This essay is the second in a three-part series on Confederation that provides critical historical context for Canada’s sesquicentennial anniversary. The first essay was posted on 26 June. The third essay will be posted on 30 June.
July 1 marks 150 years since Canadian Confederation. So what? Confederation is political history, a field long in eclipse in academe; colonialism history is in no mood to celebrate; and anyway isn’t Canada a lot older than 150? But we are, after all, still governed by that constitutional act. In 1867, Canadians wrote a new national political framework, overturning earlier, failed constitutions foisted upon them from Westminster. Surely Confederation should be part of Canadian “mental furniture.”
But to ask what happened in 1867 precipitates you into disputes about how to understand history, especially political history. Confederation makes us ask: what is the value of political deliberation? For those who believe in it, Confederation was an ur-moment of rational political self-determination for its authors. Confederation saw a group of men sit around a table and form a constitutional law. They negotiated it into being, and then sold it to their fellow legislators, to the imperial authorities, and, eventually, sold it to or imposed it on the inhabitants of the northern part of North America more generally. Marx tells us that men don’t make their own fate on their own terms, but Canadian founders seem to have done just that. Moreover, they did so at a moment when the very principle of rational self-determination was in serious disrepute. Marx’s work in discrediting a sovereign political reason was slowly filtering into popular consciousness, but there were more immediate and obvious challenges very familiar to the legislators who debated the British North America Act.
In the 1860s, the dream of reason, always a fragile one, was bowing down before other gods, above all violence and irrationality. Imperial violence was rewriting geopolitics. During the Canadian legislative debates, C.J. Alleyn declared that “in this boasted age of civilization the doctrine that might is right prevails as strongly as in the seventeenth century.” He instanced Prussia’s recent invasion of Denmark and “the iron heel of Russia” crushing Poland and the Caucasus, while in North America, the United States had “resorted to the bitter arbitrament of the sword” and waged war on a “scale unknown since the Russian campaign and the great Napoleonic wars.” Such “stern rules of statescraft” proved, he argued, that “power must of necessity increase and encroach,” and that “pure justice and abstract right, without armed battalions to support them, will neither preserve integrity of territory nor secure protection of persons.” Others voiced similar observations. Canadians had been protected from predatory realpolitik by the British Empire, that unique concatenation of might and (supposed) right. They believed the stories of historians, from David Hume to T.B. Macaulay, that made British imperial hegemony the place where modern liberties were nurtured and disseminated. British might had shielded Canada from American invasion before. But it would do so no more. What could Canadians do under such circumstances? Certainly they could deliberate. But Canadian deliberations were as unlikely to rein in American expansionism as past British deliberations and even proclamations had proved.
Moreover, for all that loyal Canadian subjects deplored American violence, they also coveted some part of its effects. The extraordinary expansion of the United States westward was extraordinarily violent. Canadians preferred a more deferential order, but they too began to hanker for the lands to the west and to look to American precedent for justification. Could the thing be done without violence? Elizabeth Mancke remarks, in an important Borealia posting, that Canadians were remarkably successful in emulating American ends, and achieving them with much less overt violence. Hence we have what Dan Rück, at the recent meeting of the Canadian Historical Association, described as an invasion that pretended it was not an invasion. For Canadians to highlight violence, the might-makes-right argument, was to highlight their own vulnerability.
So, instead of referencing violence, the “fathers” of Confederation instead chose to reference political rationality. They argued that history was rational and “Indians” were not. It followed that Canadians were not choosing aggressive expansion; they were merely acting for larger processes of civilization. That was George Brown’s view. He argued in the Toronto Globe that Canada West was naturally destined for transnational economic and political hegemony, so long as the obstacles obstructing it—backwards, illiberal French Canadians to the east, backwards, illiberal Indians to the west, and corrupt, illiberal toryism in its midst—could be restrained either politically or constitutionally.
