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Virtual Bookshelf: Understanding Constitutional Change in Canada–A Review of “Constitutional Amendment in Canada,” Edited by Emmett Macfarlane

Richard Albert, Boston College Law School

In his influential though dated study of formal amendment difficulty, Donald Lutz examines the amending procedures for 32 countries and concludes that the United States Constitution is the most difficult to amend.[1]

Notwithstanding the all-important questions raised by Tom Ginsburg and James Melton–whether and how much the amending rule matters to measuring amendment difficulty[2]–Lutz’s conclusions are consistent with what we generally believe to be true: constitutional amendment is difficult in large, federal and heterogeneous states.[3]

Buried in a footnote deep within Lutz’s book is a reference to Canada: Lutz explains that he did not include the Canadian Constitution in his study sample because he cannot reliably determine what has constitutional status in Canada, and consequently he cannot know what counts as a constitutional amendment.[4]

Lutz can be forgiven for omitting Canada from his study of formal amendment difficulty. Constitutional amendment in Canada is indeed hard to understand, for two reasons in particular.

For one, although all constitutions are in some ways both written and unwritten, the Canadian Constitution is one of the few I have encountered that expressly identifies itself as partially codified and uncodified.[5] This complicates the task of identifying the constitution outside of the master-text constitution.

The Constitution of Canada moreover entrenches five different formal amendment procedures of increasing difficulty, each one specifically designated for use in relation to certain principles and provisions.[6] This escalating structure of constitutional amendment often creates confusion as to which amendment procedure must be used to pass a given amendment.

But there is good news to hearten us: understanding constitutional amendment in Canada has gotten much less daunting with the recent publication of Constitutional Amendment in Canada (University of Toronto Press), edited by Emmett Macfarlane.

Published just last month, this first-of-its-kind book gathers fifteen scholars of Canadian public law to explore in rare depth the ins and outs of the amending formula in the Constitution of Canada.

Macfarlane has divided the papers into three major sections: the players, focusing on who can amend the Constitution; the procedures, probing the various ways they may do so; and the issues, a section that puts theory to practice by exploring some modern applications and implications of the amendment procedures.

The group is stellar in every way that matters. Marfarlane has brought together established and newer voices, academics and practitioners, as well as perspectives from history, law and political science to generate a volume that will become a lasting guide to the rules of constitutional amendment in Canada.

Yet I wonder whether the title of the book fully reflects the breadth of the ground covered in the volume.

The book covers much more than just constitutional amendment in Canada.

It includes important treatments of the Constitution’s evolution by judicial interpretation, for instance Adam Dodek’s chapter on Uncovering the Wall Surrounding the Castle of the Constitution: Judicial Interpretation of Part V of the Constitution Act, 1982 and Erin Crandall’s chapter entitled DIY 101: The Constitutional Entrenchment of the Supreme Court of Canada.

The volume also engages the subject of informal constitutional development in the political process and through constitutional conventions, notably in Macfarlane’s own chapter on The Uncertain Future of Senate Reform, Dennis Baker and Mark Jarvis’ chapter on The End of Informal Constitutional Change in Canada?, and Philipe Lagassé and Patrick Baud’s chapter on The Crown and Constitutional Amendment after the Senate and Supreme Court References.

The book moreover touches on what I take to be constitutional replacement in Kate Puddister’s chapter on “The Most Radical Amendment of All”: The Power to Secede and the Secession Reference.

So it may have been more descriptively accurate to call the book Constitutional Change in Canada to better capture the various methods the Constitution has evolved, both formally and informally, and both intentionally and not, since the entrenchment of Part V of the Constitution Act, 1982.

But this is a minor criticism, not even one I agree with. In my own work on constitutional change, I have sought to make the case that the term “amendment” should be used to refer to all manner of constitutional changes that political actors treat as legally valid and politically binding, whether or not the changes are formalized in a text.

The evidence of the strength of this book is in the weakness of my critique. It is very difficult—almost as difficult as Lutz concludes it is to amend the United States Constitution—to find something critical to say about this important volume.

Suggested Citation: Richard Albert, Book Review, Understanding Constitutional Change in Canada–A Review of “Constitutional Amendment in Canada,” Edited by Emmett Macfarlane, Sept. 21, 2016, at: http://www.iconnectblog.com/2016/09/virtual-bookshelf-constitutional-change-in-canada


[1] Donald S. Lutz, Principles of Constitutional Design (2006).

[2] Tom Ginsburg & James Melton, “Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty” (2015) 13 Int’l J Const. L 686.

[3] Lutz, supra note 1, at 170.

[4] Ibid at 179 n 16.

[5] Constitution Act, 1982, Pt VII, s 52(2).

[6] Ibid at Pt V, ss 38-49.

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Published on September 21, 2016
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