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 Title

The Charter: A Slice of the Trudeau Enigma

 Synopsis

Why did Pierre Trudeau, former Canadian Prime Minister known for his anti-Americanism, construct an American-style Charter of Rights and Freedoms to accompany the Canadian Constitution?

Adapted from a letter to columnist Robert Fulford, who had ruminated on the occasion of Pierre Trudeau's death on some of his conflicting characteristics

 Author

William D. Gairdner

 Author Notes

Author and columnist, founding president of the Canadian conservative society Civitas, chairman of the world-leading medical research foundation The Gairdner Foundation, doctor of literature, former Olympic athlete. Author or editor of The Trouble With Canada, Canada's Founding Debates, After Liberalism, The Trouble with Democracy (2001) and other works. Dr. Gairdner has a web site offering more information about his work.

Books by William D. Gairdner
Click on the bookseller link(s) to learn more about these books

After Liberalism: Essays in Search of Freedom, Virtue, and Order (1998)
View details at Amazon.com

Canada's Founding Debates: A Conversation With The Founders (1999)
View details at Amazon.com

On Higher Ground: Reclaiming a Civil Society (1996)
View details at Amazon.com

The Trouble with Democracy
View details at Amazon.com

Trouble with Canada, The: A Citizen Speaks Out (1990)

War Against the Family: A Parent Speaks Out (1993)
 Essay - 9/29/2000

Commentators have wondered about the enigma presented by former Canadian Prime Minister Pierre Trudeau's open anti-Americanism and yet his embrace of an American-style Charter of Rights and Freedoms. I believe the contradiction is only apparent, and is resolved by the following sequence of understandings.

The very first American settlers had no common-law tradition of their own to rely on. The British legal tradition was and is a great force, of course, but it was not derived from the specifics of the American experience. So the first settlers, and subsequently the various colonial legislatures, drafted a great variety of social, religious, and legal covenants, or codes of their own, to fill the gap in precedents. This is one explanation for how American settlers from a common law nation (England), which even today does not have a written constitution, veered so naturally toward the creation of written codes.

The American Declaration of Independence was the most famous such abstract declaration of principles, and so lofty in tone it inspired the French Jacobins deeply. The American Constitution that followed was a very different sort of document, but it was also written in the form of a code. (Some historians say it was a counter-revolutionary document intended to check the runaway freedoms of the by then too-independent states.) It inspired the French revolutionaries, just as the American revolutionaries had been inspired especially by Montesquieu - who had in turn been deeply inspired by the British system of checks and balances!

The crucial point, as it affected Trudeau and Canada, however, is that the French Declaration of the Rights of Man and of the Citizen of 1789 was a concerted effort by the French Deputies to improve on the American code by legislating, not merely for French Citizens (as the Americans had written their Constitution only for Americans), but "for all mankind," as the Deputies put it. This is a profound distinction. They tried to universalise rights. (1)

When Pierre Trudeau almost single-handedly created and imposed his Charter on Canadians, he was not trying to Americanise us. He knew that the American Constitution was from the start full of checks and balances and impediments to power. (2) Rather, he was trying to create something more akin to a French code that would be more universal, in essence more abstract than the American Constitution. He achieved that. Trudeau was an admirer of Rousseau (though he didn't seem to know a lot about Rousseau), and the phrase "La volonte generale" can be found repeated throughout Trudeau's work, from his earliest essays in Cite Libre, to his later commentary on Meech Lake.

Inherent in the French tradition is an affection for monistic, or collectivist democracy, so influenced by Rousseau, as distinct from the British affection for pluralistic, or liberal democracy so influenced by Mill.

In my view, Trudeau is responsible for the radical change in emphasis in Canada from an old style British liberal democracy, the mechanics and internal fractiousness, pluralism, and divisiveness of which frustrated him so, to a more French, monistic style of democracy controlled in the end by a single code. He saw the Charter, his Code, as the embodiment of this nation's General Will, a will that thereafter had simply to be executed properly. Not by the inelegant and fractious people, of course, who don't even know what they think, and whose parliament ought to be only a secondary device of government - a tip of the hat solution to the problem of consent of the governed - but by elegant, educated judges, by legal minds, like his own - that is, by trained experts who could decide the course of the nation from a calm intellectual distance according to first principles.

The American experience has indeed recently become quite like this, too. But not at all by design. The American court from the start was forbidden to make laws. Congress was to make the laws, and the court was constrained to adjudicate them only. It was only by virtue of a number of later amendments - especially the 14th - that America began to rely on its Supreme Court as the whole nation's lawmaker, or pre-emptive controller of the people's laws.

Trudeau probably saw all this, and decided that his own Code should cut through all possible impediments (except those he had to accept by virtue of our historical commitments) and hand the essentials of Canadian government to the courts. Essentially, he wanted to give the pre-emptive law-controlling initiative to judges and get it out of the hands of the vulgar people. He probably considered the idea of the people messing around with the laws as a vulgar and impure ideal.

This is how Canada has travelled from being an essentially British-based political entity, to a more French, or continental one. In short, the source inspiration is Rousseau, and not Madison et al.

NOTES

1. The best essays on this process are collected in Dale Van Kley, ed., The French Idea of Freedom, Stanford University Press, 1994.)

2. It is true that the U.S. courts have finally figured out how to circumvent most of those impediments by means of their "living tree" judicialism. See the Fall 2000 issue of First Things, especially the brief summary by Robert Bork.


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