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Constitutional Amendment and the Federation*
Published online by Cambridge University Press: 07 November 2014
Extract
An amending procedure is integral to a scheme of free and responsible government. Liberal constitutions are not formed on the naive assumption that they are immune from obsolescence. Their architects, unlike the Emperor Justinian, are never confident that their legal handiwork can endure for all time. They accept the necessity for change as self-evident and provide the means for achieving it.
In a liberal federation, however, the devising of a satisfactory procedure for amendment is rarely easy and seldom gives satisfaction, mainly because in such a state constitutional rigidity no less than flexibility has a raison d'être. The communities associated in the federation want a measure of security, a guarantee that their individual identity and integrity will never be lightly sacrificed in the process of change. This was illustrated long ago in the most influential federal union in history. The men who deliberated at Philadelphia in 1787 agreed that amendments must be sanctioned by a special majority in Congress and ratified by three-fourths of the states. They were confident that they had thus made change difficult, but not difficult enough to prevent it when necessary. Actually, for many reasons, it proved more difficult than they could have envisaged. Since the first ten amendments were little more than supplements to an unfinished document, there remain only twelve effected in 170 years, and of these three were obtained under very abnormal circumstances when the South was under the heel of the North. Important as some of them have been, most of the crucial adjustments and changes in the federation have been achieved in other ways, by judicial interpretation, usages, conventions, and a network of agreements.
- Type
- Articles
- Information
- Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 29 , Issue 4 , November 1963 , pp. 486 - 494
- Copyright
- Copyright © Canadian Political Science Association 1963
Footnotes
*
This paper was presented at the annual meeting of the Canadian Political Science Association in Quebec, June 7, 1963.
References
1 It is likely that section 118 on provincial subsidies was not intended to be amended in Canada. See Maxwell, J. A., Federal Subsidies to the Provincial Governments in Canada (Cambridge, Mass., 1937), 29–32 CrossRefGoogle Scholar; idem, “A Flexible Portion of the British North America Act,” Canadian Bar Review, March, 1933, 149-57.
2 The remarks were those of Colonel Arthur Rankin, member for Essex, Confederation Debates (Quebec, 1865), 918.Google Scholar
3 Pope, Joseph, Confederation Documents (Toronto, 1895), 59.Google Scholar
4 On two occasions, in 1875 and 1895, amendments were obtained on unimportant technical matters on the request of the federal executive alone. See Gérin-Lajoie, Paul, Constitutional Amendment in Canada (Toronto, 1950), 145–6.Google Scholar
5 See in particular his speech on Oct. 17, 1949, Debates of the House of Commons, 2nd Session, 1949, I, 828–35.Google Scholar
6 Proceedings, 01 10-12, 1950 (Ottawa, 1950)Google Scholar, throw much light on federal-provincial relations at the time and among other things on the British North America Act, 1949 (no. 2). Most of the premiers of the provinces criticized the Act, while Mr. St. Laurent explained and defended it (68-75). Although Mr. St. Laurent's explanation was intended to demonstrate that provincial powers were not endangered, the premiers could not ignore the fact that his view on the implications of the Act might not coincide with that of the Supreme Court, and their uneasiness remained.
7 Globe and Mail, Dec. 21, 1961.
8 The views of the Saskatchewan Government on amendment were fully reflected in a debate in the provincial legislature on February 24 and March 17, 1961.
9 Report of the Royal Commission on Dominion-Provincial Relations (Ottawa, 1940), II, 73.Google Scholar
10 Debates of the House of Commons, 2nd Session, 1949, 1, 832.Google Scholar