When Constitutional Conventions Fail

Abstract

Quiet concern is an underlying theme in much of the scholarship on constitutional conventions. While conventions may be a necessary feature of constitutional government, commentaries are often quick to point to the difficulties that arise due to the uncertainties that surround their content and enforceability. In this paper, I argue that constitutional conventions can also be a source of cautious optimism precisely on account of the uncertainties that surround their content and enforceability. Further, I contend that this dimension emerges when we might least expect, namely when constitutional conventions fail as a result of constitutional actors departing or threatening to depart from them. A failure can create a discursive moment, presenting constitutional actors, including the public, with a rare opportunity to discuss a neglected constitutional issue or to reframe a constitutional issue where debate has reached an impasse and become stagnant. During these moments, the doubts surrounding their content and enforceability can be a positive influence because they encourage participants to engage directly with the convention and the justifications for its existence. I discuss the opportunities created when constitutional conventions fail by reference to the Australian example of the Governor-General's decision to dismiss Gough Whitlam as Prime Minister in 1975 and the Canadian example of Prime Minister Pierre Trudeau's threat to pursue unilateral patriation of the Canadian Constitution in 1980-82.

Keywords: Comparative constitutional law, Constitutional theory, Constitutional Conventions, Australia, Canada

JEL Classification: K10