—Richard Albert, Boston College Law School
The National Constitutional Center in Philadelphia recently hosted a symposium on The Declaration of Independence as Introduction to the Constitution.
Organized by Alexander Tsesis, the symposium brought together one dozen scholars in conversation around the Declaration of Independence. Their symposium papers have been published in a special issue of the Southern California Law Review.
Each paper is worth reading for the fascinating and often challenging perspectives they suggest for how to understand the Declaration of Independence today. For example, Jack Balkin and Sanford Levinson collaborate on a paper about the theory and global significance of the right to alter or abolish government—a right found in the Declaration. Amanda Frost presses the Declaration for answers to current controversies in immigration law. And Mark Graber and Frank Michelman’s respective contributions double as a call to action: Graber argues that law professors should teach the Declaration while Michelman makes the case that lawyers could rely on the Declaration in the constitutional challenges they bring in the service of progressive causes.
In his introduction to the symposium issue, Tsesis discusses the importance of the revolutionary document. He writes:
Throughout the course of United States history, the Declaration of Independence has played an outsized role in constitutional development. For each generation of Americans, the document has reflected the historical reason for independence and the idyllic statement of representative government. On the one hand, it is not part of the formal Constitution, on the other, it informs constitutional interpretation.
Later in his introduction, Tsesis makes an interesting observation: “many early American statesmen conceived the document of independence to be a proto-constitutional statement, rather than as a glinting generality.”
For me, Tsesis’s symposium on the Declaration of Independence raises the question whether and how we can identify what I will identify as a “pre-Constitution constitution.”
A pre-Constitution constitution is a document, agreement or understanding that pre-dates a codified constitution but that nonetheless has constitutional status when interpreting the later-adopted codified constitution.
A recent book offers insights on this question with reference to Canada.
In their new edited volume on “The Constitutions that Shaped Us: A Historical Anthology of Pre-1867 Canadian Constitutions,” Guy Laforest, Eugénie Brouillet, Alain-G. Gagnon and Yves Tanguay suggest that the Canadian Constitution has four such pre-Constitution constitutions: the Royal Proclamation of 1763, the Quebec Act of 1774, Constitutional Act of 1791 and the Act of Union of 1840. Each of them pre-dates the British North America Act, 1867 (since renamed the Constitution Act, 1867), the constitutional document that formalized Confederation—and that will mark its Sesquicentennial next year in 2017.
The editors have collected excerpts written by historians and constitutional scholars between 1845 and 1971 about Canada’s pre-Constitution constitutions from both English and French perspectives. The 15 or so authors appearing in the volume include Sir John George Bourinot, François-Xavier Garneau and W.P.M. Kennedy, as well as Alfred Leroy Burt, Séraphin Marion, Hilda Neatby and Maurice Séguin.
The purpose of the volume is ambitious, and it is also timely given that the Constitution of Canada approaches its important constitutional milestone of 150 years in existence. In the words of the editors:
In a country where, traditionally, French-speaking and English-speaking historians have made a point of ignoring each other, our goal is to bring together under the same cover a range of texts from both sides to represent the historiographical record and its evolution. We think readers will appreciate this contrasted approach, with its nuances, convergences, and divergences in terms of both substance and form. Second, to counterbalance the effects of the current era in which social media and blogs promote the instantaneous and extreme present, we wanted to give pride of place to the views of historians from previous generations concerning the pre-1867 constitutions.
The book is an important reference guide to Canadian constitutional history. In it, we find competing perspectives on the Constitution’s origins and early evolution. The focus is squarely on the four pre-Constitution constitutions, with deep contextual analyses of all four of them, including how they came to be, what their functions were, and how they were perceived at the time by political actors and the people. The collection does not expressly relate the four pre-Constitution constitutions to the interpretation of the current Constitution but one cannot read the volume without drawing connections between Canada’s past and its present challenges. Indeed the book serves as an invitation to look back to the Constitution’s beginnings for a way to chart a path forward.
Yet the authors admit that their anthology is not exhaustive, conceding that “some important and useful viewpoints will always be neglected or omitted.”
The most obvious omissions are the perspectives of Canada’s Aboriginal peoples. Despite promising to “offer the most nuanced view of Canada’s origins to date,” the book does not include the voices of those who were present before contact.
The Introduction does not address this question, so we are left to wonder for ourselves why the editors have given the volume an exclusive focus on English and French perspectives.
One possibility turns on the factual reality that the Quebec question has dominated the first 150 years of the Canadian Constitution. It could therefore make sense for an anthology like this one to focus on only this part of Canada’s long history.
But there may be another reason why the editors have chosen to limit the perspectives on Canada’s pre-Constitution constitutions to English and French alone. And that clue resides in how they understand the significance of 2017. For the editors, the Sesquicentennial is Canada’s anniversary, not the Constitution’s. They speak of “commemorat[ing] Canada’s 150th anniversary in 2017.”
I prefer to interpret the Sesquicentennial as marking Confederation, the beginning of Canada’s modern constitutional arrangements. But not as marking the beginning of Canada itself. As I understand it, Canada existed well before 1867. Indeed, Canada existed even before the Royal Proclamation of 1763 that the editors identify as one of Canada’s four pre-Constitution constitutions. Only by including perspectives beyond those of the English and French could the editors have really given readers “the most nuanced view of Canada’s origins to date.”
Nonetheless, Laforest, Brouillet, Gagnon and Tanguay have given us a valuable collection of Canadian constitutional documents in “The Constitutions that Shaped Us: A Historical Anthology of Pre-1867 Canadian Constitutions.” Since first reading it, I have referred to it on more occasions than I can remember, and I expect to continue to do so for many years to come.
Suggested Citation: Richard Albert, Book Review, Pre-Constitution Constitutions: A Review of “The Constitutions that Shaped Us,” Edited by Laforest, Brouillet, Gagnon and Tanguay, Oct. 5, 2016, at: http://www.iconnectblog.com/2016/10/virtual-bookshelf-pre-constitution-constitutions
 Alexander Tsesis, “Introduction–The Declaration of Independence as Introduction to the Constitution” (2016) 89 S. Cal. L. Rev. 359 at 359.
 Ibid. at 361.
 Guy Laforest, Eugénie Brouillet, Alain-G Gagnon and Yves Tanguay, eds., The Constitutions that Shaped Us: A Historical Anthology of Pre-1867 Canadian Constitutions (Montreal & Kingston: McGill-Queen’s University Press, 2015) at 5-6.
 Ibid. at 18.
 Ibid. at 5.