The Rights Revolution Read online

  But this negative point could also be put positively. Instead of fragmenting the country, rights talk has actually made the national-unity process more democratic. By forcing their way into the negotiations on national unity between 1987 and 1991, women and aboriginal peoples secured a right of participation not just for themselves but for all Canadians. Future constitutional change will have to be ratified by a national referendum. The citizens have forced their way into the inner sanctum and whatever arcane rituals of accommodation are enacted there in the future will require the citizens’ consent.

  This particular point about rights demands and democracy could be generalized. Not all of the battles fought by minorities have been only on behalf of their own groups. Sometimes, the rights that have been won have been won for everyone. For example, women were never fighting just for themselves; they were fighting for their children, and even for the men in their lives. Likewise, the Charter of Rights and Freedoms is not just a collection of entrenched rights for various linguistic, sexual, and aboriginal minorities. It standardized rights for all citizens. To the degree that rights struggles for particular groups enhance or clarify the rights of all citizens, they strengthen, rather than weaken, the country.

  Even when the rights that are gained are exclusively for the use of a particular group, all may benefit indirectly from the fact that the political process becomes more inclusive, and therefore better able to respond to public needs and aspirations. Thus only the disabled specifically benefit when their rights of access and mobility are granted, but the rest of us benefit in a general way too. We benefit because the disabled are freed from dependency relationships that embarrass them and us. Once their mobility rights are guaranteed, they can look after themselves and establish relationships with the rest of us on a basis of genuine equality. The second benefit to us of specific mobility rights for the disabled is that they help our democracy to work better. We are not required to represent the interests of the disabled, since they can do it themselves. And those who represent themselves invariably do a better job than anybody else.2

  In other cases, however, the majority is less convinced that it has benefited from the rights revolution. Other battles — such as those for language rights, aboriginal title, and sexual enfranchisement — have seemed not to benefit the majority, but rather to force it to cede power and cultural authority. The cultural authority in question is the right of the majority to define what the country “stands for,” and how it is seen by itself and the rest of the world. So on questions of sexual morality, the impact of the rights revolution has been to diminish the power of the heterosexual majority to define what is normal and normative in personal life. On questions of our national history and self-image, the impact of the aboriginal revolution has been to force the Canadian majority to face up to the spectre of racism in our national past. When groups get rights, in other words, they also get the right to change the national story, and when they do so, the results can be painful. Once rights are granted, the majority has to live with the truth, and the truth can hurt.

  In more direct and immediate ways (i.e., through tax dollars), the Canadian majority has had to pay for the rights revolution. For many in this bystander majority, it seems that the Canadian state is being treated like a kind of general store, situated at a dusty crossroads where federal and provincial power meet, which every passing traveller feels free to loot in the name of some rights claim or other. Certainly the cost of meeting rights claims — and these claims include rights to welfare, employment insurance, pay equity, and aboriginal title — helped to increase the federal deficit. By 1995, the problem demanded a solution. But the solution — cutbacks to federal services — further weakened the welfare and regional adjustment programs that hold the country together. In this way, meeting rights claims has not always strengthened the sinews of national unity.

  The revival of English-Canadian nationalism in the 1980s and 1990s is a reaction to these trends, not just to Quebec nationalism. The mood of English Canada has settled into a single angry demand: enough is enough. This anger is focused not just on Quebec, but also on aboriginal peoples and other rights-claimants. Enough concessions, enough negotiations, enough rights already. There is a new sympathy for symmetrical federalism: equal rights for all provinces and all individuals; no special status for anybody. What I’ve called the pool-table version of national political space seems to promise an end to the politics of victimhood and blackmail. Strict equality of individual rights would bring us together. We would cease to recognize each other as competing rights communities and instead see ourselves as fellow citizens.

  In an earlier lecture, I argued that this symmetrical version of rights doesn’t work. It’s not true to our history. We simply are a patchwork quilt of distinctive societies. Quebec is entitled to recognition as a distinctive society and its language laws, immigration statutes, and education provisions should be different in order to protect what is different about the province. There also need to be special language laws, as well as French-language education, for New Brunswick because of the size and importance of its Acadian minority. Provinces with large aboriginal populations, like British Columbia, may have to devolve power over land and resources in ways that are different from other provinces. Each situation is different and each needs to be addressed with special provisions.

  Yet recognition of distinctiveness does not have to fragment the country. What ought to balance these distinctive provisions is a politics of reciprocity. If Quebec is granted certain rights in respect of its language and culture, the rest of the country has a right to expect the province to protect the cultures, languages, and religions of its minorities. Reciprocity rather than strict symmetry for all is the way to move beyond a politics of concession and threat into a process of mutual recognition, in which each side acknowledges the distinctiveness of the other.

