Constitutional amendment by stealth.

AuthorAlbert, Richard
PositionIntroduction through III. Stealth and the Rule of Law A. Consultative Elections and the Creation of the Convention 1. The Constraint of Consultative Elections, p. 673-705 - Canada - Symposium on the Senate Reference

Constitutional amendment ordinarily channels public deliberation through formal, transparent, and predictable procedures designed to express the informed aggregated choices of political, popular, and institutional actors. Yet the Government of Canada's proposed senator selection reforms concealed a democratically problematic strategy to innovate an informal, obscure, and irregular method of constitutional change: constitutional amendment by stealth. There are three distinguishing features of constitutional amendment by stealth--distinctions that make stealth amendment stand apart from other types of informal constitutional change: the circumvention of formal amendment rules, the intentional creation of a convention, and the twinned consequences of both promoting and weakening democracy. Constitutional amendment by stealth occurs where political actors consciously establish a new democratic practice whose repetition is intended to compel their successors into compliance. Over time, this practice matures into an unwritten constitutional convention, and consequently becomes informally entrenched in the constitution, though without the democratic legitimacy we commonly associate with an amendment. In this article, I theorize constitutional amendment by stealth from legal, theoretical, and comparative perspectives, and consider its consequences for the rule of law.

In general, lorsqu'il est question de modifications constitutionnelles, le debat public s'effectue par des demarches formelles, transparentes et previsibles concues pour vehiculer les opinions eclairees des acteurs politiques, populaires et institutionnels. Toutefois, avec ses propositions de reformes du mode de selection des senateurs, le gouvernement du Canada a tente de creer une procedure de modification constitutionnelle informelle, obscure et irreguliere : l'amendement constitutionnel furtif (>). L'amendement constitutionnel furtif comporte trois caracteristiques principales, qui le distinguent d'autres types de modifications constitutionnelles informelles : le contournement des regles formelles de modification, la creation intentionnelle d'une convention et la consequence paradoxale d'a la fois promouvoir et affaiblir la democratie. Avec l'amendement constitutionnel furtif, certains acteurs politiques cherchent a etablir une nouvelle pratique democratique, qui par sa repetition, vise a contraindre les decisions de leurs successeurs. Avec le temps, une telle pratique se mue en convention constitutionnelle non ecrite, et par consequent, s'enracine de facon informelle dans la Constitution, sans toutefois beneficier de la legitimite democratique normalement associee a un amendement constitutionnel. Dans cet article, l'auteur theorise l'amendement constitutionnel furtif en l'abordant des points de vue juridique, theorique et comparatif, et discute de ses consequences pour l'Etat de droit.

Introduction I. Constitutional Amendment in Canada A. The Difficulty of Formal Amendment B. The Prevalence of Informal Amendment C. The Informal Amendment of Formed Amendment Rules II. Senate Reform and the Senate Reference A. Modern Senate Reform B. The Supreme Court's Senate Reference C. Democratic Values and Consultative Flections III. Stealth and the Rule of Law A. Consultative Elections and the Creation of Convention 1. The Constraint of Consultative Elections 2. The Actors, Objects, and Subjects of Entrapment 3. The Convention on Senator Selection B. Stealth Amendment and the Values of Formal Amendment 1. The Values of the Rule of Law 2. Formal Amendment and the Rule of Law 3. Consultative Elections and the Rule of Law C. The Costs and Consequences of Stealth 1. Stealth Amendment and Ordinary Conventional Change 2. Constitutional Integrity and Democratic Legitimacy 3. Intergenerational Precommitment Conclusion Introduction

Formal amendment rules have been the subject of great controversy in contemporary constitutional politics in Canada. From the patriation of the constitution in 1982, to the nearly ratified 1987 Meech Lake Accord (1) and the similarly unsuccessful 1992 Charlottetown Accord, (2) and through the Supreme Court's Secession Reference (3) in 1998, formal amendment rules have been at the centre of deep legal, political, and indeed moral disagreement in Canada. (4)

The Supreme Court of Canada's recent Senate Reference continues the modern trend. (5) The constitutional questions on which the Court was asked to advise the Government of Canada focused squarely on the design and interpretation of the formal amendment rules entrenched in the Constitution Act, 1982. (6) The questions concerned the requirements for imposing senatorial term limits, repealing the property qualification for senators, abolishing the Senate, and implementing a framework of consultative provincial elections that would inform prime ministerial nominations. (7) In this article, I focus only on the last of these questions.

