CHAPTER SEVEN
CANADIAN LANGUAGE RIGHTS IN A COMPARATIVE PERSPECTIVE
PAGE
The Origins of Canada's Linguistic Diversity ...... 1
Multilingual Nations and National Unity ...... 2
Language Rights and the American Constitution ...... 5
The English Only Question in the United States ...... 8
1. The Arizona Official English Amendment:
A Case Study ...... 11
2. Reasons for the English-Only Amendments ...... 14
3. Minority Language Communities' Reaction to
Official-English Amendments ...... 16
4. Problems with English Language Amendments ...... 17
Lessons for Arizona and the U.S. from the
Canadian Example ...... 18
ENDNOTES ...... 27
CHAPTER SEVEN
CANADIAN LANGUAGE RIGHTS IN A COMPARATIVE PERSPECTIVE
The Origins of Canada's Linguistic Diversity
Canada has had over two hundred years of experience with the challenges created by trying to build a strong nation out of diverse linguistic communities. Americans are fond of referring to Canadian experience when discussing their own language problems. To what extent is Canadian experience relevant to language conflicts now erupting in the United States?
Canada is a binational state. The Canadian constitution resulted from a political compromise between Catholic francophones and Protestant anglophones in 1867.[i] Canada's constitution protects the linguistic minorities by requiring use of both English and French in crucial aspects of federal government operations.[ii]
Canada's linguistic diversity is doubly protected. Anglophones and francophones control the provincial governments where each is predominant. In addition, minority language communities are protected by constitutional obligations for bilingualism in the federal state, and identical provisions respecting operation of the government machine in one large and two small provinces.
1
The lessons to be learned from Canada's history are clear: every attack on Canadian linguistic minorities produced a spectacular national crisis, driving major Canadian communities apart, reverberating in inter-provincial and federal-provincial conflict, and threatening to incinerate the fundamental national compromises upon which Canada's federal system is built.[iii] Canadian experience teaches that attempts to restrict language rights produce widespread, uncontrollable social and political conflict. The challenges to national unity are real and palpable. In the post-war period Canadians witnessed separatist tendencies grow in Quebec in direct proportion to the perception that French-speaking Quebeckers were getting a raw deal from anglophone Ottawa. All this conflict has a profound impact upon linguistic minorities. They lose self-confidence, become introverted and unable to participate successfully in Canadian life. Canada loses their energy, talents and special experience. Ultimately, the resulting social pathology impacts on social welfare systems.
Multilingual Nations and National Unity
Canada's experience teaches that the existence of two language communities does not, in and of itself, create the problem of separatism, or otherwise lead to social tensions. Canada's experience is that separatism and political pathology grow in proportion as Canadian governments fail to deal with linguistic minorities generously and tolerantly. It is the refusal to respect linguistic differences which leads to political difficulties in Canada, not the other way around.
1
Is Canadian experience unique among the world's multilingual countries? Sociolinguists have documented that Canada's experience typifies that of multilingual countries around the world. In the most authoritative study of bilingualism and separatism, the distinguished sociolinguist, Joshua Fishman, concluded that there is little evidence of separatism resulting from providing minority groups with governmental services in their own language. Fishman found that the roots of separatism lie in minority-majority relations broadly conceived, not in language. Factors contributing to separatism are a history of repression, economic domination and non-democratic central control. The problems popularly attributed to bilingualism are really problems of social and economic development and control, superimposed upon linguistic, racial and religious differences. Following a study of 62 linguistically heterogenous countries, Fishman concluded that tolerance and generosity towards linguistic minorities promotes good majority-minority relations and leads to a stable polity; attacking a minority's ability to use its own language results in social pathology, uncontrollable political conflict and wide-spread difficulties.[iv]
The international human rights community pays high regard to protecting the rights of linguistic minorities. Article 27 of the International Covenant on Civil and Political Rights provides:
in those states in which ... linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, ... to use their own language.
1
Article 27 was an outgrowth of the minorities protection system which developed after World War I. The Permanent Court of International Justice stated in its opinion in Minority Schools in Albania that the purpose of that system is to secure for linguistic minorities incorporated in a state the possibility of living peacefully alongside the majority and cooperating amicably with it. Two things were regarded as particularly necessary: that linguistic minorities be placed on a footing of perfect equality with other nationals of the state, and to secure for linguistic minorities suitable means for preservation of their distinctive characteristics. The Court stated: "There would not be true equality between a majority and a minority if the latter were ... compelled to renounce that which constitutes the very essence of its being as a minority."
Article 27 is not the only article of the International Convention relevant to the protection of linguistic minorities. The Human Rights Committee considered Quebec's restriction of private commercial speech and stated that this legislation contravened article 19 of the Convention. The Committee held that a total prohibition on commercial advertising in English was not required to protect the cultural identity of French speakers and the French "visage linguistique" in Quebec. The Committee echoed the Supreme Court of Canada's opinion that it was possible for Quebec to achieve its goals without violating freedom of expression.
