Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.Last week, the Alberta Prosperity Project (APP) released “The Foundation of Freedom,” its draft constitution. The draft deserves plaudits for two breakthroughs. I’ve been writing about what an independent Alberta’s constitution should look like. The APP has included two of the most important concepts in its draft.Liberty is eroding in Canada and across the West. Living under the thumb of a modern technocracy is not freedom. To be a genuinely free country, Alberta will need a constitution unlike any the world has seen. To ensure freedom of the people, a constitution must resolve the paradox of the state. The state protects liberty but has become liberty’s leading threat. The state can protect us from each other because it holds a monopoly on violence. Yet it threatens liberty for the same reason. The power to keep the peace is also the power to coerce. We cannot be free without a state, and we cannot be free with one. To ensure liberty, a constitution must resolve the paradox.To do that, it requires two features. The APP has included them in “The Foundation of Freedom.”First, prohibit force. No one, not even the state, can push you around. After all, that’s what it means to be free. Freedom is the absence of force. The government can use its violence only to enforce the no-force rule and keep the peace. Otherwise, the state cannot dictate the behaviour of citizens. They are free people, prohibited only from imposing on others.Second, flip the default. The Canadian Constitution has a default premise: the state has jurisdiction over everything. It has unlimited powers. Federal and provincial authorities together can do anything. The Constitution then attempts to curb that unlimited power. It describes “constitutional rights” like freedom of expression, association, religion, and so on. Authority is the default. Rights are the exceptions. .For a free country, flip the default. “The state has no powers, except … .” Don’t grant open-ended jurisdiction and then attempt to limit it with rights. Instead, give the state no powers and then identify exceptions. What should the state have the power to do? My prescription would be: Keep the peace by prohibiting force. Resolve legal disputes in courts. Protect the country with borders and military. Maintain the state in only those areas. If the constitution flips the default, the list of things the state cannot do is infinite. There is no need to identify them. There is no need to list “constitutional rights.” In fact, doing so would undermine the new default. It would be incoherent, redundant, long, and incomplete. Since the state cannot use force and can do only as expressly specified, it will have no means, for example, to supervise speech.The good news is that the APP has included these two concepts — prohibit force and flip the default — into its document. The bad news is that they’re not quite right. The draft’s first section says that every citizen has the right to be free from “unlawful or extra-constitutional force.” That’s close in language but not in effect. Even bad constitutions theoretically protect citizens from unlawful force. Even the Canadian Constitution. Even the Constitution of China. In the modern age, our problem is not state force that is unlawful, but state force that is legal. The state can legislate force to do what it wants, to make its force lawful. For example, could the legislature repeat mandatory COVID-19 public health measures? Could it punish doctors who expressed dissent? Under the APP proposal, the answer is probably yes.There’s an easy fix. The Constitution could instead simply say that citizens have the right to be free from force. Then grant the state the authority to enforce that rule, and that rule alone. No one, including the state, can push you around, except to prevent you from imposing on others. The APP draft also flips the default. “The State … possesses no power or jurisdiction except as expressly set out in this Constitution.” That’s the right idea. Other sections list exceptions of specific things the state has the power to do. It's not a great list, but that's for later. In concept, we’re almost there..But the APP Constitution also identifies specific things the state cannot do. It describes an extensive list of constitutional rights. Rights are exceptions to unlimited authority. To top off the confusion, the draft says that any law shall be presumptively valid if it does not impair a right, addresses “a matter affecting the nation,” and “is regulatory in nature and not redistributive.” What is the default? When does the state have authority? Imagine, for example, that the future Alberta legislature passes a law dealing with divorce. It prescribes divisions of assets and child support. Divorce is not in the APP's list of things the state can govern. But the divorce law does not appear to breach any rights in the Constitution. The divorce law “affects the nation.” It is not “redistributive,” depending on which party you are in the divorce. Is the law constitutional? It’s impossible to know.This too can be easily corrected. Take out the list of things that the state cannot do. Remove the rights except the right to be free from force. Let these two elements — the prohibition on force and the flipped default — do their work. They are the foundations of the constitutional architecture of a free country.“The Foundation of Freedom” flirts with triumph. The two most important ideas are there. But the parts need to be fit together. To go where you have never been, you must do what you have never done. The new Alberta needs a new kind of constitution.Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.
