Wednesday, October 26, 2022

History of the Constitution

Thirty years ago Canadians voted in a national referendum, and voted down the Charlottetown Accord on constitutional amendments.

Some still regret that. Columnist Susan Delacourt of the Toronto Star was a Charlottetown cheerleader and wrote her first book to mourn its passing. (I remember that. I wrote a review panning the book for its accusation that the people of Canada had somehow failed their politicians.)  

Today she argues the referendum of 1992 sowed the seed for today's angry populism. Well, maybe, but it wasn't these bolshy No voters. It was the referendum process. Making complicated matters into a yes/no choice, encouraging polarization rather than negotiated outcomes, bypassing representative democracy: that sounds like the way to promote populist politics. These are good reasons to avoid referendums as much as possible, not to blame the voters who gave their best answers when asked.    

Delacourt also regrets that the failure of big constitutional rewriting and the consequent resistance to any constitutional reconsiderations. -- has set the stage for what she calls "unilateral" changes to the constitution such as Quebec Premier Legault's claim to rewrite language protections and Invermectin Smith's Alberta Sovereignty Act. 

But she might have noted that real constitutional change is returning to the agenda. Alarming uses of the notwithstanding clauses have been provoking malaise among constitution-watchers. ("It wasn't supposed to be used like this!") More significantly, the Bloc Quebécois proposed the other day that Canada must change the language of the (constitutionally required) oath of allegiance. And Quebec voices have been leading the demand to end the monarchy now that Elizabeth is dead.  Suddenly Quebec, long a holdout on any constitutional review, seems to be demanding one.   

This is promising. "A constitutional is more legitimate when there are real and regular opportunities to amend it," an American scholar wrote recently.  It's okay for it to be hard to amend a constitution. It's not okay to have one fixed and unchangeable forever. If King Charles can help bring about a pan-Canadian consensus that we need to open the constitution to dispense with the monarchy, he will do Canada one small servive.

 
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