Constitutional Nationalism: Politics, Law, and Culture on the Road to Patriation

Abstract

This book chapter forms part of a larger collection of reflections on the November 1981 patriation negotiations leading to the passage of the Constitution Act, 1982. A legal history of Canadian constitutional thought, it connects patriation to the powerful forces of constitutional nationalism as they emerged in Canadian law, politics, and culture. Without an amending formula in the British North America Act, an adjudicative structure in which Britain’s Judicial Committee of the Privy Council served as Canada’s highest court, and lacking foreign policy autonomy, Canada remained tethered to Britain in ways that would become increasingly contentious. For Canada’s constitutional nationalists, the continued British constitutional role served as an intolerable expression of the Dominion’s infantilized status and a barrier to Canada’s abilities to develop policies, institutions, and politics that were reflective of the desires of Canadians. While the forces of constitutional nationalism triumphed in Canada's attainment of foreign policy autonomy, the “supremacy” of the Supreme Court, and a domestic constitutional amending formula, ultimately, the patriation of 1982 resolved fewer problems than constitutional nationalists might have hoped and generated several others in the bargain.

Keywords: Canadian constitutional law, legal history, law and politics, constitutional theory