Charter Fever: A New Sectarianism
June 1, 1992
We almost rid Canada of the worst in religious sectarianism only to move to a more particularized, secular sectarianism.
And we're forsaking parliamentary traditions and parties and the cardinal role of individual citizens for the courts and interest group politics. Respect and influence have been shifting to those who advance provincial, gender, sexual, ethnic, aboriginal, and linguistic demands.
The great landscape remains. But we revile the narrowness of Canadians of the past and neglect their legacy. And so the clamor I hear on our so-called Canada Day is of demands and wrongs, not a celebration for a lovable and loved country. (Doug Fisher, "You'll Have to Excuse Me for Not Celebrating," The Toronto Sun, June 28, 1992, p. C12)
Ironically, while its promoters predicted that the Charter of Rights and Freedoms, the centrepiece of Canada's Constitution, would bring about greater social cohesion, the reality is the very opposite. Instead of consolidating the ties that hold Canada together, the unity of our nation is now seriously jeopardized. How could such good intentions go so badly awry?
It is now widely acknowledged that the Charter has fundamentally altered the Canadian political landscape. But what is the exact nature of this alteration? The transfer of power from the elected (accountable) legislators to the appointed (nonaccountable) judiciary is often singled out as the most important impact of the Charter. In other words, supremacy has shifted from Parliament to the courts, or, as the critics say, from a democratic to an anti-democratic form of government. Indeed, to really understand the much heralded Charter (after all, who can be against freedom and rights?) is to see that it embodies a thoroughgoing transition from a law-based, limited state to an ever expanding, interventionist state, a move vigorously applauded and promoted by those committed to the socialist dogma.
One way to understand this transformation is by tracing the redefinition of the concept of rights. Traditionally, rights have been closely identified with freedom, especially over against the state, but also from domination by other power centres in society. This is where the notion of rights expressed in a constitutional document enters in. The purpose of such a constitution is to spell out the nature, limits, and division of governmental authority as well as the essential freedoms enjoyed equally by all citizens. Two features of this kind of constitutional safeguard need to be singled out. One is the idea of equality of all citizens before the law; the other is a passive-versus-active role of the law.
Historically, equality before the law did not mean equality of social, economic, or other kinds of status in society. Rather, it was assumed that equality simply meant that all were equal as members of the citizenry, equally entitled to protection of the law and to the responsibilities and prerogatives of citizenship, including the right to vote and hold office. Parliamentary government, as practised in Canada, provided the basis for a society in which all citizens were free to order their lives as they desired within the bounds of a broadly understood and accepted framework of decency and "good order."
However, two things happened that have led to a dramatic change in the mood and direction of politics. In the first place, an underlying, assumed set of moral standards for society has been seriously eroded. In other words, there is no longer a broadly shared agreement about the essential rules for proper behaviour.
In the second place, this loss of broad agreement is directly related to the loss of a worldview which holds that there is something beyond and above our temporal existence. To put this in Christian language, we are created in the image of God. The essence of our existence is therefore one of dependency and servanthood.
The cardinal meaning of modernity is the rejection of the concept of human dependency and imperfection. As the Humanist Manifesto put it so succinctly: "No deity will save us; we must save ourselves." The influential opinion shapers have concluded that this life is all there is and it is up to us to establish the perfect society. The striving for perfection within this life has become a central impulse of modern times.
The new concept of equality in the Charter is fast becoming a powerful political vehicle in the drive towards perfection. (It is in this context that we can speak of a Utopian ideal.) This notion is at odds with the more traditional concept of equality of all before the law, or of opportunity, not outcome. Inequality of outcome, in the sense that there exist disparities in economic, social, and professional status, is very much with us, accompanied at times by unfairness and injustice.
No human undertaking, including the drafting of a constitution, is perfect. What is undeniably attached to our existence is the fact of human imperfection or sin, a word many now consider outdated. Acknowledging the reality of sin does not justify injustice and evil but recognizes that no institution is able to overcome all human limitations and imperfections. Law and government can only be imperfect instruments for the promotion of justice. They can only serve as a protective shield to set the perimeters for public life and to punish those who break the law. Much must be left to the free behaviour of citizens.
The activist state
This view of law and politics is considered too limited by a number of powerful pressure groups, including the mainline unions, radical feminists, and other assorted pragmatists who simply view the state as a convenient source of entitlements and the chosen instrument to construct a just and humane society. A recent Royal Commission Report on the Canadian economy contained the opinion that governments must "manage society as well as the economy." The result of this new mindset is that clearly nonstate areas such as education, family life, business, and communications are increasingly coming under the control of the state. Or to put it another way, the distinction between state and society is being blurred, if not eliminated.
How is this far-reaching shift accomplished?
It is not done by openly announcing an intent to transform our parliamentary democracy into a state-controlled society. (Even socialists shy away from using the word socialism.) The chosen method is to clothe the strategy with a mantle of moral superiority. For example, our society is said to be suffering from serious injustice in the form of discrimination against a number of minorities and women. This discrimination is deemed to be systemic, requiring systemic remedies by the powerful arm of the state. (See Stephen Lewis's recent report, Stephen Lewis Report on Race Relations in Ontario, June 1992, on what he perceived to be the evil of "pervasive" racism in Ontario.)
The new political activists and egalitarians justify their policies by claiming that the source of discrimination and injustice lies in the disparity of power, position, and status that exists in society. They are convinced that this can be overcome only by elevating equality to the new imperative of public policy. The law and the force of government must be used as active instruments for rearranging the status of individuals in society.
This new function of the law is very different from its function as a protector against the forces that would destroy freedom. The law now becomes a mechanism for social rearrangement. The difference is profound. It is exemplified, for example, in the difference between the employment standard that demands "equal pay for equal work" and the more recent concept of "equal pay for work of equal value." The latter concept, together with the recent employment equity proposals, have become instruments of massive government intervention in society.
The Kingdom of Man
Thus the emphasis is shifting from the state as the protector of freedom to the provider of claims and entitlements, now redefined as rights. What has added further impetus to this transition is that an ever-growing array of aggressive pressure groups are advocating a new theory of "systemic" discrimination and victimization and insisting that the state eliminate these injustices. (See in this regard the excellent article by Shelby Steele, "The New Sovereignty: Grievance Groups Have Become Nations Unto Themselves," Harper's Magazine, July 1992.)
The foregoing is not intended to imply that there is widespread and articulated support for this new direction in politics. On the contrary, there is much discontent about the current drift towards the interventionist state. However, there is very little coherent, thoughtful, and critical understanding of what is really happening. Instead, the battle lines are now often drawn merely between pragmatists of the Left and the Right. For example, businessmen vigorously oppose the new employment equity laws on the basis that they are too cumbersome and expensive. Some are opposed to a social charter because we cannot afford it. Or it is argued that discrimination is nonexistent, or, at least, not endemic.
These arguments against the ever-expanding state may have a lot of validity, but we must raise more than merely pragmatic objections. For the proliferation of government commissions, agencies, boards, and regulations intended to reconstruct society is driven by the determination to redesign human nature and, as it were, create a heaven on earththe Kingdom of Man. (This is why Fisher's description of "secular sectarianism" is entirely appropriate.) Whenever the state undertakes that ambitious project, the result is not a free and just society, but its very opposite. Recent history provides convincing proof of this truth. Why then should we continue to wreck what is essentially a free and decent society in the name of some Utopian ideal based on the Big Lie?