The next round of constitution-making may see the demand for a justiciable Social Charter back on the table. A justiciable Social Charter would put the power of the courts behind the kind of political objectives described in the Charlottetown Accord's proposal for a “social union:” comprehensive health care, “adequate” social services and benefits, high quality primary and secondary education, reasonable access to post-secondary education, collective bargaining rights, full employment, environmental protection, and a "reasonable standard of living" for all Canadians. (Note 1)
So what's wrong with entrenching these aims as justiciable rights? Everyone believes that good health care and high educational standards are goals to strive for. Who doesn't want to see full employment, and an adequate standard of living for all? These are humane objectives. Of course Canadians endorse them. But Canadians don't all agree that governments should be the chief providers of these goods, to the exclusion of the private sector. And mighty few think Canada needs higher taxes. The Social Charter is meant to protect the welfare state from government cutbacks. (Note 2) Even Canadians who accept the idea of constitutionalized social rights may well believe a Social Charter is something we can't afford at present.
The fact that the Social Charter does not command universal support is exactly why it must be rejected. Entrenching social and economic rights will put an end to free and democratic debate about welfare policies in the political arena. It will inscribe the objectives of the political left in the Canadian constitution, making it virtually impossible for our elected representatives to respond to democratic demands. On the basic issues outlined in the Social Charter, they will not be legislators but mere administrators of predetermined programs. The alternation of political parties in office, a change of heart on the part of the electorate, will make no difference in the constitutional commitment to welfarism.
Preventing our democratically elected representatives from defining the public good in the area of social and economic policy can never be acceptable. If we introduce the Social Charter we lose the right that is the essence of democracy in a country like Canada, to live under laws freely determined by our elected representatives.
For more than a century political debate in liberal democracies, that is, debate between the political right and the political left, has been concerned with one question above all: should governments guarantee material equality? Political parties and groups on the left favour welfare legislation to temper the effects of capitalism, and shelter disadvantaged citizens. Parties and groups on the right argue that governments should spend less, tax less, and in general leave people alone as much as possible to get on with their lives.
Both left and right appeal to ideas of freedom. The left claims that a degree of material equality is necessary for legal and political freedoms. Freedom isn't compatible with extremes of poverty; poor and badly educated people cannot make their voice heard in politics and are not in a position to defend legal rights in court. The right may well agree that poor living conditions hamper people's liberty. But what's the remedy? Taxing the rich and regulating business kills the capitalist goose that lays the golden egg of prosperity. Everyone's standard of living falls, and the poor especially suffer; everyone's freedom is compromised. Moreover welfare programs empower demeaning bureaucracies, and sap the dignity of those on the receiving end; true freedom is not compatible with dependence on government any more than it is compatible with poverty.
What usually happens in liberal democracies is that the left and right work out a compromise. Welfare programs ensure benefits for the disadvantaged, but the idea of absolute material equality for all is shunned. Business is regulated, but not regulated out of existence. The exact nature of the compromise is always open to change, as the will of the electorate changes.
It is just this ability to juggle economic and social claims to suit the electorate that the Social Charter threatens. Entrenching social and economic benefits will "guarantee" the left's political program regardless of decisions reached by the voters. The Social Charter's right to full employment will require governments to play a larger role in managing the economy. The guarantee of "adequate social benefits" will push governments to legislate new services and fund new social agencies. Hospitals, physicians, universities and in time numerous other bodies will be able to demand more money in their new role as providers of constitutional rights.
Under a justiciable Social Charter the final determination about services and spending will lie with the courts. Judges, not the legislatures, will determine who gets what, when and how much. The Supreme Court of Canada will have the last word on whether a government's budget satisfies the "reasonable standards of living" provision. If the Court decides that more services and increased spending are necessary, governments will have to comply. Even governments that are anxious to reduce taxes will be forced to keep spending. It might be argued that a government truly determined to cut back could always resort to constitutional amendment, and write the Social Charter out of existence. But once those rights are entrenched, once precedents are set in the courts, and agencies and coalitions of interests begin to turn to the courts routinely on the basis of the judicial decisions, getting rid of the Social Charter is going to be next to impossible.
To sum up: asking for welfare legislation is compatible with participating in the debate among parties and interests that characterizes a free society. Asking for welfare rights will bring free debate to an end. The left will be declared winner in perpetuity. An end to ideology indeed! The case against the Social Charter is nothing more than a plea to leave social justice to the democratic arena.
There a considerable irony in the left's commitment to the Social Charter. The argument for welfare rights is a bid to take away from future generations the power to determine the issue for themselves. It suggests a marked lack of confidence in the power of free and open debate to show the value of welfare programs. Dissatisfaction with opportunities for political participation is widespread today. The complaint of the Reform Party, the National Action Committee on the Status of Women, and the New Democratic Party has been that Canadians are not able to influence law-making and law-makers; Canada isn't democratic enough. Should we now entrench measures that will render it still more difficult for Canadians to determine issues in the electoral and legislative arenas?
A liberal democracy can only thrive where there is open debate on political alternatives. It is essential that the electorate should be able to choose freely between parties supporting the welfare state and parties recommending retrenchment and the transfer of responsibilities to the private sphere. It is intolerable to suggest that the people's elected representatives should be bound in the straitjacket of a constitution that sets out one particular ideological program.
One more point: my argument throughout has been based on the assumption that liberal democracies distinguish between constitutional law and ordinary legislation, the kind of law that emerges from the electoral and legislative process. But in Canada today this distinction is in danger of being forgotten. One reason why it seems less salient is that for more than a decade governments and political interests have taken an intensely political approach to the process of constitution-making.
The various interests and governments that were engaged in drafting the Meech and Charlottetown Accords were attempting to promote the particular demands of their political followers and clients by means of constitutional reform. They did not distinguish between constitutional reform and social reform, or between the constitutional process and the political process. They expected to carve up "constitutional stone" with as much ease as politicians carving up the proceeds of a patronage deal.
The result has been just what one would expect: the old idea that the constitution should be above politics, and that constitutionally entrenched rights should be protected from the whims and prejudices of particular factions, is breaking down. It has been easier for the advocates of the Social Charter to advance their ideological argument in this climate of confusion.
It would take a longer argument than I can make here to suggest that Canada was better off when the distinction between constitutional law and ordinary garden-variety law was still honoured. I will mention only one thing: if the distinction fails, even traditional legal and civil rights, like free speech, freedom of assembly, equality under the law, will be subordinated to the push and shove of the political process and the will of the majority.
The best recipe for a just political society, the best we have found so far, is the liberal democratic one that Canadians have enjoyed for more than 130 years. It couples opportunity for democratic debate on economic and social issues, with constitutional protection for the fundamental freedoms and equality under the law.
1. The Charlottetown Accord, Draft Legal Text, October 9 1992, section 36.
2. Joel Bakan and David Schneiderman "Introduction" in Bakan and Schneiderman (eds) Social Justice and the Constitution, Perspectives on a Social Union for Canada (Ottawa: Carleton University Press 1992) 5.