Book Chapter: The Federal Principle (Const. Amendment in Canada)

Looks like I’ve been a little delinquent posting my publications.  I have a chapter in Emmett MacFarlane’s Constitutional Amendment in Canada (UTP 2016).  Not going to post a PDF yet, but the following excerpt gives a sense of it:

“Amending the Constitution of Canada is difficult. The formal procedure (found in Part V of the Constitution act, 1982) was arrived at after decades of failed negotiation. Part V leaves some kinds of change unspecified, and renders the route to other kinds of change ambiguous. The fact that Part V entails different amending procedures leads to additional conundrums.

In the morass of Part V, is there, nonetheless, a unifying principle?

In this chapter, I argue that there is: the country’s essential federal character. Canada was formed through the coming together of several distinct communities, whose distinctiveness has shifted, but not disappeared. Of course, the provinces exist within a larger political structure with a separate and powerful governing authority. Nonetheless, Canada remains a “federally constituted whole,” a fact that has had a profound impact on the constitutional amending process. A variety of narratives bear this out: the negotiations themselves, the precise formulae laid out in Part V, and the analysis found in several opinions of the supreme Court of Canada.

Addressing the above narratives, this chapter concludes that the difficult hurdles to amendment – which some call a “constitutional straitjacket” – are a by-product of the country’s history and politics. I am sympathetic to the perceived need, reflected in Part V, to protect the country’s essential federal character. There is no question, though, that Part V privileges the provinces’ role in amendment to the exclusion of other means of determining support, and hampers the likelihood of achieving future constitutional change.”

The entire collection is excellent. If I do say so myself.  🙂