  Aboriginal groups, to use another example, have a unique claim on the land and its resources as the original inhabitants of the country. But just as their treaties cannot be “extinguished” by later legislation, except with their consent, so the rights of other Canadians cannot be extinguished by recognition of aboriginal rights. The task is to find a way to reconcile aboriginal claims with the rights of other Canadians to use common resources and with the duty of the federal government to husband and conserve the environment. On both the Atlantic and Pacific fishing grounds, these issues have exploded. Burnt Church has joined Oka in the annals of Canadian conflict. But we would do well to remember, before we shake our heads at the loss of our civility, that rights don’t create the conflict — they merely validate claims. And in the case of disputes over resource management, it is good that claims are understood as rights.3 We don’t want a return to the days when aboriginal peoples had no rights and when the federal government’s management of resources went unquestioned. Equally, we don’t want people defying the law or taking it into their own hands. If these are the limits of what is tolerable, then courts and legislatures will simply have to find peaceful adjudication somewhere in the middle.4 Aboriginal peoples and non-aboriginal Canadians cannot live together unless both accept the ultimate sovereignty of Canadian law. Within this common frame, distinctive aboriginal rights can be reconciled with both use rights by other groups and federal environmental controls. The overall objective for all concerned is to find a way to recognize group rights while maintaining the unity of Canadian citizenship, so that we do not have either second-class citizens or privileged ones, and we can maintain equal moral consideration for all Canadians.

  This goes beyond balancing rights. It also means balancing acts of recognition. At the moment, the Canadian majority feels that it is faced with multiplying demands for recognition from various minority groups, without these groups accepting any obligation to recognize the majority. This is the heart of the bitterness in English Canada over Quebec. It is the feeling that the Canadian majority is being asked to concede recognition of Quebec’s distinct status without earning
any commensurate recognition of Canada in return. This perceived inequality of recognition has led many English Canadians to refuse to be party to further concessions. What has proved insupportable is not the nature of Quebec’s demands, but the threat of separation that accompanies the demands. Give us what we want or we will go is not a form of recognition but an expression of contempt.

  But this inequality in recognition is felt on other fronts of the rights revolution as well. If a sexual minority demands its rights, while at the same time scorning heterosexual family values, it will find it difficult to secure majority recognition. The majority may accept that it cannot impose its values on the minority, but it sees no reason why its values should be ridiculed. Nor does it feel obliged to do more than tolerate minority sexual behaviour. The full approval demanded by minorities is often being met with rituals of political correctness, rather than with a genuine and welcoming change of heart. This will change if recognition becomes genuinely mutual, if both minority and majority agree that in matters sexual, genuine difference of sexual taste is compatible with substantive moral agreement on what is cruel, degrading, coercive, or unfair. What needs to be affirmed, in order to counteract the feeling of moral fragmentation, is actually a commonplace: that shared standards of decency and consent are compatible with a proliferation of sexual practice and experience. In place of a contract of mutual indifference, in which majority and minority sexual cultures simply agree to disagree, we need a moral dialogue that allows us to reach agreement on the forms of cruelty, neglect, and abuse that we jointly condemn, and on the forms of committed concern we wish to encourage. Indeed, in a process of mutual recognition on sexual and family matters, the ideal is that both minorities and majorities share experiences and learn from each other, especially in the matter of raising children.

  In the field of aboriginal rights, some aboriginal groups demand recognition while speaking of whites as “settler colonials.”5 To speak in this way, as if settlement were merely a form of imperial domination, is to withhold recognition of the right of the majority to settle and use the land we both share. This neither promotes resolution of aboriginal title, nor adequately represents the view of aboriginal peoples themselves. Throughout centuries of collaboration between newcomers and aboriginal nations, Native peoples have always accepted, with varying degrees of willingness, the fact that being first possessors of the land is not the only source of legitimacy for its use. Those who came later have acquired legitimacy by their labours; by putting the soil under cultivation; by uncovering its natural resources; by building great cities and linking them together with railways, highways, and now fibre-optic networks and the Internet. To point out the legitimacy of non-aboriginal settlement in Canada is not to make a declaration about anyone’s superiority or inferiority, but simply to assert that each has a fair claim to the land, and thus that it must be shared.6 In the words used by Chief Justice Antonio Lamer in his important judgment recognizing aboriginal title in Delgamuukw, “Let’s face it: we are all here to stay.”7

  In other words, recognition is a two-way street. National unity, therefore, depends on equality of rights and equality of recognition: minorities recognize majorities; majorities recognize minorities. Both seek shelter under the arch of a law they can trust, since both have had a hand in building it. This could be called a civic nationalist vision of what should hold the country together.8 Why call it nationalist? Isn’t that a dangerous word? I could call it patriotism instead, but that would reproduce an invidious distinction between positive patriotism and negative nationalism. In fact, “patriotism” is simply the name we give to our love of country, while “nationalism” is the epithet we apply to other people’s.9 In fact, there is nothing intrinsically fanatical or extreme about nationalism, if we define it as a principled love of country. Canadians have good reasons to love their country, and I would argue that our rights culture is one of them. As I maintained in my first lecture, the essential distinctiveness of Canada itself lies in the fact that we are a tri-national community, trying to balance individual and collective rights without sacrificing the unity and equality of our citizenship. If you ask me what I love about my country, this is it.

