The Rights Revolution (15 page)

It may seem strange to confess a love for something so seemingly legalistic and desiccated as rights. Yet we need to think of rights as something more than a dry enumeration of entitlements in constitutional codes, as more than a set of instruments that individuals use to defend themselves. Rights create and sustain culture and by culture we mean habits of the heart. Rights create community. They do so because once we believe in equal rights, we are committed to the idea that rights are indivisible. Defending your own rights means being committed to defending the rights of others.

Citizens of at least one Canadian province know a great deal about indivisibility. In 1998, a woman who had been forcibly sterilized as a child in an Alberta institution, on the grounds that she was unfit to raise children, brought suit for compensation against the Alberta government. As many as 500 other women had been treated in this way, and the premier of Alberta, fearing a wave of expensive claims, introduced legislation to curtail the rights of these women to full compensation.
¹⁰
This legislation explicitly overrode the women’s rights as set out in the Canadian Charter of Rights and Freedoms. Alberta citizens raised a storm of protest that forced the premier to abandon the legislation and pay full compensation not just to the wronged woman, but to all the other women who had been sterilized without consent. When she won
her case, the victorious woman told reporters, with a wry chuckle, “Not bad for a moron.” And not bad for the thousands of fellow citizens who stood up for her rights.

The commitment to indivisibility goes with a commitment to mutual sacrifice. All rights cost us something. Even when we don’t avail ourselves of our entitlements, others do, and we pay for their use.
¹¹
Belonging to a rights community implies that we surrender some portion of our freedom to sustain the collective entitlements that make our life possible. This idea of sacrifice is the very core of what it means to belong to a national community: paying taxes, obeying the law, submitting disputes to adjudication and abiding peacefully by these decisions. Sacrifice does not stop there. The reason that war memorials occupy a central symbolic place in the national life of all nations, even though the wars remembered are now far away in time, is that they represent the sacrifice that all citizens make to keep a community free.

But nationalism is more than this. It is a way of seeing, a way of recognizing fellow citizens as belonging to a shared rights community, and as being entitled to the protection and the care that the national community can provide.

The central issue for Canada, in the wake of the rights revolution, is whether a rights culture is enough to hold the country together, whether it creates a sufficiently robust sense of belonging, and a sufficiently warmhearted kind of mutual recognition, to enable us to solve our differences peacefully. The criticism most often advanced against a civic nationalist vision of national
community is that it is too thin. It bases national solidarity on rights equality, but neither rights nor equality make sufficiently deep claims on the loyalties and affections of people to bond them together over time.
¹²

This is a very old worry about societies based on rights. When Edmund Burke, the great Anglo-Irish conservative thinker of the late eighteenth century, fulminated against the type of society he saw coming into being with the French Revolution, he warned that the revolutionaries were laying themselves open to continual rebellion.
¹³
For these new societies were based on contract, on consent, on agreements between parties that could be dissolved. By contrast, the
ancien régime
societies, whose disappearance he lamented, had been based on tradition, history, common origins, and all the deepest sources of human affection and commitment. The enduring relevance of Burke’s critique suggests that he identified a crucial weakness in rights-based societies. Clearly, rights are not enough. The elements that hold a country like Canada together run deeper than rights: the land, shared memory, shared opportunity, and shared hope. Yet Burke and his fellow conservatives underestimated the power of rights as a source of legitimacy and cohesion in modern societies, just as they sentimentalized the legitimacy of the
ancien régime
. The ancient and immemorial tissue of connections was insufficient to keep the France of the
ancien régime
together, and the democratic republic that succeeded it, which was based on consent and contract, has endured for two hundred years.

Yet even though contractual societies have shown
themselves to be remarkably robust, we continue to worry that, to paraphrase William Butler Yeats, the centre cannot hold. To focus these old anxieties about contract and consent on contemporary Canada, I want to contrast civic nationalist states and ethnic nationalist ones. Civic nationalist states are created by formal constitutional acts of citizens, much as the French republic was created by the revolution. Canada, for example, is a civic nationalist state, and it was formed by a compact of its citizens in 1867. We are, to use Richard Gwyn’s useful phrase, a state-nation, a national community created and held together by the rights framework, infrastructure, and services of our government.
¹⁴

An ethnic nationalist state recognizes its citizens on the basis of common ancestry, language, religion, customs, and rituals. Here shared ancestry — or to use a more emotional phrase, common blood — forms the basis of both identity and mutual recognition. Germany could be described as a national community of language speakers whose identity and ethnicity existed before the German state. In contrast to Canada, a state-nation, Germany is a nation-state, one in which identity is provided primarily by common national origins, and secondarily by common rights and state entitlements.
¹⁵

Let’s concede that no nation is ever only ethnic or civic in the principles of its cohesion. We are talking here of ideal types.
¹⁶
America is held together by both the civic contract enshrined in its constitution and the fact that a majority of its population, while striated with a vast mixture of minorities, remains white, Christian, and
English-speaking. Yet the dominance of this silent majority will soon pass. In the next century, a majority of Americans will be not be white, Christian, or English-speaking. Hence the anxiety with which commentators, most of them from this vanishing majority, ask whether equality of rights will be enough, in the absence of common origins, to hold the republic together.
¹⁷

Canada faces similar challenges. It is held together not just by its constitution, but by formidably strong links of common ancestry. The problem, however, is that our ancestry is a double, even triple, inheritance. In Quebec, the majority francophone community traces its ancestry to the original French settlers, and English Canadians trace theirs to the Scottish, English, and Irish immigrants who opened the frontier from the eighteenth century onward. One million aboriginal Canadians, meanwhile, trace their ancestry back to the heritage of the tribal nations of North America. This triple inheritance doesn’t necessarily weaken the country — it may even strengthen it — but it does mean that the principles of national unity cannot be found by joint appeal to common origins.

