Constitutional Democracy Under Stress: A Time For Heroic Citizenship

By Mosaic Press

Constitutional democracy is not just any old form of democracy. It has a peculiar logic and is premised upon some exacting criteria and principles including good laws and institutions predicated on specific fundamental core values and principles. But it is, when fully ingrained in the public sensibility, a sort of civic serum necessary to inoculate free citizens against the ravages of anti-democratic populism, authoritarianism, racism, nativism, discrimination, xenophobia, corruption, self-dealing, and much worse. The need for civic inoculation of that sort is urgent today, globally. The essays in this volume probe the sources and malaise now confronting Constitutional Democracy. However, they go muchfurther. Many of the essays are, indeed, road-maps for a realistic and cultivated response to our present condition. The clues for a rehabilitated democracy are found here analytically but also prescriptively.

• Language: English
• Publisher: Mosaic Press
• Release date: Dec 31, 2022
• ISBN: 9781771614818

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Introduction

Peter L. Biro

The future of liberal constitutional democracy is more uncertain today than it has ever been. Our age marks a departure, by governments throughout the west, from the norms that had come to define advanced, liberal democracies in the post-war period. These included respect for the rule of law, insistence on the separation of executive, legislative, prosecutorial, and judicial functions and branches of government, the unqualified protection of civil liberties and human rights, the promotion of pluralist values, the defence of minority rights, the societal commitment, through regulation of markets, and implementation of social welfare programs to promote a thriving middle class and minimize and attenuate the destabilizing effects of economic inequality, the dependence on a vibrant marketplace of ideas, and the concomitant deference to science, reason, and the pursuit of truth in human affairs as in the natural world, and, finally, the assurance of free, fair, effective, and broadly inclusive elections as a means of selecting legitimate governments and political leaders.

Alas, western democracies are everywhere backsliding and retreating from their adherence to these values and institutions.

From Poland to Hungary to Turkey to Brazil, judges now risk their security of tenure—and worse—when they decide cases against the interests of governments and their leaders. In the United States, public servants, whether politically appointed or in the professional civil service, apparently now face discipline if they are thought to have put the values of the Constitution or of truth above the interests of their president. The legislative branches are increasingly placing themselves in the unquestioning service of the executive branch rather than serving as one of the constitutionally mandated checks on executive authority. Institutional independence is giving way to partisan allegiance, to the ambitions of charismatic, populist, autocratic leaders and to the corresponding, voluntary forfeiture, by lawmakers, of their oversight authority and function. In the American context, George Packer recently observed that [a] government is composed of human beings. This was the flaw in the brilliant design of the Framers, and Trump learned how to exploit it.¹

Even in Canada, the values of equality and freedom of conscience, expression, and religion are being tested by governments seeking to legislate values, while the rule of law and the principle of prosecutorial independence have been challenged, if not also transgressed, by at least one prime minister in recent times.

Economic inequality, both as to income and wealth gaps, is increasing by most established measures. The middle classes are gradually being supplanted in their structural status as the demographic majority by the working poor and the transient gig economy sector.

Throughout the west, hate, racism, and xenophobia are being weaponized in the service of illiberal policy agendas. Not since 1920s and 1930s Weimar, Germany, has it been so commonplace, if not respectable, to openly debase and degrade entire populations and communities on the basis of their origin, race, ethnicity, faith, sexual orientation, or political stances. All the while, political polarization, tribalism, and ideological incoherence seem to characterize much of the current political discourse in the west.

There is, nevertheless, reason for hope – a phrase made famous by one of our contributors, Jane Goodall, in her book of that title.

The chapters in this volume are informed by this spirit of heroic citizenship. Each contributor exemplifies, through their public service, advocacy, activism, scholarship, teaching, artistry, entrepreneurship, and civic engagement, a deep and abiding devotion to a more adequate understanding of our politics, our economy, and our society and to the vitality of our democracy. More than that, each one has been deeply engaged, in their unique way, in a mission to improve the quality of our communal life and also to advance the causes of universal freedom, democracy, and justice throughout the world.

While this volume emphatically reflects a common recognition, among the authors, that liberal democracy is vulnerable and under siege, it does not represent a homogeneous assessment of either the nature of the threats and ailments in issue, nor of the advisable societal responses and remedies. Nor do the authors share one particular ideological bent, political leaning, or partisan affiliation. What they do share is a common concern for the quality of our civic life and for the health and vitality of our democracy. And they share one additional characteristic: A fervent commitment, demonstrated by a life of scholarship, engagement, and action, to doing something about it!

Most of the contributors gathered at the Ted Rogers School of Management on the campus of Ryerson University in the fall of 2019 to exchange thoughts and ideas, not merely to lament the state of liberal constitutional democracy in the world today, but to lay down markers for a way forward. We gathered in the presence, and with the active support, of Ontario’s 39th Lieutenant Governor, the Honourable Elizabeth Dowdeswell, whose own magnificent initiative paying tribute to the roots of, threats to and promise within democracy, Speaking of Democracy—En parlant de Démocratie, served as an inspiration and moral backdrop for our inquiry and discussion. Her Honour has written of democracy that it is complex and untidy. Tasks like listening to the voices of a vibrant civil society, balancing rights while upholding the rule of law, or building resilient institutions do not come easily… An enduring and healthy democracy means getting involved.² Well, these inspiring contributors have, very demonstrably, made it their life’s work to get involved.

