predominate over every other political consideration. The various governments and legislatures, and Canadians themselves, would need to determine what system of government should replace our current constitutional monarchy, probably through the national Referendum Act. Judging by Chris’s entry, he favours a parliamentary republic, either on the Irish model with the direct popular election of a non-executive president as head of state, or the German model in which the Parliament nominates and appoints a non-executive president as head of state. I think that he has underestimated the difficulty of “opening the constitution” over such a fundamental issue. Inevitably, other interests, such as reforming the Senate into an elective chamber, would follow the debate on abolishing the Crown. I’m sure that many aboriginals would object to abolishing the constituent authority of all aboriginal treaties. The abolition of the Crown of Canada would deny the provinces their representative heads of state in their Lieutenant-Governors. Would the new republican constitution allow the federal Prime Minister to retain the conventional power of nomination of the Lieutenant-Governors? Republicans rarely, if ever, consider the provinces in their grand constructivist visions. Other Crown prerogatives and constitutional conventions (such as the relationship between the Prime Minister, Governor General, and the Queen) would clearly need to be either codified and limited, or eliminated altogether, etc.

Second, “the Crown” encompasses the Queen of Canada and the Governor General of Canada as the Head of State and the representative of the Head of State, the Crown-in-Council as the Prime Minister and Cabinet, and the Crown-in-Parliament as the Parliament of Canada, which consists of the Queen, Senate, and House of Commons. In other words, the Queen forms part of Parliament and exercises her functions when the Governor General gives Royal Assent on the advice of Parliament in her name. Would the new republican president become the third part of a “president-in-parliament”?

Chris wrote about transferring the “powers and responsibilities” of the Queen and Governor General to a “duly selected Canadian head of State.” However, the Queen and Governor General possess more authority than power.  Dr. Paul Benoit made this essential distinctions in “State Ceremonial: The Constitutional Monarch’s Liturgical Authority”, as well as the differences between the role of a constitutional monarch within the State on the one hand (Crown-in-Council, Crown-in-Parliament), and within civil society on the other (the honours system, etc.). In general, authority refers to the “unquestioning recognition that some person or office is superior in some way and therefore worthy of respect and deference.”[2] “Power comes from a consent that is freely given in an explicit or tacit manner; it increases as the will of more and more people is united through agreement, cooperation, and organization.”[3] In constitutional monarchies like the United Kingdom and Canada, the Sovereign embodies authority (both within the State and government, and within civil society), while the Prime Minister and his government wield power, which they obtain by commanding the confidence of the House of Commons. How would the new republican president fulfill the liturgical function? Since the Crown provides “the fount of all honours”, we would also need to replace the honours system. These are just some examples of the considerations of which republicans often do not take into consideration.

Irrespective of the political difficulty with which the Crown of Canada could be abolished and the ease with which lawyers could draft the wording of a new constitution, the abolition of the Crown would undeniably eliminate the current constitutional framework of authority, power, and sovereignty. A new legal-constitutional sovereign, either the people or the new republican constitution itself, would replace the Crown. For example, the current French constitution of 1958 established the 5th Republic. Over the course of 225 years, France has oscillated from absolute monarchy to Empire to constitutional monarchy and to republic, and each transition required the establishment and promulgation of an entirely new constitution, not merely amendments to the existing constitution. The English Civil Wars of the 1640s pitted the Parliamentarians against the Royalists, and the former won. In 1649, they committed regicide against Charles I and abolished the Crown. England and Great Britain became a republic under Oliver Cromwell and radically changed its political system, codified the constitution, and created a new regime. After Cromwell’s death, Parliament invited Charles II to return from exile in France; the “Restoration” took place in 1661 and thus restored the old regime, the old Crown, and the old constitution. Sometimes the transitions between constitutional regimes occurred violently as after the English Civil War and the French Revolution, and they have occurred sometimes peacefully and democratically, as the self-governing Dominion Irish Free State became the Republic of Ireland in 1937. Similarly, the transition from constitutional monarchy to parliamentary republic in Canada would probably occur peacefully and democratically, but it would still nevertheless require a new constitution and represent a true regime change. Contrary to the republican portrayal, the Crown is not merely an anachronistic ornament that adorns the constitution; the Crown is the constitution. The Westminster system since the Glorious Revolution of 1689 has demonstrated its supreme virtue:  the Burkean quality of evolutionary change guided by usage, practice, and convention, which naturally eschews these grand constructivist visions to replace one constitutional regime with another.

