MANAGERIAL LIBERALISM'S CLANDESTINE GOVERNANCE PLOY

FROM ARTIFICIAL NEGATIVITY TO SOCIAL ANIMATION

This post is about historical, legal and political developments in Canada. However, if your country has a) a written constitution, and b) a supreme court, you might want to read this carefully, with concern for how true it is of your country, too. With the introduction of a written constitution, with its famous Charter of Rights and Freedoms, into Canada, in 1982, the managerial class has worked out a clandestine form of extra-parliamentary governance, which uses the public’s tax dollars to at least circumvent, and often subvert, the elected legislature, which, for all its flaws, at least has legal transparency requirements and intermittent accountability to voters. This relatively new, clandestine governance ploy advances the agenda of managerial liberalism without these presumptive checks upon abuse of power in a government purportedly grounded in popular sovereignty.

Elsewhere I have elaborated upon the nature of managerial liberalism. It is the triumphant managerial class ideology (having out-survived earlier managerial class ideologies: i.e., Communism, Fascism and Nazism) coming out of the mid-20th century era. It is premised upon the leveraging of social disputes to generate legitimacy and support for the managerial class’s preferred and natural inclination to rule through practices of social engineering. I’ve identified this attitude and practice of leveraging social disputes, within the administrative state, as bureaucratic paternalism. (This is all discussed in a previous post, as well as my book The Managerial Class on Trial.)

Before getting into the mechanics of the new, clandestine governance ploy of the managerial class, I want to contextualize it with a few words about another idea that I discussed in my book: artificial negativity. This, in fact, is a term and concept that I’ve returned to time and again across my winding path of theoretical development. I picked it up from the brilliant editor of Telos, Paul Piccone — who sadly has not been remembered by many since his passing early in the current century.¹

Piccone argued that, despite a similar tendency toward administrative colonization of civil society and a complementary sclerotic bureaucratism, the United States was able to outlast the Soviet Union because, unlike in the latter, in the U.S. the administrative state’s tendency to strangle off opposition was offset through artificial negativity. The actual coining of the term has a bit of a convoluted history we don’t need to address, here; it has to do with a revision of Theodor Adorno’s conception of the totally administered state. More relevant for our purposes was the core idea: the managerial class’s administrative state in America actively sought to underwrite its own civil society opposition.

Where the Soviet Union became rudderless, lacking sufficient organic social cues from its opposition, due to its heavy handed totalitarianism, the US administrative state corrected for the risk of such a lack by actively underwriting — through grants and government programs — groups that opposed the prevailing regime. To quote the examples I cited in The Managerial Class on Trial:

consumer advocacy groups; student organizations; black, feminist, indigenous and other identity protest organizations; environmental protest groups; identity-based grievance studies programs in universities; as well as “hassle-free” clinics, tenants’ associations, welfare-rights organizations, women’s centers, and a wide range of oppositional publications.

All the kinds of organic oppositional groups that the Soviet Union crushed, the American administrative state underwrote to maintain honest signals of popular attitudes. Piccone argued though that this artificial negativity strategy, far from being a long-term solution to the problem of the administrative state, guaranteed long-term failure. The social engineering ethos of the managerial class ensured that the administrative state would not be able to prevent itself from coopting the very opposition it had intended to engender. This, at it were, was the dialectical Achilles heel of the logic of the managerial class and its administrative state.²

What I’ll argue here is that, at least in Canada, under the rubric of “social animation,” Piccone’s prediction about the long term compromising of artificial negativity has been realized. In the process, a new, clandestine governance ploy has been launched. Its benefits to the technocratic sensibilities of the managerial class, as mentioned above, are evident: freedom from popular accountability and institutional transparency. (While the managerial class celebrates “democracy,” that for them is a manipulative pretense that empowers their strategic ventriloquism, and abetted their democratic “revolution within the form.”) The interesting question is whether this new governance ploy constitutes a suffocating grip upon hegemonic power on the part of the managerial class, or rather, as predicted by Piccone, it constitutes a long term strategic failure. In this post, I’ll only address the new governance ploy, arising from the social animation strategy. In the next post I’ll offer some thoughts on the questions posed by these developments, in light of Piccone’s theory.

