Canadian Federalism in Design and Practice: The Mechanics of a Permanently Provisional Constitution

31 Pages Posted: 30 Aug 2017 Last revised: 7 Dec 2017

Date Written: August 24, 2017

Abstract

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation by governments. Furthermore, changes in practice initiated by Canadian subnational actors have produced changes in the allocation of national and subnational authority that are plausibly characterized as constitutional in magnitude. The paper concludes that the design of the Canadian federal system may inadvertently undermine its capacity to stabilize itself at any particular point of constitutional evolution, making it “permanently provisional.”

Keywords: federalism, Canada, constitutional law, constitutional design

Suggested Citation

Gardner, James A., Canadian Federalism in Design and Practice: The Mechanics of a Permanently Provisional Constitution (August 24, 2017). University at Buffalo School of Law Legal Studies Research Paper No. 2017-002. Available at SSRN: https://ssrn.com/abstract=3028067 or http://dx.doi.org/10.2139/ssrn.3028067

James A. Gardner (Contact Author)

University at Buffalo Law School ( email )

Room 514, O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-3607 (Phone)
716-645-2064 (Fax)

HOME PAGE: http://www.law.buffalo.edu

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