A Review of Samuel V LaSelva, The Moral
Foundations of Canadian Federalism
Samuel V. LaSelva, The Moral Foundations of Canadian Federalism:
Paradoxes, Achievements and Tragedies of Nationhood. Montreal:
McGill-Queen’s University Press, 1996. Pp. xv, 264
[Cloth $49.95 (Cdn.); paper $19.95 (Cdn.)].
Reviewed by John D. Whyte*
Political stability is the chief object in constructing the basic framework of the
state. All constitutionalism proceeds on the assumption that a flourishing national
economy and the social well-being of citizens depend on a stable political order. Eco-
nomic and social success is the result of human investment and commitment, and the
conditions under which citizens are most likely to make these sorts of society-
building choices are those that provide more-or-less fixed expectations.
Political stability is also related to the achievement of a certain level of social
solidarity – of a state of reasonable harmony between the people, or the peoples, of
the nation. Without that degree of common commitment and mutual concern, selfless
action by citizens is unlikely, and community interests will not flourish. Yet selfless-
ness (for instance, contributing to the payment of the social costs of others) is not
possible without a stable political environment in which social investments can be
counted on to produce predictable goods that flow to predictable ends. The good so-
ciety is the product of personal choices –
choices of commitment, investment and
sacrifice –
and the condition for making these choices is that one’s social contribu-
tions will not be pirated through conditions of revolutionary changes in the political
order, or by those who sponsor such change.
Stability, however, is not the whole story of modem statecraft. The other goal of
the political order is not to imprison citizens in a fixed state. The trends of the modem
age toward a greater sharing of political authority and toward greater respect for each
individual’s dignity and autonomy reflect a moral sense of persons as self-
determining. While this sense might be translated into a regime of anarchy, commonly
it has been translated into creating political orders (binding and coercive political or-
ders, certainly) that permit social change and that allow persons’ situations to rise and
Faculty of Law, Queen’s University.
McGill Law Journal 1997
Revue de droit de McGill
To be cited as: (1997) 42 McGill L.L 189
Mode de rf~rence: (1997) 42 R.D. McGill 189
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 42
fall according to processes that, in good political societies, are transparent, knowable,
predictable and stable.
Social dynamism, then, is the hope, not the bane, of constitutional order. Beyond
the now widely constituted respect for individual autonomy, a capacity for dynamism
plays an instrumental role in the maintenance of stable states. Absorbing social
change within the basic state framework obviates the need for periodic revolutionary
reordering.’
The formation of the Canadian state in the mid-nineteenth century was grounded
in these concerns of stability and dynamism. The story of the search in Canada for
resolution of this tension does not, of course, precisely track the liberal-democratic
abstractions that have been described above. The preoccupations of the confederating
process in Canada were, first, to incorporate the French nation in Canada and the
English nation in Canada in a single political structure in a way that lessened (or even
eradicated) intercommunity hostilities and, second, to make possible the development
of a national government capable of providing effective administration of the whole
of British North America.!
Notwithstanding the apparent incontrovertibility of the view that the birth of the
narrative of the Canadian state lacks a revolutionary genesis, Canada is, in fact, the
product of a revolutionary change in the political order. Prior to 1867 there existed in
British North America neither harmonious relations between English and French nor
a single domestic government exercising authority over the whole of the territory.
More significantly, it was realized that neither of these goals would ever likely be
reached under the contemporary colonial governing regimes. As a consequence, those
regimes were terminated, and a new regime (and, I would say, a radically new re-
gime) was adopted for the Canadian context. The new regime’s raison d’etre was
precisely to achieve stability and dynamism –
stability in the relations between
deeply suspicious and hostile communities, and dynamism that would see a national
consciousness grow and, with it, national legitimacy and national political capacity.
And somehow the latter goal was to occur without triggering the ancient and destruc-
tive fears of assimilation.
Goals like stability and dynamism are not easily made compatible. But Canada,
like most nation states, is an expression of the hope that conflicting historical forces
and conflicting conceptions of the future can be mediated – can be held in a peaceful
and constructive tension. Under this notion of Canadian confederation, the goal was
not to render history obsolete, nor to reach a definitive resolution of Canada’s con-
flicting goals, but rather to produce the virtues of stability and dynamism that would
‘The relationship between revolutionary change, maintaining political stability and channelling the
urge for political reform is explored in B. Ackerman, We the People: Foundations (Cambridge:
Belknap Press, 1991) c. 7.
2But see P. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, 2d ed.
