Canada's "newer constitutional law" and the idea of constitutional rights.

• Author: Adams, Eric M.

This article places F.R. Scott's 1935 call for entrenched constitutional rights within the context of marked changes in constitutional scholarship in the 1930s--what the author refers to as the "newer constitutional law". Influenced by broader currents in legal theory and inspired by the political and economic upheavals of the Depression, constitutional scholars broke away from the formalist traditions of a previous generation and engaged in new ways of thinking and writing about Canadian constitutional law. In this new approach, scholars questioned Canada's constitutional connection to Britain and argued instead for a made-in-Canada constitutional law that could functionally address the changing needs of Canada and its citizens. In the process, scholars legitimated the prospects and possibilities of constitutional adaptation and change. Scott's vision of constitutional renewal entailed a strong central government capable of national economic planning, but he added constitutional rights to protect the personal liberties he viewed as particularly under threat in the 1930s. In so doing, Scott subtly recast the meaning of constitutional rights and took the first tentative steps in a rights revolution that would fundamentally transform Canada in the decades that followed.

L'article situe l'appel de F.R. Scott de 1935 pour des droits constitutionnels enchasses dans le contexte des grands changements ayant marques la doctrine constitutionnelle durant les annees 1930, ce que l'auteur considere comme le <>. Influences par des courants de theorie legale plus diversifies et inspires par les bouleversements politiques et economiques de la Grande Depression, les erudits du droit constitutionnel se sont detaches du formalisme de leurs predecesseurs et ont mis de l'avant de nouvelles facons d'aborder le droit constitutionnel canadien. Cette nouvelle approche a amene les auteurs a remettre en question le lien constitutionnel entre le Canada et la Grande-Bretagne et a avancer l'idee d'un droit constitutionnel propre au Canada, qui repondrait adequatement aux besoins changeants du Canada et de ses citoyens. Au cours de ce processus, les juristes ont legitime les avenues prometteuses et les possibilites de l'adaptation et du changement constitutionnels. Le renouvellement constitutionnel tel qu'envisage par Scott mena a l'etablissement d'un gouvernement central fort et detenant un pouvoir de planifier l'economie nationale, mais il ajouta la notion de droits constitutionnels afin de proteger les libertes personnelles selon lui menacees durant les annees 1930. Ce faisant, Scott remania subtilement le sens des droits constitutionnels et fit de discrets premiers pas vers une revolution des droit qui transforma fondamentalement le Canada dans la decennie suivante.

Introduction I. Constitutional Scholarship in the Early Twentieth Century: The "Older Constitutional Law" II. The Newer Constitutional Law A. First Challenges B. A New Nationalism C. Roscoe Pound and Sociological Jurisprudence in Canada D. The Politics of Constitutional Law E. Civil Liberties and Constitutional Law III. A Constitutional Bill of Rights for Canada Conclusion Introduction

"[F]or many years constitutional law has been under a shadow," observed William Paul McClure Kennedy in the 1931 volume of the Canadian Bar Review. For this gloomy assessment, Kennedy blamed "incomparably dull" textbooks crammed with "the minutiae or unrealities of legal or constitutional history" and other such "barren gustations". Yet Kennedy saw hope for his beloved subject. Times were changing and the "insistent demands of modern life" were compelling scholars to view constitutional law from "newer and more urgent angles." The "older constitutional law", Kennedy insisted, was "being handed over to the historians to make way" for a new, robust, and energized constitutional scholarship. "[N]o one", he asserted, "can fail to notice the revival of interest and to catch the living notes in the newer constitutional law." (1)

Kennedy offered this note of optimism, not in a major piece of scholarship, but in a review of three publications in British constitutional law. (2) Although Kennedy's Canadian colleagues largely shared his enthusiasm for the dynamic turn in constitutional scholarship, there is no evidence that any of them used the expression "newer constitutional law". Indeed, Kennedy never used the expression in writing again either. Yet in the 1930s, Canada, like Britain, was in the midst of a marked transition in the way that scholars thought and wrote about constitutional law, a shift that is well captured by the concept of a newer constitutional law.

