The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada

65 Pages Posted: 24 Aug 2015 Last revised: 15 Sep 2017

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: August 23, 2015

Abstract

It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Courts have enforced both written and unwritten limits on how political actors may exercise the formal amendment power. They have relied either on constitutional texts that expressly entrench provisions against formal amendment or on their own interpretation of these texts as implicitly establishing an unalterable constitutional core. Although the Supreme Court of Canada has not yet invalidated a constitutional amendment, modern case law provides the constitutional basis for the Court to declare that a future constitutional amendment violates either the text or spirit of the Constitution of Canada. In this Article, I trace the origins and evolution of the theory and doctrine of unconstitutional constitutional amendment, I explain how the theory and doctrine may apply today in Canada, and I suggest a detailed framework to evaluate when and how the Supreme Court of Canada may exercise the extraordinary residual constitutional authority to invalidate a constitutional amendment.

Keywords: Constitutional Amendment, Unconstitutional Constitutional Amendment, Basic Structure Doctrine, Formal Amendment, Informal Amendment, Constitution of Canada, Indian Constitution, Amendment Difficulty, Supreme Court of Canada, Constitutional Interpretation

Suggested Citation

Albert, Richard, The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada (August 23, 2015). 41 Queen's Law Journal 143 (2016), Boston College Law School Legal Studies Research Paper No. 376, Available at SSRN: https://ssrn.com/abstract=2649447

Richard Albert (Contact Author)

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

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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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Colombia

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

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

P.O. Box 167
Herzliya, 46150
Israel

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

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