The Future of Business Approval in the USA

By 1991, the consensus that had been strong enough in 1982 to allow Trudeau and the premiers to impose the new Constitution as a top-down fait accompli had dissolved. Even in 1982, if the people of Canada had been asked for their thoughts on each item of the proposed Constitution, the process would have collapsed in the same way that it did in the Meech Lake and Charlottetown debacles. Back then, governments could almost get away with not asking the people. As Peter C. Newman observed less than a decade later, it was evident to most Canadians "that 11 men in suits meeting behind closed doors should never again determine the country's future."To understand how revolutionary Trudeau's Constitution was, you must first consider the Constitution it replaced.3 Although the British North America Act of 1867 demonstrated what constitutional theorist Martin Loughlin refers to as "the incipient Rationalism of writtenness," its written terms primarily specified the division of powers in a confederal state and the unique requirements of accommodating previously independent colonies. When it came to government operations, however, it adhered to the unwritten traditions, habits, and conventions of Victorian parliamentary democracy, which meant parliamentary supremacy—or as close to such power as an Imperial statute could allow. It also declared that Canada will have "a Constitution similar in Principle to that of the United Kingdom," implying an implicit, organic, frequently unacknowledged, and vehemently anti-rational Constitution.

Our pre-1982 Constitution was not founded 

on the liberal principle of delegated authority by the people, but rather, as Leo Amery remarked of the British Constitution in the 1940s, on "democracy by consent and not by delegation, of government of the people, for the people, with, but not by, the people."4 Trudeau's changes went straight for that pre-Enlightenment heart, instilling the fervor of the American and French revolutions in our dormant constitutional framework. For the first time under a Westminster parliamentary system, a layer of universal rights was elevated above parliamentary sovereignty in an indeterminate and abstract form (details to be worked out later). How strange was the new constitution? Consider that it incorporated the notion of judicial supremacy into a Constitution that did not (and still does not) explicitly require the existence of a Supreme Court of Canada.The concept of subordinating local custom, tradition, public morality, and practical knowledge to the "Rights of Man" was the pinnacle of the Enlightenment project. According to Yuval Levin in his book contrasting Thomas Paine and Edmund Burke's philosophies, the Rationalists insisted that "[e]very political practice, institution, and allegiance must explain itself in philosophical terms, so that no long-standing tradition, institution, or cherished habit can resist the searing light of so speculative analysis." In theory, the Charter summed up the liberal imagination's utopian ideals, and nothing as mundane as the wisdom of the centuries could stand in its way. In practice, it opened up the form of the Constitution to interpretation, and the judges took advantage of it.

In the hands of judges with nearly complete power to 

limit the power of the other organs of government, the liberalism that Trudeau believed should regulate society swiftly fell apart. Canada's courts began applying the unrelenting logic of liberal rationalism to all religious systems, with the exception of liberalism itself. In case after case, the courts applied it to reject, as Levin wrote of the liberal project in general, "all that cannot explain itself in terms of modern reason" and to retain "only those elements of political life that meet its standards—regardless of what society may actually need or that had proven capable of serving the community in years gone by."The Supreme Court of Canada constitutionally established this legal concept in the 1986 judgment of R. v. Oakes, which declared that every act of parliament must now be rationally explained as "proportional" to the satisfaction of the courts. According to the Oakes test, an act of parliament must be directed at a necessary and important goal and "proportionate" in the rational means by which it would achieve that goal—with the courts acting as arbiters of what political ends are necessary and which political means are rational for the government of Canadian society.

It is possible that Paine devised the test himself

And, like Paine's ideology of deracinated capital-R Reason, once liberated, it was impossible to contain. The Constitution would no longer derive its meaning from settled expectations, social conventions, and moral intuition as expressed democratically through parliamentary deliberation, but rather from the courts' creative reasoning, subject only to the seemingly limitless scope of their creativity.In 1968, the humorous old socialist theorist of the British Constitution, JAG Griffith, summarized a similar trend in his country's (far more humble and constrained) judiciary. He stated that judges "say and believe that distinctions can be made between matters apt for the courts and matters apt for Parliament." They give Caesar what is his and keep what is God's." After 1982, Canada's Supreme Court may not have claimed total divine authority, but by using the term "supreme" far too literally, they confidently asserted absolute temporal power.