The Formation and Amendment of Federal Constitutions in a Westminster-Derived Context

Abstract

This article offers an account of the formation and amendment of federal constitutions in a Westminster-derived or post-Westminster context. The four countries considered are Canada, Australia, India, and the United Kingdom. These countries are chosen for comparison due to their common historical relationship to Britain and the exercise by the British Parliament of sovereign legislative and constitutive authority over their respective territories. While Canada, Australia and India are today constitutionally independent of Britain, and while substantial autonomy has been conferred on the devolved parliaments of Scotland, Wales and Northern Ireland within the United Kingdom, such independence and autonomy were secured differently in each country. Similarly, the constitutional relationship between the federated polity and its constituent polities in each of these countries has evolved in unique ways.

This mixture of “similarity” and “difference” offers an opportunity to isolate the potential effect of particular constitutional features of the four federations and to consider the systemic effect those features might have within federal constitutions more generally. It is argued that the mechanisms of constitutional amendment within the four countries are best understood in terms of competing locations of effective constitutive authority embedded in each system, as displayed in the processes by which each federal constitution was originally established and continues to evolve. Approaching the question this way, the uniquely context-dependent nature of the bargains that underlie the formation of federal constitutions can be incorporated into a comparative theory that offers a general account of the formation and amendment of federal constitutions having broad explanatory power.

Keywords: Comparative Constitutional Law, Comparative Federalism, Constitutional Amendment, Australia, Canada, India, United Kingdom