In Canada, going all the way back to the 1960’s, the administrative state has engaged in a colonization of Canadian civil society by organizationally and financially creating social groups to lobby that same government to implement the policies privileged by the originators of those organizational and financial measures. This process, initially undertaken by the Department of the Secretary of State (SOS) was dubbed “social animation.” Following the introduction of the Charter of Rights and Freedoms in the patriation of the Canadian constitution in 1982, this process of social animation by the administrative state in Canada expanded, most notably with the creation of the Charter Challenges Program (CCP). Following 1982, SOS and CCP funded social animation aimed at creating and empowering groups to pursue supreme court Charter challenges that ensured the expansion of the regulatory power of the administrative state, feeding into managerial liberalism’s policy objectives and its social engineering agenda.³

In the founding SOS documents, social animation was identified as a specifically “social justice” pursuing process that aspired to achieve such goals through the stimulation of what was called “grass-roots” groups, aimed to combat “apathy and indifference.” If this sounds like a convoluted way of saying the administrative state was already, right from the beginning, trying to lay Astroturf for causes which didn’t have broad support among Canadians, the history of such social animation would confirm that interpretation.⁴ In fact, historically, as several researchers on the topic have discovered, the rise of these purported social movement groups turned out not to be the cause, but the result, of enabling policy established within the SOS.

For the Canadian context, it needs to be kept in mind that an important part of the managerial class agenda, specific to the country’s context, has involved the centralization of power in the federal government and the advance of bi-lingualist policy. Indeed, the pursuit of the latter has played a major role in cementing the former, and so unsurprisingly was the initial testing ground of social animation. The implementation of bi-lingualism — primarily through the vehicle of the federal civil service — gave the federal bureaucracy a paternalistic mission in advancing an enlightened linguistic ecumenicalism. At the same time, this policy was aimed at reducing regionalist tensions, through the disarming of radical Quebecois nationalism, and so enhancing the centralizing authority of the federal administrative state.

The social animation operationalized in the interest of bi-lingualism became the template for the future implementation of managerial liberalist policy. In the early years, it was primarily indigenous, multiculturalist and feminist positions that were leveraged through this administrative state self-lobbying, social animation mechanism. However, with the passage of the Charter, and rise of an opportunity to weaponize the supreme court in the interest of managerial liberalism, the reach of the social animation policy expanded considerably: e.g., homosexual, prisoner, poverty, disabled, and elderly advocacy groups and their positions were also weaponized through social animation. Not only though were such groups organizationally generated by federal government agencies, SOS and CCP, but they were overwhelmingly funded by them. The seed money usually came exclusively from the federal government, and across their histories these groups have received the lion’s share of their funding from the same sources: commonly taxpayers’ dollars provide between 50 and 80 percent of their funding. Furthermore, sometimes additional sources of funding came from other organizations that were themselves funded by taxpayers, through the federal government: e.g., law societies and universities.⁵

Now, though, rather than primarily petitioning the administrative state, their pre-Charter function, these socially animated groups, the creatures of the administrative state, were geared to lead Charter challenges to existing (or non-existing) public policy bearing upon their legally weaponized positions or interests. Regarding the matter of “non-existing” policy: the justifying argument was that the absence of a policy from the legislature was still a policy and so the court was justified in determining if this “policy” was consistent with the Charter. This premise eliminated the possibility for a legislature to avoid legislating on a topic for which there was no clear consensus in the country. While this might have been the prudent position, it wasn’t a satisfactory accommodation of the aspirations of managerial liberalism.

