Canadian Liberalism and the Politics of Border Control: An interview with author Chris Anderson

live your dash

The following is the second interview in LISPOP’s “Author Interview” series.  Here, I interview my colleague, Chris Anderson, on his new book from UBC press. Enjoy!

Dr. Christopher Anderson, Assistant Professor in the Department of Political Science at Wilfrid Laurier University, has written a new book called Canadian Liberalism and the Politics of Border Control, 1867-1967, which is available for purchase from UBC Press here (hardcopy) and online here. This book “sheds light on the complex history of Canada’s response to immigrants and refugees during its first century” and offers “valuable lessons for understanding the nature of contemporary liberal-democratic control policies.”

Below is an interview I conducted with Dr. Anderson about his book via email in January and February 2013.

Alcantara: Chris, why did you decide to write this book on this topic?

Anderson: The book has its origins in a term paper that I wrote while a PhD student at McGill. I was taking a course taught by Jerome Black on “Immigrants, Refugees and Minorities,” and I was writing on “Neo-Liberalism and its Effects on [Canadian] Immigration and Refugees Policy.” In the process, I found that a perhaps more interesting question revolved around the relationship between the rights of non-citizens (immigrants and refugees) and how liberal-democratic states sought to control their borders. This subsequently became the focus of my dissertation work.

In the comparative politics literature at that time (e.g., in the work of Gary Freeman, Christian Joppke, James Hollifield) there was a fairly strong emphasis on how the recognition of such rights – often framed as rights-based politics – limited or diminished the ability of liberal-democratic states to undertake restrictive control measures. As the study of Canadian immigration and refugee policy was (and continues to be) on the margins of Canadian political science, there was a more limited Canadian literature to canvass, but it often drew on criticisms along the same lines in the Charter Politics literature (e.g., see the work of Ted Morton and Rainer Knopff, Christopher Manfredi). This negative view of the effect of the rights of non-citizens on control also appeared regularly in testimony put forward by immigration ministers and officials in various parliamentary committee hearings and in the press that I reviewed when I wrote that paper. It struck me that this argument contained conceptual and empirical gaps that could usefully be addressed. In particular, there was the possibility that not rights-based politics but the restriction of rights itself might help to explain certain control difficulties. To get at this, however, it would be necessary to move past a definition of control that was equated with restriction and that focused near exclusively on rights-based politics.
Continue reading

Alcantara: So how did you decide to approach the topic, theoretically and methodologically, in your book?

Anderson: I think that it would be more accurate to say that I approached the topic conceptually, as an overdue exercise in conceptual clarification. A core claim in the book is that the Canadian and comparative literatures have conceptualized the intersection of control and rights in liberal democracies in an overly constrained manner, and that the end result has been to overlook or undervalue important dynamics that could help in explaining control policy outcomes. The focus has rested on how rights-based politics (often reduced to the courts) decrease liberal-democratic control. This calls attention to some important dynamics but excludes much that is possible within what I call the control-rights nexus. The question addressed in the book is therefore broader: “how does the liberalness of a liberal-democratic state affect the intersection of control and rights?” One benefit of this latter question is that it encompasses the former (and allows for it to be assessed critically) but does not preclude other logical/empirical possibilities. By addressing this broader question, then, a better understanding of the complex relationships that can arise between control and rights in liberal-democratic states can be achieved. This, in turn, could have concrete policy implications.

If rights-based politics producing a decrease in control is but one potential outcome, then it is important to explore other possible causal chains, and this involves moving both backwards and forwards from the literature’s focus on rights-based politics. Moving backwards, I consider what leads to rights-based politics, which I take to be rights-restrictive policies. Generally speaking, in the absence of restrictions, people do not mobilize to defend or promote their rights: you do not get rights-based politics until you have an explicit or perceived rights restriction. From this starting point, other possible reactions aside from rights-based politics emerge and I call attention to two of them: people attempting to avoid such restrictions by acting outside their scope, and the state implementing administrative procedures – sometimes to ameliorate the negative effects of the original rights restrictions – that produce significant caseload backlogs. Each of these paths can lead to a decrease in control. Moving forwards from rights-based politics, another possibility is that it can produce an increase (rather than a decrease) in control, as when – for example – the courts confirm the legality of a rights-restrictive approach. I also propose a feedback loop, which could see control loss prompting further rights-restrictive measures (based on the assumption that rights-based politics is the problem), setting the whole chain in motion again. In these ways, then, the book situates rights-based politics within a broader political and policy context.

