The Garden of the Constitution

Constitutional Cat in Referendumland

Constitutional Cat in Referendumland


Part I


Cat Meets Alice


“As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme.”

— Chief Justice Antonio Lamer, Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3, 1997, para. 109 1

“Who would be diminutive, when by merely taking thought he could add cubits to his stature?”

— Mr. O’Halloran, chiding, Debates on Confederation (1865), page 795


After a long, long, long, long, long, long fall … Alice found herself at last at the bottom.
She was not a bit hurt, and in the dark, without thinking, Alice jumped straight to her feet.  Fortunately, the ceiling wasn’t low, or she could have whacked her noggin.
Alice looked up to gauge her clearance, but all was dark above.
She couldn’t tell where ceiling began and darkness ended.  There seemed to be a faint far glimmer, much like the glow in a belfry.  Or the light at the end of a telescope.  Or, was it a clock tower?
Perhaps it was the very same Hole Alice had tumbled down!  In the gloom, it was hard to tell.
Alice turned on one foot in the darkness to keep her bearings, and looked about.  There was only one way to go, and that was down another long passageway.  And gratefully, this time, not vertical.
Then, to her delight, Alice could see … the White Rabbit — about the size of a child’s top — flickering as he skipped through the dark passageway, hurrying down it.
At that distance, he fit between her thumb and her index finger and was shrinking rapidly.  There was no time to lose.  Off went Alice as fast as her feet would carry her.
Just as she was about to gain on the Rabbit and intercept it politely from behind in French with:  “Pardonnez-moi !” it turned a corner and vanished, leaving only an echo of words in the air:

Par mes oreilles !  La question ne se pose pas !  Je serais trop tard !”  (Oh my ears!  The question cannot be asked.  I shall be too late!)