Part I examines the retreat of liberal democracy throughout the west and conditions for democratic citizenship (Biro), the rise of populism and the politics of fear and of inclusion (Axworthy), and the consequences for human rights of the resurgent authoritarianism (Cotler).

Part II considers the core values, principles, and institutions that underpin liberal constitutional democracy. These include the framework set out in the Canadian Charter of Rights and Freedoms that ensures government accountability for the balancing of competing rights and interests appropriate for a free and democratic society (Des Rosiers), the rule of law (Sirota), freedom of expression (Goldenberg), pluralism, diversity, and inclusion against a backdrop of hate and xenophobia (Mock), and citizen engagement with an independent judiciary (Harvison Young and Harris).

In Part III, we consider the role of, and the challenges to, a free press, especially in societies in which civil liberties, as we understand them in the west, are neither promoted nor, in many respects, tolerated, and in which the contest between the state and the media for control over the information landscape is fraught and perilous (VanderKlippe). We also examine the tension between liberal notions of free speech and the competing interests of religious doctrine and the concept of blasphemy (Kutty).

Part IV considers cultural influences on the quality and character of citizenship in democracies, including the role of art education in the preparation of democratic citizens (Blandy), the social psychology of citizenship and a societal response to polarization, and the relationship of language, brain plasticity, and literacy to politics and democratic engagement (Aster).

Part V touches on two important aspects of the internet’s impact on the quality of our democracy: The influence of social media and of technology monopolies (Levin), and the challenges for privacy and security in the internet age (Silva).

Part VI looks at decision-making in democratic societies, including direct citizen-participation in policy selection (Berlin), elections (Kingsley), evidence-based policy-making (Lotin), and the role of, and misconceptions about, artificial intelligence and big data (Saarenvirta).

In Part VII, heroic citizenship is on full display in the form of a globally tested model for democratic engagement centred on local environmental, ecological, and humanitarian initiatives (Goodall), a youth-led movement calling for full transparency in food labelling, especially as it pertains to GMO products (Parent), food democracy’s challenge to the institutionalized problem of regulatory capture in government (Giroux), and poignant reflections on the nature of heroic citizenship (Leddy).

Finally, Part VIII looks ahead at the qualities that leaders must possess (Westrope), the tension between passion and reason in the context of 21st century democracies (Maharaj), and some cautionary reflections on the Maximalist conception of democracy (Studin).

All of the essays in this volume are informed by a rich—if not necessarily a common—conception of what democratic politics entail. They recognize that while there can be no free and democratic society without good laws and effective institutions that reflect democratic values and promote democratic practices, such laws and institutions alone will not guarantee freedom and democracy; for it is only free and democratic citizens who can uphold good laws, oppose bad ones, and actively promote and defend the values on which liberal constitutional democracies are founded. Heroic citizenship, then, is the actualization of every person’s civic potentiality, if not also the public expression of every person’s moral capacity to redeem freedom and democracy in the current historical moment in which these ideals appear to be so genuinely compromised.

Notes

1 George Packer, The President is Winning His War on American Institutions, ( The Atlantic , 2020).

2 The Hon. Elizabeth Dowdeswell, Speaking of Democracy , (Office of the Lieutenant Governor of Ontario, 2019).

Part I

The Retreat of Liberal Democracy

1 The Retreat of Liberal Constitutional Democracy and the Urgent Need for Heroic Citizenship

Peter L. Biro

There is no democracy without a decent measure of popular commitment to democracy. Maintaining that commitment depends on what people continue to want in terms of a government, in terms of a country for themselves and their children. . . Without a simple desire for democracy on the part of the many, the best institutional and constitutional design in the world will likely be for naught.¹

Tom Ginzburg and Aziz Huq

Gratitude as a social attitude is the deepest ground for a sense of responsibility. . . . Citizenship is then a grateful responsibility. It is not the sort of share in the ownership of the country; it is a gift that we receive in the sharing of it.²

Mary Jo Leddy

I. Introduction—A Dark Age and a Reason for Hope

There is a storm raging in liberal constitutional democracies throughout the west. Everywhere, they are undergoing some severe stress-testing.

Conventional wisdom has it that liberal constitutional democracy, which, in the interests of economy, I will refer to as liberal democracy,³ is strong because it contains a fail-safe mechanism equipping it with the power of self-correction⁴ and the capacity for reinvention.⁵ The design of its institutions has been credited with affording it the capability to handle, morally coercive forms of power [by putting] the question of how far government should go to the crossfire of adversarial review.⁶

But there is reason to be concerned that these systemic safeguards may be giving way to forces, both internal and external, that are hostile to the liberal democratic mission. Liberal democracy is everywhere under siege, threatened by forces seeking, even touting, the virtues of an illiberal order⁷ and promising to dismantle or deconstruct the administrative state.⁸ Throughout the west, populist parties are making substantial electoral inroads, in many cases, forming governments. While they each have their own historical and cultural distinctness, they share a marked antagonism to the distinguishing characteristics of liberal democracy: the protection of individual rights and freedoms, especially those of discrete and insular minorities⁹ in the face of an otherwise unimpeded majoritarianism, respect for an independent judiciary to provide constitutional oversight of the popularly enacted laws, the checks on executive power, and deference to a shared epistemic foundation, each of which, to the popular sensibility, have been represented as a sort of repudiation of the popular will.

