Whither the Canadian Senate after the Federal Election?

The sleeper issue in this federal election? Why, reform of the Senate of Canada, of course!

I jest, although it does tell you something about its constitutional importance that, when fabricating a wedge issue, the Harper Conservatives harp on the Red Chamber’s supposed institutional failure. Yet, during an election campaign, when pressing national issues are discussed and debated, the relative strengths and weaknesses of political party programmes weighed in the balance, there is general silence concerning the future rôle of the Canadian Senate.

A cursory examination of the three main parties’ platforms reveals what one would expect:

The governing Conservative Party recycles its message from elections past:

• re-introduce and pass legislation setting term limits for senators;


• continue to encourage the provinces to work with us to establish a democratic process for selecting senators;


• appoint those who are selected through democratic processes; and


• in provinces that do not take us up on our offer, we will fill Senate vacancies with individuals who support our Senate reform goals, including our goal of an elected Senate. (see pages 62-63)

Apart from its patronising tone and the effrontery of speaking of the ‘Stephen Harper Government’ — it’s ‘Her Majesty’s Government’, thank you very much! — throughout the document, this approach to understanding the Senate is decidedly ‘un-conservative’. As Sir John A. Macdonald argued during the Confederation debates in the legislature of the United Province of Canada:

There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people. ¹

Macdonald’s views on the Senate can be usefully augmented by reference to his amanuensis and early biographer, Sir Joseph Pope:

It is true that, at an early period of his career, he favoured an elective Upper House, but eight years’ experience of this system was sufficient to change his views, and to convert him into a firm upholder of the nominative principle. Every year since Confederation strengthened the conviction of his matured judgment, and showed him more and more clearly the advantages of the nominative over the elective system. To his mind the chief among the objections to a Senate chosen by the popular vote, was the ever-present danger of its members claiming the right to deal with money Bills, and the consequent possibility of disputes with the House of Commons. The proposal that the provincial legislatures, whose members are elected for purely local purposes, should choose the senators to legislate on matters of general concern, was also objectionable, being opposed to the spirit of the constitution, which confined the local assemblies to a strictly limited sphere of action. He held that the system unanimously agreed to at the Quebec Conference had worked well, and should be undisturbed. A senatorship, in his opinion, was an important and dignified office, and a worthy object of ambition to any Canadian.²

No more need be written in comparing the principled Tory philosophy of yesteryear with its craven contemporary.

The New Democratic Party, meanwhile, stands by its pledge to abolish the Upper Chamber:

• We will propose the abolition of the Senate. All Canadian provincial legislatures have done this many years ago, abolishing their un-elected second chambers to the benefit of democracy.


• In the meantime, to limit Senate abuses, we will bar failed candidates and party insiders from being appointed to the Senate, and ban senators from fundraising for political parties. (page 23)

The provincial example has serious problems. While the Dominion Parliament is responsible for national issues that may not be the daily bread of the average voter, the provincial legislatures — as they pressed during the Confederation debates — are responsible for local issues that regularly affect their constituents. It may be assumed, therefore, by applying the principle of subsidiarity, that the provinces will receive far more popular scrutiny than the national government, and so in the latter case additional oversight is prudent. To take an American example, James Madison wrote in The Federalist, No. 46:

...the first and most natural attachment of the people, will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant: and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments. On the side of these, therefore, the popular bias may well be expected most strongly to incline.³

As to the NDP’s second recommendation, it neglects to look at the quality of Senate appointees, but tars them at the outset as partisan hacks; though the second proposal to ban them from fundraising functions may have some merit.

Curiously, the Liberal Party platform is silent on specific Senate reform. Take it as you will; friends of the Senate, however, should be wary of interpreting it as tacit support, for Liberals would doubtless generate reforms ad nauseam were they to garner an electoral advantage.

So, the Red Chamber does not take precedence in the Canadian psyche of hot-button issues; that is reserved for the sputtering economy, the growing deficit and debt, and the uncertain provision of universal healthcare — with a dollop of Québec sovereignty and national unity thrown in for good measure.

Perhaps this sleeping dog should not be disturbed but, throwing caution to the wind, allow me to summarise quickly why the Senate reform that has marked this debate in the past — either for abolition or for elected senators — is bad for the Dominion of Canada.