(Toronto: University of Toronto Press, 1993) at 23-33 and R. Cook, Canada, Quebec and the Uses of
Nationalism, 2d ed. (Toronto: McClelland & Stewart, 1995) at 214-17 for descriptions of just how di-
verse the motives and aspirations of the confederation players were.
1997]
J.D. WHYTE- MORAL FOUNDATIONS OF FEDERALISM
forestall the need for further revolution –
oppression, or of civil war and secession.
the need for the disruptions of tyranny and
Samuel LaSelva’s book, The Moral Foundations of Canadian Federalism, ex-
plores these postulates of the Canadian state. Its contribution to our understanding of
them is immense. It traces the political narrative of confederation in terms of the ac-
tual conflicts and expressed aspirations of the confederation debates, but, more impor-
tantly, also in terms of conceptions about how the new state would (and should) op-
erate in order to justify the new experiment in political ordering. LaSelva calls these
conceptions of how Canada would function “moral foundations”, and that label is ac-
curate and illuminating. Confederation debates in Canada, both at the time of confed-
eration and in the thirteen decades following, address questions of the relationship
between the founding communities and the nation, the political entitlements of in-
digenous peoples, the right level of accommodation for racially, ethnically and relig-
iously diverse communities, the appropriate reach for national projects, the degree of
personal autonomy due to citizens, and so forth. These debates are expressed in terms
of how political authority should be organized and what political roles should be
played by which political bodies. But behind these claims about the proper organiza-
tion of things are moral visions –
ideas, specifically, of what people and communities
are entitled to as a matter of being granted due respect. Describing what we owe to
people in light of their humanity, or identity, specialness, vulnerability, needs, or
whatever, is undoubtedly a moral discourse. LaSelva rightly has pointed out that
when the Canadian federation has debated its structure, it has conducted an examina-
tion of moral entitlement; the claims that result are moral claims. There is, in short, a
moral foundation to the way we have become constitutionally organized.
The question is what should be the consequences of this connection between state
organization and moral vision. For LaSelva, the answer has two parts. First, recogniz-
ing that the fundamental structure of Canada is the consequence of an ongoing search
for good means that we should value what we are. A nation engaged in the project of
expressing due respect for its people and communities is itself to be respected. Of
course, from such an answer could flow claims of strident Canadian nationalism. For
instance, we could say that it is wrong for a country like Canada to be dismissed
lightly by those who are frustrated by the continuing irresolution of basic issues, or
whose visions of good govemment are not being fully realized. But LaSelva’s book is
not that sort of exercise in Canadian nationalism and, although he would lament the
failure “to sustain a country that enabled people with different ways of life to live, in
addition, a common life”,’ he makes no specific claims for national loyalty.
The second answer, on the other hand, contains a stronger normative purpose.
LaSelva asks us not just to admire the fact that moral discourse has shaped our consti-
tutional structure. (As I indicated earlier, that claim could be made, at some level, for
all serious efforts of nation constructing.) He asks us to pay attention to the substan-
tive moral content in the debate and to recognize both that there are quite different
3 (Montreal: McGill-Queen’s University Press, 1996) [hereinafter Moral Foundations].
4Ibid. at 195.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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(and conflicting) moral views and that some are better reflections of the historic reali-
ties behind the making of Canada. It is these that need to be remembered and hon-
oured.
LaSelva’s choice of the superior moral foundations is not purely an act of pre-
scription. While he has a definite view of the right way to conceive of Canada, he
does not defend it (at least, explicitly) on the basis of its match with his own hopes for
Canada, but on the basis that this moral view of the Canadian state provides the most
coherent account of the actual constitutional order that was created. In this way,
LaSelva’s argument is descriptive, or originalist;’ we ought to honour a particular
moral vision of Canada because it is the moral vision that informed the original politi-
cal accommodation that produced confederation. (There is, however, nothing to sug-
gest that LaSelva is opposed to reconstitutionalization or that he is insufficiently re-
publican to recognize that a self-determining population can choose a new basic po-
litical order for itself. But in the absence of political consensus that would legitimate
constitutional change, LaSelva believes that we should strive to honour both the
original constitutional accommodation and the moral spirit that gave it birth.)