To get at this, I pursue a form of historical discourse analysis that traces the prevalence of two approaches to the control-rights nexus, which I call Liberal Nationalism and Liberal Internationalism. In brief, the former generally privileges the state’s ability to institute restrictive control policies over the rights of non-citizens, while the latter does the reverse. Drawing on both primary (in particular, public government documents) and secondary literatures, I trace the evolution of the respective prominence of Liberal Nationalist and Internationalist views in terms of control policy debates and outcomes over the course of Canada’s first century. In doing so, I explore the merits of the conceptual clarification proposed and uncover aspects of Canadian border control history that have either been overlooked or ignored.

Alcantara: So what did you find? What were the results of the 100 years of debate between Liberal Nationalists and Internationalists in Canada?

Anderson: At a general level, the book confirms that a narrow focus on rights-based politics and diminishing (restrictive) control is insufficient. While there are bound to be other possible causal chains, the reframing of the control-rights nexus proposed in the book provides a more complete and nuanced understanding of control politics and policy outcomes. As a result, it generates a number of new perspectives on both Canadian control history and contemporary control politics.

One finding is that debates over control and rights are not especially new. There is a tendency to see rights-based politics as a particularly modern phenomenon that has complicated liberal governance/border control in the post Second World War – and in the Canadian case certainly the Charter – period. The book instead shows that there has been a rich and persistent debate surrounding the rights of non-citizens in Canada ever since the first significant rights restriction was implemented with the 1885 Chinese Immigration Act (bringing in the “Chinese Head Tax,” for which the Canadian government issued an official policy and compensation a few years back). Indeed, at that time the Canadian Senate attempted to turn back this legislation and likely would have succeeded had it not been for some deft procedural maneuvering on the government’s part. A major argument against the legislation was that it was illiberal, that – as Senator Alexander Vidal put it – it was “So utterly inconsistent with the well understood rights which every human being has when he steps on British soil.” This significant debate has essentially been ignored in the Canadian literature and is just one such case during Canada’s first century that is recovered in the book. So rights-based politics certainly has evolved over time, and the arrival of the Charter is obviously important in this respect, but the debate has been with Canada since the time of Confederation and reflects a much deeper tension stemming from the liberalness of the political system itself.

This relates to a second finding, that Canada began with an expansionist Liberal Internationalist approach to the border. Often, it is assumed that a restrictive Liberal Nationalist approach is a natural default position as it stems from efforts to maintain or bolster state sovereignty. In fact, Liberal Nationalism had to be constructed, both politically and as a practice, and this never – no matter how dominant Liberal Nationalism became – remained uncontested by Liberal Internationalists.

A third finding is that Canada has been the most successful at controlling its border (at least in terms of restriction) when it has acted in the most illiberal manner. Thus, as successive Canadian governments constructed a restrictive Liberal Nationalist approach between 1885 and the early post-Second World War period, control was predicated on instituting an almost completely unfettered authority to limit or deny the rights of non-citizens (and even citizens) in terms of such classically liberal ideas as equality and fairness. The illiberalism of successful control policies is a really important yet underappreciated (at least at a broad political level) aspect of contemporary control debates.

Finally, one last finding concerns the courts. The Canadian and comparative literatures often claim that the courts play a dominant role in a purported decline in control, and in the Canadian context the Charter has been of central concern in this respect. By examining the pre-Charter era, however, it is clear that the marginalisation of a rights-restrictive, Liberal-Nationalist approach that took place during the post-Second World War period up to 1967 was not courts-driven – indeed, the courts were all but barred by law from reviewing border control policies between 1910 and 1967. Instead, this was a political debate that took place within Parliament concerning the meaning of being a liberal political community. The shift towards greater equality and fairness for immigrants and refugees in Canada reflected, therefore, a century of debate over what it meant to be Canadian in the context of first British liberalism and later human rights. As with the focus on rights-based politics, then, too singular a focus on the courts obscures the richness and import of the politics of control in Canada and, I would suggest, other liberal democracies.

