Title

The Written Word and the Constitution’s Vital Unstated Assumptions

Document Type

Book Chapter

Publication Date

2002

Source Publication

Essays in Honour of Gérald-A. Beaudoin: The Challenges of Constitutionalism. Cowansville, QC: Éditions Y. Blais, 2002.

Keywords

Constitution Act 1867; Lochner v. New York; provincial judges reference; secession reference; Supreme Court intrepretation of constitution; unwritten principles

Abstract

By asking whether courts are entitled to rely on unwritten principles to place limits on legislative authority, this paper considers one aspect of that dynamic. An initial section frames the issue in blunt terms by asking whether the Supreme Court of Canada has engaged in lochnering that reviled doctrine of American constitutionalism. Accepting that Lochner v. New York was the product of certain historical and cultural dynamics, the example nonetheless places the relationship between the written word and the legitimacy of review in sharp focus. The two sections which follow the discussion of 'lochnering' examine the Supreme Court of Canada’s reliance on unwritten principles to interpret the Constitution in the Provincial Judges Reference, and the Secession Reference. In the first, the Court discounted the express provisions of the text in concluding that the preamble, as the “grand entrance hall to the castle of the Constitution” is the 'true source' of substantive commitment to judicial independence. Granted, it is part of the Constitution Act, 1867, still, the preamble had not previously been considered a source, much less the true source, of significant constraints on governmental authority. Not long thereafter, the Supreme Court provided answers to three questions posed by the federal government in the Secession Reference. Though ostensibly decided under the Constitution, the Court’s response to the hypothetical independence of Quebec relied on a series of unwritten principles in proposing that the rest of Canada as to ask the Court of a pronouncement on the politically charged question of secession, which has no textual presence in the Constitution. Even so, little in the Court’s response can claim any connection either to the text or to established principles of constitutional law.

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