The structure at the heart of Canadian confederation is federalism and, according
to LaSelva, we should remember not only why federalism was thought to serve our
needs but also the specific idea of federalism that attracted support at the originating
moment. Generally, federalism’s purposes are threefold.” The first is to protect minor-
ity communities, especially those communities that were already established at the
time of confederation, from the tyranny of national majorities –
from the wilful
eradication of those communities by the nation. The second is to check the tendency
of local governments to exploit their membership in the larger political unit through
exporting social costs to neighbouring local governments. In other words, the alloca-
tion of legislative powers is designed to control the political desire to externalize costs
and capture benefits. Finally, at heart, the purpose of federalism is to create a nation
where none has existed (or, I suppose, to perpetuate an existing nation when it is
tending to fall apart). For instance, federalism in Canada was designed, above all else,
to empower the national government sufficiently to ensure the formation of a Cana-
dian nation.
5 Originalism is a manner of textual interpretation that pays special need to the intention of those
who created the text. It has two modes. The first, much discredited (see e.g. L. Levy, Original Intent
and the Framers’ Constitution (New York: MacMillan, 1988); R. Dworkin, Taking Rights Seriously
(Cambridge, Mass.: Harvard University Press, 1977) at 134-37), is to ask what the creators of the text
thought, or would have thought, about the precise current social issue for which the resolution is now
being sought in the text. The text should be seen as an expression not merely of concepts – efficiency
or dignity, for example -but of specific conceptions of social organization.
The second mode seeks the text’s meaning through learning the creators’ intentions in creating the
text. In other words, the text’s meaning is, at least in part, discoverable through understanding the
project behind the creation of the text. LaSelva is an originalist, although not self-described as such,
in this second sense.
These purposes are implicit in LaSelva’s description of the preconfederation contest over the na-
ture of Canadian federalism (see Moral Foundations, supra note 3 at 37-42).
1997]
J.D. WHYTE – MORAL FOUNDATIONS OF FEDERALISM
But, again, this description of federalism’s purposes is abstract, and abstraction is
not LaSelva’s style. For him, it is grasping the actual situation, the actual choices and
the actual moral choices that will most likely produce a political sensibility that will
allow Canadians to see the path to national survival. Our condition in 1867 produced
our moral purposes, and the embedding of those purposes in the constitutional ar-
rangement created commitments between the Canadian societies that we should not
forget and should not ignore.
LaSelva begins his book with the startling conception of Canada as tragic –
tragic because while it was born of the aspiration to replace a governing structure
mired in subordination and enmity with a new conception of intersocietal relations
based on division between, and the liberation of, communities, this conception is not
embraced widely enough, or strongly enough. It is constantly liable to being swamped
by other, perhaps less appropriate, conceptions of what comprises a good state – en-
thralment with the logic of equality, with the idea of undifferentiated political mem-
bership and with the dream of “one Canada”. Tragedy is not the consequence of evil;
it is the result of pursuing notions of the good blindly and without regard to the de-
mands imposed by the context in which the tragic hero (or tragic nation) must act.’
LaSelva’s mission is to remind Canada that its context requires acceptance of intrana-
tional division and difference and that it can avoid a tragic result only through holding
at bay those other alluring, but destructive, bold visions of a strongly unified Cana-
dian nation.
For LaSelva, it is only consistent resistance to those bold visions that can prevent
“destruction for admired ways of life and the imposition of alien values on unwilling
people”. Instances of this resistance can be seen throughout Canadian history, from
the repudiation of Lord Durham’s assimilation policies to the current insistence on
recognition of the right of Aboriginal peoples to self-government.’
‘For an examination of how tragedy is used (unsatisfactorily in Engel’s view) to explore the mys-
tery of error, or fault, in human relationships, see S.M. Engel, The Problem of Tragedy (Fredericton:
Brunswick Press, 1960).
8 Moral Foundations, supra note 3 at 6.
9 This sense of pluralism and political division as the saving conditions of Canada is not, of course,
shared by all theorists of the Canadian state. See e.g. G.S. Vano, Neo-Feudalism: The Canadian Di-
lemma (Toronto: Anansi, 1981). Vano states:
One must not assume … that [in Canada] liberalism will win out over rampant plural-
ism as it did elsewhere in the West. It is altogether conceivable that Canada may be the
first Western land to turn away consciously from the age of progress. Should that oc-
cur, Canada must not expect to survive for long, having given full rein to its disintegrat-
ing and self-negating ideology (ibd. at 137).