Each of these findings is significant in terms of understanding that first century of Canadian border control, but they also speak to subsequent debates over the rights of non-citizens and state control through to the present.

Alcantara: Wow! There’s quite a bit to chew on here! Let me begin by asking you about your first point, which is that a rights-based discourse has been around since Confederation. How different is the discourse in 1885 compared to the discourse about non-citizens and immigration today?

Anderson: At one level, the discourse has remained relatively unchanged – you can look, for example, at the debates surrounding the 1885 Chinese Immigration Act and then look at debates over asylum seekers in the mid-1980s and find that the central question in each period revolves around the relationship between the rights of non-citizens and state control in a liberal political system. The same basic question underpins more recent restrictive legislation (such as the 2012 Protecting Canada’s Immigration System Act) and policies (such as the government’s decision to restrict the access of asylum seekers to basic health care services in Canada).

At the same time, the discourse today is much less obviously racist than it was in the past. Indeed, one of the great successes of the Liberal Nationalist perspective has been to shed its explicitly racist framework and shift to a potent discourse of abuse. In the past, Galicians, Doukhobors, Jews, Black Americans, East Indians, the Japanese, and almost any other non-British, non-northern European peoples were simply understood by Liberal Nationalists to be inferior to those of British/northern European “stock”. Hence, a major justification for restricting their rights was that they lowered the “quality” of the British/Canadian nation. This view was often shared by Liberal Internationalists but their commitment to liberal rights such as equality and fairness anchored their support for much less restrictive policy options, and therefore explicit racism was much less prevalent in their discourse. By the end of the Second World War, however, as the reality of the Holocaust was being recognised and the concept of human rights was taking hold through the new United Nations system, it became harder to make such bold, racist generalisations unchallenged, and – almost overnight – they disappeared from parliamentary debate.

During the immediate postwar period, therefore, Liberal Nationalism was on the defensive because although Canada was still quite restrictionist, there was no obvious, non-discriminatory justification for such an approach. Meanwhile, the idea of anchoring Canadian border control to liberal rights was much more prominent in public discourse and came to play a much larger role in defining policy. From the late 1960s onwards, however, Liberal Nationalists began to focus on a new concern – that of immigrants and refugees “abusing our generosity” – and this became a new framework for a more restrictive approach. You can see this widely reflected in the media, in the work of prominent immigration critics such as Daniel Stoffman, Diane Francis, Martin Collacott, and Joe Bissett, and it has been used to justify most every restrictive measure introduced by Liberal and Conservative governments since the 1980s. For their part, Liberal Internationalists have not really shifted much in terms of their justifications for a more less restrictionist approach, except insofar as they draw on a richer language of human rights as opposed to the older discourse of British liberalism.

Alcantara: Do these groups, Liberal Nationalist and Liberal Internationalist, continue to exist today? If so, what kinds of individuals and groups form them today?

Anderson: The short answer is yes, but it must be stressed that these two categories are neither simple nor mutually exclusive. It is perhaps less useful to think of them as groups in the concrete than as orientations that have concrete manifestations. You can, for example, have a Liberal Nationalist stance and yet promote certain expansionist policies, and you can work within a Liberal Internationalist perspective and advocate for restriction in certain contexts. Indeed, since both international migration and the border are complex and varied phenomena, you can be more expansionist or restrictionist towards some aspects and less so towards others. At the bedrock of each position, however, is a set of normative claims about the state and the (non-citizen) human being, and the more you privilege the rights of the former over the latter, the more likely you are to reflect a Liberal Nationalist view, and the more you privilege the rights of the latter over the former, the more likely you are to fall within the Liberal Internationalist camp.

When it comes right down to it, there is quite a bit of an “us and them” aspect to where people and groups fall. The more you frame your interpretation as one of needing to protect us (Canadians) from them (non-Canadians), the more Liberal Nationalist your orientation tends to be. For a clear example of this, you can look at the Centre for Immigration Policy Reform (http://www.immigrationreform.ca/). On the other side, look at the work of the Canadian Council for Refugees (http://ccrweb.ca/), and you see a strong commitment to traditional liberal human rights commitments of equality and fairness for asylum seekers, very much a Liberal Internationalist orientation.