First, to address the question of abolition: As G.K. Chesterton once opined about the papacy, if the Senate of Canada didn’t exist, it would have to be invented. I refer, of course, to the Senate’s most widely accepted virtue, that of serving as a chamber of sober second thought. Everyone admits — privately, if not publicly — that the House of Commons does a poor job of vetting legislation. It is a partisan chamber where too often rhetorical enthusiasm overtakes reasoned discourse.

In addition, due to a plethora of legislative initiatives and truncated working days (can anyone say ‘prorogation of Parliament’?), the House has too much work for too few days (not that limiting MPs’ time on Parliament Hill is necessarily a bad thing, but that’s a different story). If there were no Senate, you can be sure that think tanks would be busying themselves devising structures and procedures &c. wherein prospective legislation would be scrutinised by disinterested experts for the national benefit. Fortunately, such a body already exists.

Now as to the Senate’s method of composition, an appointed versus an elected model. Canadians already benefit from the latter option, and it’s called the House of Commons. Were an elected system to be introduced into the Upper House, we would at best be duplicating an existing legislative function, without introducing an element of uniqueness — that is to say, of ‘shaking up the system’ — to our Parliamentary system. As Benjamin Disraeli observed, ‘Assuredly I cannot understand how an efficient senate is to be secured by merely instituting another elective chamber, the members of which, being the deputies of their constituents, must be the echo of the Lower House’.⁴

Worse, an elected Senate would encourage several bad things: Popularly chosen senators would challenge the accountability of the Lower House. Under current constitutional arrangements, their limited numbers vis-à-vis MPs would mean that their electoral legitimacy could possibly be greater, as they would represent far more constituents than their Commons counterparts: Ontario’s 24 senators versus its 106 MPs, for instance. The prospects for gridlock are even more ominous when considering the Senate’s shared coterminous powers with the Commons, an equality of legislative authority (save for the introduction of money bills). Partisanship would also undoubted rise.

Another disincentive of a photo-copy Senate is in the make-up of its members themselves. The ideal chamber is a body of appointed men and women who bring a wealth of expertise and life experience to the legislative process, most of whom would never have chosen otherwise to enter political life. Plurality thus becomes an option for the Senate that is introduced in the House by truncating the liberty of voter intention (either through closed nomination processes or quotas).

It has been suggested that senatorial provisions be the purview of the provinces (as the Conservatives have done), as in the American model. But this suggestion goes against the very spirit of Confederation, as Macdonald noted. The U.S. Constitution provided for state appointments because the states were sovereign entities, and their appointment of senators to Washington cemented their unique ‘confederated’ agreement.⁵ This sovereignty also accounts for the equal number of state representation in the Senate — the lopsidedness of which was redressed by the rep-by-pop requirements of the House of Representatives, addressed in The Federalist.⁶ This is one of the more egregious errors of Canada’s Triple-E Senate campaign: with Prince Edward Island enjoying equal stature with Ontario in the Red Chamber.

In passing, let it not be thought that I am a sanguine supporter of the existing Senate status quo and refuse to entertain the notion of reform. There are two easy improvements that I heartily endorse, which do not entail the thorny issue of constitutional amendment. They do involve the exercise of prime ministerial integrity, and so are at the whim of political character.

The first measure I would propose is for the age of appointment to be raised in practice. A current criticism is that the maximum duration of appointment could be as long as forty-five years, under the legal parameters of summons at thirty years of age and mandatory retirement at seventy-five. For reformers who clamour for limited terms, this must be galling indeed. The original terms were set when life expectancy was much shorter, and the emphasis on expertise and experience not so great (‘property ownership’ being the key criterion). Let the prime minister use his prerogative, then, and recommend for appointment worthy men and women of no less than fifty years of age, as an example. Most will have reached the apex of their professional careers and will welcome a period of disinterested public service.

The second measure proposed will probably find widespread approval, too, but because it touches upon the very partisan nature of Canadian politics, may be more difficult to enact. It is for the appointment of Canadians who will add value to the revising abilities of the Senate and not according to party affiliation; who will bring more to the Red Chamber than a party membership, but will be conspicuous for a plethora of talents to be a potent force in legislative scrutiny and public policy development. Yet, almost from the institution’s birth, it has been a sinecure for political fixers and bagmen, a place for the prime minister to repay past party devotion with future acquiescence to party needs. This must stop.