This has led the supreme court to act as a kind of Charter oracle. Rather than merely ruling on constitutional matters as related to individual cases, the role of the court has been expanded to enforcing what some have openly called “Charter values,” as they interpret them. This new role of values enforcer, armed with a weaponized Charter, has been buttressed by a thoroughly managerial liberal legal scholarship, which continually feeds the court managerial liberal arguments, while simultaneously providing theoretical cover for this new extra-legislative process, and continually stocking the vitally important clerk positions.⁶ Furthermore, the socially animated groups — most benefiting legally from this reimagined supreme court role — have been, unsurprisingly, fervent advocates for the court taking on precisely this values enforcer role. In reciprocation, it seems, the supreme court has adjusted its rules, adopting a new, open-door policy for non-government interveners: i.e., those not parties to the dispute, but claiming an interest in the relevant legal questions. The involvement of such socially animated intervener groups generate “pressure” on the supreme court to act as Charter oracle, skirting legislative processes to enforce “Charter values.”

This circumventing, and even subverting, of the legislature, particularly in matters of prudent deferring from enacting legislation, has proven to be the most important function of this social animation system for managerial liberalism.⁷ As a consequence, changes in the legal regime of Canada, which may not have been (in some cases, surely were not) capable of being enacted in the more transparent and accountable legislative process, have been entrenched through this convoluted, clandestine informal governance process. These changes have included loosening “standing rules” to promote more environmentalist litigation; disallowing anti-abortion laws; reading sexual orientation into the Charter as a protected right (despite the framers refusal to do so, in the face of continual pressure); creatively interpreting the phrase “existing rights” to promote aboriginal litigation; and protecting controversial practices in both child pornography (R v Sharpe) and physician-assisted suicide (Carter v Canada).

Unsurprisingly, all this can be seen to fit neatly into the usual agenda items of managerial liberalism. In all these cases, rather than allowing either legislature or (perhaps even better) decentralized solutions — such as local community standards, markets or tradition — to deal with these social challenges, the supreme court, under the litigation “pressure” of the socially animated groups, provide rulings that either enshrine managerial liberal values or establish social policing powers over these matters in the hands of the ruling managerial class: either directly in the ambit of the social engineering function of the administrative state or in the ongoing extra-parliamentary rule-setting function of this clandestine, networked governance system.

Finally, I know this is a topic that some find a tad dry (though I’m not one of them), but it’s worth mentioning that even an intuitive appreciation of the managerial class social engineering ethos should reasonably predict that in a federal system of governance, the ruling managerial class and their administrative state will prefer federal disputes being resolved more in the interest of the centralist authority, at the expense of the more locally sensitive regional governments. Unsurprisingly, we find that this clandestine Charter-driven governance system has extended the rule of the federal government. Particularly as related to clearly provincial areas of jurisdiction, such as health and education, in the name of insuring national Charter rights, this governance system has provided the federal government plausible deniability for a centralist-serving process that critics have called “disallowance in disguise.”⁸

So, to summarize, we find a shadowy, clandestine, governance system, wherein the managerial class’s administrative state, through agents such as SOS and CCP, creates and finances civil society colonizing groups with the precise purpose of either directly petitioning that central government, or far more often recently, petitioning the Charter empowered courts, to instantiate the managerial liberal agenda, well removed from the transparency and accountability scrutiny of parliament. Taxpayers’ money, unbeknownst to virtually any of them, is being shanghaied by the administrative state to circumvent the transparency and accountability they expect as citizens of their parliamentary form of government. Furthermore, likewise administrative state sponsored entities, like law schools and legal journals, provide legitimacy cover and theoretical rationalizations and arguments to all the other parties participating in this informal, clandestine governance structure. It’s an elegantly fitted set of networked relations which work away outside of the public spotlight to advance the goals of managerial liberalism.

