Constitutionalising the Senate: A Modest Democratic Proposal

25 Pages Posted: 17 Nov 2016 Last revised: 18 Sep 2018

See all articles by Joel I. Colón-Ríos

Joel I. Colón-Ríos

Victoria University of Wellington - Faculty of Law

Allan Hutchinson

York University - Osgoode Hall Law School

Date Written: 2015

Abstract

The Senate Reference did not provide an ideal situation for clarifying the nature and limits of the power of constitutional reform in Canada. The facts gave the Court no choice but to recognize the fundamental role that the Senate plays in the Canadian constitutional order, and therefore to place some of its main features outside the scope of section 44 of the Constitution Act, 1982, even if they ran contrary to basic democratic values. For example, in order to explain that the implementation of consultative elections would alter the constitution’s basic structure, the Court was forced to construe in a negative light the prospect of a democratically legitimate Senate. In this paper, rather than attack or defend bicameralism, we will argue in favour of attributing a democratically reconstituted Senate with the primary responsibility of reviewing the constitutionality of legislation (as opposed to acting as a chamber of “sober second thought” with respect to the policy decisions of the House of Commons). Such an approach, we suggest, would augment the overall democratic legitimacy of the constitutional order.

Keywords: Senate, Constitutional Order, Legislation

JEL Classification: K00, K10

Suggested Citation

Colón-Ríos, Joel I. and Hutchinson, Allan, Constitutionalising the Senate: A Modest Democratic Proposal (2015). Victoria University of Wellington Legal Research Paper No. 96/2018. Available at SSRN: https://ssrn.com/abstract=2871579

Joel I. Colón-Ríos (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Allan Hutchinson

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
(416) 736-5048 (Phone)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
30
Abstract Views
406
PlumX Metrics