So, whither the Senate of Canada? Its foundation is strong and its structure still ‘fit for purpose’. But it will remain so only if the public appreciates its constitutional responsibilities in Parliament and charge their representatives with its ongoing care and to maintain its relevance.

The Red Chamber remains an important guarantor of the people’s liberties; in turn, Canadians must defend its ability to be an independent voice for the commonweal.

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

ENDNOTES

1. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 3rd Session, 8th Provincial Parliament of Canada (Quebec: Hunter, Rose & Co., 1865), 36.

2. Joseph Pope, Memoirs of the Right Honourable Sir John Alexander Macdonald, Volume II (Ottawa: J. Durie & Son, 1894), 235.

3. Alexander Hamilton, John Jay, and James Madison, The Federalist, The Gideon Edition, G.W. Carey and James McClellan, eds. (Indianapolis: Liberty Fund, 2001), 243.

4. Benjamin Disraeli, ‘Vindication of the English Constitution’, in Whigs and Whiggism: Political Writings, William Hutcheon, ed. (New York: Macmillan, 1914), 196.

5. See The Federalist, No. 43, 228.

6. See The Federalist; e.g., No. 58, 300-05.

The Mediaeval Rise of Free-Market Universities

Life in mediaeval universities has been an abiding interest, and so it was serendipity itself that a recent column by The Telegraph’s Simon Heffer extolled the virtues of a BBC Radio 4 programme ‘In Our Time’. Its host is the Labour peer Melvin Bragg who, along with a guest panel each week, discusses a variety of that would normally be categorised as ‘high culture’; in Heffer’s words, ‘it informs, educates and entertains.’

I scrolled through the comprehensive list of available episodes — which may prove material for future postings — and found one from a month ago, ‘The Medieval University’.

It was a fascinating account about the rise and consolidation of universities in what is considered the High Middle Ages, from the twelfth to thirteenth centuries: how they arose out of nowhere from the demands of churchmen and statesmen for educated assistants, becoming intellectual centres in the study of theology, law, and medicine.

The system of university education was so successful that it remains a powerful force to this day in the arts and sciences. In this broad category we owe the notion of the artes liberales — the ‘liberal arts’ — disciplines pursued not as means to an ulterior goal (the ‘servile arts’ or artes serviles) but as ends in their own right.

In our day, the term ‘liberal’ has come to have many meanings, oftentimes diametrically opposed to each other. Contemporaneously it has become synonymous with activist government promoting social welfare policies, a far contrast with its popular usage originating in the Enlightenment to mean less State interference and more personal freedom.

Yet listening to Lord Bragg and his guests these same impulses can be attributed to the rise of mediaeval universities, which ought to come as no surprise to anyone aware of the Austrian School of Economics and its efforts — successful to my mind — to rehabilitate the liberal, market advances that were pioneered during the Middle Ages. ¹

The most noticeable free market characteristic of the rise of mediaeval universities is their ‘spontaneous order’ à la Friedrich von Hayek by ‘an invisible hand’ à la Adam Smith, without any originating central planning or oversight from either Church or State.

Universities in large urban centres, such as Paris, enjoyed an early advantage over smaller colleagues in less populated areas; as Adam Smith would describe in The Wealth of Nations:

As it is the power of exchanging that gives occasion to the division of labour, so the extent of this division must always be limited by the extent of that power, or, in other words, by the extent of the market. When the market is very small, no person can have any encouragement to dedicate himself entirely to one employment, for want of the power to exchange all that surplus part of the produce of his own labour, which is over and above his own consumption, for such parts of the produce of other men’s labour as he has occasion for (I.iii.1).²

Population size impacted the development and variety of business opportunities, with greater numbers influencing a greater selection of trades — one of which was education; at the university level, this meant that a greater number of students would seek a greater choice or ‘supply’ of subject-courses, necessitating the ‘demand’ for a greater diversity of teachers, and the die was cast in favour of innovation and specialisation.