It is not catastrophizing too much to declare that a dark age is upon us. Notwithstanding the recent optimistic outlook of some observers of the human condition and, indeed, of the state of liberal democracy in the world,¹⁰ I submit that we are witnessing, on a grand scale, an unmistakable retreat from the allegiance to the liberal democratic principles throughout the west. Only a few decades ago, Francis Fukuyama had prematurely proclaimed the end of history, the moment of dialectical perfection, of post-ideological politics in the triumphant garb of liberal democracy.¹¹ Civic engagement across partisan lines and outside of ideologically entrenched standpoints, never a simple proposition, is now often out of the question. We are living in an age in which reason, science, and the pursuit of truth are no longer universally prized ends. Nor even are they accepted as reliable means to the attainment of our highest goals and the performance of our most important collective undertakings.

The democratic character and the quality of democracies throughout the world are deteriorating at a rapid rate. Freedom House’s 2019 report on the state of freedom and democracy in the world reports a decline in freedom for the thirteenth straight year, and states that this pattern is consistent and ominous. Democracy is in retreat, including in countries traditionally considered liberal democracies.¹² Freedom House’s most disturbing finding is that there is a crisis of confidence in the political systems of consolidated democracies—long-standing, well-established democracies—resulting in a consistent decline for the past eleven years for the freedom score of these democracies.¹³ It is commonplace to find elected leaders and popular governments dispensing with the niceties of judicial independence, jurisdictional limitations on executive authority, the accountability functions of the fourth estate (a free press), opposition and minority representation, independent oversight, and regulatory agencies. The demonization, vilification, and ultimate delegitimization by autocratic leaders of their perceived political opponents and adversaries, indeed, of all who simply disagree, has become the dominant mode of discourse in many quarters. And that, compounded by our inclination in mass society to divide along ideological and religious lines,¹⁴ and facilitated by the modern technology of social and political communication, has produced an unprecedented level of toxicity in our political discourse and excessive gridlock in our legislatures. These conditions severely challenge our capacity for efficient, democratic self-government and render us especially vulnerable to the seduction and domination of aspiring populist demagogues who employ the jargon and symbols of democratic politics to confer on themselves the imprimatur of political legitimacy.

Democracy, as idealized by Thomas Paine and J. S. Mill, assumed an enlightened, or at least sufficiently informed, citizenry, had, in modern times, been predicated on the universal commitment to freedom of inquiry, the pursuit of truth, the enterprise of science, and the growth of knowledge, employing reason, criticism, and refutation. That was the philosophical backdrop against which we could comfortably rely on a true marketplace of ideas to generate credible, as well as virtuous, political visions and policy options.

But the marketplace of ideas is not functioning as it once did, as a clearing house in which a process of perpetual conjecture and refutation provisionally validates or discredits ideas and theories and as a forum for the airing and testing of arguments and evaluation of truth propositions about the world. Instead of a marketplace of ideas, we live in a world of info wars. Propaganda and the appeal of populist demagogues to our basest instincts, our greatest fears, and our ugliest prejudices, appear to be gaining traction everywhere in the public squares—physical and virtual—crowding out, indeed, drowning out, rational, fact-based, evidence-based, deliberation and discourse.

Social media, by its very nature and structure, has fragmented the public square, cultivating a universe of self-affirming, metastasizing echo chambers in which preconceived fictions are endlessly recirculated, refined, and converted into unassailable pseudo-truths.

Partisan politics have become more polarized and entrenched; non-cooperation and, indeed, non-communication across partisan lines in legislatures and, more disturbingly, in society at large, have become the norm. Hate is everywhere on the rise. Europe appears, once again, to be a bastion of extreme nationalism, xenophobia, antisemitism, Islamophobia, and racism the likes of which it has not seen overtly since the 1920s and 1930s. And North America is not free from these scourges either.

Citizens of many western democracies seem incapable of joining issue with one another and, therefore, of unifying and healing their inflamed, ailing polities. They appear to have lost the capacity for any sort of political communion, for any engagement with one another across ideological and partisan lines. They cannot seem to find a common language in which to give constructive expression to their competing values on vital questions concerning our societal arrangements. They have lost the willingness, if not the capacity, to speak and listen to each other, to deliberate together. Most significantly, they seem to have lost the capacity to disagree constructively with one another. It would appear that these societies are, to varying degrees, entrenched in an inescapable, intractable Babelesque war of all against all.

This inflection point in the life and times of liberal democracy is, of course, not entirely unforeseeable.¹⁵ Its vulnerabilities and impending or actual demise and its failure to deliver on some of its core promises have long been foretold and considered.¹⁶

It is simple enough to state that the citizens of liberal democracies have fallen down in their collective responsibility to enforce the promises of justice, fairness, equality, and political accountability expected of the societal arrangements particular to free and democratic societies. In assuming that the arc of history will bend towards liberal democracy, we have lost sight of its virtues, of what it actually is, or of what it was supposed to deliver. We fail to seize on our own collective responsibility to be active stewards of our democracy and uncompromising defenders of our rights and freedoms and, correspondingly, of the welfare and wellbeing of our neighbours near and far.