Where Brown’s political enemies were enfranchised, they rebutted his sweeping denunciations in legislatures and partisan newspapers. But where they were not, the slurs stuck. And Brown’s timing was good. The 1860s was a decade of intense racialization, seen in an emerging dichotomy between history and anthropology, the first populated by rational historical agents, the second by irrational ahistorical agents embedded in culture like a bug in amber. Indigenous people were declared to be subjects of anthropology not history, requiring aggressive assimilation projects to precipitate them out of culture and into history.
In short, if political history tends to exaggerate rational deliberation, histories of Canadian Confederation have probably done so more than most, for the reasons exposed above. Donald Creighton’s oeuvre reflects that historiographical trajectory. Whereas his early work saw in early Canada a clash of cultures, his later book, The Road to Confederation, portrayed the process as almost culture-free, a deliberative and strategic conversation by men who were masters of their fate, captains of their souls. The burden of Canada’s destiny lay in the country’s heroic statesmen, the best of whom—John A. Macdonald—owed nothing to historical ideas and everything to a kind of pragmatic, situational political logic. That was an appealing story for Creighton’s audiences. And it’s true that you cannot do political history well without considering strategic intentions. To ignore them is to be their dupe. But you still need something more to explain outcomes.
The rational-deliberation story veiled a lot of background coercion. The new political history doesn’t discard the public sphere of strategic deliberation: Colin Grittner very ably defended it before the CHA at a round table for the new political history. But he and others also insisted on the need to understand political history as reflecting and in a “dialogue” with social and cultural history that shaped both the presuppositions of deliberators and the practical outcomes. Reason, Hume observed, is always passion’s slave. His explanation for modern liberties saw them develop accidentally, often via overtly tyrannous intentions. Canadians are ill-served by political history that veils bullying, violence, greed, self-flattery, chauvinism, or any other elements of that crooked wood from which we are made, and from which nothing wholly straight can ever be fashioned. Certainly not a constitution.
E.A. Heaman is an associate professor in the Department of History and Classical Studies at McGill University. Her new book, Tax, Order, and Good Government: A New Political History of Canada, 1867-1917, is published by McGill-Queen’s University Press.
Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec: Hunter, Rose & Co., 1865), 670-1.
 John Burrow, Evolution and Society: A Study in Victorian Social Theory (Cambridge: Cambridge University Press, 1966), 17, 79.
 Donald Creighton, The Road to Confederation: The Emergence of Canada, 1863-2867 (Oxford: Oxford University Press, 2012; reissue).
Featured Image: “Canada 150: Fake News.” Photograph by E.A. Heaman, 2017.
This is the first of two posts responding to “Debating the Confederation Debates of 1865” a two-week series we ran in partnership with Canada Watch.
By Christopher Moore
During the constitutional wrangles of the 1980s that became known as “Meech Lake,” one of the premiers supposedly remarked that the fathers of confederation were fine men for their time but didn’t know much about telecommunications or the environment. Whatever expertise the first ministers of the 1980s may have had about telco and enviro policy, however, they eventually proved themselves far less successful than the original confederation-makers in the more significant skill of actually drafting and getting ratified a constitution that might last a century and a half.
I have known and admired for years several of the authors whose essays I have been asked to comment on for this collection. All the authors have made valuable contributions to historical knowledge of Canada. But when I read these essays, I heard again that premier. We read here a much longer list of things the confederation delegates did not know much about — the environment, solely “a resource for exploitation,” being just one. They “were not thinking a great deal” of Canada’s constitutional future and proposed “a fixed set of rules” for contemporary problems. They failed to mention Jews and Baha’is and other religious communities. They failed “miserably” on minority rights. They had a view of Canada that was “more caricature than reality” and lived in “an agrarian dream.” They insisted on a limited electoral franchise that privileged them. They denied that indigenous territories had to be “negotiated and acknowledged.” They were not democrats and indeed viewed democracy with hatred and contempt. By and large, this collection declares that the crucial thing we need to understand about the confederation process is not the constitutional issues it brought forth, but rather the class, race, and gender biases that drove the politicians involved.