Aspects of free trade were also in existence, as masters and students travelled from one university to another across the European continent and into the British Isles, searching for the ‘university product’ — whether it be salary, tuition costs, or programme of study, that met their needs — with Latin as the ‘gold standard’ of academic discourse. A standardised canon and licentiate also ensured that university graduates could offer their learning with credentials that were widely recognised and accepted.

Universities could not have arisen without the widespread use of money, as more primitive methods of exchange would have been unfeasible in this international enterprise. Private wealth itself was a contributing factor — although some Italian universities were financed by the towns in which they took root — as it was the bounty of the rich and their endowments that allowed the universities to take shape, and whose benevolence supported both their own offspring and the worthy poor. Voluntary charity and noblesse oblige, then, funded the great spread of universities in the high Middle Ages. This fact is borne out by the Oxbridge college system.

Competition, too, was the rule, not only within the university between masters and masters, students and students, and masters and students, but also between the universities themselves, in their rivalry to attract leading scholars and the best scholarship of the time so as to entice the best young students. Then, as now, a rising reputation translated into increased financial support and patronage.

Likewise, students were ‘sovereign consumers’ (in the terminology of Austrian economics), whose desire and demand for the teaching of specific subjects influenced the development of the curricula and the promotion or rejection of the teaching staff. What is taken to be a new marketing ploy of student-centred activities and outreach is rather very old indeed.

Throughout this free-market rise of universities, though, can be seen the ‘visible’ hand of ‘Tory’ interests; that is, the interventions of both Church and State in imposing order upon divergent, disparate action; the granting of charters and setting up the formal university structure, both in infrastructure and in the establishment of curricula and degrees: universitas is synonymous with the corporate guilds that help to define the Middle Ages.

‘Town-Gown’ conflicts and riots called forth the firm control the law. Unacceptable topics of scholastic debate, oftentimes in opposition to the powers that be, were suppressed by ecclesial and secular authorities.

In time, too, with the decline of organic Christendom and the development of the nation-state, universities grew less ‘free’ and more the instruments of national will, serving the interests of their local communities and of their royal patrons.

Factions also were to be found among the hallowed halls themselves; sometimes this was beneficial, as when a group of scholars decamped from the University of Oxford after such a dispute and took up residence in remote Cambridgeshire. Oftentimes the results were less inviting, as when academia became the instrument of stifling dissent. The trial of Joan of Arc, under partial supervision of faculty from the University of Paris, is one example. (In our own time, we can point to ‘political correctness’ and the pressures exerted against freedom of speech as trends against the animating spirit of the original universities.)

Here, too, is evidence of why universities slowly lost their predominance and influence in the later Middle Ages: an exhaustion with the curricula set in, aided in part by frustrations induced by the burgeoning internal bureaucracy and the demands of special ‘cloistered’ interests. Masters and students, unable to teach or to be taught as they pleased, escaped to cities where innovation was welcomed, authority less strict, and the new Humanism was taking hold of Renaissance minds.

Universities, of course, didn’t pass away, and their continuing relevance is witnessed by the liberal arts colleges that thrive in the United States. But their dominance has waned and been superseded in many respects by the ‘think-tank’ phenomenon and by private research organisations.

Yet universities may be the only significant institutions serving as repositories of Western civilisation, charged with the preservation and transmission of culture. While they may no longer assume the leading role in its creation, the university ideal of universality, of the artes liberales, is unique in to-day’s world of partisan and applied research.

Many may recoil from a free-market interpretation of universities, yet their mediaeval origins owe much to the free interplay of individuals and ideas implied by the free economy. By continued emphasis upon innovation and competition — by ensuring that they can be the best that they can be — can universities ensure their success for another millennium.


ENDNOTES

1. See, for instance,‘The Major Contributions of the Scholastics to Economics (Mises Daily, 3 December 2010)’ by Gerard N. Casey, ‘The School of Salamanca Saw This Coming (Mises Daily, 26 August 2009)’ by Jerzy Strzelecki, ‘The World of Salamanca (Mises Daily, 27 October 2009)’ by Llewellyn H. Rockwell Jr., and volume 1 of Murray N. Rothbard’s history of economic thought, Economic Thought Before Adam Smith, especially chapters 2-5 inclusive.

2. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, R.H. Campbell and A.S. Skinner, eds. Glasgow Edition of the Works and Correspondence of Adam Smith. Vol. 2a. Indianapolis: LibertyClassics, 1981.

‘Mediaeval Toryism’: Anglo-Canadian Conservatism and Its Mediaeval Sensibilities

A long time ago, when I entertained thoughts of pursuing a doctoral programme in political philosophy, my aim was to examine the roots of a species of British Toryism that were exemplified by Benjamin Disraeli and his Young England colleagues, and that were echoed, to a significant degree, by Canada’s first prime minister, Sir John A. Macdonald.

Many of the tenets of this Toryism — known in some quarters, with more or less accuracy, as ‘One Nation Toryism’ or ‘wet’ Toryism or ‘progressive conservatism’ — owe their origins to a mediaeval sensibility of organic obligation and reciprocal responsibilities that grew up in the fertile soil of feudal society. To acknowledge this debt to the Middle Ages, I termed my particular approach ‘Mediaeval Toryism’.

One correspondent to whom I broached the viability of my thesis pointed out the anachronistic nature of my appellation: there being no ‘Tories’ cognisant of that description in that period. Upon reflexion, revisions were made and, given the particular ‘Victorian’ nature of the time frame I wished to explore, a working dichotomy was established between ‘Disraelian Toryism’ and ‘Peelite Conservatism’, the former taking its exemplars from the ‘communal’ Middle Ages, the latter from the ‘individualistic’ Enlightenment period. Over time, as my reading became more comprehensive and analytical, the Victorian backdrop became less prominent and a new nomenclature reflected that shift in emphasis: ‘Organic Toryism’.

My focus was on the tried-and-true, and revolved around the familiar themes of the individual, civil society, and the State — each with the aim of realising the Common Good. For me, the State was a far more amenable (and less odious) character in the triad. Catholic Social Teaching was an additional avenue to discover feudal impulses (along with their religious and ethical underpinning) in modern political thought and action.

In the new year I re-read Joseph Rickaby’s slim volume on mediaeval thought, Scholasticism, and my desire to limn conservatism’s antecedents was rekindled. I resolved to see if I could bring a fresh perspective to the reigning orthodoxy, or at least challenge the prevailing zeitgeist.

In many ways the political beliefs of Disraeli and Macdonald still influence my approach, but mediaeval philosophy comes more to the fore, whether in the form of individuation, or personalism, or natural law. Likewise, political economy has assumed a larger role in my thinking — thanks to the Austrian School of Economics — with what is called the market economy or ‘the free economy’ being no longer restricted to an Enlightenment foundation. Instead, many of the themes often credited to the study of economics originating with Adam Smith can trace their provenance at least to the Late Middle Ages (if not before), attaining their apogee in the scholastic economic treatises of the School of Salamanca.

The original Disraeli and Macdonald template also adheres with respect to politics proper, observable in the development of constitutionalism (as understood, for instance, in the CST principles of ‘subsidiarity’ and ‘solidarity’). The British North America Act, 1867 is a fine example of Anglo-Canadian conservatism at work. In contrast, the Enlightenment liberal (or libertarian) values which serve so well as opposites to this mediaeval mindset find their best expression in the Declaration of Independence and the United States Constitution, so an element of American political theory will also have a role to play.

While the State no longer assumes as prominent a part in my thesis — due to the influence of public choice economics or the theory of ‘government failure’ — it has come to resemble not the laisser-faire State of classical liberalism but what I consider the pis-aller State: intervening in affairs of personal independence only as a ‘last resort’.

Thus outlined, this is quite an all-encompassing topic, too broad to do it justice. As such, much narrowing of the field is necessary. My hope is to focus on specific questions and to write about them for The Organic Tory and, with luck, for publication in journals and periodicals, seeing what ideas will develop both during the writing process and in relation to public reaction.

Much of the research will overlap with this blog’s regular themes of organic Toryism, although it will have the dimension of a concerted effort to link aspects of Anglo-Canadian conservatism to a patrimony located in the Middle Ages. And so, to distinguish this added feature — with apologies to scholarly pendants! — essays in this bent will be labelled ‘Mediaeval Toryism’.

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