McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
1992
Volume 37
No I
Some Possible Lessons for Canada of the United States’
Experience with Major Constitutional Change
James Gray Pope*
Canada is at a crucial moment of its history. Never has
the need for constitutional reform been more pressing, and
yet the rigidity of the amending formula and the undemo-
cratic nature of the intergovernmental bargaining process
have paralysed efforts directed at meaningful change. The
author, in an “open letter” to Canadians, suggests that the
American experience with major constitutional change can
provide them with some useful lessons for effecting sub-
stantial constitutional reform. Historically, the legally
specified procedure for constitutional change in the United
States has proven just as intractable as in Canada. How-
ever, Americans have bypassed this problem by circum-
venting the existing amendment procedure and accom-
plishing constitutional reform through extra-legal means.
The resulting changes arrived at were given both political
legitimacy and legal validity by an intense and widespread
participation of the American people in the political proc-
ess that produced them. During such moments of extraor-
dinary popular involvement in politics (“republican
moments”), parochial interests were left aside and the
debate centred on competing visions of the public good.
The author therefore suggests that by engaging in a similar
exercise of “republican politics,” Canadians could tran-
scend their differences and find a way out of the current
constitutional impasse.
The author proposes the constitutional convention as
an extra-legal method of achieving meaningful reform.
Through the democratic and nonpartisan election of dele-
gates, a convention could be created to ensure that all
Canadians, including Quebeckers, actively participate in
the shaping of a new constitutional arrangement. The fact
of nonpartisan popular election would help to make the
delegates aware that they must go beyond their own nar-
row interests and promote the public good in their negoti-
ations for a renewed Canadian federation. A majority of
members of the Beaudoin-Edwards Committee rejected
the idea of the constituent assembly because they saw it as
yet another exercise in ordinary, interest group polities.
However, the author believes that a democratic national
convention might well offer the best hope for sparking the
spirit of republicanism Canada needs to forge a new and
lasting constitutional order.
Le Canada est A un tournant de son histoire. Le besoin
de rdformer ]a Constitution n’a jamais dt6 aussi pressant,
mais tout tentative de modification se bute A une formule
d’amendement extramement rigide et a Ia nature non
ddmocratique des pourparlers intergouvernementaux.
L’ateur, dans une lettre ouverte aux Canadiens, sugg~re
que l’exp4dience amdricaine peut les 6clairer dans leur
recherche d’un processus de rdforme. Confrontds A une
formule d’amendement tout aussi exigeante que la nrtre,
les Amdricains ont pn surmonter cet obstacle en contour-
nant la formule 16gale et en y substituant des moyens
extra-juridiques. Issus d’assembldes populaires extraordi-
naires, les amendements ainsi produits ont acquis une Idgi-
timit6 politique et one validit6 juridique grfice A la partici-
pation active d’une partie importante de ]a population
amdricaine a processus qui ont conduit as ces amende-
ments. Dans de tels moments de participation populaire
(a moments rdpublicains, >) les intdrts priv& ont toujours
c&6d leur place a une mise en valeur des diffirentes visions
do bien public. L’auteur estime qu’en s’inspirant d’une
telle << politique rdpublicaine, a> les Canadiens pourraient
venir a bout de leurs divergences d’opinion et trouver une
solution a l’impasse constitutionnelle.
L’auteur propose la tenue d’un congrhs constitutionnel
comme moyen extra-joridique d’arriver h une rdforme
significative. En d1isant des dalguds de fagon ddmocra-
tique et non partisane, ii serait possible d’organiser un con-
gr s oh tons les Canadiens, y compris les Qu6dbcois, pour-
raient participer h l’dIaboration d’une nouvelle entente
constitutionelle. L’dlection populaire et non partisane des
ddldgu6s aiderait ceux-ci Z renoncer A leurs preoccupations
personnelles pour mieux viser l’intdrdt public dans on
f&d!ralisme canadien renouvel6. La plupart des membres
do comitd Beaudoin-Edwards ont rejet6 Ia notion d’une
assemblde constituante car ils n’y ont vu qu’une tribune
pour les intdrets particuliers. Mais d’aprds l’auteur, on
congr s ddmocratique national constitue peut-etre le meil-
leur espoir pour engendrer cet esprit de rdpublicanisme
dont le Canada a besoin pour crder un rdgime constitution-
nel nouveau et durable.
* Associate Professor, Rutgers University School of Law, Newark, New Jersey. A preliminary
and shorter version of this paper was delivered in Ottawa in May 1991, before the Special Joint
Committee of the Senate and the House of Commons on the Process for Amending the Constitu-
tion of Canada. Rosalind Westlake provided expert research assistance.
McGill Law Journal 1992
Revue de droit de McGill
To be cited as: (1992) 37 McGill L.J. I
Mode de citation: (1992) 37 R.D. McGill 1
McGILL LAW JOURNAL
[Vol. 37
Synopsis
Introduction
I.
Background: Republican Politics v. Politics-as-Usual
H. Amendment by Extra-Legal Processes
M. Constitutional Convention
Introduction
Last May, I testified before the Special Joint Committee of the Senate and
the House of Commons on the Process For Amending the Constitution of Can-
ada.’ My testimony focused on three points:
(1) In the United States, major constitutional change has been accomplished not
through ordinary politics, but through a different mode of politics, which I call
“republican politics.”
(2) Not a single major change in the American federal structure has been
accomplished simply by following the constitutionally specified amendment
procedure; in each case, extra-legal means have been necessary. These changes
have been accepted as legal because they were supported by popular mandates
expressed through republican politics.
‘The Special Joint Committee of the Senate and House of Commons for Amending the Consti-
tution of Canada [hereinafter Beaudoin-Edwards Committee] was established early in 1991 and
co-chaired by Senator G.-A. Beaudoin and Member of Parliament J. Edwards. The mandate of the
Committee was “to consult broadly with Canadians and inquire into and report upon the process
for amending the Constitution of Canada, including, where appropriate, proposals for amending
one or more of the amending formulae, with particular reference to: i) the role of the Canadian pub-
lic in the process; ii) the effectiveness of the existing process and formulae for securing constitu-
tional amendments; and iii) alternatives to the current process and formulae…. See Special Joint
Committee of the Senate and the House of Commons on the Process for Amending the Constitu-
tion of Canada, Report: The Process for Amending the Constitution of Canada (Ottawa: Queen’s
Printer, 20 June 1991) (Co-chairs: G.-A. Beaudoin & J. Edwards) at vii. In total, the Committee
received over 500 briefs from some 450 individuals and organizations and heard 209 witnesses
(ibid. at 10).
19921
POSSIBLE LESSONS
(3) A nationwide convention to consider and propose constitutional amend-
ments might have some use in resolving Canada’s current constitutional crisis,
both by facilitating the exercise of republican politics and by providing the
political legitimacy necessary to support extra-legal methods of constitutional
change.
After two and a half hours of penetrating questioning by members of the
Committee, I felt that I had a much improved sense of which aspects of the
United States’ experience are most salient to Canada today. While it seemed that
my three basic points were relevant, it was clear that within each there were par-
ticular problems of special significance to the Canadian debate. This essay
emphasizes those problems.
A caveat is in order. This essay does not aspire to a detached perspective.
I write as an American firmly embedded in the American constitutional tradi-
tion. Although I have followed the events in Canada with great interest, I am
very conscious of my position as an outsider observing processes that are inti-
mately intertwined with the rich variety of Canadian traditions, ideas, and prac-
tices. In short, this is really more of an open letter than a tract on comparative
constitutional change.
I. Background: Republican Politics v. Politics-as-Usual2
Since the 1950s, most American political analysts have agreed that the
dominant mode of politics in the United States is characterized by interest group
bargaining.3 Politics, it seems, consists mainly of pressure groups and local
interests fighting each other for a place at the public trough. Most of the citi-
zenry most of the time disdains political involvement. Politicians and political
parties engage in ad hoc bargaining rather than working toward broad program-
matic change. Private interests forge strong relationships with government
agencies and tenaciously resist attempts at fundamental reform.
2Many of the points made in this section are discussed at much greater length in J. Pope,
“Republican Moments: The Role of Direct Popular Power in the American Constitutional Order”
(1990) 139 U. Pa. L. Rev. 287 [hereinafter Republican Moments].
3See, for example, D. Truman, The Governmental Process: Political Interests and Public Opin-
ion, 2d ed. (New York: Knopf, 1971); R.A. Dahl, Democracy in the United States: Promise and
Performance, 3d ed. (Chicago: Rand McNally, 1976); C. Lindblom, Politics and Markets: The
World’s Political Economic Systems (New York: Basic Books, 1977).