It may be that the contributors’ attitudes have been shaped and encouraged by the source they were asked to use: Confederation Debates, Peter Waite’s 1963 abridgment of the Province of Canada parliamentary debate on confederation, which includes only a twelfth of the original debate, and nothing from any other legislature. (Some contributors did use the full record of the province of Canada debates, not just Waite’s selection.) Waite reports he sought “force, relevance, shrewdness, and wit” in making his selections, but his choices were also shaped by the early 1960s consensus that confederation was a conservative, top-down, centralizing project driven by local economic forces and temporary political crises, and did not involve any deep constitutional thought or “voyage of discovery for first principles” (as Donald Creighton put it). Waite’s introduction and selections, which emphasize local rivalries, railroad politics, and temporary foreign threats over constitutional principles, presumably shaped the consensus view of this collection that the politicians of the 1860s had prejudices to be exposed and denounced but no serious constitutional ideas to be engaged.
For more than fifteen years, an alternative compilation of confederation debates has been available to scholars and students. The collection entitled Canada’s Founding Debates, edited by the political scientist Janet Ajzenstat and others and first published in 1999, has the advantage of including contributions not only from Waite’s single province but also from the legislatures and constituent assemblies of Atlantic Canada, Red River, and British Columbia. Furthermore, its organizing principles are the classic themes of constitutional thought – liberty, nationality, minority rights, and democracy in both representative and direct forms – of which the contributors here generally declare the founders to have been oblivious, but which the editors of Canada’s Founding Debates find in abundance in the debates they edited and published.
Such claims to philosophical depth in the debates over confederation can themselves be debated, obviously, and it is valuable to be aware, and to make students aware, of the class privileges, racial biases, and gendered perceptions with which nineteenth century politicians approached the task of constitution making. But some exposure to constitutional ideas and principles – foregrounded much more in Canada’s Founding Debates than in Waite’s Confederation Debates – might suggest that an unrelenting emphasis on nineteenth-century bias and prejudice actually obscures Canadian constitutional choices that were more sophisticated than this collection suggests.
A few examples:
- The Franchise: This collection rightly emphasizes that the politicians of the 1860s excluded women, some men, and most Indigenous peoples from the franchise. It fails to note anywhere, however, that they declined to constitutionalize those prejudices and provided a constitution tolerant of electoral reform proposals. Far from blocking further progress, confederation-era politicians, already operating under one of the widest franchises in the world at that time, would themselves introduce the secret ballot and near-universal manhood suffrage within a few years. Voting for women, Indigenous people, and minorities was contested longer, but that too was largely a political not a constitutional challenge. Patriarchy and class were very real in 1867’s ideas about voting, but also very incompletely constitutionalized.
- Religion: David Koffman’s essay on religion, while noting the tolerance that the 1867 constitution would eventually encourage, regrets the exclusion of religious minorities from it. Surely omitting religious minorities from special treatment – that is, guaranteeing them the same treatment as other citizens – was the much more progressive constitutional strategy, whatever prejudices these Roman Catholic, Anglican, and Presbyterian politicians nursed. As Marcel Martel describes, the constitution sought to protect the existing confessional school systems of some minority Catholic and Protestant communities, but not the religions themselves, and it established no state religion – thereby constitutionalizing the then quite recent disestablishment of state churches.
- Indigenous rights: Unlike religion, the British North America Act did constitutionalize a special situation for First Nations. Had the constitution-makers followed their racial prejudices and eurocentric biases, as described in these essays, they might have included a clause repealing the operation of the Royal Proclamation of 1763 and extinguishing the recognition of Indigenous rights in the new nation. Instead, their much disparaged clause “Indians and lands related to Indians,” brief as it is, made First Nations the only constitutionally-identified community regarding whom special obligations were imposed on the federal government: effectively, to acknowledge Indigenous land interests and to negotiate with leaders and representatives of the First Nations. Indigenous self-government and entitlement to territory have not been claims of the First Nations alone, that is, but are actually acknowledged in the British North America Act, drawing on the Proclamation, the Treaty of Niagara, and other agreements. This part of the Canadian constitution was obviously breached and ignored by Canadians and Canadian governments in a thousand ways for a century and more, but in recent decades the language inserted in the constitution by the politicians of the 1860s has become the basis of many successful court actions against Canada in Canada’s own courts. Several contributors here deplore the denial of the vote to Indigenous peoples, but none notes that, for all its pernicious consequences, the exclusion of First Nations in Canadian elections could also imply recognition of them as separate polities – a glimpse at the possibility of self-governing First Nations dealing with Canada through treaty relations rather than as a very marginal voting bloc.
