Over the last several years, we have witnessed a resurgence in interest in classical constitutional law. This subject encompasses the fullness of constitutional law beyond the usual one-two punch of the Charter and division of powers.
The generally acknowledged contours of constitutional law were set out by Albert Venn Dicey back in 1885 as “all rules which directly or indirectly affect the distribution of the exercise of the sovereign power in the state.”
These include: the unwritten Constitution, constitutional development and amendment, the Governor General, the cabinet, the House of Commons, the Senate, the civil service, the judiciary, political parties, and federal-provincial relations. Indeed, if you look at constitutional law texts from the early decades of the 20th century you will find that they canvassed such subjects.
But then something happened. As a discipline, constitutional law became obsessed with division of powers and the decisions of the judicial committee of the Privy Council. The classical Constitution gave way to what I call “the old Constitution:” federalism and a focus on issues of constitutional amendment/patriation.
The teachings of the old Constitution were reflected in the texts of the era, most notably in the many editions of Bora Laskin’s Canadian Constitutional Law, which was aptly subtitled cases, text and notes on the distribution of legislative power. While new law schools opened in Ontario and across the country, the hold of the old Constitution would not be dislodged.
It was not that the classical subjects of constitutional law were forgotten, just only by most in the legal academy. Great Canadian political scientists like Eugene Forsey, Robert MacGregor Dawson, James Mallory, and Frank MacKinnon preserved and tilled this rich constitutional soil.
They were largely talking to themselves because with notable exceptions like McGill’s Stephen Scott and Osgoode’s Peter Hogg, most constitutional lawyers did not demonstrate an interest in these classical issues.
And then of course came 1982.
The new constitutional law was born consisting of the Charter, a continuing focus on federalism, and an increasing attention paid to aboriginal issues. The years between 1982 and 1992 were the Charter’s age of ascent; the Charter was on the rise and executive federalism was on the demise after the deaths of Meech and Charlottetown.
It was also an age of ascent for the Supreme Court, especially after 1992 as increased attention focused on it.
But beginning in the mid- to late 1990s, we started to see a resurgence in interest in some of the classical issues in constitutional law.
The Reform Party deserves much credit for shining a spotlight on many of our key constitutional actors. This spawned the democratic deficit/democratic reform movements. A key date in the resurgence of classical constitutional law was March 27, 2003, a day which will live in infamy in the annals of constitutional history in this country.
March 27, 2003 is the date of the ill-fated Magna International Inc. budget in Ontario when advisers to then premier Ernie Eves miscalculated that ordinary Ontarians would not care about constitutional technicalities like the convention that the budget is always delivered in the legislature. How wrong they were.
Things starting picking up steam after that as the constitutional focus shifted to Ottawa where Parliament became the center of attention, something that had not happened since the Liberal Senate stalled former prime minister Brian Mulroney’s free trade legislation.
Entering an age of minority governments, Parliament became interesting, at times even riveting. Who can forget the drama of Belinda Stronach appearing next to former prime minister Paul Martin at the fateful press conference on May 17, 2005 followed by the non-confidence vote two days later when all eyes were on a cancer-stricken Chuck Cadman?
Meanwhile the politicized nature of the Supreme Court of Canada has lessened under Chief Justice Beverley McLachlin. There was both greater acceptance of the Charter and of judicial review, and a more pragmatic court under her leadership than under former chief justice Antonio Lamer.
All of this was prelude to what we now call “the crisis.” With Governor General Michaëlle Jean and Parliament thrust into the limelight last fall, we have all become classical constitutionalists now.
What does the future hold for classical constitutional law? We may be seeing a broader appreciation of the scope of constitutional law among lawyers, legal academics, law students, and the public; an appreciation that the relevant constitutional actors extend beyond the judges of the Supreme Court of Canada.
They include Parliament, the Prime minister, and yes, the Governor General. If the crisis has taught us one thing, it is that these areas of classical constitutional law are too important to ignore.
Adam Dodek is a professor at the University of Ottawa’s Faculty of Law. He can be reached at [email protected].
A special appreciation to the lawyers at the Department of Justice’s Constitutional and Administrative Law Section who suffered through a much longer version of this article.