4A list of all the books and articles making these points would fill an entire article. A few of the
more prominent are M. Hayes, Lobbyists and Legislators: A Theory of Political Markets (New
Brunswick, N.J.: Rutgers U. Press, 1981); T. Lowi, The End of Liberalism: Ideology, Policy, and
the Crisis of Public Authority (New York: Norton, 1969); M. Olson, The Logic of Collective
Action: Public Goods and the Theory of Groups (Cambridge: Harvard U. Press, 1971); M. Olson,
The Rise and Decline of Nations: Economic Growth, Stagflation and Social Rigidities (New
Haven: Yale U. Press, 1982).
REVUE DE DROIT DE McGILL
[Vol. 37
Although this mode of politics has its defenders, few would argue that it
is well-suited for accomplishing major constitutional change. Even at its best,
the politics of interest group bargaining discourages consideration of basic
change.’ Pragmatic conflict adjustment, not basic structural reform, is its
hallmark.
Not surprisingly then, constitutional change in the United States has usu-
ally been accomplished through a different mode of politics, which I call
“republican” because of its resemblance to the classical republican vision of
political life.6 The republican mode is distinguished by four features.7 First,
there is extraordinarily broad public involvement; people who normally have
nothing to do with politics suddenly find themselves arguing about the future of
the country. Second, this public involvement is exceptionally intense; not only
do people pay attention to politics, but they take it seriously, sometimes to the
point of exerting direct popular power to pressure or even bypass their elected
representatives. Third, naked appeals to self-interest begin to seem inadequate,
even crass; instead, people argue from principle and appeal to the public good.
Public-mindedness makes serious inroads on selfish individualism. Finally, par-
ties and interest group organizations alike lose their grip on politics and are
5See D. Braybrooke & C. Lindblom, Strategy of Decision: Policy Evaluation as a Social Process
(New York: Free Press of Glencoe, 1963) at 83-86; Lowi, ibid. at 60-61; D. Yates, Bureaucratic
Democracy: The Search for Democracy and Efficiency in American Government (Cambridge: Har-
vard U. Press, 1982) at 103-05.
6
1he republican vision, which was highly influential among the American revolutionaries, is
currently enjoying a significant revival in American political and legal thought. The standard
works include J. Appleby, Capitalism and a New Social Order: The Republican Vision of the 1790s
(New York: New York U. Press, 1984); B. Barber, Strong Democracy: Participatory Politics for
a New Age (Berkeley: U. of California Press, 1984); E. Foner, Free Soil, Free Labor, Free Men:
The Ideology of the Republican Party Before the Civil War (New York: Oxford U. Press, 1970);
and G. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: U. of North Car-
olina Press, 1969).
In its modem version, republicanism presents an alternative to interest group bargaining. It
emphasizes civic virtue over narrow self-interest, direct citizen participation over representative
government, collective moral choice over instrumental rationality, and community over individual
autonomy. Although republicanism was designed for small, homogeneous polities, I have argued
that the republican mode can become dominant even in a large, heterogeneous polity like that of
the United States during relatively brief periods of exceptionally intense citizen involvement. See
Republican Moments, supra, note 2 at 306-13.
7The republican mode is, of course, an ideal typical construct: it is a distillation of characteristics
that are rarely, if ever, observable in pure form in social practice. The construct draws on Prof.
Bruce Ackerman’s notion of “Constitutional Politics” in “The Storrs Lectures: Discovering the
Constitution” (1984) 93 Yale L.J. 1013; “Constitutional Politics/Constitutional Law” (1989) 99
Yale L.J. 453 [hereinafter Constitutional Politics]; We the People, vol. 1 (Cambridge: Harvard U.
Press, 1991) [hereinafter We the People] and on Samuel P. Huntington’s theory of”creedal” politics
in American Politics: The Promise of Disharmony (Cambridge: Harvard U. Press, 1981). For an
expanded treatment of these subjects, see Republican Moments, supra, note 2 at 304-15.
1992]
POSSIBLE LESSONS
pressured or displaced by voluntary associations, conventions, and other forms
of popular organization.
For the past two centuries, American political life has alternated between
periods of politics-as-usual and shorter periods (or “moments”) of republican
politics.’ All of the United States’ major constitutional transformations occurred
during republican moments.
Consider, for example, the period leading up to the enactment of the United
States Constitution and the Bill of Rights. It was a time when “every order and
degree among the people”9 was drawn into a vigorous debate over the basic
principles of government. Not content with established government, people met
in informal assemblies and organized extra-legal conventions. There was “an
outpouring of political writings –
that
has never been equalled in the nation’s history.”‘0 From the various assemblies,
conventions, and congresses came a prodigious outburst of fundamental law,
including the Declaration of Independence, the Articles of Confederation, the
Constitution, the Bill of Rights, and various state constitutions. Throughout the
process, political debate centred not on interest brokering, but on competing
conceptions of the public good.”
pamphlets, letters, articles, sermons –
Judging from the American experience, the central goal of a procedure for
major constitutional change should be to nurture and facilitate republican pol-
itics. This goal breaks down into three broad tasks:
(1) stimulating broad and deep popular participation;
8Historians and theorists have suggested that there is a cyclical dynamic behind this alternation.
According to this view, each type of period helps to generate its own demise. Interest group politics
may spawn orgies of corruption and conspicuous consumption that can ignite passionate move-
ments for reform. Republican moments bum themselves out when people become exhausted with
political activity and retreat to family and private pursuits. See A. Schlesinger, Jr., The Cycles of
American History (Boston: Houghton Mifflin, 1986) at 28; A. Hirschman, Shifting Involvements:
Private Interest and Public Action (Princeton: Princeton U. Press, 1982) at 92-102.
9Wood, supra, note 6 at 6. Professor Wood’s enormously influential book presents a richly tex-
tured picture of this extraordinary exercise in popular political participation.
‘ 0lbid.
“This is not to say that the process was pure. A wide variety of economic and sectional interests
found their way into the debate and, according to some observers, even shaped the outcome. Nev-
ertheless, viewed in comparison with other lawmaking events, the debate focused overwhelmingly
on issues of principle. To give one illustration, the most important “bargaining chip” of the rati-
fication process was not a tax break or economic concession, but the addition of a Bill of Rights
to the Constitution which allowed larger states to win support of smaller states. For more detailed
discussion of the contrast between public-minded deliberations and interest group bargaining, see
W. Eskridge, Jr. & P. Frickey, Cases and Materials on Legislation: Statutes and the Creation of
Public Policy (St. Paul, Minn.: West Publishing, 1988) at 40-65; Republican Moments, supra, note
2 at 361-63.
McGILL LAW JOURNAL
[Vol. 37
(2) maximizing public-oriented deliberation (as opposed to interest brokering);
and
(3) creating democratic organizational forms that are not entirely dependent on
political parties and interest groups.
It might be argued that Canadian political parties qualitatively outperform
their American counterparts in providing leadership on basic political questions,
and thus that Canada does not need an alternative republican (or any other)
mode of politics to achieve major constitutional change. I agree that the Cana-
dian parties provide stronger programmatic leadership. 2 Nevertheless, the
republican mode may be just as essential to Canada today as it has been to the
United States in the past.
First, the republican mode can provide the kind of political legitimacy that
supports using extra-legal amendment procedures, a point that I expand on
below. 3 Second, the experiences of the Constitution Act, 19824 and the Meech
Lake Accord5 suggest that intergovemmental and interparty negotiations may
not suffice to break the constitutional deadlock. Finally, the republican mode
has the capacity to produce a lawmaking event of mythic proportions, the kind
that can strengthen a nation’s self-definition and embed a constitutional order in
the popular consciousness.
I. Amendment by Extra-Legal Processes
The very enterprise of making major changes to a written constitution is
afflicted with a terrible paradox. Amendment formulas typically impose arduous
supermajority requirements to ensure that amendments reflect a high degree of
social consensus. But the pressures for fundamental constitutional change nor-
mally result from deep social conflicts that make the achievement of consensus
virtually impossible.
12In the American system, unlike the Canadian parliamentary system, the party that holds the
executive branch does not necessarily control one or both houses of Congress. The resulting frag-
mentation of power makes it extremely difficult to implement a consistent legislative program.
Moreover, American elected representatives, unlike their Canadian counterparts, rarely follow their
party’s official program to the letter, and often feel free to disregard party directives on voting. The
contrast between the two countries’ political systems should not, of course, be overstated. Even
Canadian parties experience difficulty developing and implementing coherent policy in the face of
conflicting pressures from interest groups. See generally N. Ward, ed., Dawson’s The Government
of Canada, 6th ed. (Toronto: U. of Toronto Press, 1987) at 21-22. For a perceptive analysis of the
decline of American parties and its consequences for the American constitutional order, see M.
Fitts, “The Vices of Virtue: A Political Party Perspective on Civic Virtue Reforms of the Legisla-
tive Process” (1988) 136 U. Pa. L. Rev. 1567.
