FOUNDING FATHERS, SUPREME COURT, DIVISION OF POWERS: A SATURDAY MORNING CONSTITUTIONAL RANT

The differences between Canada and the United States are many despite the two nations having the appearance of being essentially the same.  But they are, of course, not.

And one area where the differences are extremely marked is in the area of how they conduct their respective democracies, and the processes by which they govern themselves.

American founding fathers are mythologized, worshipped even, and their creation of American democracy is seen as perfect, absolute, and sacrosanct.  Canadian founders, though, are largely unknown, save for the first prime minister, John A. Macdonald, and even he’s had his past policies held up to critical scrutiny, sometimes resulting in his statue being defaced or pulled down.

The Americans view their founders as heroic visionaries, among them the authors of the Bill of Rights, who like Thomas Jefferson himself, owned slaves.  The term “All men are created equal” was a bit of a misnomer, as it referred to men, meaning white protestant land-owning men, and excluding women, blacks, and aboriginals.  These blatant inconsistencies with the true tenets of democracy and human rights are conveniently ignored as Americans at large worship the myth of Thomas Jefferson et al.

In Canada, John A. Macdonald was a world-class drunk, and everyone knew it.  He was personable, charming, and out-going, a consensus-builder of sorts, but he could disappear for weeks on end to go on drunken solo trips to places like New York City to escape the demons that haunted his life.  Yet he, more than any other, crafted a constitution that makes the American constitution look like something created in a grade four social studies class.  In fact, it was with the American constitution in mind, and the civil war that it created (the second of two by the way:  the American Revolution was a civil war as much as it was a war of independence) that guided Macdonald in his quest to craft something better, and less chaotic, than the American model.

There is plenty to pick apart in the American constitution, but nothing in it can compete with the separation of powers between the federal government and the states.  No cause of the civil war was more prominent than this, so if you think that great inter-American conflict was all about slavery, you’ve been misled.  Yes, slavery played its role, but it was only as a result of how it impacted the political sovereignty of states, particularly as new states joined the Union, possibly upsetting the balance of power between slave and non-slave states.  If that’s sounds confusing, then you understand the American constitution well enough.

Canada opted to go a different way, to provide the federal government with superior powers to those of the provinces, the provinces being parts of the whole, with the whole having the power to meaningfully impact the lives of its citizens in all the provinces equally.  The provinces held sway in their defined constitutional areas (Section 92) and the federal government governing in areas that affect Canadians as a whole.  (Section 91). 

In America, states are like mini-sovereign nations, going their own way on items of tremendous national import, creating a patchwork of “rights” available to citizens, unnecessarily creating an environment that is patently “unequal’ for citizens of one state as compared to the citizens who live in the neighbouring state next door.  It’s such an obvious constitutional flaw, creating a political climate where states of a particular political leadership are at variance with states of a differing political leadership.  And all of this firmly rooted in the differences of opinion held by the two, and only two, political parties, Republicans and Democrats.  But Americans will defend this to their death, as it has its origins in the vaunted and revered founding fathers, who packed all their 18th century political wisdom into a document that was, in the eyes of its adherents, so far forward-looking as to provide justice throughout the ages.  And don’t forget, God, in their view, has smiled down upon all of this, giving it His nod of approval, the approving God-wink, and the mark of His imprimatur.

As Republican presidential candidate Nikki Haley said yesterday, after the Republican-stuffed Supreme Court ruled against an accepted legal right, “thank God for the Supreme Court of the United States of America.”  Yes, Nikki, America is God’s work, His favourite among nations.  Actually, she’s just another Republican politician willing to say anything that resonates with the American “Christian-Democracy” movement, a movement celebrated by some of the most despicable politicians America has ever produced.

They call themselves Christians.  They cheapen the term.

In Canada, we don’t revere our founders and cloak them in the halos of righteousness and inherent God-given wisdom.  And yes, sometimes we view 18th century politicians through the “woke” (I hate that word) lens, but honestly, how you treat people is a standard that ought to survive the passage of time.  So yes, Macdonald had policies that directly led to the deaths of thousands of indigenous people, and the culpability for that is ageless, as all Christians of all times have the same responsibilities towards their fellow-humans, so you don’t get a pass just because you did or thought in way that was consistent with the times.  Being a Christian means being a Christian in all of the times, not just some of the times.

That said, Macdonald wrote the constitution virtually by himself with the help of a bottle of scotch.  Certainly not the imagery associated with American founders, who are all seated at the left hand of the Father, especially as far as blinkered American Republicans think.

Macdonald’s constitution gave the provinces jurisdiction over matters “of a local nature,” things like roads, bridges, infrastructure, health, education, transportation, etc., things that impact the lives of provincial citizens on more or less a daily basis.  Any attempt to legislate in these areas would be considered “ultra vires,” or beyond the scope of the federal government, and result in that legislation being struck down by the Supreme Court, an institution that in Canada is perceived as having more respect and integrity than their counterparts in the U.S.  The only way a federal government can intrude into the sphere of provincial powers is through the use of the federal government’s spending powers, where the feds will bankroll programs that fall within provincial jurisdiction, so long as those programs are “universal” and equally accessible across the nation.  The primary example of this is the national health care system, the envy of most of the world, yet pilloried by self-serving American politicians as socialism out of control.  All I know is that all 40 million Canadians have access to the same standard of health care across the country.  We access health care by producing our health card.  In the United States, over 40% of Americans have no health care at all, a staggering 132.8 million people, over three times the entire population of Canada.  In the U.S., you access health care by producing your Visa.

I’ve always been a fan of America growing up, but I think I was mostly drawn to the military might and the decisive difference America can make on the world stage.  Our world would be different, and not in a good way, if not for the existence of the United States and its intervention in world events, for better or for worse.  That said, I’m sorry for having to share my feeling that, if America doesn’t smarten up internally, structurally, they could be sleep-walking their way to another civil war sometime in the future, an event that, if it comes true, I have to assign blame overwhelmingly to the American right.

“Thank God for the Supreme Court of the United States” my ass.  A more ideological incompetent assemblage of decision-makers has yet to be seen in American history.  Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh represent the very worst of a Republican-stacked Supreme Court, willing to upend established case law to satisfy a ribald political constituency, causing untold pain to millions of Americans in the process, clawing back rights that have been existence for decades.  

These black robes are on the wrong side of history.  And if that God they talk about really does exist, I would expect they’d have some answering to do.  Especially if the message of God is aligned with the message of Jesus.  

Republicans live in the Old Testament, all hell and damnation, eye for an eye, tooth for a tooth, retribution and fear.  I prefer living my life in the tenets of the New Testament, love, forgiveness, the golden rule, respect for and service to one another.

In the line-up to get into Heaven, I wonder who will be further ahead?  Myself, all faults included, or the self-styled faultless hacks that currently represent the Republican majority on arguably the most important institution in the United States, tasked as they are as arbiters on the actions of the other two branches, executive and legislative.

I honestly love the United States of America, but I’m worried, the way one might worry about a big brother or sister who lurches further and further away from you and towards the siren call of bitterness, resentment, and hate.  All for personal political profit and benefit.  

It hurts to see it.

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