A similar view is reflected in the work of ER. Scott (see ER. Scott, “The Special Nature of Cana-
dian Federalism” in Essays on the Constitution: Aspects of Canadian Law and Politics (Toronto:
University of Toronto Press, 1977) 175). Scott writes:
[W]e should at least be sufficiently aware of our own history not to be misled into
thinking that the maintenance of an enlarged provincial autonomy is part of an original
agreement or treaty between the confederating provinces. We should realize that its ac-
ceptance means a definite departure from the clear intentions of the Fathers … The
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Competition over the basic character of the Canadian federation is not new. Cer-
tainly John A. Macdonald felt that the reasons for forming the Canadian nation – de-
fence, a larger and wealthier trading bloc and establishment of a governing capacity
that could both manage the development and incorporation of the West and the North
and legitimate greater national independence – were compelling enough to warrant
strong federal powers. Although the actual constitution of 1867 contains plenty of
textual support for the Macdonaldian view, it is not without equally strong textual in-
dication that existing political societies were to be continued without diminution of
their essential character.'” Most notably, conferral of jurisdiction over “property and
civil rights”, the linchpin of provincial autonomy, provided an undoubted check
against assimilation into the national entity;” the particularities of Canadian societies
are as forcefully expressed through their laws as they are anywhere. Although we
tend to see legal relationships as peripheral (or as part of a social pathology) and not
as instruments of cultural expression, the surest expression of cultural distinctiveness
(whether of Aboriginal communities, religious minorities or provinces) is authority
over shaping the legal order that governs the relations between the people of that so-
ciety.
The tension in the 1867 constitution has been reflected in an ongoing struggle to
define Canada –
a struggle marked by an irrepressible provincial campaign in the
form of constitutional challenges, promotion of the compact theory of confederation,
constant advancement of provincial legal rights, perennial resistance to ambitious
federal market regulation, opposition to unilateral constitutional amendment and to
the Canadian Charter of Rights and Freedoms,” the search for a means to control the
federal spending power, and so forth. In this struggle, there is no hero, no villain, no
defining moment and no manipulative outside force.” Instead there is a deep political
imperative that reflects an original moral vision of Canada – as a nation that respects
differences through division.
technical meaning [of the word “federal”] never hampered the framers of Canada’s
federal system in their purpose of creating a strong national government free from the
doctrine of ‘states’ rights’ which had so largely contributed to the American Civil War.
While we have fortunately avoided any armed conflict between federal and provincial
authorities, we have not avoided and we are entering again upon, the frustrations and
dissensions which a wrong understanding of our own type of federalism in both the
courts and in sections of the public perpetuates and foments (ibid. at 189).
‘0 See Constitution Act, 1867 (U.K.), 30 &31 Vict., c. 3, ss. 91-95 (formerly the British North
America Act, 1867).
” See ibid., s. 92(13).
‘2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. I 1
[hereinafter Charter].
” As I have argued elsewhere, the Judicial Committee of the Privy Council did not dictate the na-
ture of Canadian federalism (see J. Whyte, “Constitutional Aspects of Economic Development Pol-
icy” in R. Simeon, ed., Division of Powers and Public Policy (vol. 61, Collected Research Studies of
the Royal Commission on the Economic Union and Development Prospects for Canada) (Toronto:
University of Toronto Press, 1985) 29 at 34-35).
1997]
i. WHYTE – MORAL FOUNDATIONS OF FEDERALISM
LaSelva describes the pressures that continue to be brought to see Canadian divi-
sion as unfortunate, or destructive. First, the growth of government has increased the
likelihood of interprovincial interference: the opportunity for conflicting regulation
has increased as regulation of markets, the environment and conditions for interper-
sonal equity have all increased. It is felt that far greater national co-ordination is re-
quired and, indeed, signs of this felt need are present in the new internal trade agree-
ment” and the attempt to develop common federal-provincial principles for social
policy. Another version of this pressure is the sense that there must be centres of sig-
nificant political power, as well as powerful national regulatory instruments to re-
an integrated economy conducted on the back
spond to the modernized economy –
of electronic information.
Another pressure for a more unified Canada is the changed nature of Quebec na-
tionalism. The old nationalism stood as a bulwark against culture-destroying interfer-
ence from the national government. The new nationalism has changed both its ambi-
tion and its means. The Quebec state’s project is to create a competitive and progres-
sive society. Power is wanted not to defend an historic society, but to enable the flow-
ering of a new society. Furthermore, the new society, at least in the mind of many
Quebec nationalists, is marked by social pluralism. Hence, cultural integrity is re-
placed as a goal by cultural, social and economic dynamism. Quebec’s claim for po-
litical authority becomes more naked. These are changes under which difference loses
its innocence and its allure and division is seen as opportunism.”
