The CCPA MONITOR Reporting on Business, Labour and the Environment Volume 9 No. 7 The Canadian Centre for Policy Alternatives December 2002/January 2003 UNCLE SAM AND US: CANADA’S SECRET CONSTITUTION Canadians fooled by trade deals three times—and counting By Stephen Clarkson “He fools me once, shame on him. rules governing investment. And they cover much, much He fools me twice, shame on me.” more economic ground, as I explain in my new book Un- This pearl of folk wisdom relayed by my mother-in- cle Sam and Us. But since these rules are for governments law to my daughters has been on my mind recently as to obey, they can’t be presented simply as economic is- I’ve reflected on how Canadians have collectively been sues. They must also be discussed in the language of poli- fooled about trade liberalization—not once, not twice, but tics. And there’s the rub. three times and counting. It was a shrewd move on the part of our political lead- Actually, the majority of Canadians weren’t fooled by ers to avoid engaging with trade liberalization as a politi- Brian Mulroney and his allies into accepting the original cal issue because, as soon as it is seen in terms of its im- “free trade” agreement with the United States in 1988. In plications for governance, citizens who had agreed that the federal election that year, 57% of the electorate voted markets should be efficient or that services should be com- for the two parties opposing the FTA. But they were petitive, strongly object to their country’s political sys- cheated by the electoral system tem being undermined without their which translated 43% of the vote into “My primary argument is that the knowledge or consent. a big majority of the seats in Parlia- three supposedly economic trea- My primary argument is that the ment for the Conservatives, who pro- ties which Canada has already three supposedly economic treaties ceeded to sign the highly contested which Canada has already signed are deal. signed are so politically pregnant so politically pregnant that they com- The second time the public was that they comprise a second, ex- prise a second, external constitution taken for a free-trade ride involved ternal constitution for Canada.” for Canada. My secondary position another kind of chicanery. This was is that, while having an external con- in the federal election in 1993 when the issue was the FTA stitution is an unavoidable—and, if fairly constructed, being strengthened and expanded to include Mexico in a even desirable—feature of globalization, this particular North American Free Trade Agreement. Having said he economics-based constitution is badly flawed and in ur- was so opposed to NAFTA that he would renegotiate it if gent need of major correction. We should beware of be- elected, Jean Chrétien proceeded to sign the text on Jan. ing fooled again. 1, 1994 soon after he became prime minister and had ar- With all the imagery around national constitutions— ranged a face-saving exchange of letters with then U.S. their founding fathers in sepia photographs, their baroque President Bill Clinton. language, the near-religious awe with which commenta- A year later, Canadians were sold a bill of goods about tors refer to them—the notion that trade agreements could economic “liberalization” for a third time when Canada be a constitution may strike you as odd, so let’s return to joined other countries as a founding member of the World more familiar ground. Trade Organization, a powerful international institution Do you remember the big constitutional debate that that was intended to transform the rules of the game for preoccupied phone-in shows across the country in 1980 global commerce and investment. and 1981 about who should be protected in the Bill of The legerdemain to which the public was exposed Rights that Pierre Trudeau was championing? Members when these three landmark treaties were signed was based of Parliament and Senators sat long hours on a joint par- on their presentation in the language of economics. Who liamentary committee that heard submissions from hun- in her right mind would oppose making markets more dreds of groups and citizens arguing their own cause. efficient or object to having more competition in telecom- Do you remember Doris Anderson, that doughty cru- munications—if that meant lower long-distance phone sader for women’s rights, taking on Lloyd Axworthy, then bills? Who could object to “free” trade? Trudeau’s cabinet minister responsible for the status of NAFTA and the WTO do address economic issues, of women, in the wintry days of 1981? Their exchange pro- course. They determine tariff levels. They lay down new (Continued on Page 6) http://www.policyalternatives.caThe CCPA Monitor 1 December 2002/January 2003 Canada’s new external constitution was adopted in secret (Continued from Page 1) voked a