Now, what was she to do?  With the White Rabbit gone, Alice found herself alone in a long, low hall, with thirteen lamps glowing feebly from the ceiling, and thirteen doors all ’round. 
An ironic banner hung above the doors, encircling the room with the following apprisal:  “Grand Entrance Hall to the Castle of the Constitution”.
“Grand Entrance Hall?” objected Alice, unconvinced.  Shaking her head, Alice placed herself in the middle of the room, and turned and turned to inspect the doors from a distance.
Rabbit would have gone through one of these, but which one?
Alice made her way all down one side of the hall and all up the other side, testing each and every door; but all were locked.
She was about to try again when she noticed a glimmer and realized that all this time, she had been missing a small three-legged table made entirely of glass, and barely visible in the midst of the darkness.
Alice examined the table, which had the number 17 etched into the surface of it.
“That’s odd,” thought Alice, “who would engrave a table with a number?”  Perhaps it was a reception table.  But if so, where were the others?
And while she thought this aloud, Alice noticed that sitting alone on the table was a tiny gold key with the word “PREAMBLE” engraved upon it, and the initials “A.L.” in elegant script.
Why, this belongs to someone, thought Alice, picking the key up and twirling it.  But, wait!  Those were her initials…  (A.L., Alice Little.)”
How she resented her last name, for children were prone to tease her with it:  “Hey, Alice Little!  Hey, Little Alice!”  And, of course, to make matters worse, she was tall.  Teacher always put her at the back of the class for the annual photograph.  Alice blushed again, just to think of it, and touched her hair, as if looking for the big white bow her mother saved each Christmas from the Poinsettia pot, just for the yearbook photo.
Either someone else had the same initials as Alice, and this was their key, or the key had been left for her … But who would have known she was coming?  Alice herself hadn’t known.
“Now, see here,” said Alice, taking herself in hand, as she often had to do.  “It must fit one of the doors in this Hall.”  If she was ever to find the Rabbit, she would have to try it.  And, if it did belong to another, (Antonio Lamer, for example) well, as her own initials were on it, it would be an honest error.
Therefore, back went Alice, up and down the hall, but either the locks were too large, or the little gold key was too small; it would open none of them.
This time, after the last door, Alice came upon a curtain she hadn’t noticed before, and behind it was a tiny low door about thirteen inches high, just the right size for a Rabbit!  Even before Alice put the little gold key into the lock, she knew it would fit.  And indeed, to her great delight, it did!
Now, as Alice began to open the door, she noticed a sign above it with words engraved:  “Garden of the Constitution”.  How ceremonious!
But the door that held so much hope led only to a passage no bigger than a rat-hole.
“Aw,” sighed Alice, dropping her shoulders.  “No Rabbit could get down that.”  But, just to make sure, Alice knelt down and with her hands on the floor, and tilting her head sideways, she peered down the long dark passage into the loveliest garden you ever saw.
“Oh, how beautiful!” cried Alice, exclaiming in wonder at the beds of bright flowers and the cool tall fountains shimmering like jewels in the sunlight.  “Sunlight this deep underground!”, Alice breathed in astonishment.
But, what was that sound?  Distant thunder?  Or … snoring?
Alice hoped it was not a storm coming, for she very much wanted to find her way into the garden and out of that musty hall.  So she listened again, holding her breath this time so that only her heartbeat punctuated the odd sound coming from the Garden …
The snoring became more distinct, and sounded like a tune.
“Why, it is snoring!” proclaimed Alice.  “And loud, as well!  Now, who would be sleeping in such a lovely garden?”
Almost jealous, Alice conjured how pleasant it would be to nod off among the flowers, and sleep and dream, as Puss did in their own garden, which seemed so far-off now.
Alice turned herself this way and that, but, try as she might, she could not get more than her head past the doorway.
If only I could close up, like a Chinese fan, and slide myself through that hole!  I think I could, if I only had some clue how to begin.
So many out-of-the-way things had happened lately that Alice had begun to think very few things indeed were really impossible.
There seemed to be no use waiting on hands and knees at the door, so back went Alice to the little table, half hoping for another key, or at any rate a book of rules for folding people up like fans.
But, this time, Alice found a little bottle on the table!
“Where did that come from?” asked Alice rhetorically, her eyes charting a panorama of the dark, circular gloom.  Someone had been here moments ago.  Had she missed the Rabbit?
Around the neck of the bottle, under the stopper, was a paper label with the word ‘DISALLOWANCE’ beautifully printed on it in gold capital letters.
“Now, what could that mean?” thought Alice, who immediately considered poison.  (Maybe it was a rat-hole!)
Disallow meant “prohibit”, “proscribe,” “forbid”, and even “veto”.  But, it was the noun used on the bottle; not the verb.
Wise Alice Little was not going to sample ‘DISALLOWANCE’ in such a hurry, although she had to admit she was thirsty after that long fall down the Constitutional Hole.
“I shall look first,” she said, “and see whether it’s marked ‘poison’ or not.”
However, this bottle was not marked ‘poison,’ it was marked:  “Reserved for the Signification of the Queen’s Pleasure”.
Why, that didn’t sound bad at all, thought Alice.  If it gave pleasure to a Queen, Alice could hardly wait to taste it.
Almost before she was conscious of it, Alice had taken a sip, and indeed, it was very nice.  It had, in fact, a sort of mixed flavour of apple tart and maple syrup.  Alice very soon finished it off.
“What a curious feeling!” cried Alice; “I must be folding up like a Chinese fan.”
And so she was.  For, Alice was now only ten inches high.
And now that Alice was Little for real, she could see the room grown vast around her was indeed a Grand Entrance Hall!  For, at times, the trueness of a statement was a matter of linear perspective!
Alice’s face brightened at the fact she was now just the right height to slip through the little door and down that long passageway to the lovely garden.
First, however, Alice waited a handful of minutes to see if the effect would hold.  For, she was afraid to shrink any further.  But hold, it did!
And this time, Alice entered the little door with a good three heads’ clearance from the lintel.
Leaving the key in the lock, and the door wide open — hoping the Rabbit might follow her in — down, down, down the long passageway to the Garden of the Constitution, went cautious Alice Little.
The nearer she approached the exit, the brighter the passageway became, until finally, there she stood upon a gleaming threshold looking out on a dazzling scene.  Fountains were bursting into the air and flowers were nodding and dancing, all against a vast landscape extending every way in the distance.
And in that distance, far to her left were cool autumn woods that looked so inviting!  Alice adored collecting maple leaves to press them in her scrapbook.
Next on the far horizon, a Castle broad and wide stood with its gates flung open and pennants flying.  At the center of the Castle, a chimney smoked, an ideal cozy fire on a cool fall day.
And next to the Castle, a huge road sign, like a billboard, spelled “Area 53” in giant letters.  Beside it was a field where muscular fellows all rode horses round and round as though at a fair ground.
Next along the skyline was a pinnacle, and atop the summit a building that looked very much like a stable; it must be for the horses those fellows were riding.  But, how could they ever gallop up that slope!
Past all that, a parade field fanned out, and next to it, a vast majestic Golf Ground with velvety slopes and shimmering water traps.
In short, the view was wonderful.
Alice stepped out into the sunlight, so far underground; but as she gaped about, the sound of Pssst! Pssst! repeatedly interposed amid the rhythmic snoring.
Someone was attempting to attract her attention, but where were they?
Searching for the source of the noise, Alice at last looked up and found its origin.
A velvety black Cat’s head appeared to hover in the leaves on the fourth branch of a superb, red-leafed tree.
Alice was taken aback — for the Cat’s head on the bough closely resembled the face of her own feline, asleep at home.
Alice could see no tail, no feet, no body:  only ears, big yellow eyes, a nose and a mouth, all in a curl of golden mist on the tree branch.  A ribbon was looped about its neck, and a small gold key dangled from the ribbon.
Why, it looks like PUSS, thought Alice aloud!  Now, her own Puss couldn’t talk, but of course, there was always Cat Telepathy, just as good if not better than language.  But this Cat really spoke, unless her ears misled her.
And indeed, as if the half-manifested creature recognized her,
“Welcome back!” said the Cat, apparently pleased with itself.
“I haven’t been welcomed yet, so I can’t be welcomed back,” said Alice, intuitively arguing.
“Have it your way,” simpered the Cat.
“Do we know each another?” inquired Alice.  She was still very certain she had left her door locked, before departing for the law library; but the resemblance to her feline, asleep at home, was astonishing.
“We will, said the Cat!” grinning widely.
Alice determined to accept the odd affirmation as evidence of the Cat’s friendly intent.  So, she promptly requested directions.
“If you please, Puss,” Alice inquired politely, unconsciously using her own Cat’s name, “where am I?”
In answer, the Cat tilted its chin toward the back of Alice’s head, and off past her left shoulder.  Alice turned and saw for the first time the large sign hung above the passageway from which she had just emerged.
It was a giant marquee of luscious pie-crust, a huge tart picked out in sequencing lights.  On either side was a head from history:  to the left, John A. Macdonald; to the right, Wilfrid Laurier.  The words upon the marquee were these:

Welcome to Referendumland!

“Citizen of the Hole!” cried Alice.  But “who could live in a Hole?”
“We all do,” smiled the Cat, evidently happy to confirm the odd conundrum.
And “Referendumland?” protested Alice aloud, prompting the Cat for details:  “Am I there now, or is that where I have been?”
“That’s right,” said the Cat.
“Excuse me”, said Alice, “What’s right?”
“The Rule of Law is right,” said the Cat, smiling and nodding.
“I beg your pardon?” queried Alice, though not too amazed that a question of Constitutional law should arise the moment she had found her way into the Garden of the Constitution.
The Cat kept silent.  Or, perhaps the feline hadn’t heard her.  Alice clarified, pointing to the door under the sign:
“Is Referendumland here, where I am, now; or over there where I have just come from?”
But the Cat only repeated:
“That’s right.”
As though encouraged by the conversation, a little more of the Cat had emerged.  Two velvety black forepaws were placed upon the Fourth Branch.
The feline now had a front, if not a back.
Perhaps it was a trick of the light, thought Alice to herself, an odd effect of sunlight deep underground, so that you couldn’t see things all at once.  Perhaps they emerged only gradually this far below the surface.
In her own mind, Alice deliberately renamed the feline:  Constitutional Cat, after the Garden.
Deciding to make no more of the point for fear of displeasing her new acquaintance, Alice pursued in a pleasant tone:
“What sort of people live about here?”
“In that direction,” said Constitutional Cat, “lives a Law Professor; and in that direction, lives a Politician.  Visit either one you like:  they’re both mad.”
“But I don’t want to go among mad people,” objected Alice.
“Oh, you can’t help that,” said the Cat:  “we’re all mad here.  I’m mad.  You’re mad.”
“How do you know I’m mad?” said Alice, somewhat appalled.
“You must be mad,” said the Cat, “or you wouldn’t have come here.”
… To be continued …

– 30 –

UPDATED:  6 August 2018;  7 August 2018; 23 August 2018.