- Marriage and family: Even on gender issues, the constitutional choices of the 1860s were more subtle than is suggested by the focus on masculine privilege and the indissolvable patriarchial family emphasized by Waite’s debaters, notably Joseph Cauchon, as Kathryn McPherson observes. The constitution balanced provincial control of “the solemnization of marriage” against federal authority over divorce, which made divorces (somewhat) available even in Cauchon’s Quebec, where the political climate long remained intensely hostile. Here too, the undoubtedly patriarchal preferences of “the fathers” were only incompletely expressed in their constitution, permitting continuing evolution of the political meaning of marriage and family as society has changed.
- Federalism: Elsbeth Heaman’s essay has interesting suggestions about the confederation makers’ instinctive preference for limited government, and their likely expectation that giving the provinces most social welfare responsibilities, while the federal government kept most of the readily available revenues, would be an effective way to limit social spending. But here too there was no constitutional straightjacket. As provincial politicians discovered direct taxation, resource royalties, and federal-provincial cost-sharing programs, it turned out that obstacles to big government could be overcome without massive constitutional amendment.
- Democracy: Dennis Pilon has fun quoting the attacks on “democracy” abundantly available in the Waite excerpts, even when it is clear that the speakers meant something like authoritarian populism when they said “democracy.” He does not engage, however, with the exchanges – more evident in Canada’s Founding Debates than in Waite’s Confederation Debates – in which politicians in several legislatures offered a much more nuanced discussion on the merits of representative and direct democracy. They debated at length – Locke versus Rousseau, in effect, sometimes with citations – whether in a parliamentary system a constitution should be ratified by the people’s elected representatives or had to be put directly to the people. The Cameron-Krikorian-Vipond essay engages the debate between protecting rights through parliamentary and common-law means versus constitutional entrenchment (making a strong case for the latter), but mostly the hegemony of the class-race-gender analysis of confederation in these essays leaves little room for their consideration.
Historians of the 1960s often described – and approved of – a confederation that was conservative, dignified, traditional, patrician, and almost devoid of sophisticated constitutional thought. In this collection of essays, we can see how the 1960s interpretation and the selection of sources it provided continue to be useful to many historians of the 2017 era, who use the same materials to dismiss confederation and its makers as patriarchial, masculine, racist, and reactionary. What is missing from this alliance of 2017 with 1967 on 1867, however, is some of the intervening scholarship, which has proposed that, whatever the attitudes of its makers, the 1867 document actually reflected a more liberal and sophisticated constitutional settlement, one that left Canada open to substantial social and political evolution even without mega-constitutional reform, a living tree more than a dead hand.
One of the Canada Watch essays imagines a worker of the 1860s saying, ‘Who cares about their confederation?’ Who should care? Historians, including those in this collection, should care, and their students, too. And citizens too, since the constitution we live with remains very largely the surprisingly flexible one set down in 1867. Marlene Shore reports that the confederation politicians “held a typically nineteenth-century view of history as the unfolding of progress.” But simply by living in the twenty-first century, we have not in fact solved all the problems of confederation, nor proven ourselves wholly superior to the “small-town lawyers and businessmen” who drafted the constitution with which we still grapple.
Christopher Moore (www.christophermoore.ca) is the author of 1867: How the Fathers Made a Deal (1997) and Three Weeks in Quebec City: The Meeting that Made Canada (2015).
 Janet Ajzenstat, Paul Romney, Ian Gentles, William D. Gairdner, eds., Canada’s Founding Debates, Toronto, Stoddart, 1999, republished by University of Toronto Press in 2003. A French-language edition is also available.