13See text accompanying notes 42-55.
14Being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution Act,
15The legal text of the Meech Lake Accord, also known as the 1987 Constitutional Accord, is
1982].
reproduced below at pp. 162-179.
1992]
POSSIBLE LESSONS
7
Since 1781, the United States has operated under two amending formulas,
each of which required substantial agreement among the constituent states
before the basic document could be altered. The original Articles of Confeder-
ation required the unanimous consent of all the states. 6 Article V of the present
Constitution requires ratification by three fourths of the states. 7 Yet, every fun-
damental constitutional change in the United States has been brought on by
intense political conflict. Thus, for two centuries the United States has faced the
same knotty problem that Canada now confronts: how to achieve controversial
change when a small number of states or provinces enjoy a veto power.
During those two centuries, the United States underwent three major con-
stitutional transformations without discovering any way of untangling this prob-
lem. Instead, Americans indulged in the political equivalent of cutting the Gor-
dian knot: all three transformations were accomplished by extra-legal means.
Not one relied primarily on the constitutional amendment process then in
place.’ Although a number of other amendments have been adopted through the
textually specified process, none amounted to a major transformation, and more
specifically, none made a substantial alteration in the balance of power between
the federal and state governments.
The first transformation took place between 1786 and 1791, when the
United States abandoned its initial federal system (embodied in the Articles of
Confederation) and enacted the current Constitution and its first ten Amend-
ments, collectively known as the Bill of Rights. In 1787, Congress called a con-
vention “for the sole and express purpose of revising the Articles of Confeder-
ation.” 9 Instead, however, the delegates drafted an entirely new constitution.
Rather than complying with the amending formula then in place, which required
the unanimous consent of the.state legislatures, the Convention declared that the
new Constitution would take effect upon ratification by conventions in three-
fourths of the states.2″ The new national government was organized with two
16U.S. ARTS OF CONFED. of 1781, art. XIII.
17Article V provides:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall pro-
pose Amendments to this Constitution, or, on the Application of the Legislatures of two
thirds of the several States, shall call a Convention for proposing Amendments, which,
in either Case, shall be valid to all Intents and Purposes, as part of this Constitution,
when ratified by the Legislatures of three fourths of the several States, or by Conven-
tions in three fourths thereof, as the one or the other Mode of Ratification may be pro-
posed by the Congress….
‘8See We the People, supra, note 7 at 41, 45, 168; see also infra, notes 20, 22.
19C. Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to Sep-
tember, 1787 (Boston: Little, Brown, 1986) at 4.
2See R. Kay, “The Creation of Constitutions in Canada and the United States” (1984) 7
Can.-U.S. L.J. 111 at 126-31; but see A. Amar, “Philadelphia Revisited: Amending the Constitu-
tion Outside Article V” (1988) 55 U. Chic. L. Rev. 1043 at 1047-54. For a response to Amar, see
We the People, supra, note 7 at 328 n. 4.
REVUE DE DROIT DE McGILL
[Vol. 37
states, North Carolina and Rhode Island, still refusing to ratify.2′ I will suggest
below that there may be some elements of this process that would be useful in
Canada today.
Second, between 1864 and 1870, we adopted three amendments known as
the “Reconstruction Amendments” that abolished slavery and drastically
increased the power of the national government.2 This transformation was
forced on the defeated Southern states after our Civil War of 1861-1865.” I am
confident that Canada will find a better procedure than this.
Finally, during the 1930s, we jettisoned virtually all constitutional con-
straints on federal and state economic legislation. The resulting expansion of the
national regulatory power (which trumps state legislation) transformed the bal-
ance of power in the federal system. This transformation was accomplished by
applying intense political pressure to the Supreme Court. President Franklin
Roosevelt, who led the struggle, declined to use the Article V amendment for-
mula because he believed, probably correctly, that the three-fourths requirement
could not be met.24 Instead, he proposed legislation to expand the Court by the
number of seats necessary to create a majority in favour of removing constitu-
tional constraints on national economic and social legislation.’ Before this
21These two states eventually ratified, a fact that has given rise to an argument that the legal
defect was cured. See T.R. Powell, “Changing Constitutional Phases” (1939) 19 B.U. L. Rev. 509
at 511. It is impossible, however, to tell whether North Carolina and Rhode Island would have rat-
ified had they not been pressured by the prospect of existing as tiny nations in the shadow of the
militarily and economically dominant United States.
22The Thirteenth Amendment abolished slavery and involuntary servitude. Among other things,
the Fourteenth barred states from denying any person due process or equal protection of the law.
The Fifteenth prohibited the federal and state governments from denying the right to vote based
on race, colour, or previous condition of servitude. All three empowered the United States Con-
gress to enforce the amendments by appropriate legislation –
a massive new grant of federal
authority.
23See Constitutional Politics, supra, note 7 at 501-03. It might be argued that the process tech-
nically complied with Article V because more than three-fourths of the loyal states ratified the
Thirteenth and Fourteenth Amendments. This observation holds even if one does not count New
Jersey’s and Ohio’s ratifications, which were later withdrawn. Nevertheless, civil war is certainly
an extra-legal procedure, and it is essential to any claim that the rebel states could lawfully be
excluded from the calculation of the number of states necessary to ratify.
24L. Baker, Back to Back: The Duel between FDR and the Supreme Court (New York: Macmil-
lan, 1967) at 9-10. At the time, New Dealers were experiencing difficulty in their attempts to ratify
a modest amendment giving Congress the power to regulate child labour.
25During my testimony before the Special Joint Committee, I was asked to explain how this pro-
cedure was extra-legal. Although there may not have been anything technically illegal about Roo-
sevelt’s proposed legislation or his decision to appoint justices sympathetic to his program, the use
of these tactics to bring about drastic constitutional change was clearly beyond both the text and
spirit of the Constitution, which provides for amendment by the process specified in Article V, and
thus was at least extra-legal. Many of the court-packing plan’s opponents (who eventually suc-
ceeded in defeating the proposed legislation) believed that the plan seriously threatened to under-
mine the role of the Supreme Court in the constitutional order. See J.T. Patterson, Congressional
1992]
POSSIBLE LESSONS
“court-packing” proposal reached a vote, the Court reversed its stand and
upheld the most radical piece of national economic regulation to date, the
National Labor Relations Act.” This shift was possible because Roosevelt was
able to mobilize enormous popular support for his constitutional program. Leav-
ing aside the questionable wisdom of accomplishing constitutional change
through judicial appointments,27 there is no sign in Canada today of a strong
popular mandate for any particular program of constitutional change.
Today, the first two of these transformations are not only accepted, but ven-
erated by most Americans. The third is fully accepted, although much of the cit-
izenry does not recall it as a major constitutional event, perhaps because it was
not accompanied by revolution or civil war.
So much for political legitimacy; how about legal validity? The possibility
that the Constitution of 1787 might be void has never been considered by the
courts despite scholarly protestations.’ The Supreme Court declined to rule on
the validity of the Reconstruction Amendments, reasoning that it was a “polit-
ical question” not suitable for resolution by the judicial branch.29 Finally, as we
have seen, the third transformation was accomplished through the Supreme
Court, so that it was effected and pronounced legal at the same time. All three
transformations are fully accepted by courts today; indeed, their extra-legal ori-
gins are forgotten to all but a few constitutional scholars.
Is there a principled, legal justification for this uncritical judicial accept-
ance of extra-legal procedures? To begin with, it is important to note that in the
case of major constitutional change, the distinction between political legitimacy
and legal validity is extremely tenuous. The written constitution provides the
ultimate formal legal rule by which law may be recognized. A statute, for
Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress,
1933-1939 (Lexington: U. of Kentucky Press, 1967) at 87-88.
26National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). For an
argument that the court-packing plan was not itself responsible for this “switch in time that saved
nine,” see L. Tribe, God Save This Honorable Court: How the Choice of Supreme Court Justices
Shapes Our History (New York: Random House, 1985) at 67.
27For a critical view of this method, see We the People, supra, note 7 at 53-54.
2L. Orfield, The Amending of the Federal Constitution (New York: Da Capo Press, 1942) at 11.
29White v. Hart, 80 U.S. (13 Wall.) 646 at 649 (1871) (dictum); but see Leser v. Garnett, 258
U.S. 130 at 136 (1922) (stating that the Fifteenth Amendment was validly adopted).
31This discussion draws on the concept of an ultimate rule of recognition. See, generally, H.L.A.
Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at 102-07; Kay, supra, note 20 at
116-19. Note, however, that I am concerned with the ultimate formal-legal rule, while Hart is con-
cerned with the actual standard used by legal insiders in recognizing valid law, which includes not
only formal-legal rules but also assessments of the practical efficacy of laws. The debate over
extra-legal amendment processes is precisely a struggle over the content and application of the
Hartian ultimate rule of recognition. I am suggesting that the rule of recognition does not, in the
United States, and should not, in Canada, rest solely on compliance with the formal-legal amend-
ment procedure.
