04/25/2014 05:12 EDT | Updated 06/25/2014 05:59 EDT

Let's Take the Senate Off Life Support

Though you hear the line thrown around a lot, the phrase "sober second thought" doesn't actually appear anywhere in the Canadian constitution. The catchy term, often offered as a shorthand justification for why the Canadian political system requires an appointed, unelected Senate as part of our legislative process, is nothing more than something clever John A. MacDonald said once, and in a sane nation one imagines clever one-liners would not carry legal heft in the eyes of the judiciary.

Yet there it is in today's Supreme Court ruling, which held it's illegal to hold Senate elections in this country without first amending the constitution.

"Introducing a process of consultative elections for the nomination of Senators" is simply not permissible, the judges declare, as it "would change our Constitution's architecture, by endowing Senators with a popular mandate inconsistent with the Senate's fundamental nature and role as a complementary legislative chamber of sober second thought."

The Senate's "fundamental nature and role" is not mentioned in the Canadian constitution. Section V of the Constitution Act, 1867 simply declares that we shall have an "an Upper House styled the Senate," that it shall "consist of One Hundred and five Members," that the governor general shall "summon qualified Persons" to become members until they "attain the age of seventy-five years," and that both the House and Senate must vote in favour of bills before they become law.

Why this upper chamber exists, on what basis it should approve or veto laws, or what its general culture, temperament and disposition should be is never stated one way or another.

Anyone who has studied Canadian history knows perfectly well why the thing exists, of course. It's a cheap (well, $100 million a year) rip-off of the British House of Lords, intended to provide an elitist veto on what John A. MacDonald once snobbishly referred to as the "democratic excesses" of the elected lower house (John A. was full of clever lines).

But the idea that unstated, historical motives should hold equal weight with stated text when it comes to interpreting constitutional provisions is a controversial one. In America, such a philosophy is often referred to as the doctrine of "original intent," and is popular with conservative judges like Antonin Scalia who enjoy digging up James Madison's old postcards to prove that the Founding Fathers would never have approved of gay marriage or whatever. It's not traditionally a mantra our own left-leaning Supreme Court has been fond of.

In recent decades, the Canadian Supremes have routinely declared the constitution of Canada to be a "living tree," whose text deserves to be interpreted with the changing fashions of the time. The brilliant and scholarly Tory MP Scott Reid wrote a fine essay about this phenomenon a couple years ago, noting that the Court has evoked the "living tree" doctrine dozens of times in key rulings to creatively reinterpret all sorts of seemingly clear constitutional clauses, ranging from the division of federal-provincial powers to the rights and freedoms of the Charter. In one particularly blunt ruling, the Court even dismissed a clause it didn't particularly care for as being "little, other than historic concern."

When it comes to the Senate, however, historic concerns apparently matter a great deal indeed. The 1867 people wanted things one way (though they never bothered to put it in writing) so we all must genuflect to their timeless vision. That contradicts the general reformist march of Canadian politics, in which the flawed governing institutions of the past are gradually democratized through piecemeal innovation, and puts a dour damper on any future hope for reforming "within the system" in general.

Despite his sweeping on-paper powers, we all understand the governor general to be a useless figurehead whose only practical function is to rubber stamp the decrees of parliament or the prime minister so he has more time to visit 27 countries in three years while lecturing everyone else to shrink their carbon footprint. Coming up with democratic procedures to put things before the governor general to sign, in turn, is one of the primary ways we enshrine legitimacy and accountability in the Canadian political system. Indeed, one of the few positive features of constitutional monarchy is the amount of flexibility and creativity the system affords politicians in determining how things should get to his desk.

Deciding which names to submit to the governor general for appointment to the Supreme Court itself, for instance, has recently become a convoluted multi-step process in which a variety of legal interest groups are given say  --  and more recently, parliamentarians as well. Though it has a lot of flaws in practice, in theory this is constitutional monarchy working at its best --  allowing the relatively easy introduction of greater democratic checks and balances into a system at a time when the public expects nothing less.

The idea that Senate elections (in constitutional monarchy-speak, "recommendation" elections to the governor general) could serve a similar function has always been relatively accepted in Canadian political culture  --  it just hasn't been acted upon much. Albertans have elected six senators since 1989, and all but one have been obediently appointed by Ottawa in response. The other provinces have avoided copying the Alberta precedent for their own esoteric, self-serving reasons, but the notion that the public has as much right to "recommend" senators to the governor general as the prime minister is hardly revolutionary, unless one takes a dogmatically hardline stance on the sanctity of an appointed Senate as a feature of the upper chamber and not  --  as most Canadians regard it today  --  a bug.

In making this ruling, however, the Supreme Court has offered the extraordinarily regressive declaration that the Senate has a permanent obligation to retain its "independence from the electoral process" and never become corrupted by something as vulgar as a "popular mandate" for the exercise of the chamber's legislative powers. The Senate must remain forever frozen in the elitist "sober second thought" mandate of its 19th century founding, a dogmatically originalist constitutional analysis the Court has rarely been willing to afford to many of the document's far more bluntly stated provisions.

The constitution may be a living tree, in other words, but the Senate certainly isn't. It's a petrified, 147-year old oak, and one that can only be uprooted and turned to kindling with unanimous provincial consent.

It's time to sharpen our saws.


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