Given the elegance of the networked fit and complementarity with its class agenda, it’s worth wondering how deliberately designed all this was. Certainly, some of the scholarly critics of this clandestine governance process have provided evidence that at least some of the players understood well in advance what they were creating when originally lobbying for the passing, and specific content, of the Charter.⁹ No doubt, though, such a complex system likely has a certain emergent quality to it — following the social engineering logic built into the foundational premises. A sense of this is reflected in the comment below, from Pierre Trudeau, in 1967 still only the Minister of Justice:

Justice should be regarded more and more as a department planning for the society of tomorrow, not merely as the government's legal advisor. It should combine the function of drafting new legislation with the disciplines of sociology and economics, so that it can provide a framework for our evolving way of life.

Spoken like the paragon of managerial class social engineering that he was. At a certain level of analysis, it becomes difficult to untangle deliberate plan from emergent order. That kind of thinking from the Justice Minister seems doomed to lead to something like what Canada finally got in the Charter. However, it’s also true that from the beginning of the long constitutional odyssey that carried him from 1967 to 1982, Trudeau always acknowledged that the constitutional function of the Charter was to undermine Canadian federalism in the interest of a centralized governance authority.¹⁰

The only question left from our opening is how all this bears upon Paul Piccone’s early framing of the administrative state leveraging of artificial negativity. If this social animation — underpinning this clandestine, extra-parliamentary governance ploy — has been the predictable corruption of artificial negativity, the question is: has Piccone’s warning come to fruition? Does all this presage a regime increasingly incapable of reading the tea leaves of its own population, and more centrally of its organic civil society based political opposition? I’ll share my thoughts on that topic in the next post.

So, if you’re not subscribed yet…

1. I have attempted to resuscitate both: Michael McConkey, “Paul Piccone as Libertarian? A Canadian Proof and Rothbardian Critique,” The Independent Review 16, no. 4 (Spring 2012), http://www.independent.org/publications/tir/article.asp?a=878. Also, along these lines, see: Mike McConkey, “Toronto’s Neighbourhood Association Movement, In Light of the Artificial Negativity Thesis,” in Culture and Social Change, ed. C Leys and M Mendell (Montreal: Black Rose, 1992); Mike McConkey, “Individuals, Communities and Federalism — Reply to Johnstone,” Telos, no. 93 (1992): 21–26, https://doi.org/10.3817/0992093021. As well, of course, in my book, The Managerial Class on Trial.

2. Paul Piccone, “The Crisis of One-Dimensionality,” Telos 1978, no. 35 (March 20, 1978): 43–54, https://doi.org/10.3817/0378035043; Paul Piccone, “Artificial Negativity as a Bureaucratic Tool? Reply to Roe,” Telos, no. 86 (1990): 127–40, https://doi.org/10.3817/1290086127; Paul Piccone, “Paradoxes of Perestroika,” Telos 1990, no. 84 (1990): 3–32, https://doi.org/10.3817/0690084003

3. For some of the key sources in documenting these processes and dynamics, see: Leslie A. Pal, Interests of State: The Politics of Language, Multiculturalism, and Feminism in Canada, Reprint edition (Montreal: McGill-Queens University Press, 1995); F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party, First Edition (Peterborough, Ont: University of Toronto Press, 2000); Ian Brodie, Friends of the Court: The Privileging of Interest Group Litigants in Canada (Albany, N.Y.: State University of New York Press, 2002).

4. It’s worth mentioning, parenthetically, that given how early this process began, there’s an argument to be made that Piccone misread the signs: i.e., it was never artificial negativity, but rather social animation exclusively right from the start. If not, artificial negativity certainly turned into social animation extremely quickly. However, even if that’s true, it doesn’t change the relevance or accuracy of Piccone’s claim that in the absence of artificial negativity the administrative state was inclined toward a totalizing colonization of civil society which threatened to suppress the organic cues of grassroots opposition, needed to orient the regime’s future policy and practice. It’s the potential fallout from such a colonization which the next post here will address.