conference of dedicated feminists who ultimately become politically unthinkable not to hold a referendum convinced the Liberals to enhance their position in what in each province to validate the Charlottetown Accord, became the Charter of Rights and Freedoms. Other pro- which almost every political leader endorsed, including testing groups, such as the handicapped, were also given the Liberal premier of Quebec, Robert Bourassa. satisfaction. Once again the radio phone-in shows buzzed with Do you remember Bora Laskin, the courtly, white- impassioned conversations over arcane phrases like “dis- haired chief justice? Trudeau had asked the Supreme tinct society” and whether “Charlottetown” would be Court to rule on the constitutionality of his attempt to get good or bad for the West, good or bad for national unity. Prime Minister Margaret Thatcher in London to amend At the end of the campaign in which the country’s politi- the British North America Act so that Canada would fi- cal, economic, and media élites argued near unanimously nally—after 114 years—be free of British control and as- for the Yes (with the notable exception of Preston Man- sume legal sovereignty over its own political rule book. ning, then leading a fledgling Reform Party), the public And do you recollect how Laskin voted No. The referendum was lost, and his colleagues contrived such a “At the end of the campaign in and the Canadian constitution re- Solomonic judgment—the Liberal which the country’s political, mained unamended from its 1982 for- prime minister’s unilateral initiative mat. was valid according to the black letter economic, and media élites T T T of the British North America Act but his argued near unanimously for Even if you aren’t in a position defiance of provincial opposition to a the Yes to the Charlottetown to remember Charlottetown, I hope measure that would affect the prov- Accord, the public voted No.” you can at least agree that constitu- inces’ powers violated a convention of tional politics is serious business be- consent—that Trudeau was forced to cause it’s about issues that determine engage in one last round of negotiations with the recalci- the framework and the rules within which governments trant provincial premiers in order to achieve sufficient operate: agreement among them to pass the Court’s test of con- • Constitutions contain the political equivalent of the Ten sensus? Commandments, that is, norms or principles that dic- What about René Lévesque? Do you recall his bitter tate how governments should behave. Even if they anger at his fellow premiers for giving up their opposi- weren’t handed to us on stone tablets, a constitution’s tion to Trudeau’s project and making him the victim of norms cannot be easily changed. Suprapolitical, they are what he saw as a power ploy against Quebec? beyond the reach of parliaments to alter. And Queen Elizabeth: who can forget the image of • Having established rule and decision-making institu- her signing, in one of her unmatchably frumpy hats, the tions, constitutions set limits to the powers of the gov- new Constitution Act in April 1982 on Parliament Hill as ernments they create. thousands shivered in the rain to witness this historic • They sanction the superior status of certain rights and moment of patriation? so redistribute power to those who acquire them. We If you don’t remember these events, because such saw this in Canada when women and Aboriginals memories belong to your parents’ generation, you’re more found that the Charter had indeed strengthened their likely to recall Canada’s last round of constitutional poli- situation. tics because it happened only 10 years ago. Intensive de- • They establish courts which are called upon to settle bate had begun in 1991 when the Mulroney government disputes over the meaning of these rights. In writing suggested giving Ottawa greater power over the economic their rulings, judges may actually create new rights, union (at the expense of the provinces) and restricting the as happened when the Supreme Court read into the Bank of Canada’s role to controlling price increases (at Charter a right not to be discriminated against for the expense of promoting full employment). Orchestrated one’s sexual orientation. by Joe Clark, nationally televised consultations in every Constitutions have three other characteristics which region of the country engaged not just the usual cast of we should look out for: premiers, but selected citizens who rapidly nixed • To be considered legitimate, constitutions generally Mulroney’s aspirations to entrench his neoconservative need to be ratified. If they lose their legitimacy, citi- economic ideas. zens may start to question why they should be obeyed. What’s more, constitutional politics had become more • A constitution incorporates the ideology of those who inclusive.