This is essentially why Canada has no choice but to gamble on rights, to found its unity on civic nationalist principles. Its unity must be derived from common principles rather than common origins. The importance of these principles of unity is only redoubled by the impact of immigration. If there are more than seventy languages spoken in the homes of only one of our major cities, Toronto, then it is clear that we need a single common language to communicate together, and it is also clear
that rights, not roots, are what will hold us together in the future.
¹⁸

The Canadian majority in the next century will be unrecognizably different from the majority I grew up in as a child. Already Canadians of Chinese, Sikh, and Ukrainian origin have occupied the highest offices of state, and more will do so as time goes by. The new Canadian elite has no common origin, only a commitment to common values. But as “new Canadians” make their way to the top, their demands for inclusion are forcing a change in our most basic mythologies. Canadians from these new communities refuse to accept the very concept of Canada as a pact between founding races — that is, the English, the French, and the aboriginal peoples. This concept seems to accord no place to them. Most of them can accept that original inhabitants may have claims to territory and language that are withheld from newcomers. But as these communities grow in number and size, it will be rights delivery, not myths of common origin, that will hold us together. Indeed, without a common fabric of citizenship, without common rights, it is difficult to see what will enable a multicultural society to cohere.
¹⁹

There is no reason why ethnic heterogeneity is incompatible with national unity. The proviso is simply that all Canadians accept and respect each other as rights-bearing equals. We have a long way to go in this regard. That is why, for example, police brutality towards ethnic minorities is — or should be — a national-unity issue, for when servants of the law do not obey the law, when they
select particular groups for ill treatment, the very identity of the country as a community of equals is put in question. The proper response to incidents of police brutality in our community is not, as is often argued, more race sensitivity training, but rather is more training in justice, more understanding that the
sine qua non
of unity, civility, and social order is equal protection under the law.

As the rest of Canada moves rapidly towards ethnic heterogeneity and a concept of unity based on shared civic values, Quebec still hesitates over the temptation to pursue a different course, to separate from Canada and seek national sovereignty on the basis of ethnic majority rule. It does so in the face of the exactly the same demographic forces that are changing the face of Toronto. There must be as many languages spoken in the playgrounds of Montreal schools as there are in Toronto or Vancouver. The new Quebec is black, brown, Asian, and white.

Quebec has always been a heterogeneous society, and most people’s origins are not exactly
pure laine,
as the happy frequency of entirely francophone O’Neils and O’Briens attests. But a minority current in nationalist opinion thinks of Quebec as the homeland of Quebecers
de vieille souche
(i.e., ancestors of the original inhabitants). Independence is seen primarily as a vehicle to create ethnic majority rule. In moments of crisis and disappointment, such as the defeat of the Quebec referendum in 1995, these nationalists blame defeat on Quebec’s minorities, the alien enemy within. Not surprisingly, Quebec’s minorities do not believe their rights will be secure in an independent Quebec. They look to Canada, and to its
Charter of Rights and Freedoms, as the ultimate safeguard of their liberties.

Quebec separatism is undoubtedly an ethnic nationalism, rooted historically in a myth of separate ancestry, but most nationalists aspire to a civic Quebec, capable of incorporating all of its inhabitants. This split between an ethnic heart and a civic conscience is the fundamental contradiction in Quebec nationalist appeal. And the nationalist project is fated to political failure as long as it is unable to persuade the increasingly significant immigrant minorities of the sincerity of its civic and inclusive aspirations.

Separatism is also fated to failure as long as Canada manages to persuade French Canadians to participate in national life. Quebec has never been the only national home of French-speaking Canadians. In reality, as John Ralston Saul has done so much to remind us, Canadian national politics has always been held together by a partnership between French- and English-speaking leaders. From Baldwin and Lafontaine in the 1840s to King and Lapointe in the 1920s, Québécois leaders have made Canada, and not just Quebec, their home.
²⁰
These partnerships realized the quintessential Canadian achievements: responsible government, independence from Great Britain, the creation of a national railway, and equality of citizenship. These partnerships endure to this day, and English Canadians, who have been ruled by three French-speaking prime ministers since 1945, do not understand why Québécois feel compelled to seek mastery in a small house called Quebec when they already
exercise mastery in a larger one called Canada.

There is little doubt that Quebec qualifies as a nation, if by nation we mean a human group who think of themselves as such, speak a common language, and adhere to common myths of origin and common political principles. If Quebecers are a nation, they ought to be able to govern themselves. Yet self-determination does not necessarily imply a right of secession. Secession, with full statehood, is justified when nations are threatened with destruction, when only the possession of state power can guarantee their survival. Kosovars, for example, have a claim to both self-determination and secession, because under Serbian rule, they were subjected to unquestionable oppression. This oppression made it impossible for them to survive in Yugoslavia.
²¹
But Quebec does not face a challenge to its existence, and Quebecers do not need to have a state of their own in order to rule their own affairs. Most nations, in fact, secure self-determination by sharing the state with other nations, by securing effective self-government within a devolved system of power. And so it has proved in the devolved federal experiment that is Canada.

In the absence of a claim to secession based on clear evidence of oppression, Quebec separatists work up their appeal by alleging that federalism blocks the province’s aspirations to full self-determination. Yet the claim seems specious, since anyone with eyes to see realizes that the Quebec government enjoys full power in education, language policy, employment, and immigration. This suggests that the ultimate issue is not the real division of
powers within the federal system, but the symbolism of sovereignty. Many Quebecers do not feel they have ever taken full psychological and emotional possession of the federal state, and they look to the creation of their own to feel the final sense of being masters in their own house. If this is the issue, then further constitutional devolution in Canada is a waste of time. Further concessions are beside the point.