It is thus evident that undue restriction on the rights of linguistic minorities to use their own language violates international human rights norms to which both Canada and the United States are deeply committed.
Language Rights and the American Constitution
1
American constitutionalism is inspired by the great ideas of the 18th century philosophers -- dignity of the person; individual freedoms to think, express and act; equality. American constitutional law accepts that the individual has freedom to accept new ways of being and to reject old truisms - to join new communities and reject old ties. Implicit in the American theory of liberal individualism is a high respect for development of individual personality and the ability to express it through autonomously motivated individual action.
American First Amendment doctrine is insecure as a foundation for language rights. Language rights are not individual rights. Language rights do not protect the individual's capacity to express his or her ideas in his or her own way. Language rights are collective rights. They are intended to protect the institutional forms, structures, and processes through which speech occurs, not the individual's right to speak or the content of the individual's speech. As such, language rights are designed to protect the participation of linguistic minorities in the machinery of government, in broadcasting, in the media, in schools, in the public and private workplace.
1
The American ideal of dignity of the person is also manifested in the anti-discrimination principle. Briefly, the anti-discrimination principle holds that it is illicit for government to single out, segregate or attack the status of individuals because of group characteristics like race, sex, age, national origin, or language. One important remedy for segregation, in violation of this principle, is forced integration. Courts have fashioned integrative remedies like busing and affirmative action in employment with which American constitutionalists are quite familiar.
Linguistic differences cannot be dealt with in the same manner in which Americans have come to terms with racial or religious differences. Linguistic differences are a phenomenon that Americans have to consider distinctly from non-discrimination doctrine. The accommodation of linguistic differences requires a reformulation of concepts of integration, which flows from the equal protection clause, and a certain reformulation of American constitutional rejection of the separate-but-equal doctrine.
It is useful to consider this point from the perspective of research on languages in contact. That research is conclusive that total integration means total assimilation of weaker language groups. Linguistic minorities are viable only to the degree that there is territorial segregation of linguistic communities. Linguistic minorities are protected further by segregation of bureaucratic and administrative structures serving the different language groups.
1
Language groups have to be concentrated demographically in order to be viable. They have to be supported by an institutional network that gives their language significance and that endows it with an economic value. This implies, for example, homogeneous linguistic schools -- segregated schools. Bilingual schools have been found by legislature,[v] courts,[vi] and executive instrumentalities[vii] in the multilingual countries of the world, including Canada, to be cauldrons of assimilation. They have been shown to be harmful to the linguistic minority community and the linguistic minority child. Ultimately, linguistically integrated schools assimilate minorities and thereby extinguish linguistic minority groups.
Linguistic minorities also require a degree of segregation in administrative entities and in the bureaucracy. Segregation of bureaucratic structures allow the minority to control its own development without having to make its case to structures controlled by the majority. Integration of both languages in bureaucratic structures creates a certain amount of friction within the bureaucracy, as the penetration of the minority language threatens the positions of those in public service work. This friction tends to replicates itself in the attitudes with which the bureaucracy deals with the linguistic minorities.
Languages can be maintained only to the extent that they are endowed with an economic value. This means that linguistic minorities would require, as a condition of viability, economic opportunity and economic development initiatives in the minority language.
1
We can see from this discussion that rights such as the right to a particular language in the criminal process, are not language rights. They are rights which are emanations of the grand 18th century ideals of human dignity. They have little to do with the preservation of linguistic minorities or with group development. This observation points towards the conclusion that American anti-discrimination doctrine cannot accomplish the purposes served by language rights -- maintenance of an institutional network that endows minority languages with significance and value.
The English Only Question in the United States
Americans are serious about amending their constitutions to make English the official language of the federal government and several states. Resolutions to so amend the federal Constitution have been introduced into the Senate and House of Representatives of the United States Congress,[viii] and English-only constitutional amendments have been recently proclaimed or are under review in a significant number of American states.[ix] Official-English supporters point to Quebec and Canada as examples of a miserably failed language policy, and as a reason why Americans need to be protected by English-only constitutional provisions.[x] Americans are fond of saying that they do not want to see an American "Quebec". What terrible example do Americans see in their Canadian neighbours, and how are they trying to avoid repeating the supposed mistakes that produced Quebec?
Dennis Baron, an English and linguistics professor at the University of Illinois, has written a scholarly review of the history of linguistic relations in the Unites States, and American attempts to alter those affiliations by law. Baron's thesis is simple:
[T]he conditions producing today's official English movement have been present in the United States since before the country's founding two centuries ago, and the arguments both for and against official English have been repeated, with slight variations and little concrete effect, since that time.[xi]
1
In support of this thesis, Professor Baron uncovers the 1795 proposal to print all federal laws in German as well as English (which was lost by one vote); the fight in the Pennsylvania constitutional convention of 1837 - 38 to entrench English-German bilingual schools (which was defeated 51 - 68); the nineteenth century Louisiana practice of printing laws in French and English, and how this practice and other emanations of official French were eclipsed by the nation-wide English-only movement in 1914; how California, whose first constitution of 1850 protected Spanish, was weaned to English; and how New Mexico, whose nineteenth century journals and laws were in Spanish and whose territorial legislature and courts operated in Spanish as a matter of course until less than one hundred years ago, was denied statehood until early in the twentieth century because of the persistence of Spanish, and then, how statehood came only on conditions that imposed strict official-English requirements.
