On the Question of Nationalism and Charter Patriotism in Canada

Where did Trudeau go wrong? On the Question of Nationalism and Charter Patriotism in Canada Donald Ipperciel* Introduction nationalism since its purpose is not to address the functions of the nation, but rather those of In an attempt to overcome national rival- the state. As will be demonstrated, constitu- ries, many will invoke the idea of constitutional tional patriotism and nationalism operate on patriotism. #is idea, which serves as a collec- di$erent levels, and follow di$erent logics. At tive cement, is conceived as a rational commit- best, Charter patriotism can, if one adheres to ment and loyalty towards the democratic and the perspective defended in this article, be su- universal principles of liberal constitutions. perimposed onto nationalism, thereby meet- #e universalism of constitutional principles ing the distinct need for unity in the Canadian serves as a shield against national particular- multinational state. isms. Indeed, this was precisely the intention of Jürgen Habermas, one of the most famous I support this thesis mainly through theo- advocates of constitutional patriotism. With retical demonstration, but this demonstration this political idea, Habermas set out to defeat will be based on some empirical %ndings. To Teutonic nationalism and its antimodern and prepare for this demonstration, I will brie&y chauvinistic manifestations. If nationalist pas- explore the nature of the concept of constitu- sions can be subdued, it would be with the help tional patriotism as it originally appeared in of such a “postnational” attitude. the work of Dolf Sternberger and Habermas. And since constitutional patriotism Canadian- For Habermas, and political thinkers in style %rst took shape in Pierre Elliott Trudeau’s general, the United States represents the model writings, I will focus particular attention on par excellence of such a constitutional patrio- these, approaching Charter patriotism as a tism.1 However, the concept also has a Cana- speci%cally Canadian manifestation of con- dian version that is seldom highlighted in this stitutional patriotism. In spite of the failure of connection, namely, “Charter patriotism.”2 Charter patriotism as a symbol of Canadian #is Canadian version of constitutional patri- unity, I will nonetheless outline a certain Qué- otism is also presented, by all participants in bec paradox allowing for the coexistence of the debate, as antagonistic to nationalisms and separatist thoughts with a strong attachment particularisms of all kinds. to the Canadian Constitution. I believe this paradox can be untangled with the help of my For my part, I argue the following thesis: working thesis. constitutional patriotism — and hence Char- ter patriotism — should not be perceived as the negation of and potential substitute for Constitutional Forum constitutionnel !" Nature of constitutional patriotism procedures and principles, then, is to allow for coexistence and communication among na- in Habermas tions and cultures within a state. But for those #e phrase “constitutional patriotism” was who would believe that concrete ways of life and coined at the end of the 1970s by Dolf Stern- nations thereby become obsolete, Habermas is berger (1907-1989), a central %gure in German quick to add: “#e attachment to these princi- political science a)er the Second World War. ples supposed by constitutional patriotism must For Sternberger, constitutional patriotism is actually feed on the consonant legacy of cul- above all an analytical and historical concept. tural traditions.”9 Hence, it seems that Haber- Because the national sentiment of Germans had mas did not introduce constitutional patriotism been wounded by their recent Nazi past and as a substitute for, but rather as an addition to by the country’s East-West split, it no longer nationalism. su*ced for the construction of political iden- In fact, constitutional patriotism is necessar- tity.3 In response to this situation, Sternberger ily coloured by the national and cultural context claimed that “we do not live in a full Germany, in which it takes root. In this sense, German but we live in a full constitution, a fully consti- constitutional patriotism is bound to be di$erent tutional state, and that too is a kind of father- from its American, French, or Canadian occur- land.”4 Constitutional patriotism thus ful%lled a rences. In Habermas’s view, the distinctive fea- particular need in postwar Germany. ture of German constitutional patriotism is its Habermas readily admits to borrowing particular and historical memory of Auschwitz the concept of constitutional patriotism from and the vanquishing of Nazism.10 To this extent, Sternberger and thus acknowledges its origi- it is di$erent from the occurrences of constitu- nally descriptive character.5 As did the latter, tional patriotism elsewhere in the world. Habermas understands this new identity con- ferred by constitutional patriotism as a form of distancing from a “past centered on national Constitutional patriotism in history.”6 But Habermas’s reading of this con- Trudeau’s