‘Nations stumble upon establishments, which are indeed the result of human action,
but not the execution of any human design.’
Adam Ferguson, An Essay on the History of Civil Society (1767)

24 February 2010

A Libertarian Defence of the Appointed Red Chamber

While conservative in my politics, I don’t consider myself a libertarian—being rather more in tune with the Tory values that exemplify the career of Canada’s first prime minister, Sir John A. Macdonald. Yet when thinking a bit about the fate of the Senate of Canada, and particularly about its method of composition, I begin to see the outline of a libertarian defence for appointing senators.

Recent weeks have been spent reading a number of seminal tracts in the libertarian tradition (a theme to which I shall return in future), and I can report with some confidence that it is divided into two main camps: moderates who adhere to what are commonly called classical liberal beliefs or minarchy (sometimes taken to be synonymous with modern conservatism) and those who are rather more radical in their principles, the philosophical anarchists (or ‘anarcho-capitalists’).

The first, while not exactly boosters for the status quo, will admit grudgingly that the State does have its uses. It adjudicates contracts between contesting parties and upholds security of person and property: by applying law and order for domestic disputes, and supplying the armed services against foreign invasion. Ideally, then, for this branch of libertarianism was coined the belief that ‘government is best which governs least’.

The second band of libertarians, no doubt, considers the first group soft. No form of government is acceptable to them. Social action is based upon voluntary agreements entered into freely. All transactions, therefore, take the form of simple market processes, ergo the ‘capitalist’ label. Anything not openly agreed to—and thence with no means of ‘opting-out’—is coercive and an affront to fundamental natural law and human rights.

But what has this to do, you ask, with the benefits of an appointed Red Chamber?

In the general outlines of libertarian thought—basically a paean to limited government—is where the genius of our existing Senate lies.

Surely I am raising a provocative paradox; wouldn’t a philosophy of freedom advocate for democratic senatorial representation, unfiltered through the prism of responsible government?

Yet, if your objective is less government, then your goal is not an elected Senate.

If your objective is less self-important legislators, less legislative gridlock, and less regulatory intrusion—all with the potential of inhibiting personal liberty—your goal is not to encourage their expansion. Your goal, as a libertarian, is to maintain what is by comparison a lesser obstacle to freedom.

Consider this an axiomatic warning: as surely as night follows day, a senator elected by popular will, with the wind in his sails and newfound electoral legitimacy conferred upon him, will feel duty-bound to live up to expectations to be as energetic and industrious as his colleagues in the House of Commons.

He will be constrained, by articles in the BNA Act, from introducing money bills in the Upper House, but that is the only constitutional restraint by which he will be bound.

By former convention the Senate was to act as a chamber of sober second thought, an evolutionary development because, lacking in directly democratic bona fides, the Senate was considered at best a complementary chamber in league with the confidence chamber that was the House of Commons. No more.

However, with a ballot-box mandate, the Senate will enjoy the full sanction of Canadian voters—more so, in fact, since the provinces have no greater number of senators than MPs; for instance, the present distribution of seats means that the twenty-four senators representing Ontario will wield a larger population-base, and greater clout, than the province’s 106 MPs.

At last, the Senate will become the equivalent in power of its nineteenth-century model, the House of Lords; this Canadian institution will fulfil, in word and deed, the dream of the Fathers of Confederation for ‘a Constitution similar in Principle to that of the United Kingdom.’

Ask David Lloyd George, though, how his People’s Budget fared in 1909 and 1910, as successive bills were voted down by the peers. The Parliament Act of 1911 is the answer. The powers of the obstructionist House of Lords were severely curtailed. And the Liberal government had it easy; its antagonists were hereditary in nature, not democratic.

The alternative to Senate reform favoured by some of the opposition parties is abolition. Certainly, from the anarcho-capitalist standpoint—that is, the ideal libertarian response to any form of meddling government—get rid of the irritant altogether. But does this make for less, more effective government, or an overall worse situation?

Who will scrutinise and improve legislation in a unicameral Parliament, when the Commons hasn’t the time to revise it now? How many, in the lower chamber of competing interests and egos, exemplify the experience and non-partisanship of the upper chamber?

Bad apples reside in both places, I know. But that is as much an argument against turning the Senate into a carbon-copy of the Commons as a whole-cloth condemnation of an institution that has counselled Parliament—and Canadians—well since 1867.

Faced by these prospects, the moderate libertarian answer is clear: If we must have governing institutions, then let them be the best institutions that we can have, undertaking the people’s business with a minimum of fuss and bother, both to themselves and the populace they serve.

Let us scorn an elected Senate as the self-aggrandising monstrosity of our nightmares and preserve our modest appointed Red Chamber.

This is one libertarian position to which even Sir John A. could raise a glass.

See Advocacy for Appointed Upper Chambers (pdf file) for more information.