Alcantara: So what are the implications of your research for the debate about immigration and non-citizens today?

Anderson: I will focus on two here. One is to open up possibilities for seeing patterns of continuity and change over time, and thereby shed additional light on today’s politics of control. The shift towards a more Liberal Internationalist approach that occurred in the 1960s-1970s happened because there was significant support for the idea that a liberal political system ought to incorporate non-citizens within its understanding of how the state recognises and protects basic liberal/human rights in Canada. This was a vital part, it was argued, of what it meant to be Canadian. By framing policy choices in a narrower set of concerns over abuse (one that incorporates criminality and security issues), the contemporary Liberal Nationalist approach not only skirts this important debate over what it means to support liberal/human rights but it also diverts attention from that existential dimension of being Canadian. A broader historical context allows for a better understanding of how this reflects a very particular form of special interest politics that has perhaps not been so prominent in Canadian control politics and policy since before the Second World War.

A second implication is that if the core causal chain has merit – that rights restriction can produce reactions that produce a loss of control, and that this creates a feedback loop that encourages greater restriction, and so on – then many of the restrictive measures that have been implemented in the past 15 years or so are not only problematic on a rights-based level (that is, they have a real and profound impact on the rights of – and therefore the lives of – non-citizens), but as well may contain the seeds of their own failure, so to speak. Thus, from a good governance perspective (both in its rights-based and more pragmatic policy coherence dimensions), this is an important debate. It also raises questions about Canada’s engagement with these issues at a transnational or global level, but that has been left more implied than addressed in the book as it was a much less central feature of how borders were controlled during Canada’s first century.

Alcantara: Sounds like a great book and I look forward to reading it!  Now that this book is done, what are you going to be working on next?

Anderson: The book took me up to 1967, a pivotal moment in terms of control politics and policy, as the courts were once again allowed oversight over immigration and refugee matters and a formal policy of non-discrimination was instituted. This reflected long-held Liberal Internationalist commitments to fairness and equality. The next book will move forward from 1967 to the present, looking specifically at how Canada has responded to asylum seekers. While immigration is seen more as a question of privilege (albeit with rights-based aspects) for non-citizens, policies towards asylum seekers operate within a framework of the state’s obligations towards those who have a well-founded fear of persecution. This has produced some very sharp yet complex tensions between control and rights that are worth examining in detail.

Although I will still explore the operation of the control-rights nexus – especially in terms of the effects of Canadian policy decisions on refugees and asylum seekers – in this context, there are other dimensions that I want to centre on in the analysis. In particular, I want to develop a more sophisticated understanding of where the courts fit into the politics of control, how non-government actors import ideas from national and international sources into control debates, and the relative effects of bureaucrats and politicians in domestic, continental and global control politics arenas.

Governing from the Bench: An Interview with Dr. Emmett Macfarlane

dawson art

This is the first a series of interviews I hope to do with authors of recent scholarly books on Canadian politics.  My colleague across the road, Dr. Emmett Macfarlane, has graciously agreed to be the first interviewee.  Enjoy!

Dr. Emmett Macfarlane, Assistant Professor in the Department of Political Science at University of Waterloo, has written a new book called Governing from the Bench: The Supreme Court of Canada and the Judicial Role, which is available for purchase from UBC Press here (hardcopy) and here (e-book). This book “explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices’ behaviour; and situates the court in its broader governmental and societal context, as it relates to the elected branches of government, the media, and the public.” His book is a “comprehensive exploration of an institution that touches the lives of all Canadians.”

Below is an interview I conducted with Dr. Macfarlane about his book via email in January 2013.

Alcantara: Emmett, why did you decide to write a book on this topic?

Macfarlane: When I started research on the project way back in 2006/7, there had yet to be a book-length study of the internal environment of the Supreme Court of Canada. The political science and legal scholarship had focused a lot of energy on debates about the proper role of the Court and of judges since the Charter of Rights and Freedoms was enshrined in 1982. Basically, we were having big debates over “judicial activism” without much knowledge about how justices on the Canadian Court actually approach their work. So in large part the book is an attempt to help provide greater empirical context of how the Court works, not only to help inform normative debates about its role, but also because understanding the significance of the Court for Canadian governance is important for its own sake.

