Jun 302011

We the PeopleI do not normally use the word sacred but if there was any unholy thing on Earth worthy of veneration it would be The American Declaration of Independence. At once it is not simply a political document but a moral one. Its preamble, in so few words expresses more than any tome or volume preceding it. Its simplicity in purpose is almost sublime.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.

While it is true that the Americans had just cause to form their own nation and valid grievances with a despotic monarch it may be said that the same lust for individual freedom was felt by those in the other British colonies. As Jefferson said: “all men are created equal.” We all share a desire for individual freedom.

It is ironic then that the 13 colonies of the United States saw fit not just to declare themselves independent but to invade Canada when the inhabitants of Canada did not share the same grievences with King George III.

While these invasions were successfully repelled with the aid of the aboriginals, the remainder of British North America saw a different way. A way to advance the cause of independence and even freedom while maintaining a hold on the hundreds of years old institutions of Great Britain, including the monarchy. Our way was more conservative, more in the vein of Edmund Burke.

Burke was sympathetic to the American Revolution and used his position in the British Parliament to try and persuade the King to ease the duty levied on tea lest the American’s choose to rebel.

Again and again, revert to your old principles—seek peace and ensue it; leave America, if she has taxable matter in her, to tax herself. I am not here going into the distinctions of rights, nor attempting to mark their boundaries. I do not enter into these metaphysical distinctions; I hate the very sound of them. Leave the Americans as they anciently stood, and these distinctions, born of our unhappy contest, will die along with it….

The King did not relent and the Americans choose freedom over British sovereignty. But in doing so they did what Burke feared, they began to mark the boundaries of Rights, first with the Declaration of Independence then later with the Constitution of the United States. Burke correctly saw the danger of listing the rights of man, for even though in the Declaration of Independence Jefferson said “among these” and later in the Constitution the ninth amendment said “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Burke seemed to know that once you begin to mark the boundaries of rights what is omitted is said not to exist at all. Rights not clearly included in Constitution would be trampled upon by government.

As I said, the Declaration of Independence was a remarkable document. If left to that alone the United States may have achieved so much more than it already has. And while the demarcation of rights and the Constitution of the United States may have seemed like a good idea at the time I suspect that it marked the beginning of the end for freedom in the United States.

The Constitution gave Congress the right to impose taxes on its citizens and to borrow money on the credit of the United States. Both flaws have been magnified over the years to the extent that today taxation is several fold what King George taxed them and their debt is, as we know, astronomical and quite impossible to repay. The writing is on the wall for the United States of America.

By contrast we here in Canada have nothing to compare to a Declaration of Independence. The British North America Act is a piece of dry compromises and dealings, the result of many years of negotiations with the four original colonies and PEI. Our nation was not born of blood in the way the United States was. It was an orderly, organic and a slow reformation of British colonies. But this was not such a bad thing; in fact, over the test of time I would dare say that ours may have been the better way.  That is until the Charter of Rights and Freedoms was folded into the BNA Act to become the Constitution Act. With the Charter of Rights we have endangered every right we had recognized before by their exclusion.

Consider Karen Selick’s column in National Post of June 28th where she notes that Justice Anotonio Lamer of the Supreme Court of Canada rejected any economic rights and raised doubts about whether economic liberty should be considered part of the “life, liberty and security of the person” which were guaranteed in the Charter of Rights and Freedoms. Since economic rights were not mentioned therefore he apparently concluded we do not have them. This of course is how governments begin to fall, with the trampling of rights based on their exclusion from Charters and Constitutions.

In the same article Selick notes that as far back as 1909 the B.C. Supreme Court recognized that

Among the normal rights which are available to every British subject against all the world are…the unmolested pursuit of ones’ trade or occupation and…to one’s own property.

Before their enumeration in Constitutions rights were living things freely recognized by all and by the Courts. Canada fared relatively well without a demarcation of rights in a Constitution relying on 700 years of jurisprudence and common law. Burke said it best when he said,

…the people of the colonies are descendants of Englishmen…. They are therefore not only devoted to liberty, but to liberty according to English ideas and on English principles.

He was not only speaking of the American colonies but of all the British North American Colonies.

Tomorrow celebrate Canada Day. I suggest that just before we set off our fireworks we give a thought to the hundreds of years of legal tradition, thought and care which went into creating this nation and some thought as to how fragile our rights are and how, with the stroke of a Judge’s pen they can be violated.

On July 4th our neighbours celebrate their day of Independence from Britain and the forming of a country which although reveres the rights of man has endangered those very rights by enumerating them. They too should give pause as to how much longer than can celebrate living in a free country. They should read again the preamble to their own 235 year old Declaration of Independence especially the line…

That whenever any Form of Government becomes destrucetive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.

Happy Canada Day. To those over 40 a happy Dominion Day, and to our southerly neighbours a Happy July 4th.  May we all celebrate many more.

(Originally broadcast on Just Right #206, June 30, 2011.)