McGILL LAW JOURNAL
[Vol. 37
example, may be identified as law because it was enacted according to the con-
stitutionally specified procedure. A constitutional amendment may similarly be
recognized as valid law by referring to the textually specified amendment pro-
cedure. The amendment procedure itself, however, was not enacted according
to any pre-existing legal rule of recognition. It can be recognized as law only
by non-legal criteria.
In the industrialized West, democratic enactment has replaced religious
blessing and royal sanction as the primary non-legal criterion of legality. Given
that the amendment procedure itself is justified primarily by democratic enact-
ment, then presumably it can be abrogated by a political process of equal or
greater democratic validity.
This approach may be seen in American state court decisions dealing with
amendments to state constitutions. A number of courts have affirmed the legal-
ity of extra-legal (also referred to as “extra-textual”) amendment procedures.”
These decisions draw on the theory of popular sovereignty,32 which holds that
instead of merely consenting to be ruled by a sovereign, the people retain sov-
ereignty, and all governmental bodies, state or federal, are merely agents of the
people. It follows that the sovereign people can dismiss their agents or realloc-
ate their powers at will.33 The legality of extra-textual amendment procedures
thus boils down to a determination of whether the people have spoken.’
Although this justification for extra-textual amendment relies heavily on
distinctively American sources (most prominently, the Declaration of Indepen-
dence), it grew out of two ideas that, in turn, are part of the English and French
political heritage shared by the United States and Canada. First is the idea that
government derives its legitimacy from the consent of the people, with its cor-
31See, for example, In re Opinion to the Governor, 178 A. 433 (Rhode Island 1935) [hereinafter
Governor] (upholding a legislative call for a constitutional convention notwithstanding the lack of
any express constitutional authority for such a convention); Wheeler v. Board of Trustees, 37
S.E.2d 322 (Georgia 1946) [hereinafter Wheeler] (upholding a new constitution that was enacted
without the textually required convention on the ground that ratification by popular referendum
had cured the defect); Gatewood v. Mathews, 403 S.W.2d 716 (Georgia 1966) [hereinafter Gate-
wood]; Smith v. Cenarrusa, 475 P.2d 11 (Ky. Ct. App. 1970) [hereinafter Smith] (both decisions
upholding the legislature’s action in submitting a proposed constitution for popular ratification
despite the lack of constitutional authorization, on the ground that subsequent ratification would
cure the defect).
It should also be noted that a number of courts have denied the validity of extra-legal changes.
See, for example, McFadden v. Jordan, 196 P.2d 787 (California 1948). These decisions are obvi-
ously of less use in explaining the judicial acceptance of the three great extra-legal transformations
at the national level.
32See Governor, ibid. at 446-51; Wheeler, ibid. at 326; Gatewood, ibid. at 721; Smith, ibid. at
330n the origins and significance of the American notion of popular sovereignty, see A. Amar,
34See We the People, supra, note 7 at 49-50.
“Of Sovereignty and Federalism” (1987) 96 Yale L.L 1425.
15-18.
1992]
POSSIBLE LESSONS
ollary that the people can withdraw their consent. Second is the Lockean prin-
ciple that the people enjoy the right of self-preservation, which includes the
right to alter their form of government if it becomes oppressive or if the exis-
tence of the country is threatened.”
Either of these theories could justify extra-legal amendment processes even
without going as far as popular sovereignty. Moreover, the idea of popular sov-
ereignty is already partially embodied in Canadian law and political practice
through universal suffrage, which is not only guaranteed by the Canadian Char-
ter of Rights and Freedoms, but also insulated from legislative override.36
There are two difficult problems in determining whether or not the people
have spoken. First, there is the question of who are “the people.” In the United
States, it has long been settled that there is such a thing as an American “people”
that holds the right of popular sovereignty. The Constitution proclaims that it
was enacted by “We the People of the United States,” and the concept of the
people has played a central role in American political history.37 Originally lim-
ited to white, property-owning males, the people now encompasses women, and
members of all racial and ethnic groups and economic strata.
In Canada, the problem is obviously more complicated. According to one
important school of thought, the Canadian Constitution originated as a compact
between “two founding peoples.”38 The aboriginal peoples, who wield far more
political influence than in the United States, must also be counted among the
founding peoples.39 Moreover, Canada has stronger traditions of provincial
autonomy and regionalism than does the United States.40 In short, there is a real
35The view that government derives its legitimacy from popular consent has been, of course, a
staple of social contract theory from St. Thomas Aquinas through Locke to Jean-Jacques Rousseau.
See E. Barker, “Introduction” in Social Contract: Essays by Locke, Hume, and Rousseau (London:
Oxford U. Press, 1958) at viii-ix, xxiv-xxvii; G.D.H. Cole, “Introduction” in J.-J. Rousseau, The
Social Contract and Discourses, trans. G.D.H. Cole (London: Dent, 1966) at viii, xxvi, xxxii. For
an analysis of Locke’s thinking on the rights of self-defence, resistance and revolution, see R. Ash-
craft, Revolutionary Politics & Locke’s Two Treatises’of Government (Princeton: Princeton U.
Press, 1986) at 294-323.
36Canadian Charter of Rights and Freedoms, ss 3, 33, Part I of the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. On the rise of popular sovereignty in Can-
ada, see R. Whitaker, “Democracy and the Canadian Constitution” in K. Banting & R. Simeon, eds,
And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen, 1983)
240 at 249.
370n the concept of the “people” in U.S. political history, see D. Rodgers, Contested Truths:
38R. Macdonald, “… Meech Lake to the Contrary Notwithstanding (Part 1)” (1991) 29 Osgoode
Hall L.J. 253 at 284-89.
391bid at 285 n. 61.
4OSee generally, R. Simeon & D. Elkins, “Regional Political Cultures in Canada” (1974) 7 Can.
Keyivords in American Politics Since Independence (New York: Basic Books, 1987).
J. Pol. Sci. 397.
REVUE DE DROIT DE McGILL
[Vol. 37
question whether there is such a thing as a Canadian people, or whether it
makes more sense to talk of two, three, or more peoples.
In a sense, the idea of a Canadian people has never been put to a full test.
Canada adopted a constitution and achieved independence without the direct
involvement of the people as a people. Instead, constitution-making has been
dominated by political elites.4′ It seems that Canadians have historically been
less skeptical of their governments and more skeptical of popular power than
have Americans.
We could conclude from these contrasts that the American experience is
simply irrelevant to Canada. But I am more inclined (with typically American
overenthusiasm, no doubt) to conclude that Canada’s current constitutional fer-
ment is the latest episode in the continuing creation of the Canadian people. It
may be that unless Canadians strengthen their national identity, there will be no
Canadian people to support a Canadian constitutional order, be it a centralized
state or decentralized federal order with strong guarantees of regional and group
autonomy.
This brings us to the second problem in judging the validity of extra-legal
change: determining whether or not the people have acted with sufficient unity
and clarity to justify departing from the amendment formula. We can assume
that there will be no broad social consensus since that would obviate the need
for extra-legal procedures in the first place. Thus, the departure from formal
legality must be legitimated in the face of controversy.
Judging from the American experience, two conditions may be essential.
First, the changes must result from an exercise of strong democracy approximat-
ing the republican mode described above, including broad and intense public
participation and debate over issues of principle. Second, the opponents of
change must receive a full, fair, and substantially equal opportunity to promote
their viewpoint so that their defeat is seen as a clear affirmation of the changes,
rather than a mere reflection of unequal political clout.
The enactment of the United States Constitution of 1787 fits this model. To
begin with, the proposed constitution was so controversial that it was adopted
by only the barest of margins. Legitimacy could not be built upon a social con-
sensus as to its substantive merit because there was none. Instead, legitimacy
hinged primarily on the process of adoption. Whether for cynical or principled
reasons, the Philadelphia convention chose the ratification process that was
most likely to be regarded as an expression of popular sovereignty: state con-
stituent conventions.42
41Whitaker, supra, note 36 at 240-41.
42See Kay, supra, note 20 at 132-33; R. Kay, “The legality of the Constitution” (1987) 4 Const.
Comm. 57 at 70-75.
