In Canada and the Ethics of Constitutionalism, Sam LeSelva builds on a long series of his publications exploring the normative foundations and consequences of Canada's institutional and constitutional development to give us the culmination of that work in an extraordinary comparative analysis of American, British and Canadian constitutionalism. His analysis introduces a new concept into our thinking about constitutions: constitutional faith. Each of the three countries has had an enduring belief in its constitutional destiny. The American faith is in the self-evident truths about liberty. The British have believed in the inherent goodness of the sovereignty of Parliament. The Canadian faith is in the accommodation of diversity. Ironically, though the slowest to form, the Canadian constitutional faith is now the firmest, while the British, despite being the oldest, now seems to be the most severely challenged of the three. I think that the outcome of the 2020 US election, which occurred long after LaSelva finished his book, would confirm his view that Americans’ constitutional faith is not as broken as the British.
The book is not structured chronologically. It is not an exercise in constitutional history. Each chapter examines the moral debates that have gone on in Britain, the United States and Canada, as each country grappled with the same basic constitutional issue—be it the legitimacy of judges in a democracy making decisions about fundamental rights, the limits of free speech, the relative merit of a melting pot or mosaic response to immigration, or secession. LaSelva's data are the works of each country's most celebrated political and constitutional writers and thinkers, including seminal decisions of their judges.
LaSelva packs an enormous amount of constitutional literature into each chapter. Some might find such richness difficult to digest. The author does not pick favourites—he includes writers, politicians and judges who were on the losing side of history. Goldwin Smith, for example, who happily prophesied Canada's absorption into the US, gets as much coverage as Donald Creighton, who abhorred such a possibility. LaSelva has an exceptional gift for extracting from a lengthy work or judicial decision its most telling words. Sometimes the words he quotes are not what one was expecting. For instance, from the decision of Lord Sankey, the British judge who wrote the opinion in the 1930 Edwards case that women were persons and could therefore be senators, it is not Sankey's idea that the constitution must be treated as a living tree that he quotes but his admiration for Canadians’ capacity for compromise. He admired Confederation as “based upon a consideration of the rights of others and expressed in a compromise which will remain a lasting monument to the political genius of Canadian statesmen” (221).
La Selva does have a favourite political philosopher—Montesquieu. In his preface, following the lead of Isaiah Berlin, LaSelva lauds Montesquieu for his empirical method and, above all, as a thinker not obsessed by a single principle. His admiration for Montesquieu lays the normative groundwork for his argument about compromise as the defining characteristic of Canadian constitutional practice. Canadian readers may question whether compromise and diversity can provide a positive enough faith to withstand the regional disaffections that persist in our politics.
Canada and the Ethics of Constitutionalism is first and foremost a book I would recommend to readers of well-written nonfiction, not only in Canada but also in the United States. It's a book that is so full of ideas and insights that it is best read slowly. I found myself spending time after each chapter mulling over its contents. As for its academic audience, let me stress that it would be a mistake to consign its readership to any level of the educational system. This is a book than can be as interesting and accessible for a high school class as for a graduate seminar or an undergraduate class. But it is best used in small chunks. There are chapters—for instance, the one on secession and identity—that have enough in them to be the primary reading for a year's course.
Even great books like this one could be better. I was surprised that missing from LaSelva's discussion of books that make an important contribution to one of his subjects is Garth Stevenson's Building Nations from Diversity: Canadian and American Experience Compared. On the other hand, I could have done with a little less of the British writer A.V. Dicey, who keeps turning up in every chapter, sometimes with little to offer. Finally, I question why LaSelva does not consider treaty federalism as the answer to his difficulty in reconciling Aboriginal self-government with Canada's sovereignty. In a sovereign state such as Canada, the power to govern can be exercised by the independent governments of provinces and people sharing power for common purposes with an independent central government.
