Constitutional Theory and the Quebec Secession Reference

Posted: 19 Jun 2001

See all articles by Sujit Choudhry

Sujit Choudhry

Center for Global Constitutionalism, WZB Berlin Social Science Center

Robert L. Howse

New York University School of Law

Abstract

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court's reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive, responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion.

Keywords: secession, Quebec Secession Reference, Canadian constitution

Suggested Citation

Choudhry, Sujit and Howse, Robert, Constitutional Theory and the Quebec Secession Reference. Canadian Journal of Law and Jurisprudence, Vol. 13, No. 2, July 2000. Available at SSRN: https://ssrn.com/abstract=258441

Sujit Choudhry

Center for Global Constitutionalism, WZB Berlin Social Science Center ( email )

Reichpietschufer 50
D-10785 Berlin, 10785
Germany

Robert Howse (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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