19921
POSSIBLE LESSONS
Modem critics have pointed out that only a minority of the population par-
ticipated in delegate elections, and that the Anti-federalist opposition, which
was strongest among backcountry yeoman farmers, was unfairly disadvantaged
by its geographic dispersal and meagre resources.43 Nevertheless, the process
leading to adoption was widely viewed as an exercise in strong democracy. The
Anti-federalists themselves believed in democracy at the state level, and the
convention had been the people’s mechanism of choice since the revolutionary
period.’ Moreover, at least in the crucial states of New Hampshire, Massachu-
setts and New York, a number of Anti-federalist sympathizers were persuaded
to support the proposed Constitution during the state ratifying convention, and
it was these swing voters who made the difference.45 In the political culture of
the time, the ratification process appeared to be a legitimate exercise of popular
sovereignty.46
In the second great transformation, democratic processes were overshad-
owed by the dynamics of civil war, occupation, and retribution. Nevertheless,
republican politics played a significant part. Newly liberated African-
Americans plunged into politics with tremendous energy, organizing, protesting,
calling conventions, and forming coalitions with white Republicans.47 It was the
an attempt to convene a con-
violent suppression of one such coalition effort –
that shocked the North into supporting
stitutional convention in Louisiana –
Congressional reconstruction.4″ Thanks in part to the Louisiana incident, the
Republican supporters of constitutional change won a smashing two-to-one vic-
tory in the Congressional elections of 1866, which had become a virtual refer-
endum on the Fourteenth Amendment.49 The Southern states could object that
they had been excluded from the election, but the fact of their secession from
the union negated the moral force of their argument.
4 3The classic statement of this position is in C. Beard’s, An Economic Interpretation of the Con-
stitution of the United States (New York: Free Press, 1986) at 239-52. Although some of Beard’s
specific findings have been disputed, his main points as to the low rate of voting and the disad-
vantaged situation of backcountry voters have stood the test of time. For a modem restatement of
Beard’s critiques, see M. Parenti, “The Constitution as an Elitist Document” in B. Olman & J.
Birnbaum, eds, The United States Constitution: 200 Years of Anti-Federalist, Abolitionist, Femi-
nist, Muckraking, Progressive, and Especially Socialist Criticism (New York: New York U. Press,
1990) 141 at 155-56.
44Amar, supra, note 33 at 1459.
45Even Beard, foremost among the critics, rejected charges that Massachusetts delegates had
been bribed, and accepted the view that the Federalists prevailed there and in New York and New
Hampshire by eloquent persuasion and skilful manoeuvring. See Beard, supra, note 43 at 225-29.
This is not to say that the process was entirely pure. See J. Main, The Antifederalists; Critics of
the Constitution, 1781-1788 (Chapel Hill: U. of North Carolina Press, 1961) at 187-248.
Row, 1988) at 110-19, 281-91.
46Kay, supra, note 20 at 134-36, 160.
47E. Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper &
48lbid. at 263-64.
49Ibid. at 267.
McGILL LAW JOURNAL
[Vol. 37
While lacking any overarching organizational manifestations of popular
sovereignty like the conventions of 1787-90, the third transformation was a
product of mass protest, strikes, and Franklin Roosevelt’s spectacular electoral
victory of 1936.50 The losers, most prominently business interests, could not
plausibly complain that they lacked the resources and influence necessary for a
fair chance to promote their viewpoint.
What kind of democratic exercise could justify the use of extra-legal
amendment procedures in Canada today? A commonly mentioned possibility is
ratification by referendum. In my view, however, a referendum by itself could
never serve as a justification for extra-legal constitutional change. Even with a
supermajority requirement, the referendum vote would say nothing about the
intensity of public support or opposition. A referendum reduces citizen involve-
ment to the casting of a “yes” or “no” vote. The absence of any popular role in
formulating proposals leaves open the possibility that many citizens may be dis-
pleased with both of the allowable options (voting yes or no) and cast their votes
for the lesser of two evils. A referendum vote count does not reflect the depth
or intensity (as opposed to the numerical breadth) of support for the competing
positions. A referendum victory under these circumstances would provide a
flimsy basis for fundamental constitutional change, and a defeat would yield
few lessons that would be of use in future efforts.
On the other hand, a referendum ratification vote coupled with public par-
ticipation at the proposal stage5′ might justify extra-legal change. Consider the
following scenario. Parliament calls a constitutional convention. There is broad
participation in the election of convention delegates, and the population gener-
ally perceives the electoral process to be fair and the resulting delegate slates
to be representative.12 The convention overwhelmingly endorses a set of pro-
posed amendments. The convention delegates and most Canadians are con-
vinced that this is the last best hope for Canadian federalism. There is concern,
however, that one or two small provinces might block ratification, or that the
potentially applicable three-year deadline53 might not allow sufficient time for
the necessary deliberations. In this situation, the convention might legitimately
propose abrogating the unanimity requirement’ and substituting ratification by
subsequently be submitted for ratification.
5See We the People, supra, note 7 at 28; Republican Moments, supra, note 2 at 308-10.
51By “proposal stage,” I mean the stage of drafting the proposed constitutional changes that will
52Some proposals for ensuring a representative delegate body are discussed infra, text accom-
panying notes 66-69. The problem of Quebec’s participation is discussed infra, text accompanying
notes 71-73.
53S. 39(2) of the Constitution Act, 1982 clearly imposes the three-year deadline on amendments
requiring the support of at least seven provinces representing 50% of the population (s. 38(l)).
There is no express time limit, however, for amendments requiring unanimous consent (s. 41).
‘”Unanimity is required for amendments whose subject matter falls into s. 41 of the Constitution
Act, 1982. For amendments made under s. 42(1), the conditions of s. 38(1) apply, Le. resolutions
1992]
POSSIBLE LESSONS
popular referenda, perhaps with a nationwide supermajority and a requirement
of separate majorities in each of, say, seven provinces making up to ninety per-
cent of the population.
Although referendum ratification might thus play a useful role in constitu-
tional change, it should not be chosen lightly. Empirical studies suggest that ref-
erendum elections are susceptible to manipulation by intensive media cam-
paigns, especially when opponents of change put on last-minute advertising
blitzes that exploit the electorate’s fear of the unknown.5 The obvious responses
to this problem, restrictions on last-minute campaigning and limits on campaign
spending, have been included in the Canada Elections Act, but have both been
held unconstitutional in the United States. 6
While it is possible to imagine situations in which extra-legal procedures
would be appropriate, it is also easy to imagine situations in which they would
not. It seems to this outsider, for example, that using extra-legal means to over-
ride dissent from Quebec would defeat the main point of the effort to reform the
Constitution Act, 1982. The question, however, is one of legitimacy and consti-
tutional politics, not technical law, just as it was when the Constitution Act,
1982 was enacted over Quebec’s protest, a procedure that was technically legal
but widely challenged as effectively illegitimate.5 7
of the House of Commons and the Senate and of seven provinces representing 50% of the
population.
Harvard U. Press, 1989) at 109-13.
55T. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge:
561n the United States, the courts have taken a restrictive view of possible limitations to freedom
of speech in the context of a referendum campaign. See Mills v. Alabama, 384 U.S. 214 at 219-20
(1966) (overturning a state prohibition on election day campaigning); Buckley v. Valeo, 424 U.S.
I at 39-59 (1976) (overturning federal restrictions on political campaign spending); First Nat’l
Bank of Boston v. Bellotti, 435 U.S. 765 at 790 (1978) (suggesting that restrictions on spending
and contributions in the issue referendum context are even less justified than those in the candidate
election context).
On the other hand, the Canada Elections Act (R.S.C. 1985, c. E-2) provides some safeguards
against the possible manipulation through the media of the electorate in a federal election cam-
paign. Under ss 48(1) and 213(1), parties and candidates that make campaign advertisements
through any “broadcasting undertaking” or through “periodical publication(s)” either on the day
of polling or on the day immediately preceding polling day are guilty of an offence. S. 208(3)
establishes a formula for calculating the “maximum election expenses” a candidate can incur in
his campaign, an amount which is mainly based on the number of voters in his electoral district
(the formula is spelled out in detail at ss 210-12). Measures like these, if applied to a Canadian
referendum campaign, could help make the process fairer and more democratic.
57See Kay, supra, note 20 at 154-55. In another example of a technically legal approach to a
complex constitutional problem, the Supreme Court of Canada, in the Quebec Reference case
(A.-G. Quebec v. A.-G. Canada, [1982] 2 S.C.R. 793, 140 D.L.R. (3d) 385) decided that Quebec
did not enjoy a veto power over constitutional change because historically, the federal government
and the other provinces had not, according to the Court, explicitly recognized, in their actions or
statements, that such a veto existed. This decision has been controversial precisely because several
REVUE DE DROIT DE McGILL
[Vol. 37
To sum up, extra-legal processes have been essential to all of the major
transformations in the constitutional order of the United States. Because of deep
social, economic and political conflict we were confronted by constitutional cri-
ses. But our written constitution effectively required consensus as a prerequisite
for amendment. Absent a political miracle, our only hope was to change the
Constitution by extra-legal means. Canada may well face a similar situation
today.