1
Professor Baron explores the motives for American laws privileging English. These are various, but principal among them is the assumption that "[l]anguage is a fundamental bond through which a people is held together. This bonding gives us harmony and unity".[xii] This assumption that a common language strengthens the nation makes the Canada-Quebec example relevant to official-English supporters who like to point to the Canadian national unity problem as a situation Americans must at all costs avoid. Because official-English supporters want to prevent Hispanic, Asian or other linguistic communities from becoming the "Quebec" of the United States, they feel justified in using coercive assimilative measures, like the English Language Amendment, to ensure that an American "Quebec" does not happen. Even such a modest scholarly critic of official English as Professor Baron assumes an American "Quebec" would be bad. He notes that it was only by chance that "[t]he American Southwest did not become the 'Quebec' of the United States because from the outset it was sparsely populated by its Hispanic settlers, and because Hispanic immigration was largely cut off after the Mexican War."[xiii]
Americans privilege English for additional reasons. There is an assumed language-nation connection, a connection to which, "[i]n the United States, official English advocates firmly subscribe..."[xiv] It is thought that America's ideas - its democracy, history and culture - are accessed through its language.
Language thus becomes a literal shibboleth of nationality, a badge of true Americanism, and anything less than fluency in English - a foreign accent, let alone maintenance of a minority tongue - is perceived to threaten national security and subvert the national ideal.[xv]
Even the United States Congress considered a bill finding that "proficiency in English, the common language of the United States, is essential in American life and a prerequisite to naturalization and the full exercise of civic rights and responsibilities."[xvi]
1
Professor Baron's assessment of the official-English movement must be appreciated against the demo-linguistic situation in the United States. English has always been overwhelmingly dominant in the American Republic. American life strongly motivates immigrants to acquire English, and immigrants to America voluntarily assimilate to English in impressive numbers, particularly in the second generation. Professor Baron agrees that Americans have the duty through "[o]ur cities and our schools ... [to] assimilat[e] non-English speakers ..."[xvii]
Permanent bilingualism is a hotly contested topic. Some believe that bilingualism reduces immigrants' incentive to learn English. Bilingualism is a sign of failure to assimilate and educational deficiency; it is not an asset. More forceful critics consider permanent bilingualism to be "unAmerican". Professor Baron notes that in America, "[m]inority-language speakers are encouraged to abandon their native tongues and become monolingual in English to demonstrate their patriotism, their willingness to assimilate, and their desire to enter the economic mainstream."[xviii]
Supporters of bilingualism are immediately put on the defensive against a seemingly obvious, patriotic stance. They counter with arguments of freedom of speech and alienation of a significant portion of the American population in the name of national unity. Supporters of bilingualism state that restricting a group's ability to use its language makes it harder - not easier - for them to enter the U.S. mainstream.
1.The Arizona Official English Amendment: A Case Study
A proposed constitutional amendment was introduced into the Arizona Senate on January 14, 1987 (Proposition 106). In addition to declaring English the official language of Arizona, the amendment would have prevented any Arizona authority from requiring the use of any language other then English.
1
The legal effects of the amendment are of interest. The amendment could nullify the requirement of Arizona Code 12-2406C which requires notice of civil proceedings to include a warning in English and Spanish that a law suit has been filed. It could nullify the provisions of Arizona Code 16-580 which require election officials to provide assistance during voting, to the extent the assistance must be provided in Spanish. It could nullify the provision of Arizona Code 15-754 insofar as these provisions require bilingual education programs directed at language maintenance. Arizona would be unable to stipulate for bilingual licenses, bilingual voting, to provide interpreters in civil and criminal proceedings, or to provide foreign language personnel in community health centres or in alcohol abuse and treatment programs. The Legislature could not provide governmental services in languages other then English if non-English uses were mandatory, and not simply permissive. In short, the proposed amendment would cancel the language rights gained in the last five decades in Arizona and prohibit further ones from coming into being.
Arizona's Proposition 106 was passed by voters on November 8, 1988. It was the most restrictive English-Only measure enacted at the state level at the time. Arizona's Attorney General tried to clarify the impact of Article XXVIII by issuing an official opinion: "[Article XXVIII] does not prohibit the use of a language other then English to facilitate the delivery of governmental services".[xix] In the Attorney General's opinion, the application of Article XXVIII is restricted towards "sovereign" governmental acts.