The civic impulse does not stem from political or material ambition. It begins with taking stock of what we share and of how we might fully actualize our potentialities collectively and in harmony with nature’s bounty—all of which is ours, not to exploit, but to appreciate, indeed, to revere. Liberal democracy’s express concern with individual liberty, property rights, and a market-based, yet regulated, economy, all within a political framework calling for competitive and meaningful elections and accountable government, does not, perhaps, contain within it what Mary Jo Leddy refers to as the deepest ground for a sense of responsibility, namely, the social attitude that makes of citizenship a grateful responsibility. The liberal democratic form of politics, does, however, create a public space for the collective identification and common pursuit of the public good while permitting competing ideals and values to flourish in the minds and life plans of its citizens. A rather tall order this has proven to be, but the civic inclination to promote, actualize, and defend this form of politics must surely be the stuff of which heroic citizenship is made!

In this chapter, I consider the essential elements of contemporary liberal democratic systems of government, the causes of liberal democracy’s retreat and decline throughout the west, and, finally, its core principles—what I call the Decalogue of liberal democracy’s fundamentals—that western societies have simply failed to teach, nay, to ingrain, in their citizens. I conclude the chapter with a plea for the full engagement of liberal constitutional citizens in defence of the fundamentals, animated not merely by an appreciation of political liberty, but also by a reverence—acquired and conditioned though it may be—for place and for community.¹⁷

I must, therefore, identify and deconstruct that perfect storm, the convergence of storms that, in concert with one another, are threatening the fabric and, indeed, the viability of constitutional democracies throughout the west. But first, let me say what it is I am so deeply worried about losing: what is this liberal democracy whose retreat so many have come to lament?

II. Liberal Constitutional Democracy—Elements and Preconditions

The evolution of democratic political forms of government has a long and circuitous history. We can trace democratic theory back to ancient Athens, to the first democratic constitution reformed by Cleisthenes in 508 BCE and to the subsequent writings of Plato and Aristotle.¹⁸ At the other end of the evolutionary chronology, liberal democratic conceptions of the state have their origins in Enlightenment and post-Enlightenment thought and politics¹⁹, in the revolt against monarchical and imperial rule in Europe, in the struggles against tyrannical hegemony, in the recognition of property rights, and, in the United States, in the wake of the Industrial Revolution, the Declaration of Independence, and the introduction of the Madisonian model of government.²⁰ Modern liberal democracy emerged as a more fully formed and actualized system of government and economic regulation in the post-war period in Europe and North America in reaction to the fascist politics of Germany and Italy, in particular, and to the iron fist of communist totalitarianism growing ever more menacing in Eastern Europe and also in Red China. But I do not propose to trace or recount the history of democracy, nor even that of liberal democratic government and politics, but, instead, to identify what it was intended to deliver and how it has come to be challenged and has retreated in the process.

It is important to say something about nomenclature. I concur with Tom Ginzburg’s and Aziz Huq’s use of the phrase, liberal constitutional democracy,²¹ as it denotes not only the liberal democratic value system, but also the importance of law and of the legal framework in reinforcing that value system by way of legislative declaration of intent, and in underscoring the enforcement, accountability, and oversight roles played by an independent judiciary. Ginsburg and Huq use the term more narrowly to highlight the role of law in underpinning democratic competition, i.e., of free and fair elections, which they consider a first order rule of liberal democratic politics. It is important also that we distinguish this political system from other systems that may possess certain, but not all, of the attributes of a liberal democracy. A non-liberal or even, as in Hungary under Viktor Orbán, an expressly illiberal democracy, may possess some of the elements associated with the expression of the popular will. But these illiberal democracies will likely be majoritarian populist systems in which individual and minority rights and freedoms are neither protected nor valued. A constitutional democracy will not necessarily be liberal even as it may give great weight and standing to the rule of law. The enforcement of illiberal laws and policies, even where this may faithfully reflect the popular will, cannot, of course, be defended in a pluralist society which gives constitutional standing to the rights and interests of individuals and minorities.

It is important, also, to acknowledge that populism itself is a manifestation of democracy of the majority rule variety and it would be misleading to suggest that this variety is any less democratic than liberal democracy. In certain respects, liberal democracy is less democratic than populism—whether of the left or of the right—as the liberal democratic form actually puts restrictions on the extent to which the popular will might compromise the rights, freedoms, interests, and aspirations of minorities and individuals. A democracy that is overly preoccupied with the construction of institutions intended to protect rights and freedoms and to regulate the marketplace of ideas and of commerce with a view to enforcing such protections may itself become somewhat less democratic than is fit for a society that places great value on self-government, civic engagement, and accountability for the exercise of political power and administrative discretion. In prizing expertise and specialization in institutional design and operation; in mediating the expression of the popular will; in filtering it through the complex and multi-layered bureaucracies of government and of its administrative, judicial, and quasi-judicial apparatus; in favouring centralized regulation, technocratic fixes, and social engineering over local, community-based planning, modern liberal democracies have tended to become what Yascha Mounk calls a system of rights without democracy. This is in stark contrast to a system of democracy without rights, of which the populist and the illiberal forms of democracy are the most glaring examples.²²

The architecture of all liberal constitutional democracies shares certain essential features. The systems of government may differ across nations; they may be based on a parliamentary system or on a presidential, Madisonian, model. They may have written constitutions, unwritten constitutions, or some combination thereof, with codification of some basic laws and practices and adherence by mere convention to others. They may have different types of electoral systems based on different principles of representation and selection. Some liberal democracies may be unitary federations with strong central governments possessing most, if not all, of the major powers and prerogatives of government, while others are decentralized unions or confederations with powers being allocated to one level of government or another or being exercised concurrently by more than one level of government. Some are constitutional monarchies, in the sense that there is still a sovereign as head of state, though, by convention, no longer with any executive or legislative authority, while others are republican forms of government.

