Can representative democratic government work where there exist significant and enduring differences of group identity? It is sometimes suggested that one of the answers to the tensions between identity politics and democracy might be the creation of federal structures. In this paper we use a comparative study of federation and identity in Canada and Australia to point to the possible limitations of federation as an institutional means of resolving such tensions.
John Smart Mill was the first to suggest, in Considerations on Representative Government, that federation might be an answer to the threat that "nationality", as he termed it, posed to free institutions (Mill, 1972). Nationality has various causes for Mill, being the effect of race and descent, language, religion as well as the strongest cause, the "identity of political antecedents" (which includes "community of recollections" and the "possession of a national history"). Mill puts the problem in these terms:
Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist.... The same incidents, the same acts, the same system of government, affect [the different sections] in different ways; and each fears more injury to itself from the other nationalities than from the common arbiter, the state (Mill, 1972, 392). For Mill, race, religion, language, and generally nationality, are formidable obstacles to representative government. The grave implications of this observation become clearer when we recall that Mill regards representative government as the ideally best form of rule--only properly constituted representative institutions pursue the common good as well as advancing the moral, intellectual and active faculties of the people (1972, chs 3, 5). It is for this reason Mill states that "it is in general a necessary condition of free institutions that the boundaries of governments should coincide in the main with those of nationalities" (1972, 394). Where this is not possible, Mill offers as one solution the "merging" or "absorption" of one nationality by another. (II) But when this proves impracticable and where the alternative of complete separation is impossible, Mill proposes federation as an arrangement which may preserve free institutions. The constitutional model for a federal government which he recommends, calling it "exceedingly judicious," is that of the American Constitution. (III)
In this essay we argue that this Millian theoretical perspective provides important insights into the different ways federalism was appropriated and deployed in Canada and Australia. More specifically, we claim that both the Canadian and Australian founders accepted Mill's view that `nationality' posed a threat to representative institutions and both adopted federation as a solution to the problem of nationality. But here the similarity ends. The Canadian founders did indeed adopt the Millian proposal of federation as a solution of the problem of `two races' (French Catholic and English Protestant). Federation was conceived in part as a means of securing the group rights and thus the separate identities of national minorities or `races' within an overarching `political identity' provided by a federal government. The Australian founders, in contrast, used federation not to accommodate and perpetuate separate identities, but to found a national government that would guarantee homogeneity by securing a singular `thick' national identity against the threat of incursion by `alien' races. (IV)
CANADIAN AND AUSTRALIAN FOUNDINGS
For both countries defence and economic union were important motivations for federating. Moves toward the British North America Act (BNA Act) of 1867 (renamed the Constitution Act in 1982) were a response to the threat that the American Civil War represented to the security of the provinces. Australians, for their part, were galvanised toward federation in the 1880s by German and French imperial interest in the islands of the South Pacific, and in the 1890s by fear of the rising power of Japan. In both countries there was a strong conviction that, beyond defence, commercial progress and prosperity required the economic union of provinces or colonies. In neither country was there any question that the constitutional development needed to secure these aims implied a radical break with the mother country or its traditions. John A. Macdonald, in his opening address to the Legislative Council of the united province of Canada, promised that the proposed union would "ensure for us British laws, British connection, and British freedom." (Confederation Debates, 31). Similarly in Australia, `Britishness' was a key aspect of an identity colonists desired to preserve, partly because it asserted a connection that ensured the continuing protection of the Imperial fleet. The founding constitutional documents of both countries were Acts of the British Parliament, and the federal structures created were conceived as both continuations and creative developments of valued British and American traditions within the particular contexts of colonial history. Australians argued, indeed, that their share of the inherent British `genius' for democratic constitutionalism ensured their moral and psychological fitness to extend tradition in distinctive and progressive ways (Huttenback 1976, 15).
Developing a valued tradition meant that each country had to face the serious question of imposing a divided federal structure on the unitary British model of responsible government. In fact, the Canadian union marked the first attempt at such a political experiment. The Canadian founders expected the responsible system to safeguard traditional British liberties, and it was even argued that it provided the solution of the so-called war of the races since it placed "all inhabitants, without distinction of race or creed ... on an equal footing." (Tache, Confederation Debates, 345). But federalism was expected to continue the protection and accommodation of different cultural communities. This marked a significant difference from expectations in Australia three decades later. Colonial policies there had succeeded in establishing a culture that was believed remarkably and satisfactorily homogeneous, at least with respect to a characteristic which, even more than Britishness, was an obsessive subject of concern for colonists whatever their class, origin or religion. This characteristic was `whiteness'. Australians were, as Donald Horne (1994) has put it, "not only white, but whiter than white: the best people in the world at being white". The differences that Australians wished to protect by means of a properly constituted federal system were those of colonies that varied greatly in size, economic policy and development, each of which possessed a jealous sense of its own independent identity. In terms of culture, however, Australian federalism aimed at strengthening and safeguarding the racial uniformity that the bulk of colonists desired.
For the Canadian founders the great weakness of federalism, unambiguously demonstrated by the American civil war, was the "absurd doctrine of state rights". (V) The solution was to strengthen the `General Government'. This was achieved by arranging the terms of federalism in such a way that the central government would have the dominant legislative and fiscal position within the federation. Contrary to the United States Constitution, the provinces were given only enumerated powers to make laws, residual powers going to the federal government. As well, the federal government was given broad powers that were in the United States Constitution either qualified or given to the States. (VI) It was also anticipated that financially the federal government would be dominant. (VII) In giving the federal government "all the great subjects of legislation" and limiting provincial power to specific subjects, Macdonald thought that the great source of weakness in the American government had been avoided. (VIII)
That the Canadian founders regarded responsible government as one of the most important means for securing liberty accounts in large measure for the absence of a bill of rights or specific rights provisions in the BNA Act. (IX) The Act was not, in any case, intended as a final constitutive enactment and so did not need to provide definitively for individual rights and freedoms. The Act's silence on the subject also revealed a preference for the unwritten conventions of responsible government over statutorily entrenched measures. The BNA Act explicitly acknowledged the continuation of British constitutional principles and in doing so implicitly adopted and incorporated the rights and liberties the colonists had come to expect from their association with England. As Macdonald put it:
We will enjoy here that which is the great test of constitutional freedom--we will have the rights of the minority respected.... In all countries the rights of the majority take care of themselves, but it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot or unbridled democracy, that the rights of minorities are regarded (Confederation Debates, 44). There were, however, practical and theoretical tensions between responsible government and federalism that were raised but not resolved by the founders (Vipond 1991). The Upper House assumed an ambiguous position in the arrangement, (X) and posed a particular problem regarding financial bills. (XI) Juridically, the notion of parliamentary sovereignty appeared to be fundamentally undermined by federalism. (XII) Yet simple legislative union was rejected in favour of a federal arrangement, in part because it promised a...