The Professors and Prorogation - Macleans.ca

The Professors and Prorogation

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Philosophy professor Daniel Weinstock* was on Power and Politics this evening, talking with Evan Solomon about Harper’s decision to prorogue Parliament. For the past couple of weeks Daniel has been working on a short article that he’s been circulating amongst Canadian political philosophers, constitutional lawyers, and poli sci profs, and which sort of went academically viral. It now has almost 200 signatures and more are coming in all the time.

The piece will appear in La Presse and the Ottawa Citizen tomorrow, along with a few other papers, but both the French and English versions of the piece, along with a list of signatories, can be found here. The list is pretty much a Who’s Who of the field, and it includes Ron Beiner, Sam Brennan, Joe Carens, Avigail Eisenberg, Simone Chambers, Mark Kingwell, Guy Laforest, Charles Taylor, Peter Russell, Reg Whitaker, Christine Tappolet, and (of course) dozens of others. Tom Flanagan is not on the list, but that’s no real surprise.

Daniel’s piece offers what I think is the subtlest, but in many ways most important, critique of Harper’s decision to prorogue, and it focuses on the question of executive self-restraint. There’s an old line about the American constitution being constructed on the principle that even if the elected officials are knaves, the system will function more or less normally. In contrast, the Canadian constitution leaves a great deal of leeway for official judgement and discretion. As UBC law prof Wes Pue once put it, you could summarize much of Canada’s constitution in two words: “Trust us”.

I think this element of trust, and the way it actually helps create a culture of self-restraint, is one of the least-understood aspects (at least by me) of the workings of our constitution. With great power comes great responsibility, and for the most part Canadian prime ministers have exercised that responsibility with a respectable amount of restraint. One example that comes to mind is the appointment of Supreme Court judges: It would be very easy for a prime minister to simply appoint highly ideological  judges, to stack the court in a way that would turn it into another partisan branch. But that would simply lead to a tit-for-tat scenario, where the next prime minister would stack it with *his* preferred partisans, until the court was completely politicized. (Pause here to listen to Andrew Coyne yell, “IT IS!!”) That is of course what has happened in the US, precisely because the system is built on the assumption that this is how presidents will behave.

But when one prime minister exercises restraint, it builds trust that the next leader can rely on for his own decision-making. At its best, the system runs well because complete discretion has a way of inculcating a sense of humility and respect for the institution. Sure, the rules are slack enough that you *could* run roughshod over the common good in the name of partisan advantage, but can doesn’t imply ought. Indeed, sometimes can implies ought not.

Here’s the core of Weinstock’s argument:

Think of the idea of a “loyal opposition” so central to our practice of responsible government. The role of the opposition parties is to hold the government to a high standard of justification. The opposition parties can neglect their responsibilities by being servile and pliant. They can also misuse their powers for narrowly partisan purposes.

We expect them to avoid both these pitfalls. We expect them to be vigorous. And, while an element of partisanship is inevitable in democratic systems of government, we expect that it will be moderated by public-spiritedness and a shared concern for the country’s common good. If it isn’t, then the opposition has failed to do its job.

What is true of opposition parties is true in spades of the office of the Prime Minister, given the very great powers that are concentrated there in our system of responsible government. We expect that the Prime Minister will do his part to ensure that this system works, and that MPs can fulfill the role we elect them to do. Part of what that means is to exercise self-restraint, and not use the powers that he possesses to shut down the mechanisms of accountability to Parliament and the Canadian people.

Harper has clearly not exercised such restraint. His best defense on this is that Jean Chretien did it first. But that is the logic of the schoolyard, not of Parliament, though that is increasingly a distinction without a difference.

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* Disclosure: Weinstock is a friend, and was my postdoctoral supervisor at the University of Montreal.