But in all cases, liberal constitutional democracies adhere to the following first order fundamentals:

1) They have a democratic electoral system. Their elections must be periodic, fair, and meaningful, in the sense that there must be a genuine possibility that power will change hands and also that the competition must be for what has been called seats of authoritative state power. ²³

2) They guarantee the basic rights of free expression, assembly, and association, as these are the rights that facilitate competition, both in the marketplace of ideas, that is, in the public square, and also at the ballot box. There can be no genuine contest for political office without an unfettered right to contest the ideas and claims of and by all office seekers. ²⁴ Arguably, it is not enough that only free speech, assembly, and association are guaranteed. There are several other rights and freedoms that could lay claim to inclusion on this list of core, first order, or first-generation rights. Equality rights and freedom of conscience and religion, in particular, symbiotically sustain and depend upon liberal democracy’s cardinal value, namely, pluralism. ²⁵ But, in constructing the state, we tend to begin with the design of the essential features of a system of power attainment, power containment, and power replacement. In this sense, the focus on competitive elections immediately triggers the application of those rights and freedoms that are most obviously and immediately connected to the exercise of democratic procedural rights, namely, the right to express one’s voice, one’s vote, one’s association with like-minded citizens and, of course, one’s opposition—that is, to one and all.

3) They adhere to the rule of law, ²⁶ not merely in respect of the independent judicial oversight of government action, but also in the sense that the entire apparatus of government functions as a rule-making, rule-abiding, rule-enforcing system with particular emphasis on the importance of consistency, neutrality, and procedural fairness as constant guideposts. ²⁷

4) They have a professional, non-partisan, and neutral civil service who, while answering to and implementing the policies of the political masters of the day, are subject-matter experts whose allegiance is to the constitution and the state and whose responsibility is to the efficient public administration of the government.

5) Their viability is dependent upon the widespread deference to the authority of facts, truths, and knowledge, provisional and subject to falsification though these may be. In other words, they require a common understanding of all of the essential known facts as they exist at any particular time; social facts, facts about the natural world, facts about human history, about world events, about what any person has done or failed to do that has some public import or social implication. This deference to the authority of truth has been called the requirement for a shared epistemic foundation. ²⁸ As William Galston has noted, liberal democracy, Stands in a distinctive relation to truth, freely sought and freely discussed, as the requisite for social freedom and sound policy. ²⁹ The ability of citizens to evaluate the claims of their leaders and of their fellow citizens, whether in positions of authority or in positions of vulnerability, while asserting claims against or demanding action from those in authority, depends very much on whether there is some objective or, at least, generally accepted, way of conferring epistemic validity on those claims.

If truth be not the baseline condition for discourse, then discourse cannot be the basis for producing the general consensus that societies require for self-government, that is, for democracy itself. That leaves only two other means of eliciting the level of popular cooperation required to maintain social stability: fraud and coercion, or some combination of the two.

Coercion, which frequently operates against a background of fraud, otherwise perpetrated in the form of political propaganda, takes many forms, but invariably, its primary instrument is psychological; that is, it operates by instilling fear in a population. Both Niccolo Machiavelli and Joseph Goebbels have much to teach us about these two means of compelling cooperation and exerting power.³⁰ It would be misleading, of course, to suggest that Machiavelli had no regard for truth as it applies to politics. On the contrary, in his introduction to The Prince, he puts the reader on notice of the significance of what he is about to impart: Since my intention is to say something of practical use to the inquirer, I have thought it proper to represent things as they are in real truth, rather than as they are imagined.³¹ But that intended reader was, in the first instance, the Prince, Lorenzo de Medici, not his subjects. And the real truth he was imparting concerned the nature of human nature and about how power may be acquired, maintained, squandered, and lost. This is not exactly the kind of epistemic foundation upon which liberal democracy rests; but it is certainly helpful for liberal democrats to be aware of the sorts of perils that lie in wait for a self-selected population of free citizens when that epistemic foundation is shaken or otherwise compromised.

A deeper dive into the fundamental requirements and conditions for a liberal democracy discloses instantly that the aforementioned four first-order fundamentals are not quite sufficient to ground a modern liberal democracy. It is true that without a competitive, democratic electoral system, the recognition and protection of those rights that are most closely engaged in the context of conducting and participating in free and fair elections, the rule of law, and finally, a common epistemic foundation, there can be no government of the people, by the people, for the people.³²

During the 20th century, liberal democratic ideals evolved and broadened to become concerned not merely with the competition for political office and with the rule of law, but also with the promotion of human dignity.³³ This development intensified in the post-war period, and resulted in what Lorraine Weinrib has described as a postwar constitutional paradigm that would not merely define and stabilize the exercise of state power through majoritarian machinery, but would give legal priority to equal citizenship and respect for inherent human dignity.³⁴ Mark Graber has organized it into five discrete commitments of government:

1) Robust political freedoms in the form of far broader speech and voting rights;

