Constitutional courage.

• Author: Arthurs, Harry

In this lecture, Professor Arthurs argues that we are currently in need of "constitutional courage"--the courage to say "no" to ambitious projects of constitutional reform and constitutional litigation as a way to solve our pressing social and political problems.

Professor Arthurs first lays out why our current obsession with the constitution is problematic. He insists that we do not even know what the supposed "supreme law of Canada" actually is, what it says, or even what it does. Moreover, instead of transforming society, the current "cult of constitutionalism" has only served to transform legal practice and scholarship. He then surmises on the potential causes of our constitutionalism: the preponderant influence of American political and legal culture in Canada; the patchy and uncertain nature of our own constitution; frustration with parliamentary politics; the neo-liberal agenda; and perhaps even postmodernism. Lastly, he examines the role constitutionalism has played in the expansion of the judiciary power.

Professor Arthurs concludes that it is time we said "no" to the constitution. Only by summoning up our constitutional courage will we be able to turn away from the distractions of constitutionalism and toward the more pressing and practical problems of the day.

Dans cette conference, le professeur Arthurs en appelle au <>. Il fant selon lui s'opposer d'une part aux ambitieux projets de reforme constitutionnelle, et d'autre part au litige constitutionnel comme mode de resolution des problemes sociaux et politiques pressants du Canada.

En premier lieu, Arthurs explique ce qui rend problematique cette obsession collective h l'egard la constitution. On comprend mal, scion lui, ce qu'est la <>, ce qu'elle dit, ou meme ce qu'elle fait. De plus, ce <> a change la pratique et la theorie juridiques plutot que la societe elle-meme. Arthurs conjecture ensuite les causes de ce <>. Parmi les explications possibles figurent l'influence politique et juridique des Etats-Unis, la nature fragmentaire et incertaine de la constitution canadienne, un certain mecontentement envers le systeme parlementaire, l'agenda politique neoliberal, et la postmodernite. Enfin, Arthurs examine le role du <> darts l'expansion du pouvoir judiciaire.

Il conclut qu'il est temps de dire non a la constitution. Ce n'est qu'en rassemblant son courage constitutionnel que l'on pourra ignorer les distractions du <> et se consacrer a des problemes actuels plus concrets et importants.

Introduction: Constitutional Courage I. What is the Canadian Constitution? II. The Causes and Effects of Constitutionalism III. The Unfortunate Effects of Constitutionalism on Our Courts IV. What Would the World Be Like if We Were All Brave Enough to Say "No" to the Constitution? Introduction: Constitutional Courage

"Constitutional Courage" is perhaps a misleading title. I am not here to tell epic tales of brave citizens fighting to defend their constitution because they believe in what it stands for, or fighting to defy their constitution because they believe it transgresses some higher moral imperative. Nor will I wax poetic, even in the ironic style of Frank Scott, about bold lawyers who courageously risk their clients' futures and fortunes in constitutional litigation. (1) Rather, I will try to persuade you that the most attractive kind of constitutional courage is the courage to say "no" to the constitution. "No" to what, exactly? "No" to ambitious projects of constitutional reform, "no" to Charter challenges, "no" to the compelling rhetoric and evocative symbolism of the constitution, "no"--most of all--to the temptation to chisel into the granite of the constitution good, true, and right ideas about public policy, personal dignity, collective identities, or our federal union.

Why do I advocate this unromantic, even perverse, kind of constitutional courage? Well, surely someone needs to. We are all overinvested in the constitution. It is by far the greatest preoccupation of Canadian legal scholars, (2) and an obsession of our politicians and journalists. Americans fought a civil war to preserve their constitution; South Africans avoided a civil war by negotiating a new one; Mexicans amended theirs 350 times to get it just right; and even the British--notoriously laggard in matters constitutional--now favour adopting a written constitution by large majorities, according to recent polls. (3) The EU is writing a new constitution for itself, (4) while the Council of Europe has established the Venice Commission to help states write new constitutions if they feel in need of one) Even the World Bank now promotes constitutionalism as a necessary, if not sufficient, condition for the success of global capitalism. (6) You can see, then, that I have to muster my constitutional courage just to do what any self-respecting scholar ought to do: challenge the conventional wisdom. Frankly, I sometimes wonder if I am being courageous or just foolish: after all, my evidence is modest; my arguments require a lot more work; and I find myself disagreeing with scholars whose writings I respect, advocacy groups whose values I embrace, and judges whose intelligence and ingenuity I quite admire. But "foolish" would bring this lecture to an abrupt end, while "courageous" will at least sustain me through the next fifty minutes; so "courageous" it will be.