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[1] Paul Benoit. “State Ceremonial: The Constitutional Monarch’s Liturgical Authority,” in The Evolving Canadian Crown, edited by Jennifer Smith and D. Michael Jackson, 119-137. (Kingston: Institute of Intergovernmental Relations, School of Policy Studies, Queen’s University, 2012).
[2]
Benoit, “State Ceremonial: The Constitutional Monarch’s Liturgical Authority,” 120.
[3]
Ibid.

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5 Responses to Abolishing the Crown of Canada: Political Difficulty versus Constitutional Significance

  1. Steven Spadijer says:

    I assume in Canada, like here in Australia, the only model even remotely worth emulating would be direct election (as in Austria/Finland) with some form of direct democracy (although there is probably little need for supranational figurehead) for in a Republic the people wear the Crown.* In many ways the powers of the Crown can be delegated to ‘the people’ themselves, as in the German states such as Bavaria (where this is no supranational figurehead) or Switzerland (where the people enforce federalism via popular referenda). As I argue in a book I am writing the prerogatives of the Crown should become privileges of the people and the states: Parliament can dissolve itself (if an absolute majority requests it); the people can summon Parliament (with a specified number of signatures are gathered); the people can dissolve Parliament (through citizen initiated elections); the people can veto laws of the Parliament; Parliament can summon itself (if a quarter of its members so request); the states can do the same; Parliament can elect the Head of Government etc etc. Some of these proposals have already been tried and tested – the Australian Capital Territory really is a Republican experiment. But, of course – like so much of modern Republicanism – there is nothing Republican about it…

    Bizarrely, in Australia, the Republicans thought they could transfer a monarchical constitution into a Republican one – and, of course, that rightly failed in 1999. The result of interposing a monarchical constitution onto a Republican one (that is, without rewriting it) means the result is *always* inferior.

    —–
    * But note even in Liechtenstein – the world’s only real “Crowned Republic” – the people can issue a motion of no confidence in the Prince (that is, they can dismiss the monarch) and by gathering a few signature install a Republican system of government.

    • Steven,

      It is ironic that many of the the fervent republicans argued in favour of the least “democratic” option for a parliamentary republic. Where the PM nominated the GG, the Parliament would now nominate a President. Why go through all the trouble for such litle difference?

      Frankly, Canadian republicans have never even articulated a serious model. But if we reject constitutional monarchy, I wouldn’t be surprised if we accept other radical changes and distribute the powers of the Crown as you suggest.

      James

      • Steven Spadijer says:

        They will not give you a model because it is also symbolic gobbledygook and there is no Republican culture behind most Republicans. All they want is a politician’s Republic to replace the existing politician’s monarchy. What they should be saying is “we intend to replace the Crown with the people themselves; the people are now the Sovereign” (the American’s got the rhetoric right, but botched the model – American’s today live under a system of so-called “judicial oligarchy”).

        I would not describe the distribution of the powers of the Crown as “radical” but sensible. In fact, not only is direct democracy and decentralization (which have resulted in the most prosperous and stable governments in human history – Switzerland, Liechtenstein) quite popular with most Canadians (referendums are popular with the public), but it leads to provides greater efficiency and accountability, without necessarily sacrificing flexibility. Austria, Bavaria, Switzerland, and even some parts of Australia have employed similar devices without any major problems. No attempts by vice-regal representatives to prematurely dismissing Heads of Government who actually hold confidence if we have constructive motions of confidence (happened a few times in Australia in the 1910s when the two party system was not entrenched); no committee inquires being shut down via executive prorogation; no 9 month prorogation’s (not in Australia or Canada, but a few Pacific Island and Caribbean precedents do exist); Parliament dissolving itself bypasses all these debates of when the Crown should say ‘yes’ to the Prime Minister. Where there is asymmetrical information, decisions should be best dealt with at a smaller unit or level (that is, Parliament or the people).

  2. Pingback: Your Canada, Your Constitution: Constitutional Sophistry and Political Activism Trump Scholarly Research and Educating Canadians | James W.J. Bowden's Blog

  3. Pingback: Contrarian for the Crown Infiltrates the Launch of Your Canada, Your Constitution | James W.J. Bowden's Blog

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