M. Constitutional Convention
As we have seen, one of the United States’ three major constitutional trans-
formations might yield some positive lessons for Canada. The Constitution of
1787 was proposed by a nationwide constitutional convention. Given the obvi-
ous caveat that this convention occurred over two centuries ago in an agricul-
tural country of fewer than five million people, I think that the American expe-
rience suggests certain advantages of calling a convention at the proposal stage.
These advantages may be summed up in the observation that a convention
can provide space for republican as opposed to ordinary politics. The calling of
a convention signals to all concerned that something extraordinary is happen-
ing.58 This is neither an intergovernmental negotiation nor an exercise in federal
legislation. It is a focused attempt to deal with a constitutional crisis. When the
delegates convene, they know that they have been called upon to rise above
politics-as-usual.59
The selection of delegates for a constitutional convention should involve
considerations that are different from those at stake in ordinary politics. Here,
I think that the experience in 1787 does not provide a model for Canada today.
The delegates to the Philadelphia convention were chosen by state legislatures
without much controversy or deliberation, and little public discussion. This
quiet process was made possible by the fact that few people expected the Phil-
adelphia convention to produce major changes in the Articles of Confederation,
much less a new constitution.
Even if it were possible to exclude the citizenry from participating, it
would not be advisable. Delegate elections provide space for republican politics.
observers felt the Court applied overly strict requirements for the existence of a constitutional
convention.
58Amar, supra, note 33 at 1459 n. 147.
59The only major study of the political process in American state constitutional conventions
found that a majority of the delegates to the six conventions under study believed, on the eve of
the convention, that they were engaged in a lawmaking exercise that transcended politics-as-usual.
E. Cornwell, Jr., J. Goodman & W. Swanson, State Constitutional Conventions: The Politics of the
Revision Process in Seven States (New York: Praeger Publishers, 1975) at 74-75.
1992]
POSSIBLE LESSONS
They get the citizenry involved in the constitution-making process from its
inception. While an elite convention was not foreign to the political culture of
1787, it would clash badly with the more egalitarian and democratic political
culture of today. Since 1787, there has been a consistent movement toward
greater dem6cracy, reflected in the move from indirect to direct election of sen-
ators and the President, and in the expansion of suffrage to include women, non-
propertied males, and members of all races and national origins. It is not likely
that any process other than direct election would be acceptable in the modem
American political culture.’ Although some might argue that this point is spe-
cific to the United States, there has clearly been a similar movement toward
democracy in Canada ‘ and at least some of the negative reaction to the proc-
esses leading to the Constitution Act, 1982 and the Meech Lake Accord centred
on the lack of popular participation at the proposal stage.62
To further distance republican from ordinary politics, delegates should be
selected on a nonpartisan basis. Although it would be neither possible nor desir-
able to prevent parties, interest groups, and social movements from influencing
the process, the removal of express party designations should provide an addi-
tional signal, both to the public and to the eventual delegates, that a constitu-
tional convention calls for something different from politics-as-usual.63 Moreo-
ver, freeing delegates from party loyalties should facilitate flexibility and
compromise.’ 4 In the Philadelphia convention, for example, coalitions and
cleavages shifted according to the issue.’ This relatively free-flowing process
made possible the drafting of a constitution that could be approved by all of the
state delegations present. Fixed party voting blocs might well dam this fluid
process of realignment.
6Thus most American commentators agree that the delegates to a modem constitutional conven-
tion should be selected by direct popular elections rather than by the method used in 1787. See P.
Weber & B. Perry, Unfounded Fears: Myths and Realities of a Constitutional Convention (West-
port, Conn.: Greenwood Press, 1989) at 113; American Bar Association, Special Constitutional
Convention Study Committee, Amendment of the Constitution by the Convention Method under
Article V (Chicago: American Bar Association, 1974) at 33-34; American Bar Association,
Electing Delegates to a Constitutional Convention: Proceedings of an Annual Meeting Presidential
Showcase Program (Washington, D.C.: American Bar Association, 1985) at 15.
6 1See Whitaker, supra, note 36 and accompanying text.
62See K. Banting & R. Simeon, “Federalism, Democracy and the Constitution” in Banting &
Simeon, eds, supra, note 36, 2 at 19-21; Macdonald, supra, note 38 at 276-77; B. Schwartz,
“Refashioning Meech Lake” (1989) 18 Man. L.J. 19 at 20-22; A. Tupper, “Review Article: Think-
ing and Writing About Meech Lake” (1991) 29 Alta L. Rev. 310 at 326-27.
63In a study of delegate attitudes preceding six state constitutional conventions (one partisan and
five nonpartisan), delegates selected in nonpartisan elections tended to support the higher law view
of constitutional conventions more strongly than those elected in the partisan election. See supra,
note 59 at 74-75.
64See text accompanying notes 78-87.
65C. Jillson, Constitution Making: Conflict and Consensus in the Federal Convention of 1787
(New York: Agathon Press, 1988).
McGILL LAW JOURNAL
[Vol. 37
Delegate elections will produce a representative convention only if the
electoral process is structured to be strongly democratic. Important choices must
be made on the size of districts, the number of delegates from each district, cam-
paign funding restrictions, availability of public funding, and guaranteed access
to media. Because of their complexity, most of these design questions are
beyond the scope of this essay.’ The important point here, however, is that such
questions should all be resolved in the direction of strong democracy. Thus, for
example, public funding and some form of guaranteed media access would
seem presumptively desirable.
There is a danger that nonpartisan elections may lead to the under-
representation of disadvantaged groups.67 Political parties traditionally serve the
function of mobilizing the electorate. With parties barred from playing that role,
at least in an open way, there is an obvious danger that personal fame and the
ability to purchase voter recognition with personal wealth could give the rich
and famous a decisive advantage in the elections. According to the principal
American empirical study of convention politics, however, the evidence on this
point is inconclusive.68 Moreover, in a high-stakes exercise in nationwide
constitution-making, parties, social movements, unions and aboriginal peoples
can all be expected to participate actively. Consider, for example, the highly
effective efforts by the Canadian women’s movement and the Indian lobby in
the process leading up to the Constitution Act, 1982.69 This kind of vigorous
mobilization should more than offset the absence of formal party nominations
and designations.
When they convene, the delegates should be freed from the exigencies of
day-to-day politics so that they can focus on long-range structural concerns. In
an extended process of small group discussion (attendance at the Philadelphia
convention’s plenary sessions rarely topped thirty,” and much of the work of a
modem convention would undoubtedly be accomplished in committees and
66Some of the questions are, however, addressed in my response to the proposals of the NDP
minority on the Beaudoin-Edwards Committee. See infra, note 94 and accompanying text. For a
useful overview of the issues involved in electing delegates to a constituent assembly, see Special
Joint Committee of the Senate and the House of Commons on the Process for Amending the Con-
stitution of Canada, Minutes of Proceedings and Evidence, issue no. 27 (Ottawa: Queen’s Printer,
25 April 1991) at 119ff. (R. Janda) [hereinafter Minutes of Proceedings].
67There is some empirical evidence that nonpartisan election procedures result in the underre-
presentation of women, persons in low status jobs, residents of poor neighbourhoods, and social,
racial, and religious minorities. See E. Lee, The Politics of Nonpartisanship: A Study of California
City Elections (Berkeley: U. of California Press, 1960) at 50-56, 181.
6tThe Cornwell study of American state constitutional conventions found “little consistent con-
firmation of the hypothesis that partisan systems were any more representative than nonpartisan
systems.” See supra, note 59 at 72.
69See C. Hosek, “Women and Constitutional Process” in Banting & Simeon, eds, supra, note 36,
70Supra, note 19 at 24.
280; D. Sanders, “The Indian Lobby” in Banting & Simeon, eds, supra, note 36, 301.
1992]
POSSIBLE LESSONS
informal caucuses), individuals have an opportunity to develop relationships
that cut across sectional and ideological lines.
Before such relationships can develop, of course, the key sectional and
ideological blocs must be convinced to send delegates. Whether and how Que-
bec might be willing to participate remains a thorny issue in the current Cana-
dian context. Several Quebeckers have taken the position that Quebec should
not participate in any constitutional process until “Canada other than Quebec”
agrees on and presents a set of constitutional proposals that is generally accept-
able to Quebec.7 In my view, ensuring Quebec’s participation poses no greater
difficulties for an elected constituent assembly than for any of the other pro-
posed procedures for achieving constitutional change. As Prof. Peter Russell
has suggested, Canada other than Quebec could use the assembly process to
develop proposals, which if acceptable to Quebec, would serve as the basis for
a second assembly with full participation from that province.” Another option
would see Parliament appealing directly to the people of Quebec by calling
Canada-wide delegate elections for a national constituent assembly. The elec-
tion call could be accompanied by appropriate safeguards to protect Quebec
voters, given their minority position, from being swallowed up in a Canadian
electorate. For example, Parliament might guarantee that no proposal would
become law without first receiving the approval of the Quebec electorate in a
referendum election.7″
I must emphasize that my purpose in raising these possibilities is not to
solve the problem of Quebec’s participation in the constitutional amending
process. It is the far more modest one of demonstrating that the use of an elected
constitutional convention is compatible with a variety of different approaches
toward ensuring some type of Quebec participation in a constituent assembly.
