The Embarrassing Preamble? Understanding the 'Supremacy of God' and the Charter

46 Pages Posted: 1 Nov 2006 Last revised: 19 Jan 2019

See all articles by Jon Penney

Jon Penney

University of Oxford - Oxford Internet Institute; Citizen Lab, University of Toronto; Princeton University - Center for Information Technology Policy; Harvard University - Berkman Klein Center for Internet & Society; Dalhousie University - Schulich School of Law

Robert Jacob Danay

Allard School of Law

Date Written: December 1, 2012

Abstract

The reference to the supremacy of God (the clause) found in the preamble to the Canadian Charter of Rights and Freedoms has been either marginalized or completely ignored by Courts and legal scholars. This leaves the impression that most are either embarrassed by the clause, or just wish to ignore it. Given the importance the Supreme Court of Canada has ascribed to constitutional preambles, it is time to acknowledge the supremacy of God clause and make a good faith attempt to determine its meaning and role in Canadian constitutionalism. This paper constitutes just such an attempt. Our thesis is straightforward. The clause recognizes a fundamental principle upon which the theory of the Charter is based: people possess universal and inalienable rights derived from sources beyond the state, and the Charter purports to enumerate positivist protections for these pre-existing human rights. This understanding of the clause is rooted in the historical development of human rights theory out of the natural law tradition and finds support both in the dicta of the Supreme Court of Canada as well as the thinking of the Charter's framers. This analysis restores meaning and dignity to the clause and, as we will argue, has important normative and practical implications for our understanding of the Charter itself, including the limitation of people's rights under Section 1.

Keywords: constitutional law, embarrassing, constitutionalism, God, natural law, Canada, political theory, normative theory, Charter, Section 1, limitation on rights, preamble, Locke, human rights, natural rights, supremacy of God, religion, public law, preamble, Canadian Charter of Rights and Freedoms

JEL Classification: N40, K39

Suggested Citation

Penney, Jonathon and Danay, Robert Jacob, The Embarrassing Preamble? Understanding the 'Supremacy of God' and the Charter (December 1, 2012). University of British Columbia Law Review, Vol. 39, No. 2, p. 287, 2006 . Available at SSRN: https://ssrn.com/abstract=941221

Jonathon Penney (Contact Author)

University of Oxford - Oxford Internet Institute ( email )

1 St. Giles
University of Oxford
Oxford OX1 3PG Oxfordshire, Oxfordshire OX1 3JS
United Kingdom

Citizen Lab, University of Toronto ( email )

Munk School of Global Affairs
University of Toronto
Toronto, Ontario M5S 3K7
Canada

Princeton University - Center for Information Technology Policy ( email )

C231A E-Quad
Olden Street
Princeton, NJ 08540
United States

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA Nova Scotia 02138
Canada

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
PO Box 15000
Halifax, Nova Scotia B3H 4R2
Canada

Robert Jacob Danay

Allard School of Law ( email )

2329 West Mall
Vancouver, British Columbia BC V6T 1Z4
Canada

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