2) Broadly shared commercial prosperity in the form of constitutional commitments to the provision of basic goods such as food, water, education, housing, and healthcare;

3) Inclusiveness in the form of strong prohibitions on discrimination based on race, ethnicity, religion, gender, and sexual orientation;

4) Secularism in the form of a sharp separation between church and state and the abandonment of traditional notions of gender and sexuality;

5) Independent courts that facilitate and maintain these constitutional commitments. ³⁵

We have tended to think of these constitutional commitments as having their origins in the late 19th and early 20th centuries, with the long struggle for workers’ rights and benefits, the march towards universal suffrage, and the great social and economic reforms such as Franklin Roosevelt’s First and Second New Deal programs introduced in the wake of the Great Depression. Corresponding programs were introduced throughout the west. These included, inter alia, the recognition of workers’ rights to organize, the establishment of minimum employment standards, the introduction of financial market stabilization measures, emergency assistance to farmers, and social security assistance. Along with these programs came the agencies and departments of government necessary to administer them. The welfare state was born and, indeed, enshrined in a fresh compact between western liberal democratic governments and their citizens, thereby making these new entitlements and protections non-negotiable benefits of membership in civil society.³⁶

But the reforms did not stop there, and the demands for greater recognition of what free citizens were owed by their governments—and of what they owed each other—did not let up. What followed in the second half of the last century, carrying over into the first two decades of the new millennium, was nothing short of a full-scale human rights revolution in the west. This is to be distinguished from the cause of international human rights and the tragically necessary campaign, at our current moment in history, against human rights abuses around the world.³⁷ The human rights revolution to which I refer is, instead, a revolution that was fuelled by the accomplishments of the welfare state, itself still in its infancy, and the momentum of the civil rights movement in the United States, the women’s movement, and the consumer rights movement, all of which produced a colossal human rights infrastructure that has come to define, and also to burden, the modern liberal democratic state with what threatens to prove to be an unfulfillable mission.³⁸ In addition to guaranteeing an expansive panoply of enumerated rights and, somewhat paradoxically, restrictions in furtherance of an enforced, indeed, legally imposed, human rights culture, the social safety net also grew, with the inclusion of socially guaranteed healthcare,³⁹ producing a kind of social welfare constitutionalism.⁴⁰

But along with these structural reforms came the policy imperative of delivering economic prosperity and, more specifically, a measure of economic equality manifested by a thriving and ever-expanding middle class. The principle of equal moral personality that can be traced back to the German enlightenment philosophers and that finds renewed expression in contemporary liberal theories of justice⁴¹ was being turned on its head by post-war political and economic developments in the west. No longer was the notion of equality confined to legal and political rights, positive and negative, or to mere equality of opportunity in education and social services. Equality, as gradually interpreted by tribunals and as championed by organized labour and other advocacy groups and activists, contained more promises than might have been anticipated by the 19th and early 20th century liberals, giving rise to a general expectation on the part of a growing middle class that it would continue to share measurably and in perpetuity in the economic growth of the post-war boom and of each economic boom thereafter.⁴²

Sujit Choudhry has most concisely encapsulated both the complexity and the ambitiousness of the expanded liberal democratic mission as seeking To create a framework for bounded partisan pluralist contestation that is nested within the underlying political economy, within which the major social groups engage in political conflict and compete for power according to the rules and under the institutions of a constitutional order, because it is in their mutual advantage to do so.⁴³ The problem is that the conditions that both justify and enable such bounded partisan pluralist contestation may not always be present or, even when they are, may not necessarily persist.

This condition of sustained economic growth has conspired with the ever-expanding welfare and human rights state—which emphasized equality of distribution and not merely of moral and legal status—to play a cruel trick on both those who would attribute liberal democracy’s success to the soundness of its moral foundations, and on those who would, instead, look to their own middle class standard of living as being both the purpose for and the inexorable product of liberal democratic societal arrangements. The former would mistake moral justification for causal explanation, and the latter would confuse conditioned expectation with principled entitlement.

III. The Perfect Storm: Between Resilience and Backsliding

Some forms of government are more resistant than others to the winds of change and to the forces, internal as well as external, that would challenge their legitimacy, attack their premise, and replace them with something else. Each form and system of government has its strengths and its virtues as well as its vulnerabilities and shortcomings. For instance, the principal virtue of authoritarian government is the simplicity of its basic logic. And simplicity always commends itself when stability is the principal political objective of leadership. That basic logic, as Machiavelli teaches us, involves the use of fear as its principal motivator and coercion as its primary method.⁴⁴

Democratic government does not have the luxury of commanding allegiance from its citizens in quite such a direct and streamlined fashion. Democratic leadership is far more complex than authoritarian leadership. It must contend with the internal paradox of an inherent tension between democratic psychology, which is informed by a presumption of equality and is, therefore, fundamentally suspicious of leaders and pretenders to high office, and the necessity for consensus, cooperation, and submission, even if only provisional, to power and authority legitimately exercised.⁴⁵ This internal paradox in democratic politics produces an increased instability in the system. But that instability is not manifested by any increased vulnerability of its seat of government to overthrow at the hands of military generals, violent coups, or popular revolution. Instead, it is the internal political culture of democracy that is unstable and that makes gradual, almost imperceptible, decline possible, indeed, probable, in the absence of a concerted collective will to subvert the otherwise inevitable process of democratic rot—democracy needs to defend its core tenets and its fundamentals.