5. Among the managerial liberalist groups created through these processes which have made significant contributions to this clandestine governance ploy have been the FFHQ (Federation des francophones hors Quebec), EGALE (Equality for Gays and Lesbians Everywhere), COPOH (Coalition of Provincial Organizations of the Handicapped), CPRN (Canadian Prisoners' Rights Network), AFN (Assembly of First Nations), and, the most influential of all, LEAF (Women's Legal Education and Action Fund). Unsurprisingly, civil society groups with an agenda incompatible with managerial liberalism, such as REAL Women and Kids First, have not received such nurturing treatment from SOS and CCP.

6. Judicial clerks have an outsized influence on the supreme court, since they do most of the research and have unique access to the ears of the judges for introducing them to novel legal arguments cooked up by the managerial liberal legal scholars. While the public in Canada — compared to the U.S. — gets little scrutiny or vetting of who becomes a supreme court judge, this oversight is substantial in comparison to the public scrutiny and vetting of who gets to become a clerk to a supreme court judge.

7. For those not familiar with parliamentary government, and the Canadian system specifically, there is no separation of executive and legislative branches. The executive is literally in the legislature. Consequently, there is much stricter party discipline than Americans are familiar with in their government. While in the U.S. the president may have to horse-trade with members of Congress, even those of his own party, to get passed bills that he wants to see enacted, under normal conditions there’s nothing like this in Canada. In a majority government, the Prime Minister and Cabinet don’t have to negotiate with anyone. If they want something passed, they simply pass it — backbenchers do as they’re told. It seems then that the process of the shadow governance described here either represents the government getting into law that for which they don’t wish to have the scrutiny that parliament would entail. Or, the administrative state is acting on its own agenda, behind the back of the elected government. It’s quite possible that both of these explanations could be correct at different times, in different contexts.

8. Appreciating that it was going to be too much of a diversion for most readers, this note is included to provide the relevant background to anyone interested in a little Canadian history. Among other things, the fact that the negotiations to the establishment of the Canadian “Confederation,” of 1867, took place against the backdrop of the war between the states, to the south, it was determined by Canada’s founding fathers that while a purely unitary government didn’t make sense across such a large land mass, federation along the lines of the (then) relatively decentralized U.S. system was to be avoided given its evident propensity to degenerate into intra-federation war. As a result they established a system that was more federal in name than in fact. The power balance leaned way toward the central government. One manifestation of this centralist bias was the federal government having enshrined in the constitution the power to disallow any provincial legislation of which it disapproved. However, almost immediately following the 1867 confederation, over the next several decades, a provincial rights movement emerged, calling for the provinces to be treated as equal, rather than junior, partners in confederation. A series of rulings by the British colonial Judicial Committee of the Privy Council, the highest court for Canada at the time, gradually established this equal partner status for the provinces – ensuring that their sovereignty was respected within their constitutionally designated areas of jurisdiction. (Indeed, today, Canadian provinces probably enjoy a higher level of federal sovereignty than do U.S. states — though through recent events that may be changing in the U.S.) Consequently, the Canadian federal government power of disallowance was rendered effectively null. The power was hardly invoked at all in the 20th century, and only once since WWII, and at that time was thoroughly repudiated by the sitting Prime Minister. Though this federal government power remains in the Canadian constitution as it was patriated from Britain to Canada, in 1982, it is entirely dead letter law. This history explains why the suggestion that the social engineering, managerial class has maneuvered to surreptitiously sneak “disallowance in disguise,” through this clandestine, extra-parliamentary governance ploy, back into the new post-Charter constitution, is considered so egregious and controversial an allegation. For a handy discussion of these topics, see Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, 3rd ed. edition (Toronto ; Buffalo: University of Toronto Press, Scholarly Publishing Division, 2004), chap. 4.

9. See the sources in note 3, and even more so many of the sources that they cite.

10. See, Russell, Constitutional Odyssey.