Trump, tradition and the rule of law in Canada

Ian Holloway

Quo vadis, America? 


That’s a question I’ve been asking myself often these past 18 months. How could a country that for so long stood as a beacon of freedom and liberty have so quickly and so thoroughly become constitutionally discombobulated? But it has. And in that, I think, lie some important lessons for Canadians — and for Canadian lawyers in particular.


For most of my life, I was about as America-philic a Canadian as you could find. In a previous life, I served on many occasions with the United States Navy, and, at one point, I spent a period on the staff of an American Admiral.


I’m a graduate of an American law school, a fellow of both the American Law Institute and the College of Law Practice Management, a former section chair of the Association of American Law Schools and an honorary member of the Southeastern Association of Law Schools. I served eight years as a trustee of the Law School Admission Council and I am currently one of the NALP Foundation. I actually have a distant ancestor who was a president of the United States.


The bottom line is that the United States is a place in which I feel almost as home as I do in Canada. So, what’s going on south of our border doesn’t just befuddle me. Some will think me un-Canadian for saying this, but it actually hurts. 


Trumpism, to use a repulsive term, has been brewing for some time. Its roots can be traced back at least half a century to Richard Nixon’s southern strategy, if not before. It was built on a foundation of racial division that reflects a very different history with the institution of slavery than ours. It has been nourished by the first amendment, which encourages a much more in-your-face approach to public discourse than we would allow. And, of course, the second amendment has cast an ugly and violent penumbra over the whole mess.


It is hard to see much positive in U.S. President Donald Trump’s buzz-saw approach to governing. Not for him is the idea of “win-win” or “getting to yes” in negotiations. No, a good deal in the Trump mind is one where there is a clear winner and a clear loser — the latter to serve as a warning to those who might come next. Trump is the first president in living memory to fully embrace mercantilism rather than free trade as an economic philosophy. By all accounts, he admires dictators more than democrats — and he evidently holds the view that America’s allies are little more than a bunch of freeloaders.


Some of America’s erstwhile closest friends (such as Canada) now apparently constitute threats to America’s national security. And while he isn’t solely responsible for it, he certainly has no peer when it comes to kindling the flames of xenophobia and insularity.


An outsider would be forgiven for thinking that we’re watching a kind of post-modern mash-up of Dante Alighieri's Inferno and William Hogarth’s A Rake’s Progress. But the fact is that what we’re seeing actually holds an important lesson about our own system of government. The Trump administration is reminding us that so much of the common law constitutional foundation is built not upon legal text or judicial pronouncement but rather upon custom and tradition. That is the great lesson of the Trump presidency.


We Canadians have become a nation of jurisprudential textualists. We don’t have much of a school of originalism as they do in the U.S., but we have replaced an obsession with the wording of the Constitution Act with an obsession about what the Supreme Court of Canada says about that wording. Since 1982, we’ve become increasingly dulled to the importance of tradition in our legal system.


But what Trump has shown us is how much violence can be done to a constitutional system without any actual change to the written Constitution at all. They may not fully realize it, but when Trump and his supporters talk about “draining the swamp,” they are talking about not just ousting the lawyers and lobbyists from K Street. The realproject is to change the dynamics of how government operates altogether. That might (or might not, judging by his actions) include ejecting cronyism from the system. But it certainly does include destroying the norms of conduct within the U.S. government.


What does this mean for us? Blessedly, we don’t have a second amendment. And freedom of expression here means something different than free speech means south of the border. So (question period antics notwithstanding), one doesn’t assume that we will rush to embrace the coarseness that now seems to characterize political debate in the U.S. But what hasdeveloped in Canada is a dominant strand of agnosticism about tradition. “Presentism” is the spirit of our time. The past is suspect. We think we know better than those who came before us.


It is easy to poke fun at folks who fret about what is going on at Rideau Hall or such things as the names of law societies. And it seems a stretch to claim that we are on the rocky road to Trumpism. The point, though, is that Trump is teaching us that tradition matters. The rule of law depends less upon litigation than it does upon quaint-sounding things such as honour and duty and civility and upon doing things because they’re “the right thing.” If we toss that all aside because we’re blinded by the conceit of the present day, well, as with so many other things, we may end up with a Canadianized version of what is happening to our American cousins. And that would be tragic.


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