Democracies around the world are degrading and decaying from within. Some of them, in piecemeal fashion and as a function of the system’s inherent complexities, failures, and vulnerabilities; others, more aggressively, at the hands of elected demagogues who begin as charismatic populist leaders and quickly, with the complicity of an indulgent and submissive population, acquiesce in the departure from constitutional norms and the dismantling, either by design or by neglect, of the institutional machinery of political accountability.⁴⁶

Canadian Exceptionalism?

It has been said that Canadian constitutional democracy is particularly resilient⁴⁷ and well immunized against the perils of democratic backsliding.⁴⁸ Canada has been singled out by Canadian political leaders and observers alike for its capacity to sustain democratic politics and to overcome the forces that typically undermine the democratic traditions and norms of other democracies.⁴⁹ Is Canadian democracy really a refuge in the storm raging over liberal democracies throughout the west? Is there something distinctive about our system of government and of arranging our political and societal affairs that renders it especially resistant to the elements so corrosive to democracies in other countries?

After all, Canadian politics appears to have a tradition of toleration of multiple robust political parties and ideologies, each vying for control of its national and provincial governments.⁵⁰ It has, particularly in the post-Charter period,⁵¹ largely—though not always or completely—remained committed to its respect for diversity and individual and minority rights and has not been given over to populist politics and to the seduction of a charismatic demagogue. Nor has the political discourse in Canada descended to the level of vitriol and divisiveness seen in other western democracies of late.⁵² Canada, while certainly diverse in its range of political voices on the ideological axis as well as in respect of the constituencies that are influentially represented in the public square,⁵³ seems to have retained the respect, within the discourse of its leaders, for the judiciary and for judicial independence.⁵⁴

Bruce Ackerman has singled out the institutional infrastructure of Canadian constitutional democracy for its resilience based on the fact that it is what he has termed a system of constrained parliamentarism⁵⁵ as distinct from a pure parliamentary system that is not quite as constrained by certain laws, rules, and traditions and which allows for relatively untrammeled concentrations of power as in pure presidentialism.⁵⁶ The features of this constrained parliamentarism are executive accountability to the legislature; the constraint of a codified constitution which, unlike the Westminster model which has no written constitution, explicitly establishes the discrete jurisdiction of Parliament and of the Provinces and assigns them legislative power over specific subject matter in their respective areas and which also provides expressly enumerated rights, freedoms, and legal protections for the members of Canadian society; the primacy of the lower house of Parliament—the House of Commons, thereby giving legitimacy to the dominance of the elected legislature over the appointed upper house, the Senate; and the judicial constraint provided by an authoritative constitutional court—the Supreme Court of Canada.⁵⁷

Ackerman then identifies an additional feature, the democracy branch or the fourth branch of government. The democracy branch provides an additional measure of accountability to the tripartite separation of powers prescribed in the Madisonian model, between the executive, legislative, and judicial branches. That fourth branch of government is independent of both the executive and legislative branches—it reports to but cannot be politically directed by, the legislative branch, as it is a creature of statute. This fourth branch is represented, in the first instance, by an election commission—Ackerman uses the acronym, EMB to refer to electoral management bodies—whose role it is to oversee and ensure the independence of elections, free from executive or legislative interference and direction. In Canada, the EMB’s function is discharged by Elections Canada, whose senior officer is the country’s Chief Electoral Officer.⁵⁸ If, as Ginsburg and Huq and others have stated, the primary first order fundamental of a liberal democracy is the requirement that its governments and leaders are chosen by a democratic, competitive, free, and fair electoral system, then it is not surprising that the mechanism for ensuring the integrity of that system ought also to be considered a fundamental, even if it is only derivative of the first order fundamental. That fourth branch of government also includes other similarly independent officers of Parliament, such as the Auditor General, the Ethics Commissioner, the Privacy Commissioner, and others.⁵⁹

But does this mean that Canadian democracy is immune to the risk of democratic backsliding that has befallen other western liberal democracies?

Canada is not merely the sum of its institutional and constitutional parts. It is many things, of course, having been defined by its vast geography, by its history, and by the ideas of its founders and nation builders. But Canada is, first and foremost, its people. And those people are wired, plugged into, dependent upon, and conditioned by the behemoth of the internet that most democratic of technologies of communication. Of especially great consequence, Canadians are fully immersed in the self-contained and self-defined universe of social media.

Canada’s institutional framework cannot isolate and safeguard its democracy from the effects of the internet and social media that have not only redefined, but also reordered and reconstructed the psychological paradigm that regulates civic engagement and political discourse. These effects have produced a deepening polarization and an echo-chamber culture that proliferates, not only in the boardrooms, schoolyards and church basements of Canadian society, but also in the legislative bodies in which debate, deliberation, and consensus building underpins the process of lawmaking and agenda setting in pursuit of the public good. At the same time, the public discourse itself is angrier and more intransigently partisan than actual public opinion would suggest it should be. The extremes tend to speak loudest, while the country as a whole may actually be battling for the middle ground.⁶⁰ If true, this means that, to a significant extent, at least in Canada, the medium may be hijacking the message. The rise of social media has transformed the structure of communications, as Yascha Mounk explains, from a one-to-many communication to a many-to-many communication,⁶¹ thereby favouring the spread of hate speech and conspiracy theory resulting in the poisoning of the marketplace of ideas.