Finally, the old accommodation is threatened by liberalism and its thorough
commitment to equal opportunity. This is a program rooted in transnational and
transcultural assumptions, and is sometimes considered, by its promoters, to be be-
yond politics. It therefore tends to undercut the political force of identity and the par-
ticular elements of social consciousness. Of course, liberalism can never be far below
the surface of the modem political mind no matter what the situation and it would be
foolish to rail against its influence.” LaSelva, with his usual nuanced sense of political
value, does not deny the virtues of liberalism or human rights, nor does he deny the
concerns over special political authority –
concerns of unfair advantage on the one
hand, and weakened legitimacy, on the other. Nor does he ignore the possibilities of
,4 See First Ministers of Canada, the ten provinces and the two territories, Agreement on Internal
Trade (Ottawa, 18 July 1994).
,S See Moral Foundations, supra note 3 at 177-80.
“LaSelva does not ignore the entrenchment of a rights regime in Canada in 1982, nor does he dis-
parage the moral foundations for it. LaSelva is, in fact, strongly supportive of the Charter (supra note
10) as an instrument for addressing the claims of justice that federalism cannot meet (Moral Founda-
tions, supra note 3 at 69). Nor does he join the chorus of those who see the Charter as necessarily
one that is destructive of communitarian values (ibic at 74).
promoting an atomistic society –
LaSelva views the Charter as a legitimate instrument for discovering (and proclaiming) justice in a
heterogeneous society and believes that the pursuit of justice does not divide a political society, but
serves to hold it together (ibid. at 79). While LaSelva rejects the idea of federalism that has been pro-
moted by the Charter’s chief architect, Prime Minister Pierre Trudeau, he does not implicate the
Charter in his critique of the Trudeau vision of Canada (ibid. at 80). In his view, the Charter does not
reflect a mistaken conception of the moral foundations of Canada.
196
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intolerance and group tyranny. But he does protest over the failure of modem egali-
tarians to remember the tensions that caused the formation of Canada and the conse-
quent indifference to keeping alive the constructive tension between community and
state. He says:
What the Fathers provided was contextual justification; they argued, among
other things, that the divergent aspirations of Canadians could be accommo-
dated within the structures of Confederation. Distinctiveness and difference
were situated within Confederation, rather than opposed to it. … [A]bsolute re-
jection of special status works against the contextual justification of Canadian
federalism. When special status is rejected absolutely, significant differences
are less easily accommodated within Confederation and federalism becomes
less meaningful.’7
LaSelva acknowledges that his analysis of confederation, with its emphasis on a
decentralized federalism, and its reflection of Canada’s “deep diversity”, is akin to
Charles Taylor’s commitment to providing Quebeckers appropriate recognition, and
therefore appropriate independence.” Taylor’s concern is that failure to recognize
Quebec’s legitimate political aspirations can only lead to political disintegration. Yet
LaSelva is, in the end, no happier with the constitutional implications of deep diver-
sity than he is with the strong commitment to constructing Canada on universalist
principles. In part, this is because there are national projects that Canada needs to
continue, or undertake. At a more conceptual level, he believes that the nation state
requires a common political consciousness and a general belief in its beneficial role.
Central governments in federal states are unsustainable when their only constituency
is those who directly participate in it. In other words, LaSelva is concerned here, as he
is throughout his work, with the causes of political fragmentation and the conditions
of political stability.
LaSelva’s book is not designed as a set of prescriptions for conducting Canadian-
unity politics. It is an historical exploration of the values that have shaped Canada,
leading to largely general declarations of this sort: “Canadian federalism is about di-
vided jurisdiction, divided loyalties, multiple identities and intersecting communities
of belonging”.’9 Yet, there are two ways in which LaSelva’s work contains concrete
proposals. First, he explicitly suggests that confederation’s historic commitment to
protecting and preserving the existing nationalities should lead us, today, to accept the
logic of asymmetrical federalism.” He recommends this, without attempting to pro-
17 Moral Foundations, ibid at 184.
“See C. Taylor, Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, G.
Laforest, ed. (Montreal: McGill-Queen’s University Press, 1993). See also C. Taylor, “Alternative
Futures: Legitimacy, Identity and Alienation in Late Twentieth Century Canada” in A. Cairns & C.
Wvrilliams, eds., Constitutionalism, Citizenship and Society in Canada (vol. 33, Collected Research
Studies of the Royal Commission on the Economic Union and Development Prospects for Canada)
(Toronto: University of Toronto Press, 1985) 183.
9 Moral Foundations, supra note 3 at 187.
20See ibid at 195.