And courage is needed at this particular moment in history. By any reckoning, we are in a severe international crisis, and arguably a domestic one as well. Crises throughout history have given rise to cults, to faiths, to ideologies that teach that all can be made calm, can be made new, can be made just, can be made perfect by a new, just, and perfect constitution. Would that it were so. Alas, history shows that constitutions seldom resolve crises--whether of economics, politics, religion, or culture--and sometimes exacerbate them. In fact, constitutions themselves are quite regularly destroyed by crises. (7) That is why I bolster my own constitutional courage by imbibing a wee sip of history every time I sit down to write about the subject.

The most important reason for constitutional courage just now, however, is that we have embarked on the long and hazardous project of rediscovering and revising our understanding of law. Constitutions represent the epitome of the old, command model of law--the notion that law has only to be authoritatively announced and applied in order to transform social behaviour. Constitutions on this theory are a special, privileged kind of law: they speak to state actors as well as to ordinary citizens; and they announce ideals as well as rules; but in the end constitutions are still meant to be commands: everyone must comply with the fundamental rules of the polity, and if they do not, the state will mobilize its powers to ensure compliance. Note, moreover, that according to the command model, constitutions cannot be trumped by appeals to superior or anterior norms: nothing is higher, nothing is prior; the constitution is the last word in debates on politics as well as on law.

Now the problem: the command model of law is in deep disrepute, at least in scholarly circles. By no means is it clear that law in general, and constitutions in particular, actually operate as the command model suggests; that constitutions can or do shape the behaviour of either citizens or state actors; or that constitutions actually end debates? In reality, to the contrary: it is clear that constitutions are often ignored; that the norms that shape the lives of people and institutions originate from sources and operate in ways that the constitution does not contemplate; and that politics and social change grind on despite supposed constitutional closure. (9) Yet these revelations do not cause nations to crumble, nor is their social fabric rent asunder; in fact, the results are as often positive as negative. So perhaps constitutional courage amounts to no more than a willingness to say that like the emperor who had no clothes, the constitution in fact brings no closure.

This brief meditation on constitutional courage defines my agenda. I am going to make four distinct points. First, if we want to take the whole idea of constitutionalism seriously, I will suggest, we may have to radically revise our notion of what our constitution really is. Second, I will review the causes and effects of what I think of as the "cult of constitutionalism". Third, I will say a word about the unfortunate effects of this cult on its high priests, the judges. And finally, I will try to show how my brand of constitutional courage--the courage to say "no"--might just produce some positive results.

1. What Is the Canadian Constitution?

   Given our constitutional obsessions of the past quarter century--the Charter, Quebec nationalism, Western alienation, equitable access to public goods--we ought by now to be able to answer the simple question: what is the constitution of Canada? But we cannot, in fact, draw an accurate map of our constitution. Obviously, by any definition, the celebrated Constitution Act, 1867 ("1867 Act") and Constitution Act, 1982 ("1982 Act"; together, the "Constitution Acts") are part of the constitution. (10) So, too, are a number of other "Acts and orders" listed in the schedule to the 1982 Act. (11) But from that point on, we are in terra incognita--the place map-makers used to label either El Dorado, if they wanted to lure people there, or "here be monsters" if they wanted to scare them away. Even a plain reading of the Constitution Acts shows that the "c-word" has several possible meanings. Section 52 of the 1982 Act says that "the Constitution of Canada," which "includes" the Constitution Acts themselves, is the "supreme law of Canada," that it makes all non-conforming laws "of no force and effect," and that it can only be amended--if at all--in accordance with an elaborate formula. By contrast, section 45 confirms the...