Lately I’ve been enjoying Blackstone’s thoughts on a mixed constitution. Oh sorry. Did I just blow a big cloud of antiquarian dust in your face? I was aiming for Dalton McGuinty. Blackstone’s mid-18th century Commentaries on the Laws of England were once the indispensable adjunct to any thoughts about self-government. The American Declaration of Independence, for instance, echoes his view that God wants man to “pursue his happiness.” But Blackstone’s main subject was the British Constitution, to which ours is, or was, expressly similar in principle. So when he calls England: “A land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution” it should be food for thought in Canada. Instead to some, it is dust and ashes.
Mr. McGuinty is not the only one such thoughts would leave coughing today. Blackstone’s Commentaries lay out 10 rules whereby judges should interpret statutes which, if introduced into the Supreme Court building, would swiftly prompt them to open a window to let air in and the offending volume out. Especially Blackstone’s point that while judges may construe laws to exclude absurd consequences the legislature apparently did not foresee “there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.”
The language is undoubtedly quaint. It is comical that at one point he praises a previous famed legal commentator, Edward Coke, as “a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in ...” especially as I’m reading a facsimile of the original document manuscript complete with archaic lettering. But there are worse things than quaint. For instance, vacuous.
Consider this odd-sounding passage from Blackstone: “In aristocracies there is more wisdom to be found, than in the other frames of government... but there is less honesty than in a republic, and less strength than in a monarchy... Thus these three species of government have, all of them, their several perfections and imperfections.”
Praising the strength of monarchy may seem as uninteresting as it is bizarre. But his fundamental subject, unchecked executive power, remains highly pertinent. For while the form has changed, today’s prime ministers and premiers possess discretionary authority not seen in these parts since James II. One need hardly labour to convince, say, Stephen Harper that it’s easier to get things done without meddling by pesky legislators. But is it unredeemably quaint to inquire whether this system possesses the wisdom or virtue one would ideally also seek in a state?
Don’t ask Stéphane Dion, who just said his party would abstain on the throne speech because Canadians “want Parliament to do its job.” Having the Official Opposition abstain on yet another confidence vote certainly doesn’t constitute Parliament doing its job, which is to keep a sharp eye on the executive. Put aside such blither and reach for Blackstone.
He has much of interest to say, including that legislation ought either to restate or refine the common law’s traditional rules, not go haring off in rash and ill-considered directions. But let me here focus on his quoting first Cicero that a constitution that somehow combined monarchy, aristocracy and democracy would be best, then Tacitus’ reply that such a thing could hardly exist and would never last, before retorting, “happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation.”
It did last quite a while. But the strong-executive types got us in the end, around the same time Pierre Trudeau’s “Just Society” and new constitution seem to have made some form of cosmic justice “the very end and scope of the constitution.” Surveying the results, maybe we needed more discussion of reliable sources of strength, wisdom, fairness or durability in our new system of government.
It won’t be easy. Given how Dalton McGuinty recently brushed aside questions of principle as quaint, pedantic “academic discussions in a rarefied atmosphere,” there might seem little point in blowing academical dust in his face, or that of almost any other current politician. But remember that in The Scarlet Pimpernel the hero escapes an ominous trap by offering his adversary snuff from a box he has surreptitiously filled with pepper.
Let’s try the same trick with Blackstone and other dusty but pungent authors, shall we.
[First published in the Ottawa Citizen]