Alcantara: That’s interesting.  I remember during my grad studies at Calgary that all of the readings and discussions centred around judicial activism and the proper intersection of law and democracy in Canada.  There was very little on the internal dynamics of the Supreme Court.  So how did you approach this topic? What kinds of theories and methods informed your work?

Macfarlane: The primary research consisted of interviews with several current and retired Supreme Court justices, as well as over twenty former law clerks and other staff members at the Court. I wanted to tap into how the different justices operate at various stages of the Court’s decision-making process and in other aspects of the institution’s work, such as the different ways they involve their law clerks. I was also particularly interested in exploring “collegiality” on the Court — how do the justices interact with each other to render decisions, or compromise, negotiate or lobby each other? I ended up developing a role-based framework for analyzing their behaviour. The justices’ views about their role and the role of the Court ended up being a central fulcrum to analyze the various factors that play a role in judicial decision-making, such as legal rules, the ideology or values of the judges, and strategic behaviour. I also wanted to get a sense of how they understood the Court’s relationship with the elected branches of government, with broader society, and with the media.

The theoretical and methodological underpinnings of this role-centric framework are at the core of the book and the focus of the first chapter is a critique of the leading political science explanations of judicial behaviour: the behaviouralist “attitudinal model” and the rational choice model. These two approaches tend to focus on judicial votes and give us single-variable explanations of those votes, effectively boiling judging down to the “policy perspectives” (or ideologies) of the individual justices. I argue these approaches pay insufficient attention to a myriad of institutional norms and other variables, including the justices’ differing motivations, not to mention the institution’s collegial environment and the substantive content of the Court’s written decisions.
Continue reading

Alcantara: It sounds like you are taking a sort of new institutionalist perspective, in which you try to incorporate some of the main theoretical underpinnings of the dominant explanations while leaving room for other neglected factors.  Is that right?

Macfarlane: Exactly. I describe it as an historical institutionalist approach, albeit focused on the work of a single institution. It allows for an analysis that considers the full complexity of the Court and the justices’ behaviour, and to track how changes over time and in personnel can lead to changes in outcomes.

Alcantara: One of the common criticisms of the historical institutionalist approach is that it struggles to account for institutional change and the Supreme Court has gone through some significant instances of change: gaining control over its docket, having access to the Charter of Rights and Freedoms, and the like.  How does your book deal with these issues?

Macfarlane: I actually think the approach is better at accounting for these changes and their effects. The book traces a host of changes – control of the docket, the establishment of the Charter, the decision to allow liberal access for third-party interveners, the change in the extent to which the Court relies on social science evidence – by considering how the justices’ views of their appropriateness influenced the changes themselves and the justices’ behaviour following them. For example, the book explores how the manner in which the Court now treats “social facts” (social science evidence) was not preordained. There was intense debate between the judges on this point, and there remain differences in the degree to which each judge gives weight to social context.

Approaches that treat structural changes as exogenous and focus solely on those changes’ effects on individual behaviour end up missing half the picture. New institutionalism allows us to consider the reciprocal effects actors have on institutions and vice versa. The risk here, of course, is getting stuck in a structure versus agency quagmire, but I think careful, qualitative analysis mitigates against that risk. Hopefully my book provides a compelling account in this regard.

Alcantara: So what were some of your main findings? What kind of effects have these changes had on the court’s role in Canadian society?

Macfarlane: One of the main findings is how judicial role perceptions structure the way ideological or strategic decision-making enters into the equation. The book identifies “sites of activity” for judicial attitudes to become a dominant factor in decisions at various stages of the decision-making process. For example, when the justices’ agree on the broader institutional or legal norms we are more likely to see clear rules dominate (such as in the leave to appeal process). Yet when the justices can’t agree on these institutional norms – or when they fail to take them into consideration (such as in the Court’s jurisprudence of section 7 of the Charter) – attitudinal or strategic behaviour comes to dominate. This is intuitive, but it suggests more attention to these institutional norms might lead to more principled and more consensual (and arguably more authoritative) decision-making.

