Walter Berns, an American constitutional scholar, who once taught in Canada and helped shape a band of conservative disciples in Alberta -- including Stephen Harper -- has died at age 95. Berns died Jan. 10 at his home in Bethesda, Maryland.
One of Berns' most lasting legacies may have been to foment Harper's disdain for the Canadian Charter of Rights and Freedoms.
When Harper turned his back on the charter's 25th and 30th anniversaries he was following in Berns' footsteps. Berns refused to accept the validity of any political rights not contained in the nation's founding documents.
Berns was a prominent student of Leo Strauss, (1899-1973) the German political philosopher whose writings rose in notoriety when it came to light that the neoconservatives in George W. Bush's administration used Strauss's intellectual philosophy to hoodwink Americans into invading Iraq. Among other things, Strauss argued that those in power have the right to lie to the masses to achieve their means.
Berns taught at the University of Toronto in the 1970s, where he mentored Rainer Knopff and Ted Morton, two conservative scholars who would lead the opposition to the Charter.
In the 1980s, the two newly minted PhDs moved to the University of Calgary where, along with Tom Flanagan, they helped form the so-called Calgary School, a loose band of like-minded conservatives who shared a disdain for what they perceived as Canada's eastern establishment.
The Calgary School shaped the political direction of the Reform Party, Reform Party and Conservative Party of Canada and dominated the thinking of Harper, who studied under Calgary School professors. Later, as prime minister, Harper selected Flanagan as a close adviser and Ian Brodie, a student of Morton's, as his first chief of staff.
Berns' conservatism and a Straussian belief in the right to deceive the public infused the Calgary School's work.
In his foundational opus, Taking the Constitution Seriously, Berns took a strictly limited view of government as a historical institution, an approach followed by Morton and Knopff.
For Berns, to ''take the constitution seriously'' meant to respect the legal, philosophical and rhetorical traditions that underlie the constitutional plan bequeathed to Americans by the constitutional framers.
We should be guided today by what a handful of aristocratic men thought 200 years ago is the book's message.
Knopff and Morton collaborated on three books in which they apply Berns' thinking to the Canadian legal system and most directly to the Charter. They dedicate their most provocative work, The Charter Revolution and the Court Party, to Berns. (Knopff wrote an appreciation after Berns died.)
The case against the Charter
Following in Berns' philosophical footsteps, both Morton and Knopff oppose the charter because, they contend, all the rights necessary for representative democracy are contained in Canada's founding documents.
In their book, Morton and Knopff argue that Berns relied on U.S. founding father Alexander Hamilton's claim, in Federalist Paper No. 84, that the proposed U.S. Constitution was ''itself, in every rational sense, and to every useful purpose, a bill of rights.''
For Canadians, who follow the Westminster parliamentary tradition, Morton and Knopff also argue that our rights are protected by the practise of parliamentary sovereignty. Partisan debate and public deliberation will inevitably produce sound public policy that respects rights. If rights are protected and respected, they ask, why do we need special legal instruments like the Charter?
They argue that the Charter's existence is the result of a plot by that perennial bogeyman of the right, special interest groups. Unable to achieve what they wanted by pressing legislators, Morton and Knopff argue, these groups ferociously lobbied the Trudeau government for an expansive charter and, once enacted, ''turned to the courts to advance their policy objectives.''
These special interests -- feminists, anti-poverty organizations, gay rights groups, prisoners' and refugees' rights groups -- use the courts to constitutionalize the preferences they could not achieve through the legislative process. Feminists and their ilk stand accused of using the courts, not to protect the fundamental core of existing rights, but to change public policy through the judicial creation of new rights.
Astonishingly, the Morton-Knopff analysis ignores two overarching influences on modern democracy: corporate power and corporate propaganda. As they see it, representative democracy works because coalitions of minorities form majority governments. In the real world, however, corporate power dominates other interests and, through the techniques of propaganda, can manipulate public opinion sufficiently to achieve the results it desires. Morton and Knopff use the phrase ''government by discussion'' approvingly, but that is naive or perhaps deceptive, as Leo Strauss might advise. Minorities could coalesce and discuss all they want, but still have little impact on most legislative outcomes without business support.
Business uses courts
The Calgary scholars also seem not to have noticed that business uses the courts to advance its interests to greater effect than all other interest groups combined. Strauss would alert us to this glaring omission. Morton and Knopff are sophisticated scholars, he might advise his students. They must know that business consistently uses the courts to create and expand its rights, rights that were not foreseen by the American founding fathers or the Lords of Westminster. The most devastating of these acquisitions was the corporate right to personhood, a development that would have horrified the founding fathers, be they in the U.S. or Canada. That Knopff and Morton chose not to discuss corporate power may be a Straussian signal that it must remain hidden from the masses. If corporate power became a public issue like so-called Islamic terror, the consequence could be great turmoil within the capitalist order. This cannot be allowed to happen.
So the Calgary School developed the dual strategy of obscuring corporate power and the possibility that it can be democracy's enemy and focusing instead on easily attacked targets like ''special interests.'' The strategy was adopted in whole cloth by Preston Manning, Stephen Harper and the Reform Party founders, perhaps during their discussions with Flanagan, Knopff, Morton and other members of the Calgary School.
Strauss recommended harnessing the simplistic platitudes of populism to galvanize mass support for measures that would, in fact, restrict rights. Early populist parties railed against business elites -- bankers, eastern businessmen, the Canadian Pacific Railway. Reform was backed by the western business elite, so it couldn't target business. Special interests and government bureaucracies that support them had to be turned into the enemy.
Twenty-five years later, Harper still exhibits undisguised scorn for the charter and the ''special interests'' it allegedly supports. If we could only go back to the origins of Canada and the rights (or lack thereof) we had then. But wait! The 150th anniversary of Confederation is only two years away. All the more reason for Harper to want to be re-elected so that he can rejoice in the pre-charter world.
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