Work cept will be coloured in a fundamental way by Although inspired by other sources — by a polemical and normative intention. #ough Julien Benda’s rationalist universalism and by constitutional patriotism is still perceived as an American civic constitutionalism in particular historically observable fact in Germany, it will — Trudeau’s postnationalist thought takes on a moreover become a good to be protected, a ral- form similar to that of Habermas’s.11 However, lying cry against German conservative and fas- it must be pointed out from the outset that the cistic forces conspiring to “rehabilitate national young Trudeau could not consider such a thing consciousness.”7 as Constitutional patriotism. Before 1968, the Constitutional patriotism takes shape, ac- constitution had, in Trudeau’s mind, an essen- cording to Habermas, in the historically ob- tially pragmatic — indeed instrumental — func- servable disjunction between culture and state tion: it served to counter the centrifugal forces politics, i.e., between nation and state. Haber- threatening the cohesion of the Canadian state. mas does not make a distinction between “eth- It allowed some protection for French Canadi- nie” (or culture) and nation; rather, the ways of ans, whom he considered socially and economi- life de%ning cultures are distinguished from cally backward. #e promotion of transcendent 12 state activities. Furthermore, during this pro- normative principles was far from his mind. cess of disjunction, “the identi%cation with our In the period before 1968, thus, Trudeau did not own ways of life and our own traditions are cov- contemplate the idea of an American-style bill ered with a more abstract patriotism, which is of rights, although, even then, he strongly de- no longer articulated with the concrete whole fended individual rights against state preroga- of the nation, but with abstract procedures and tives and against claims stemming from ethnic principles.”8 #e role of these constitutional and national groups. '( Volume 17, Number 2, 2008 Trudeau had a change of heart during his Hence, the necessity of a revitalized e$ort at early years of political life. In a document en- formal constitutional renewal as the only guar- titled !e Constitution and the People of Can- antor of the desired unity of a country marked ada, which served as a working document for with signi%cant, concrete diversity.21 #e sym- the constitutional amendments proposed in the bolic content of the Constitution, in this con- Canadian Constitutional Charter of 1971 (Vic- text, becomes crucially important for the new toria Charter), Trudeau recognizes from then project of uni%cation. on a transcendent and symbolic function to the Constitution. Indeed, it would no longer be con- As with Habermas’s, Trudeau’s constitu- sidered a pragmatic product born of a particular tional patriotism is not meant to be abstract or historic situation, but as a founding document deny Canadian cultural particularities. Admit- performatively establishing the Canadian na- tedly, this is a criticism o)en directed against 22 tion (i.e., through the very act of enunciation): Trudeau but it deserves to be quali%ed, in my “the Constitution must express the purpose of view. Actually, Trudeau’s work contains ap- Canadians in having become and resolving to parently contradictory passages, sometimes remain associated in a single country.”13 In this defending the right to existence of ethnic and sense, the Constitution is much more than the national particularities, sometimes a crude re&ection of the population’s values; it is, in a antinationalism. symbolic mode, the founding act of the nation. What Trudeau excoriates, in fact, is a par- Of course, for Trudeau, his proposed Char- ticular meaning of the nation. Whereas the soci- ter of Rights becomes the cornerstone of the ological nation — understood as a synonym for Constitution since “the rights of people must ethnie — is quite acceptable to him, the politi- precede the rights of governments.”14 It is then cal nation, for its part, is altogether objection- incumbent on the resultant Canadian Charter able. In the words of Trudeau: “It is not the idea of Rights and Freedoms15 to contribute, as is of nation that is retrograde; it is the idea that 23 the case with other federal institutions,16 to the the nation must necessarily be sovereign.” For unity of the country. #rough the statement of Trudeau, the political nation is nothing other universal rights (i.e., political, judicial, and an- than an ethnic group claiming political power tidiscriminatory rights) and particular rights for itself. For this reason the modern nation, (i.e., linguistic rights), which all Canadians can de%ned since the French Revolution in terms 24 agree upon, the Charter expresses the common- bound to the “principle of all sovereignty,” be- ness of all Canadians, regardless of the diversity comes reprehensible. In his view, this principle composing the country, including the nations of sovereignty should legitimately be attributed and ethnic groups in its midst.

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