Another interesting finding was the variety of ways the individual justices approach their work. For example, the way they choose and utilize their law clerks appears to speak volumes about their approach to the law. Some justices appear to pick clerks who think like they do (one judge stated a desire to find clerks who have “a social conscience”) while others look for clerks who will challenge them. Some give their clerks enormous power – such as writing entire drafts of judgments – while others basically treat their clerks as research assistants and have very little contact with them. These approaches have some impact on collegiality on the Court – and the book explores other ways the tension between “the judge as an individual actor” versus “the Court as a collegium” plays a role in identifying strategic behaviour and in producing certain types of outcomes (such an unanimity).

In terms of the Court’s role in society, one of the chapters of the book explores how changes in the leave to appeal process, the admittance of third party interveners and the use of evidence evolved. A more liberal approach to third party interveners was the result of a fairly intense lobbying effort from various interest groups. It is just one example of how the Court’s increased prominence in the “Charter era” has made the judges sensitive to external scrutiny. In the same vein, another chapter of the book considers the Court’s relationship with the elected branches of government, the media, and public opinion. Although the book does not identify direct influence on particular decisions, I found a lot of qualitative evidence of diffuse effects on the Court’s overall approach, also through the lens of the justices’ role perceptions. They’re very cognizant of the attention certain decisions will bring, and of their policy influence vis-a-vis Parliament and the provincial legislatures.

Alcantara: The “sites of activity” argument is really fascinating. Do the sites vary according to the type of case that is before the case (e.g. a Charter case vs. a federalism case? Or even an environment vs. a criminal law case) or are these sites established for each set of justices, changing as a new justice is inserted into the mix?

Macfarlane: It’s more at the level of which stages of the decision-making process and which set of case facts present themselves. So one chapter of the book undertakes an examination of health policy cases under the Charter to examine a variety of factors, such as how judges incorporate scientific or social scientific evidence into their reasoning, how they approach issues of imposing significant costs on government, and how (or if) they set boundaries around the scope of judicial review when dealing with difficult moral or policy questions.  

While I think the book paints a picture of how the different approaches individual judges take can affect where and how these sites open up, it doesn’t engage in a comprehensive jurisprudential analysis to assess if different areas of law (or even different areas of the Charter) are more susceptible to certain factors.  I’m hopeful the “sites of activity” argument lends itself to future case study research, or even to incorporation into the attitudinal or strategic models, so that it can be refined along those lines. But given the book’s qualitative approach and a lack of certain types of data (even the interviews can only tell us so much) the “sites of activity” argument isn’t presented as a mechanistic explanation of outcomes so much as a description of how judicial discretion can, in certain contexts, come to be reflected along ideological lines.

Alcantara: It sounds like a very interesting book that will stir debate and future research for some time.  What are you working on next?

Macfarlane: I’m almost ready to start writing my next book, in collaboration with a couple of colleagues, on the interaction between legislatures and the Supreme Court over Charter of Rights issues. It will hopefully reframe our understanding of the institutional relationships away from the messy, nebulous idea of “dialogue” and towards one more rooted in examining policy change. Can we measure or identify how much policy influence the Supreme Court actually has? Can we measure “policy change” under the Charter? A lot of the data for this project is actually from the legislative side of things. We think we have a good research base but the planning of the actual book and analysis of the data is in its infancy.

Another project I’m just getting into is assessing the question of positive obligations under the Charter. The Charter is usually considered in a “negative rights” sense of preventing government from taking certain actions or intruding on rights (aside from certain sections like minority education rights, at least). By contrast, positive obligations require the government to take some action or provide specific programs. Courts are generally less willing to impose positive obligations (and especially budgetary expenditures) on government. But some cases and their policy outcomes pose problems for this negative versus positive distinction, both for the logic of the Court’s jurisprudence and for the specific policy landscapes. I’m hoping to explore those issues.

Alcantara: Dr. Macfarlane is Assistant Professor in the Department of Political Science at the University of Waterloo. His research examines the relationships between rights, governance and public policy, with a particular focus on the Supreme Court of Canada’s impact on public policy and political discourse under the Charter of Rights and Freedoms. He earned his Ph.D (2009) and MA (2005) in political science at Queen’s University, and a BA (2003) at the University of Western Ontario.