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For the Constitutive view

I want to turn now to two lines of evidence which might be used in support of the constitutive view: the meaning of ‘democracy’ as described by political theorists, and what I shall call the ‘one type of citizen’ view. With respect to the former, consider first an entry on democracy by Christiano in the Stanford Encyclopaedia of Philosophy. The entry is significant because Christiano reviews many recent contributions to democratic theorizing. 36 He suggests that ‘democracy’ refers “very generally to a method of group decision making characterized by a kind of equality among the participants at an essential stage of the collective decision making”.37 As Christiano notes,

the equality required by the definition of democracy may be more or less deep. It may be the mere formal equality of one-person one-vote in an election for representatives to an assembly where there is competition among candidates for the position. Or it may be more robust, including equality in the processes of deliberation and coalition building.38
Important for our purposes is the fact that the constitutive view need only insist on the “less deep” understanding of equality in the political process, for the argument here is directed towards the notions of “one-person one-vote” and “competition for representatives”. That is, it was argued that unilateral censorship in effect pro-rates the votes of the censored, and disallows a significant competition among candidates for those whose views are censored. Constitutivists need not agree that equality must be deeper than this. For example, some constitutivists may think that the power of money undermines equality in the deliberative process, while others may deny that the influence of money undermines a commitment to democracy.39 The disagreement here is whether this “less deep equality”—one that discounts possible effects of wealth on the political process—is sufficient for democracy. What is agreed upon is that the one-person one-vote, and competition among candidates is necessary. Interestingly, even Dworkin, who we noted has the most sustained defence of the flexible view, concedes that this minimal equality is part of our understanding of ‘democracy’.40

The second point is the relation between democracy and the ‘one type of citizen view’. This is the familiar point that ultimate political power lies with “the people”; thus it is said that legislative representatives in the House of Commons serve ultimately only at the discretion of the people. The French monarch Louis XIV is alleged (probably falsely) to have said “L’État, c’est moi”. The traditional understanding of democracy would reply: “L’État, c’est nous”. By ‘us’ we mean the adult citizens of our democracies. The constitutive view is consistent with the traditional understanding of democracy that all citizens are both rulers and ruled, sovereign and subject. The flexible view must reject this understanding, for legislating against political equality has the effect of excluding some citizens from much in the way of meaningful participation in the ruling function. So, the flexible view is committed to some version of the ‘two types of citizen view’. On the flexible account, inclusivists are one type of citizen, citizens who are both rulers and the ruled; while exclusivists are another type of citizen, citizens who are merely ruled. So, only the constitutive view is consistent with the one type of citizen view. Now it may be objected that the one type of citizen view overstates the case because everyone agrees that very young children should not be given the vote or have the opportunity to run for office. Similarly, in some democratic nations, prisoners are denied the vote and the opportunity to run for office. Certainly this must be admitted: the one type of citizen view should be properly applied in the first instance only to non-incarcerated adult citizens. However, the fact that there are these other types of citizens, children and prisoners, is not particularly helpful for the flexible view unless it proposes that exclusivists should be assimilated to one or another of these categories, that is, to say exclusivists are like children or prisoners.41 This is not to say that the two types of citizens view is wrong, after all, in non-democratic theorizing such a distinction is often thought to be just and wise (e.g., the two types of citizen view is prominent in Plato’s view in the Republic).42 Rather, here we are simply noting the consequence that the constitutive view is consistent with the one type of citizen view, whereas the flexible view is not.43

Conclusion: Logocracy versus Democracy?

At minimum the argument here supports the contention that we are a logocracy. By this I mean governance by unilateral legislation that mandates less political power for those silenced. We met what is perhaps the purest case of a logocracy when we imagined the castaways voting for the don’t-contradict-Rex law. This gave Rex enormous political power through his control over speech. We noted that there was no reason to think that the original vote to institute the don’t-contradict-Rex law was made in a non-democratic fashion. Still, it is tempting to say in casting their votes in this manner, the castaways moved from political equality to a logocratic form of government. The logocracy that they lived under still allowed them to vote, and so obviously not all the trappings we normally think are required for political equality were absent. Still, there can be no doubt that subsequent votes were conducted under conditions that legislated political inequality. Canadian governance has logocratic elements: to the extent that we have unilateral censorship on speech that is relevant to policy and politics, we are logocratic. It is true that the realm of speech restricted is much less than that faced by the marooned living under the don’t-contradict-Rex law, but that does not change the fact that to the extent that we control speech the political voices of some are diminished. Our censorship may be less pervasive, but it is of the same type as the don’t-contradict-Rex law; it is a form of unilateral censorship. And the fact that unilateral censorship restricts speech on a single issue—exclusivism—ought not necessarily lead us to believe that this is a fairly minimal legislation of political inequality. The reason is that it depends not simply on how many issues are restricted, but how central the issues are to a person’s overall political viewpoint. Recall the discussion above about significant choices made in connection with votes in multiple communist party elections or multiple choices for non-vegetarian food. Applying this insight to the present case, a racist might say that she would vote for some form of socialist exclusivist party if such a party were allowed to run in Canada. As it stands, she votes for a minimal tax libertarian party because she believes that it is morally repugnant to think that her tax dollars should be used to support people of a different race. Similarly, a homophobe might say that she was once a great supporter of increased funding for education and military spending, and drastically reducing the tax burden for families; but now she could not support such a position given that married gay persons will be teaching some of our children or fighting in our armed forces. Furthermore, she cannot support a tax break for families because this means that homosexual couples will receive the same break. The point then is that we cannot immediately infer from the fact that a single issue is subject to unilateral censorship, that it will have little effect on political equality.