Kennedy himself was one of the principal figures responsible for the emergence of the newer constitutional law in Canada. The other was Francis Reginald Scott, poet, activist, and professor of constitutional law at McGill. Although in the early 1930s these men were at notably different stages of their careers--Kennedy near the end of his and at the height of his influence, Scott at the beginning--both contributed profoundly to the reinterpretation of constitutional law in Canada in that decade. This is not to say that other scholars did not also participate in the formation of the newer constitutional law. Legal scholars such as Vincent MacDonald at Dalhousie, political scientists such as Norman Rogers at Queen's, and political economists such as Eugene Forsey at McGill also contributed to the shift in constitutional thought, though they played less prominent roles, at least in retrospect, than did Kennedy and Scott. Nor am I suggesting that the scholars of the newer constitutional law could not or did not disagree with one another. Scott and Forsey were avowed socialists, while Kennedy, MacDonald, and Rogers were more moderate liberal centrists. Whatever their political differences, however, the scholars of the newer constitutional law were united in a new approach to thinking and writing about Canadian constitutional law.

For several reasons, this small group of public law professors did not include thinkers from French-speaking Quebec. Quebec intellectuals in the 1930s also grappled with issues of constitutional law, but they did so through a prism of Quebec history, nationality, and identity. Articulating their own set of constitutional aspirations, Quebec constitutional scholars such as Leo Pelland at Laval University focused on the need for the continued autonomy of provincial governments and the maintenance of Privy Council appeals. (3) The virtual non-existence of social and professional relations between English--and French-speaking scholars widened the gulf between them. Literally and figuratively, Canada's constitutional scholars in English Canada and French Canada did not speak to one another.

Today, the scholars of the newer constitutional law are best known for their impassioned criticism of the Privy Council. (4) Their contribution, however, goes much further and deeper. The scholars of the newer constitutional law fundamentally altered the landscape of Canadian constitutional thought by abandoning the formalist traditions of early twentieth-century scholarship. In its place emerged a functional approach to constitutional analysis inspired by a new sense of Canadian nationalism and broader ideas about the social utility of law. (5) With this new approach, the scholars of the newer constitutional law questioned Canada's constitutional connection to Britain, arguing instead for a made-in-Canada constitutional law that could functionally address the lived experiences of the nation. If necessary change could not be accomplished through the interpretive paradigms of the Privy Council, then appeals to the Privy Council should be abolished. If the constitutional text was deficient, then the constitution should be amended. In this way, the scholars of the newer constitutional law legitimated the prospects and processes of constitutional change while simultaneously reinforcing the idea that constitutional law could and should progressively transform society. As Morton J. Horwitz has written of the American experience, a "constitutional revolution can take place only when the intellectual ground has first been prepared." (6) In Canada, the scholars of the newer constitutional law tilled the soil that germinated the first seeds of a constitutional revolution that would reshape Canada over the ensuing fifty years.

Yet to date, historians and legal thinkers have underappreciated or ignored the role of constitutional thought in shaping Canada's constitutional law, and in particular, the development of Canada's modern constitutional rights discourse. Recent literature has largely emphasized the influence of civil liberties activists, the Second World War, the international human rights movement, and the politics of Quebec nationalism in laying the foundations for Canada's "rights revolution". (7) These international and domestic influences certainly shaped the direction and content of Canada's postwar rights debates but, as this article demonstrates, the idea of constitutional rights in Canada first emerged when Scott filtered his concern for civil liberties through the transformative concepts of the newer constitutional law. Specifically, this article claims that Scott's call for the constitutional entrenchment of civil liberties in 1935 emerged out of three central and related ideas of the newer constitutional law. First, as a mature nation, Canada should be in charge of its own constitutional destiny. Second, constitutional change was legitimate and necessary given the social and economic crisis gripping the nation. Third, constitutional law could and should function as an agent of progressive social change.

In Social Planning for Canada, published in 1935, Scott advanced the first scholarly proposal for an entrenched "Bill of Rights" in Canadian history. (8) In many ways, Social Planning was an odd text in which to...