Russell).
71See, for example, Minutes of Proceedings, supra, note 66, issue no. 30 (Ottawa: Queen’s
Printer, 30 April 1991) at 31-32 (L. Dion); Minutes of Proceedings, ibid., issue no. 28 (Ottawa:
Queen’s Printer, 26 April 1991) at 57-61, 63-64 (A.-G. Gagnon).
72Minutes of Proceedings, ibid., issue no. 9 (Ottawa: Queen’s Printer, 7 March 1991) at 13 (P.
7 31n order to avoid going outside the textually specified amending formula, Parliament might
guarantee that any proposed changes would be submitted to the voters of Quebec for approval
before being submitted to the provinces for ratification. To reduce the appearance of “special treat-
ment” for Quebec, this might be done as part of a Canada-wide referendum. Although some non-
Quebeckers would consider this to be preferential treatment for Quebec, it seems to me that it
merely recognizes the obvious fact that any genuine and lasting constitutional settlement must have
the approval of the Quebec people. There is a rough parallel in the American constitutional expe-
rience. Before New York or Virginia had voted, the Constitution had already been ratified by the
minimum number of nine states. Instead of relaxing and celebrating their success, however, the
Constitution’s proponents redoubled their efforts to win in those states. They understood that, as
a matter of political reality if not formal legality, ratification by both New York and Virginia would
be essential to the consolidation of the new constitutional order. See generally, R. Rutland, The
Ordeal of the Constitution: The Antifederalists and the Ratification Struggle of 1787-1788 (Boston:
Northeastern U. Press, 1983) at 213-18.
REVUE DE DROIT DE McGILL
[Vol. 37
The distinct status of Quebec is, of course, but one of many sharp contrasts
between the United States of 1787 and the Canada of today. But there is one
similarity that encourages me to hope that these observations may not be
entirely irrelevant. The one condition that, more than any other, made possible
the success of the Philadelphia convention is present at least to some extent in
Canada today. In 1787, there was a widespread perception that the union might
be in danger of dissolving. This threat helped the delegates to put aside minor
disagreements and focus on broader issues. As in wartime, the need to pull
together can bring forth the better side of people, encouraging them to put aside
private interests for the public good. If, despite the threat, this does not happen,
then it may be that the federation was not meant to last.
In addition to the sense of crisis, there is also a certain similarity in the
problems faced by the Americans of 1787 and the Canadians of today. The main
issue is the structure of the federal system. Its most basic features are open to
question. The problems are polycentric and subtle; this is no head-to-head clash
of moral positions. The questions of multiculturalism, Quebec’s status, and
regional representation may all be linked. Deliberation, compromise, and col-
lective creativity –
the great strengths of the convention form – will be
essential.
If conventions are so desirable, then why has the United States not had one
since 1787? The short answer is that the conditions for calling a convention
have never been met. The American constitutional amendment formula pro-
vides that “Congress … on the Application of the Legislatures of two-thirds of
the several States, shall call a Convention for proposing Amendments.”’74 Never
have two-thirds of the states applied for a convention on the same subject in the
same period of time.
Why not? To give another quick answer: because the two-thirds require-
ment is very difficult to meet, and Congress has headed off several convention
movements by proposing amendments itself.75 (In addition to conventions, the
amendment formula authorizes Congress to propose amendments on a two-
thirds vote of both houses.)
This still leaves the question why, given that extra-textual means were used
to accomplish the second and third constitutional transformations, Americans
did not simply bypass the two-thirds requirement and call a convention during
those crises. Again, there is a short answer. The convention form was not well-
suited to the resolution of those crises. No amount of deliberation and compro-
mise could have avoided a showdown between slavery and freedom.76 As for the
74U.S. CONST. art. V.
75Weber & Perry, supra, note 60 at 75-76.
760On the eve of the Civil War, the state of Virginia issued an invitation for a “Peace Convention”
to be held in Washington, D.C. Twenty-one states sent delegates, among whom were former cab-
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POSSIBLE LESSONS
crisis of the 1930s, Roosevelt believed, probably correctly, that business inter-
ests exerted enough influence over state politics to block any formal constitu-
tional amendments.’ Moreover, a convention would have been an unnecessarily
cumbersome method for making changes that could be accomplished merely by
having the Supreme Court reinterpret ambiguous constitutional provisions.
Many Americans would strongly disagree with my positive assessment of
the convention form. We recently had a very passionate debate over the desir-
ability of calling a national constitutional convention to propose a budget bal-
ancing amendment. Many people argued that the convention is a form of con-
stitutional roulette.” Once one is called, there is no way of knowing what the
delegates will do. Perhaps the convention might “run away” and propose all
kinds of drastic changes to the basic law. After two centuries of disuse, the
nationwide constitutional convention is almost as unfamiliar in the United
States as it is in Canada.
But there are always many risks when a country attempts major constitu-
tional change, especially during times of constitutional crisis. Efforts by leaders
to maintain tight control of the process can be just as likely to backfire as a new
process. Canada tried the intergovernmental approach in the Constitution Act,
1982 and the Meech Lake Accord. Neither managed to resolve the Canadian
constitutional crisis.
Unfortunately, a majority of members of the Beaudoin-Edwards Commit-
tee resoundingly rejected the idea of a constituent assembly.79 Convention del-
egate elections would not, according to the majority, solve the problem of public
participation because “[i]f voting provided a feeling of participation, the public
should have felt this during the Meech Lake process, when decisions were taken
by elected legislators.”8 Moreover, selecting delegates specifically for the pur-
pose of constitutional deliberations might, according to the majority, have the
inet officers, governors, senators, representatives, and an ex-President. Congress refused, however,
even to consider the convention’s proposals. President Lincoln was pressured to support a consti-
tutional convention, but while expressing a preference for the convention method as a means of
achieving constitutional change, disclaimed any desire for amendments at that time. See R. Caplan,
Constitutional Brinkmanship: Amending the Constitution by National Convention (New York:
Oxford U. Press, 1988) at 52-56.
77Supra, note 24.
78it should be noted, however, that the American debate differed in an important way from the
current Canadian debate in relation to the scope of the changes under consideration. Recent calls
for an American convention have focused on the need for a single, specific policy change, for
example a balanced budget amendment or a ban on abortions. The most persuasive arguments
against a convention emphasize the inappropriateness of calling a convention to consider a single,
discrete issue of policy. See L. Tribe, “Issues Raised by Requesting Congress to Call a Constitu-
tional Convention to Propose a Balanced Budget Amendment” (1979) 10 Pac. L.J. 627 at 628-29.
79Supra, note 1 at 47-51.
80 bid. at 47.
McGILL LAW JOURNAL
[Vol. 37
drawback of locking them into pre-declared positions, thus crippling their abil-
ity to compromise. Even if this did not happen, and delegates were elected
“because of their general values, and their willingness to engage in negotiation
about specifics, they would not differ from politicians currently elected in gen-
eral elections.”‘”
The majority report is an impressive document that reflects both broad
knowledge and deep thinking about the process of constitutional change. Nev-
ertheless, in my view, it fails to confront adequately the distinction between
republican politics and politics-as-usual. The considerations involved in select-
ing convention delegates and ordinary representatives can be quite different
even where the delegate candidates are smart enough not to commit themselves
to a rigid constitutional program. Party loyalties based on past performance,
patronage, and non-constitutional programs can interfere seriously with
constitution-making. During the process leading up to the Constitution Act,
1982, for example, Quebec voters rejected the sovereignty-association propos-
als of the Parti Qubecois government, yet returned that party to power in the
following election. Apparently, the vote for ordinary representatives did not
reflect the electorate’s constitutional views. The contradictory referendum and
electoral results greatly reduced Quebec’s influence in the constitutional proc-
ess, perhaps with serious long-term consequences. 2 By contrast, nonpartisan
delegate elections for a constitutional assembly would allow voters to focus
their choice on the constitutional process, and thus to obtain both more accurate
representation and a more direct experience of participation.
The report argues that political parties could not be excluded from conven-
tion delegate elections, and thus that “elections for a constituent assembly
would strongly resemble elections for existing political office.” 3 Although the
report is undoubtedly correct in observing that political parties could not be
entirely excluded from the process, the available empirical evidence indicates
that their influence could be greatly reduced. The Cornwell study of seven
American state conventions, five nonpartisan and two partisan, found that less
than half as many party activists were selected in nonpartisan conventions than
in partisan ones. 4 Of course, there is no guarantee that party influence would
be reduced. Since there is no effective way to prohibit informal party participa-
tion, the reduction of party influence depends upon the generation of a “spirit
of nonpartisanship.” 5
8 ‘Ibid.