  It may seem strange to confess a love for something so seemingly legalistic and desiccated as rights. Yet we need to think of rights as something more than a dry enumeration of entitlements in constitutional codes, as more than a set of instruments that individuals use to defend themselves. Rights create and sustain culture and by culture we mean habits of the heart. Rights create community. They do so because once we believe in equal rights, we are committed to the idea that rights are indivisible. Defending your own rights means being committed to defending the rights of others.

  Citizens of at least one Canadian province know a great deal about indivisibility. In 1998, a woman who had been forcibly sterilized as a child in an Alberta institution, on the grounds that she was unfit to raise children, brought suit for compensation against the Alberta government. As many as 500 other women had been treated in this way, and the premier of Alberta, fearing a wave of expensive claims, introduced legislation to curtail the rights of these women to full compensation.10 This legislation explicitly overrode the women’s rights as set out in the Canadian Charter of Rights and Freedoms. Alberta citizens raised a storm of protest that forced the premier to abandon the legislation and pay full compensation not just to the wronged woman, but to all the other women who had been sterilized without consent. When she won her case, the victorious woman told reporters, with a wry chuckle, “Not bad for a moron.” And not bad for the thousands of fellow citizens who stood up for her rights.

  The commitment to indivisibility goes with a commitment to mutual sacrifice. All rights cost us something. Even when we don’t avail ourselves of our entitlements, others do, and we pay for their use.11 Belonging to a rights community implies that we surrender some portion of our freedom to sustain the collective entitlements that make our life possible. This idea of sacrifice is the very core of what it means to belong to a national community: paying taxes, obeying the law, submitting disputes to adjudication and abiding peacefully by these decisions. Sacrifice does not stop there. The reason that war memorials occupy a central symbolic place in the national life of all nations, even though the wars remembered are now far away in time, is that they represent the sacrifice that all citizens make to keep a community free.

  But nationalism is more than this. It is a way of seeing, a way of recognizing fellow citizens as belonging to a shared rights community, and as being entitled to the protection and the care that the national community can provide.

  The central issue for Canada, in the wake of the rights revolution, is whether a rights culture is enough to hold the country together, whether it creates a sufficiently robust sense of belonging, and a sufficiently warmhearted kind of mutual recognition, to enable us to solve our differences peacefully. The criticism most often advanced against a civic nationalist vision of national community is that it is too thin. It bases national solidarity on rights equality, but neither rights nor equality make sufficiently deep claims on the loyalties and affections of people to bond them together over time.12

  This is a very old worry about societies based on rights. When Edmund Burke, the great Anglo-Irish conservative thinker of the late eighteenth century, fulminated against the type of society he saw coming into being with the French Revolution, he warned that the revolutionaries were laying themselves open to continual rebellion.13 For these new societies were based on contract, on consent, on agreements between parties that could be dissolved. By contrast, the ancien régime societies, whose disappearance he lamented, had been based on tradition, history, common origins, and all the deepest sources of human affection and commitment. The enduring relevance of Burke’s critique suggests that he identified a crucial weakness in rights-based societies. Clearly, rights are not enough. The elements that hold a country like Canada together run deeper than rights: the land, shared memory, shared opp
ortunity, and shared hope. Yet Burke and his fellow conservatives underestimated the power of rights as a source of legitimacy and cohesion in modern societies, just as they sentimentalized the legitimacy of the ancien régime. The ancient and immemorial tissue of connections was insufficient to keep the France of the ancien régime together, and the democratic republic that succeeded it, which was based on consent and contract, has endured for two hundred years.

  Yet even though contractual societies have shown themselves to be remarkably robust, we continue to worry that, to paraphrase William Butler Yeats, the centre cannot hold. To focus these old anxieties about contract and consent on contemporary Canada, I want to contrast civic nationalist states and ethnic nationalist ones. Civic nationalist states are created by formal constitutional acts of citizens, much as the French republic was created by the revolution. Canada, for example, is a civic nationalist state, and it was formed by a compact of its citizens in 1867. We are, to use Richard Gwyn’s useful phrase, a state-nation, a national community created and held together by the rights framework, infrastructure, and services of our government.14

  An ethnic nationalist state recognizes its citizens on the basis of common ancestry, language, religion, customs, and rituals. Here shared ancestry — or to use a more emotional phrase, common blood — forms the basis of both identity and mutual recognition. Germany could be described as a national community of language speakers whose identity and ethnicity existed before the German state. In contrast to Canada, a state-nation, Germany is a nation-state, one in which identity is provided primarily by common national origins, and secondarily by common rights and state entitlements.15