I have a joke I’ve been cracking about the controversy over the Clarity Act. “It’s simple! I’m with the New Democrats: fifty percent plus one is totally fine as a standard. But I also say this: let’s make it a contest of three out of five falls. And, remember, the federalists are already up two-zip.”
It’s not a very funny joke. But the more I think about it, the more I think it’s a good joke in at least the sense of having a kernel of truth within it. The expectation for a “clear majority” on a vote authorizing secession negotiations is usually presented by federalists as a sort of mystical axiom. Even in the Supreme Court reference on the subject the idea is not really broken down logically, perhaps because it won’t do to point out that the popular will is a very slippery abstraction, an awful shuddery foundation for any notion predicated on it.
Awkwardly, these notions include, in our system of government, elections and referendums. A government seeking a democratic mandate “goes to the country” and “consults” the populace, whose conflicting interests, goals, and ambitions are smooshed together by various clumsy formulae to produce the appearance of a single consensus. Democracy cannot bear too much purely deductive analysis, though its empirical underpinnings are mighty.
One notices that our metaphors for democratic testing, our ways of choosing between candidates or policy ideas, are competitive. Did Yes “beat” No? A mathematician might say there is a strong isomorphism, an analogy of form, between democracy and sport. There is certainly an obvious analogy between a referendum and, say, a hockey game; and when we place particular emphasis on finding out whether one hockey team is better than another, we don’t usually allow the matter to be settled with a single game, in one team’s building, at a time chosen by the home team, with rules selected and enforced exclusively by the home team. It’s a question of removing signal from noise, of excluding transitory or illegitimate influence from the competition.
Those who support national unity are keen to prevent Quebec separatists from pulling off a swindle of the sort they came close to in 1995: choosing a fleeting moment of advantageous sentiment to accomplish the permanent destruction of the Canadian state, which most Quebeckers have, through many generations, supported most of the time. But the extreme opinions on neither side are tenable. Strong unitarians embed assumptions in their language to “demonstrate” that Canada is sacred and indivisible, pretending that a historical conquest somehow has the irresistible logical force of Euclidean geometry. (Which even Euclidean geometry didn’t turn out to have.) At the same time, as Colleague Wells has pointed out, Quebec would practically need much more than a one-vote margin in one referendum to earn the necessary global assent to its independence project. It would need a majority that was “clear” in the sense, not necessarily of meeting a particular arbitrary bright-line standard, but of being able to endure a difficult political struggle—i.e., a “negotiation phase” in which an appeal to force was always possible—and to still appear irreversible and convincing at the end of it. If such a situation existed, there can be no question that to permit secession would be right.
So why not a “three out of five falls” rule? The applicability of the sports metaphor is quite real: ascertaining which hockey team is essentially “better” under never-existing neutral conditions is very much like extracting a “popular will” from an opinion sample of a population. Recognize, I say, the reality that fifty percent plus one is a “majority”; sidestep the fundamentally irresolvable arguments between three-fifths and two-thirds and three-quarters as a standard. But require that 50%+1 be achieved several times over a period of years, with a slightly different electorate being consulted each time. Even the voter-eligibility criteria can vary; the case for giving minor children a vote on a question of permanent future import is, after all, particularly sound. Let the government of Quebec frame the question in one vote and Parliament do it in another. Count noses in one and ridings in another. If the moral conditions for secession exist, it should not be hard to extract not just a “Oui” from Quebec, but a resounding “Oui, oui, oui” that would convince English Canada as Slovakia convinced the Czechs.