8 2A. Cairns, “The Politics of Constitutional Conservatism” in Banting & Simeon, eds, supra,
note 36, 28 at 28, 30.
83Supra, note 1 at 49.
84Supra, note 59 at 67.
85 bid. at 69.
1992]
POSSIBLE LESSONS
The Committee’s concern that convention delegate candidates would be
“the ones with the most definite views, and the ones least inclined to compro-
mise” 6 also seems misplaced. The Cornwell study found that in the nonpartisan
setting, the delegates tended to be “self-recruited and motivated to run because
of a sense of civic duty and a desire to reform state government.”87 People who
take the time to run for office and attend a multi-month convention are likely
to place a high value on producing a set of proposals. In the absence of com-
promise, they will be forced to write off their time and effort as a failure. In this
light, the report’s assertion that convention delegates might be less likely to
compromise because they are not accountable to voters8 seems exactly back-
ward. Even if the constitutional process deadlocks, an ordinary representative
might win support from the voters for taking a militant stance in favour of sec-
tional interests, but a convention delegate gets no satisfaction or rewards for
participating in a process that fails.
Of course, there is no certainty that a convention would rise above ordinary
politics. A study of American state constitutional conventions cannot provide
conclusive answers about a nationwide Canadian convention. My point is sim-
ply that, confronted with uncertainty, the majority assumes the worst about the
convention process while the available evidence, however modest, points
towards a more optimistic forecast. Meanwhile, the experience of government-
dominated constitutional change over the past few decades has definitely been
negative.
Recognizing this, the minority report of the New Democratic Party (NDP)
argues that Canada must break with its “tradition of elite accommodation and
do something dramatic, something to renew the democratic urge that the people
have been expressing.” 9 The report proposes a “constituent assembly” half
composed of elected parliamentarians and half of representatives from various
constituencies, including official language minority communities, racial and
“ethno-cultural” minorities, physically and mentally disabled persons, and
“other social groups whose important points of view are under-represented
within our present electoral system.”90 The proposal calls for gender parity
among the delegates, the participation of aboriginal peoples, and “equitable
regional distribution, including equitable representation of northern Canada.”91
This assembly would travel the country, gather evidence, and present “consen-
86Supra, note 1 at 49.
87Supra, note 59 at 67. Delegates in partisan elections, on the other hand, reported that they had
been asked to run by parties.
8Supra, note 1 at 49.
89Ibid. at 74. The NDP members of the Beaudoin-Edwards Committee were Lynn Hunter, M.P.
and Lorne Nystrom, M.P.
90Ibid. at 75.
91Ibid.
REVUE DE DROIT DE McGILL
[Vol. 37
sus proposals” for ratification according to the amendment procedure specified
in the Constitution Act, 1982.92
The NDP proposal exhibits the boldness and breadth of vision necessary
to accomplish major constitutional change. Unfortunately, the proposal does not
follow through on its promise to “break” with the tradition of elite accommo-
dation. An assembly so delicately balanced among regions, genders, and social
groups could scarcely be elected; it would have to be selected in advance by a
small elite. Appointment decisions, including the determination of which social
groups should be represented and in what proportions, would have a major
impact on the political character of the assembly, and thus on the content of its
proposals. Such an assembly would not, as the majority recognizes, give Cana-
dians a sense of effective participation in the constitutional process.9″
The NDP’s apparent preference for selecting delegates by appointment
seems to be motivated by a concern that elections would exclude disempowered
groups from representation. Admittedly, it is unlikely that any electoral process
would produce the ideal mix specified in the minority report. (It should be noted
that it is equally doubtful whether any realistically achievable appointment
process would produce such a mix). The electoral process could, however, be
designed to minimize the risk of underrepresentation. In such a system of pro-
portional representation, 94 for example, minorities can achieve substantial repre-
921bid. at 76.
93Ibid. at 50.
94The term “proportional representation” encompasses a wide variety of electoral systems that
seek, typically by means of multi-member districts, to “relate seats to votes more proportionately
than is possible under a single-member-constituency system.” See D. Butler, “Electoral Systems”
in D. Butler, H. Penniman & A. Ranney, eds, Democracy at the Polls: A Comparative Study of
Competitive National Elections (Washington: American Enterprise Institute for Public Policy
Research, 1981) 7 at 24. Among many proportional systems, probably the most effective at mir-
roring voter preferences and ensuring minority representation is the so-called “single transferable
vote” system, which has been used at the national level in Ireland and Australia, and at the local
level in some Canadian and American cities. Under this system, electors number the candidates in
order of preference. The ballots are then sorted according to the candidate marked number one. If
a candidate has garnered enough number one votes to assure election (according to a mathematical
formula called the “drop quota”), all of his or her remaining ballots are transferred to the number
two choice. If a candidate has accumulated so few number one votes that she clearly has no chance
of winning, her ballots are transferred to the number two choice. This process continues until the
number of candidates meeting the drop quota is equal to the number of vacancies to be filled. For
a more detailed description with examples, see E. Lakeman, How Democracies Vote: A Study of
Majority and Proportional Electoral Systems (London: Faber & Faber, 1970) at 107-17.
Critics have identified three major problems with the single transferable vote system. The first
that it reduces the influence of political parties – would be a strengh rather than a weakness
that it does not work well where there is a large
can be solved by adjusting the size of the districts to ensure a
that it is difficult for voters to understand
could, in my view, be overcome given the Canadian electorate’s high level of education and the
–
in a nonpartisan delegate election. The second –
number of offices to be filled –
manageable number of delegate positions. The third –
–
1992]
POSSIBLE LESSONS
sentation. This solution avoids the extremely difficult problems of deciding in
advance which groups should be represented, in what numbers, and by whom.
Instead, minority group members themselves decide whether and how strongly
they wish to be represented by members of their own group.
Even if the group representation problem can be solved, one might ask, is
it really prudent to attempt an approach so drastically different from past prac-
tice as a constitutional convention? Given that this may be the last chance to
hold the union together, would it not be better to use familiar methods, especi-
ally given the urgent time pressures?
To this outside observer, it would be a mistake to plan on the assumption
that what happens between now and the Quebec deadline95 will necessarily
determine the future of the Canadian Constitution. It seems that many people
felt that way about the Constitution Act, 1982 and the Meech Lake Accord, but
here you are today about to embark on another round of constitutional law-
making. As for Quebec’s undoubtedly serious deadline, Quebeckers might be
more impressed by the initiation of a relatively cumbersome process with a real
chance of success than by a repetition of the more streamlined but as yet inad-
equate procedures of the past. The calling of a nationwide convention would, at
a minimum, serve as a dramatic demonstration that Canada other than Quebec
is taking the constitutional crisis seriously.
To indulge in an oversimplification, a constitutional convention can either
succeed or fail. In the long run, the cost of a failed convention may not be so
large. The lessons learned might alone be worth the effort. A participatory proc-
ess could reveal much about the temper of the country. Even a failed convention
may yield new proposals that advance the debate. By contrast, another failed
effort at amendment by intergovernmental agreement is not likely to yield many
new lessons.
ready availability of channels of communication to voters. As for the argument that proportional
representation is foreign to the Canadian political culture, so is the idea of an elected constituent
assembly; both presuppose a willingness to depart from traditional approaches. It should be kept
in mind that both of these innovations are being proposed only for a one-shot lawmaking event,
and only after traditional methods have repeatedly failed to resolve the constitutional crisis.
95Quebec’s deadline can be found in Bill 150, An Act Respecting the Process for Determining
the Political and Constitutional Future of Quebec, 1st Sess., 34th Leg. Que., 1991 (assented to 20
June 1991). With this bill, the government established two committees, one for examining Que-
bec’s accession to sovereignty (see ss 2-3) and another to study any binding constitutional propos-
als made by the federal government to the province (see ss 4-6). Also, s. I of Bill 150 sets out that:
[t]he Gouvemement du Quebec shall hold a referendum on the sovereignty of Quebec
between 8 June and 22 June 1992 or between 12 October and 26 October 1992.
If the results of the referendum are in favour of sovereignty, they constitute a pro-
posal that Quebec acquire the status of a sovereign State one year to the day from the
holding of the referendum.
In that sense, Bill 150 sets out the “deadline” for the conclusion of successful constitutional
negotiations between Quebec and the rest of Canada.
26
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[Vol. 37
On the other hand, the gain to be had from a successful convention could
be immense. Aside from breaking through the intergovernmental deadlock, a
convention might provide the kind of dramatic lawmaking event that could jus-
tify circumventing the current amendment process, consummate Canada’s con-
stitutional independence from Great Britain, and fix the federal structure for
many decades to come.