1997]
J.D. WHYTE- MORAL FOUNDATIONS OF FEDERALISM
vide a description of it,2′ as the single most appropriate response to both the new Que-
bec nationalism (for whom the old goal of protection against national interference is
no longer enough) and the demand by Aboriginal peoples for some level of self-
government. The second proposal is concrete only in the sense that LaSelva’s book is
dedicated to pointing to one specific set of justifications for confederation as the sur-
est and most constructive way to understand Canada. His book’s consistent purpose is
to bring back into currency the political vision of confederation held by George-
ttienne Carier.’
Cartier should, no doubt, be honoured for his instrumental role in confederation.
It was he who articulated a purpose for confederation that was neither the formation
of a single legislative union nor the propping up of a dubious peace based on the faint
hope that a new confederacy between the founding nations might work to forestall
deep conflict. In a speech in Quebec in 1865, he presented confederation as a distinc-
tive construct and as a way out of the impasse between the Macdonaldians and the
protectors of existing political societies.
But, to LaSelva, more important now than Carrier’s role in creating this construc-
tive political moment are Carrier’s actual words. First, he presented confederation as
something other than assimilationist nationalism. This was, and is, the basic condition
of confederation. There is, however, something else in Carrier’s speech: the answer to
the question of why Canadians should join together and stay together. Cartier accepts
the necessity and desirability of a common national political identity and gives an
explicit account of its appeal. First, it was an efficient and effective instrument to im-
prove commercial interests and prosperity. Second, it provided assurances for the
continuation of the French race in Canada that were simply not available through any
other route. Third, beyond the virtues of economic growth, Canada represented the
possibility of different races joining for the general welfare. To Cartier, there was
something in this that transcended immediate interests and that would provide a moral
purpose for Canada and a moral identity for Canadians. Canada would represent a
new kind of nationality.’
LaSelva’s review of Cartier’s vision of confederation is interesting for its current
appropriateness. The unity debate since 1982 has focused on these same concerns –
the efficiency, or the common sense, of sustaining Canada and the corresponding eco-
nomic losses associated with its breakup; the preservation of Quebec’s distinct society
(and, now, the distinct societies of eastern and western Canada, as well as the distinct
Aboriginal societies); and the strength of fraternal sentiment across Canada.
21 See J. Webber, Reimagining Canada: Language, Culture, Community, and the Canadian Consti-
tution (Montreal: McGill-Queen’s University Press, 1994) at 229-59 for a detailed analysis of how
asymmetrical federalism might work. Webber argues (ibid at 23) that in its actual constitutional prac-
tice, Canada has found innovative ways to tolerate difference and distinctiveness but that its constitu-
tional theory is hostile to the practice. LaSelva’s response is that by returning to the political discourse
of the 1860s, Canada can discover the theory of diversity that would now serve it so well (Moral
Foundations, ibid. at 193).
2 See Moral Foundations, ibid at xi.
2 See ibid at 23-26.
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LaSelva is right to place Cartier’s vision at the centre of his book. Not only was it
constructive and responsive to the actual context when articulated (and, therefore, de-
serving of recognition as centrally important to the founding of Canada), but it has
proven to be durable as a set of principles. Cartier’s principles of national order con-
tinue to speak directly to Canadian intersocietal tensions. Beyond the claims of rele-
vance and historical importance, Cartier also deserves recognition because he realized
that appeals to self-interest and to fear would not be enough to turn a political com-
munity from a state of impasse and suspicion to one of mutual trust and hope in the
possibilities of accommodation. Humans have a moral instinct and it is moral justifi-
cations for action that most strongly motivate. LaSelva’s book does not merely repro-
duce Cartier’s sense of Canada: it reproduces, and advocates, the spirit behind
Cartier’s contribution.
Finally, a word should be said about this book as a legal text. Of course, it is not a
legal text, nor is it presented as relevant to the legal culture, but there is no denying
the normative force of LaSelva’s account of confederation. To give meaning to our
constitution it is vital to know its purposes. Its text, without connection to the con-
cerns and hopes of the political context that produced it, is random, bizarrely particu-
laristic and, to a considerable degree, unintelligible.’ It is the national narrative that
provides the moral purposes that allow us to discern principles of ordering. LaSelva’s
detailed study of the political environment of both confederation and the ensuing
constitutional debates has given constitutional lawyers a book to treasure.
24 For a detailed examination of the relationship between the meaning of legal prescriptions and
their place within a historical narrative, see R.M. Cover, “The Supreme Court, 1982 Term – Fore-
word: NOMOS and Narrative” (1983) 97 Harv. L. Rev. 4.
