I found the writing of Canadian author Alan Fotheringham to be juvenile, a tad vicious and usually unfair. But I always read Macleans Magazine from back to front because I wanted to start with a good laugh by reading his back page commentary. He will be remembered for his gadfly role on Front Page Challenge as the foil to the properly bow-tied Pierre Burton and for nicknames that would turn Donald Trump green with envy. Brian Mulroney was “the Chin that walks like a man”, Preston Manning was Presto! Manning, Joe Clark was Jurassic Clark, and he named himself the Great Gatheringfroth. My favourite was his insistence on calling our southern neighbour the Excited States of America.
This last came to mind as news broke last week regarding the indictment of Donald Trump. What on earth are our southern neighbours up to now? In full disclosure, I correctly called the election of Donald Trump in 2016 based on the arguments of Scott Adams. Adams accurately predicted both Mr. Trump’s moves and their polling effect and, when Trump attacked former President George W. Bush in the South Carolina primary and went up in the polls, I decided that there was something to his candidacy after all. It was a lucky call on my part but I have felt an affinity for Mr. Trump since then.
No doubt Mr. Trump felt the words of Jean Jacques Rousseau as he walked into the office of the Manhattan District Attorney and posed for his indictment mug shot.
“Man is born free and everywhere he is in chains.”
Rousseau went on to write,
“Let us then admit that force does not create right, and that we are obliged to obey only legitimate powers."
Both quotations come from his political thesis, The Social Contract which was an extension of the arguments of men like Locke and Hobbes. They argued that we willingly subject ourselves to a natural law in the form of a social contract. Rousseau’s departure from their argument was to redefine “legitimate powers”. He argued that there is no divine right of kings and that not all power is legitimate. In fact, the nature of his social contract is such that both sides have the right of abrogation when the other side no longer observes its terms. It was a revolutionary thought that found utterance in the America Declaration of Independence, Thomas Paine’s Rights of Man and the 1789 French Declaration of the Rights of Man and of the Citizen.
But that was then, and this is now. Surely the dictums of some white, long dead, French philosopher has no purchase on the modern public square? Well, if over half of the governed decide that the governor is abrogating the contract and call into question the legitimacy of the terms of the contract then what stops Mr. Trump (or any of his supporters) from referencing Mr. Rousseau?
Think of it this way.
If I am employed to provide forty hours of labour per week for a fixed amount of money, how long will I stay in that employment if my employer insists that I now work sixty hours for the same amount of money? And how legitimate will I consider the Ministry of Labour if it breaks its own policies and supports my employer in the change of contract terms? Is the legitimacy of the Ministry enhanced by coercing my labour through threatened penalties?
Only time will tell if Mr. Trump has a legitimate right to call upon the revolutionary thoughts of Mr. Rousseau. That the charges against him are outside the statute of limitations and that the prosecutor who is bringing them once thought them illegitimate does not argue from a position of strength, but we will see. The point is that liberal democracies rely on a de facto social contract between governor and governed and the legitimacy of that contract can be eroded by repeated attacks on its terms. This happens when the law is perceived to be unequally applied, when ordinances are arbitrary and in conflict with established constitutional and judicial precedent. This especially happens when one political party uses the power of the governing institutions to question and degrade the legitimacy of another political party, state or provincial government or defined groups of people.
Since 2020, the delegitimization of government institutions through demonstrations of raw political power has accelerated in both the United States and Canada. In the United States, hundreds of people have been held in prison for over two years pending charges for their participation in the January 6, 2021 march on the Capitol in Washington, DC. Recently released closed circuit video has shown that the protests were largely peaceful and that the agent provocateurs in the crowd were associated with the FBI. In Canada, the government abrogated the rights of citizenship as enumerated by the Charter of Rights and Freedoms. More recently Calgary’s City Council has abrogated rights through passage of anti-protest rules.
There are, of course, arguments to be made on both sides of the issues but the point made by Mr. Rousseau was that the contract must be widely accepted for it to be legitimate. When a large portion of the governed think that the contract terms are no longer acceptable then problems in governance begin to arise. In the 18th century, both the Americans and the French felt that the decreasing legitimacy of their social contract resulted in the increasing legitimacy of revolt. For our governors to test the limits of today’s social contract is, to my way of thinking, a foolish way to govern.
How does the fraying of this contract play out?
In the antebellum United States, there were frequent appeals to a concept called nullification. Individual states argued that they did not bear any responsibility to follow federal laws which impaired the economy or social fabric of that state. The argument was based on the premise that each state had a right to secede from the Union if it was no longer in the best interests of that state to be united to the other states. The argument was heard on more than one occasion by the US Supreme Court. Abraham Lincoln was propelled to the presidency on the basis of his “Right makes might” Cooper Union speech against secession and the Civil War finally brought secession and nullification to an end. Until recently.
The rise of so-called sanctuary cities started a return to nullification and recent calls for a “national divorce” have brought these antebellum issues back into the public square. In the recent noise about the indictment of Donald Trump, the response of Florida governor Ron DeSantis was little noted. He declared that his government would not participate in any attempts to extradite Mr. Trump to another jurisdiction. But is a country governable when there is this level of disharmony and disconcertation between different levels of government?
In the Canadian context, several provinces are learning from the experience of Quebec and are authoring legislation which gives them the right to unilaterally void sections of the Constitution to the extent that this nullifying effect is only felt in the applicable province. The legislation has been tested at the Supreme Court and is constitutional but is Canada governable when every province opts out of the Constitution? Was it wise of our federal government to test the limits of provincial patience to the point of those provinces institutionalizing the opt out clause? I am on record as approving Alberta’s Sovereignty Act and the Saskatchewan First Act, but I am not indifferent to what this could mean to the governance of the country.
So where do we go from here? Conrad Black, in a recent speech, suggested that the governments of Canada and the United States may soon be changed. I read into this comment that many of these aggravations will be resolved by new governments which are less interested in testing the limits of the social contract. We can hope so. In the meantime, we appear to be stuck in the thrall of arrogant governments whose doctrinal stupidity is readily observable throughout history.
It rarely ends well.