But the extremism is no longer the exclusive province of traditional extremists. As the conventional sources of authority wane in influence, as political elites lose their dominant grip on the technology and means of communication, as liberal democracy’s common epistemic foundation continues to be compromised as a result of the new information wars that have supplanted the traditional marketplace of ideas, there are reports of a hardening of Canada’s divisions and of an increasingly influential populism that impedes the generation of a popular consensus on essential questions concerning the country’s priorities and the public good.⁶²

Can Canada’s reinforced institutional framework, its constrained parliamentarism, insulate its constitutional democracy from the popular disenchantment that would certainly be generated by a market economy that plunges inexorably towards a state of extreme inequality? Between 2004 and 2017, global labour income distribution has become increasingly lopsided, with a worker in the top 10% earning 338 times as much as a worker in the bottom 10% in 2017, and the share of capital income increasing and the share of worker/labour income decreasing over the same period.⁶³ The evidence on Canada’s experience, relative to global trends, is ambiguous. On the one hand, Canada may not be faring as poorly with income inequality—measured by the Gini coefficient⁶⁴—remaining relatively flat over the last 20-year period.⁶⁵ On the other hand, as economists such as Lars Osberg explain, the Gini index can obscure important trends and can be insensitive to the income share of the elite. Osberg notes, for example, that the Gini index can remain static Even as the income share of the top 1% varies by a factor of over sixteen.⁶⁶

Wealth inequality, in contrast to the ambiguous case for increasing income inequality in Canada, is unquestionably increasing in Canada, as it has been throughout Western Europe, North America, India, China, and Russia.⁶⁷ And, as a political economist, Thomas Piketty, has explained, wealth inequality is arguably even more important than income inequality because wealth has a longer-run outcome, so wealth has longer-run consequences because it has really deep, deep impact on the long-term structure of inequality. . .⁶⁸

The impact of rising economic inequality can’t help but pose a threat to political stability and to allegiance to the current governance model over time.

And what of Canada’s adherence to traditional liberal democratic political norms? Even in Canada, these norms are occasionally disregarded. In Ontario, for example, the government of Premier Doug Ford, without prior consultation with the relevant stakeholders, indeed, without even having announced its intentions in its election campaign, introduced and passed sweeping legislation cutting the size of Toronto City Council in half, cutting Toronto’s public health budget (later modified), eliminating the budget for a provincially funded stem-cell research institute, increasing class sizes in public schools, eliminating the funding for environmental initiatives such as mass tree planting, cutting public library budgets. Perhaps these decisions were wise and very much in the public interest. But they were introduced without having been the subject of consultation, deliberation, or even notice, and, therefore, without having been the subject of any authentic general consensus and, certainly, without production of even purported evidence of their presumed salutary effect.⁶⁹

Most notably, in anticipation of a constitutional challenge to his then-proposed legislation to cut the size of Toronto City Council in half soon after taking office in 2018, Premier Ford announced that he was prepared to invoke Section 33 of the Canadian Charter of Rights and Freedoms, the infamous Notwithstanding Clause, in order to insulate it from Charter scrutiny in the event that a court would otherwise find that it involved a violation of Charter rights and freedoms.⁷⁰ In the face of public opposition to the City Council cuts, both the Premier and his Attorney General casually announced, as though pondering whether to use a wrench or a screwdriver, their intention to suspend the operation of the Canadian Charter of Rights and Freedoms, saying that they would use all the tools in the toolbox.⁷¹

In Quebec, the Coalition Avenir Quebec government of François Legault recently passed Bill 21, An Act respecting the laicity of the State, which is intended to eradicate religious symbols in most of the public sector.⁷² So as to safeguard the legislation from anticipated constitutional challenges on the grounds that it impairs religious freedom, freedom of expression, and equality rights protected under the Canadian Charter of Rights and Freedoms, the government invoked Section 33 of the Charter, thereby suspending the operation of the fundamental rights and freedoms provisions as they would ordinarily apply.⁷³

These instances of a willingness by our leaders to resort to the Notwithstanding Clause are cause for concern. Not only do they require that we consider the matter of how and under what circumstances it is appropriate to give cover to otherwise unconstitutional measures; they also cry out for a reconsideration of whether such constitutional cover—the suspension of the Charter’s operation, provisional and limited as it is—should ever be available in a free and democratic society.

I have argued elsewhere that Section 33 of the Charter has no place in the constitution of a mature and robust liberal democracy. It is a blight on our constitution and we ought to get rid of it.⁷⁴ Although its invocation does not offend the rule of law, it nevertheless codifies the principle that the popular will is supreme, even where it offends human rights and civil liberties. In the result, when the will of the people clashes with the rights and freedoms of the people, then the popular will—as expressed in legislative action—prevails over rights and freedoms. This is the meaning of legislative supremacy, an idea that poisons the liberal democratic well from which free citizens draw their water. Moreover, it undermines the elegant and meticulously crafted accountability regime set out in Section 1 of the Charter, which regulates the limitation, by Parliament and the Provinces, of the very rights and freedoms that, but for Section 33, are protected, indeed, guaranteed.⁷⁵ In Section 33, we dispense with the entire exercise of justifying the abridgment of constitutionally protected rights and freedoms and of balancing competing rights and freedoms and the popular agenda when