While I have suggested that to endorse unilateral censorship is to endorse logocratic governance, notice that I have not said that ‘logocracy’ and ‘democracy’ are contraries. Certainly, if we take the constitutive view, then these two terms are contraries. That is, on the constitutive view Canada is a logocracy masquerading as a democracy. But if we take the flexible view then they need not be seen as contraries. A proponent of this position might say that what we mean by ‘democracy’ on a flexible conception need not conflict with logocratic rule, if logocracies ensure better political outcomes.

As for the larger issue, whether we should accept the constitutive or flexible conception of democracy, the previous few pages devoted to democratic theorizing are not sufficient to convince that the constitutive view must be correct. However, I hope they are sufficient to show that there is at least some argument that unilateral censorship threatens a commitment to the constitutive sense of democracy, and that the constitutive view is—at least—a plausible view.

If this is correct, then it is seems possible to mount a section 3 challenge to 319. In part, this would require the courts to determine whether the Charter should be understood as endorsing the constitutive or flexible conception of ‘democracy’ As indicated, these appear to be quite different conceptions of the nature and justification of democracy. Admittedly, neither appears to be particularly appealing. Let us take stock by taking these in turn.

Undeniably there is broad pubic support for 319(2) and the value of inclusivism, which it purports to support. An advantage for the flexible conception then is that it is consistent with 319(2). Among the disadvantages we mentioned in connection with the flexibility view is that it requires a departure from how the meaning of ‘democracy’ has often been understood, and the fact that logocratic rule says that there are two types of citizens: citizens for whom there are no legislated barriers to participation in political rule, and citizens for whom there are legislated barriers to participation in political rule. The fact that we are a logocracy, that there are such legislated political inequalities, is not often acknowledged, so little thought has gone into the idea that there are two types of citizens. However, it seems that there is good reason to think that they should be addressed, if we think logocratic governance is justified. For instance, we might ask about the moral and political relations between these two types of citizens. Now it may be thought that this talk of two types of citizens is all a bit histrionic given that so few are affected by it. Here we might take comfort in the fact that there are few political racists like Andrews and his ilk. However, we should not forget that unilateral censorship in Canada has been extended to include homosexuals. The recent and very acrimonious debate on same sex marriage in Canada (and elsewhere) suggests that the number of persons who are partially or completely disenfranchised by this extension of 319(2) may not be insignificant. This is not to suggest that everyone who is against same sex marriage has political views that, if expressed, would fall foul of 319(2), but a significant portion may. My point here is simply that we do not know how many are completely or partially disenfranchised by logocratic rule. This in itself is perhaps of some concern. Perhaps empirical work here could help assess exactly how many people are in the partially or completely disenfranchised class. (One poll, for example, suggests that 20% of Canadians believe that homosexuals should not have equal rights).44

The major disadvantage of endorsing the essentialist view is that it would require striking down 319(2), and, as noted, this legislation has broad public support. The advantages of the constitutive view are that it accords with how most understand the meaning of ‘democracy’, and it is consistent with the one type of citizen view.

To this last claim it might be objected that if we remove legislation like 319(2) that requires two classes of citizens, it will have the effect of permitting two classes of citizens. Recall that it has been argued by others that by not prohibiting certain types of content expression, such as pornography and hate speech, the civil liberties of some are infringed upon.45 Suppose this line of argument is extended to say that even a minimal amount of political equality will be impossible for those who would be protected by 319(2). The line of thought here would be that allowing certain forms of expression such as hate speech silences, or otherwise tends to exclude, certain minority groups from equal political participation in general, and in elections in particular. Filling in the details of this argument would be an involved task, and one that would take us too far afield. But suppose for the moment we accept this line of argument. This would appear to be a tragic dilemma for the constitutivists’ view: with unilateral censorship we legislate against political equality for exclusivists, without unilateral censorship we permit political inequality for those targeted by exclusivist speech.

Certainly this would be an unfortunate outcome for constitutivists, but it is hardly a foregone conclusion that we must accept this either/or. Consider that we allow communists to speak in hateful terms with reference to capitalists as ‘murderers’, environmentalists to speak hatefully of developers as ‘rapists’, and in certain circles ‘white males’ are vilified as being responsible for many contemporary social ills. One reason that we allow such hateful speech is that capitalists, developers, and white males tend to enjoy power and privilege (broadly construed) in society, whereas those protected under 319(2) tend to be less privileged and more vulnerable. This suggests at least one possibility of reform that does not require resorting to logocratic governance, specifically a more egalitarian distribution of power and privilege.46 Obviously this is a topic for another occasion.

Until we see that unilateral censorship requires a commitment to logocratic governance and flexible democracy, I submit we have not fully understood what is at stake in imposing censorship laws. Specifically, the question of unilateral censorship raises not only the question, “How should we be governed?”, but also the question, “Who should rule?” The former question is the one commonly asked in terms of the appropriate balance between individuals’ right to free expression and the social value of inclusivism. The later must also be engaged, since unilateral censorship is a decision to legislate against equal participation of some in the electoral process. The envisioned Charter challenge to unilateral censorship might shed interesting light on the Court’s opinion on the nature of democracy and the question of who should rule.
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