The Difficulty of Constitutional Amendment in Canada

30 Pages Posted: 25 May 2015 Last revised: 16 Dec 2015

See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; Yale University - Law School; University of Toronto - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: May 24, 2015

Abstract

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. But in this paper I suggest that the Constitution of Canada may be even harder to amend. Modern Canadian political history has proven the textual requirements for major constitutional amendment so far impossible to satisfy, yet the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the Constitution’s formal amendment rules. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as-yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

Keywords: Constitutional Amendment, Formal Amendment, Informal Amendment, Constitution of Canada, United States Constitutional, Amendment Difficulty, Constitutional Rigidity, Secession Reference, Senate Reference, Nadon Reference, Regional Veto Law, Clarity Act

Suggested Citation

Albert, Richard, The Difficulty of Constitutional Amendment in Canada (May 24, 2015). 53 Alberta Law Review 85 (2015); Boston College Law School Legal Studies Research Paper No. 362. Available at SSRN: https://ssrn.com/abstract=2609939

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

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HOME PAGE: http://law.utexas.edu/faculty/richard-albert

Yale University - Law School

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University of Toronto - Faculty of Law ( email )

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Universidad Externado de Colombia - Facultad de Derecho

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HOME PAGE: http://https://www.uexternado.edu.co/derecho/

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

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Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

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