The nub of the issue concerned whether Parliament may constitutionally deploy its limited power of unilateral formal amendment under section 44 to make alterations to the method of prime ministerial nominations to the Senate of Canada, or whether Parliament is required to adhere to the more exacting multilateral formal amendment procedures defined in either sections 38 or 41. (8) In my view, the answer was always clear. (9) As I argued at the 2013 Constitutional Cases Conference at Osgoode Hall, before the Court rendered its advisory opinion, section 44--which authorizes Parliament to amend the Constitution of Canada "in relation to the executive government of Canada or the Senate and House of Commons"--is not the right vehicle for amendments to the method of filling vacancies in the Senate of Canada:

[T]he escalating and federalist structure of formal amendment entrenched in the architecture of Canada's formal amendment rules suggests that it was illegitimate to use section 44 to make a formal amendment to an element of Canadian democracy as significant as senator selection. Using the default multilateral amendment rule in section 38 is more consistent with Canadian history, the evolution of the design of formal amendment rules in Canada, and the centrality of federalism to democratic self-government. (10) I suggested that the Government of Canada's recourse to the unilateral formal amendment power under section 44 "reflects a disjuncture between legality and legitimacy." (11) I argued that although a purely formalist and strictly legalistic reading of the constitution could indicate that Parliament may pursue Senate reform through section 44, political history and constitutional design counsel that it would be illegitimate, whether legal or not. I concluded that

[i]n invoking this unilateral federal amendment power to formally amend senator selection, the Government of Canada has either misunderstood Parliament's constitutional authority or attempted to achieve unilaterally what it is constitutionally required to pursue multilaterally. (12) The Court later concluded in its Senate Reference "that Parliament cannot unilaterally achieve most of the proposed changes to the Senate, which require [recourse to section 38]." (13) Then as now, it was difficult to imagine the Court arriving at any other conclusion. The Court's advisory opinion was constitutionally correct in its interpretation of the structure of formal amendment under the Constitution Act, 1982; it was well reasoned in its answers to each of the six reference questions; and it was politically prudent in requiring political actors to work cooperatively toward Senate reform pursuant to the text's formally entrenched multilateral amendment procedures.

Yet in directing its attention methodically to the six reference questions, the Court missed an opportunity to bring to light the larger and more fundamental constitutional infirmities with the Government of Canada's Senate reform ambitions. (14)

I stress here that the Government of Canada's Senate reform ambitions are not troubling in and of themselves. The Senate of Canada is in dire need of reform. As Ned Franks has recognized, the Senate is "a frustrating puzzle" and "the most criticized institution of government in Canada." (15) It is therefore with good reason that the Senate has been the subject of sustained debate since the adoption of Canada's founding constitution in 1867. (16) Only seven years into Confederation, the House of Commons was already debating Senate reform. (17) Shortly thereafter, at the first intergovernmental conference, critics charged that the Senate was failing to meet the federalism-reinforcing objectives its designers had set for it. (18) Paul Weiler subsequently captured the dominant sentiment of the twentieth century, (19) observing that "just about everyone (except perhaps a few senators) would concede that the Canadian senate has not proved an effective representative of regional views in the central government." (20) The same critique endures today, (21) as the Senate prepares to mark its 150th anniversary in 2017. Senate reform proposals themselves are therefore far from troubling--they are both welcome and necessary.

What is troubling, however, is how the Government has sought to pursue its Senate reform ambitions. The Government of Canada's proposed Senate selection reforms concealed a broader strategy to innovate an unusual method of constitutional amendment: constitutional amendment by stealth. Constitutional amendment ordinarily channels public deliberation through formal, transparent, and predictable procedures designed to express the informed aggregated choices of political actors. But the Government of Canada appears to have calculated that the difficulty of formal amendment made its Senate reform objectives best achievable through informal and irregular procedures designed both to circumvent the textually prescribed rules for formal amendment and to introduce a material change to the Constitution of...

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