The Constitution

					The Constitution
Malcomlson & Myers Chapter 2


• Constitution: set of rules that authoritatively
  establishes both the structure & fundamental
  principles of a political regime


• Constitutions are written & unwritten
   – Unwritten: United Kingdom, Israel, Canada (partly)
   – Written: United States, France, Canada (partly)

• “Unwritten” means not contained in a single
  document
The Constitution
Malcomlson & Myers Chapter 2


1. Empowers: who or what exercises power
   – Legislative, Executive, Judicial


2. Divides Power:
   – Unitary vs. federal
   – Residual power


3. Limits Power:
   – Negative & positive rights
The Constitution
Malcomlson & Myers Chapter 2


1. Empowers: who or what exercises power
   – Legislative, Executive, Judicial


2. Divides Power:
   – Unitary vs. federal
   – Residual power


3. Limits Power:
   – Negative & positive rights
The Constitution Spatial
Malcomlson & Myers Chapter 2


1. Empowers: who or what exercises power
   – Legislative, Executive, Judicial


2. Divides Power:
   – Unitary vs. federal
   – Residual power


3. Limits Power:
   – Negative & positive rights
The Constitution
Malcomlson & Myers Chapter 2


Types of Rights
• Negative Rights:
   – “Freedom from”
   – Usually protection from state
   – Religion, speech, association


• Positive Rights:
   – “Freedom to”
   – Usually places obligation on state
   – e.g., State must provide welfare, education, etc.
The Constitution
Malcomlson & Myers Chapter 2


Types of Rights
• Negative Rights:
   – “Freedom from”
   – Usually protection from state
   – Religion, speech, association


• Positive Rights:
   – “Freedom to”
   – Usually places obligation on state
   – e.g., State must provide welfare, education, etc.
The Constitution
Malcomlson & Myers Chapter 2


Examples:
US Bill of Rights (Amendments I-X of US Constitution)

   Amendment I: Congress shall make no law respecting an
   establishment of religion, or prohibiting the free exercise
   thereof; or abridging the freedom of speech, or of the press;
   or the right of the people peaceably to assemble, and to
   petition the Government for a redress of grievances.
The Constitution
Malcomlson & Myers Chapter 2


Examples:
Canadian Charter of Rights

•   2. Everyone has the following fundamental freedoms:
    a) freedom of conscience and religion;
    b) freedom of thought, belief, opinion and expression,
        including freedom of the press and other media of
        communication;
    c) freedom of peaceful assembly; and
    d) freedom of association.
The Constitution
Malcomlson & Myers Chapter 2


Examples:
French Constitution of 1958:


•   Article 1:
    France shall be an indivisible, secular, democratic and social
    Republic. It shall ensure the equality of all citizens before
    the law, without distinction of origin, race or religion. It
    shall respect all beliefs. It shall be organised on a
    decentralised basis.
The Constitution
Malcomlson & Myers Chapter 2


Constitutional Forms
1. Conventions:
   –    a longstanding political practice or custom, based on
        implicit agreement & precedent, that is enforced in
        political arena


2. Organic Statutes
   –    Regular law, but on constitutional matters; changeable


3. Constitutional Laws
   –    Entrenchment
The Constitution
Malcomlson & Myers Chapter 2


Constitutional Forms
1. Conventions:
   –    a longstanding political practice or custom, based on
        implicit agreement & precedent, that is enforced in
        political arena


2. Organic Statutes
   –    Regular law, but on constitutional matters; changeable


3. Constitutional Laws
   –    Entrenchment
The Constitution
Malcomlson & Myers Chapter 2


Constitutional Forms
1. Conventions:
   –    a longstanding political practice or custom, based on
        implicit agreement & precedent, that is enforced in
        political arena


2. Organic Statutes
   –    Regular law, but on constitutional matters; changeable


3. Constitutional Laws
   –    Entrenchment
The Constitution
Malcomlson & Myers Chapter 2


The Canadian Constitution:

•    Constitution Act 1867
    –   The British North America Act
    –   Preamble links Canada to unwritten conventions of
        Responsible Government


•    Constitution Act 1982
    –   Charter of Rights & Freedoms
    –   Amending Formula
The Constitution
Malcomlson & Myers Chapter 2


Constitution (BNA) Act 1867
•       Preamble
    –     Establishes Responsible Government (Convention)

•       Parts III & IV
    –     Describes executive & legislative power

•       Part VI
    –     Federal & Provincial Jurisdictions: Sections 91 & 92

•       Part VII
    –     Establishment of Supreme Court (Organic Statute)
The Constitution
Malcomlson & Myers Chapter 2


Executive Authority


    “The Executive Government and Authority of and
    over Canada is hereby declared to continue and be
    vested in the Queen.”


    Constitution (BNA) Act 1867 III.9
The Constitution
Malcomlson & Myers Chapter 2



Executive Authority

    “There shall be a Council to aid and advise in the
    Government of Canada, to be styled the Queen's
    Privy Council for Canada;...”
    Constitution (BNA) Act 1867 III.11
The Constitution
Malcomlson & Myers Chapter 2


Legislative Authority

    Bills for appropriating any Part of the Public
    Revenue, or for imposing any Tax or Impost, shall
    originate in the House of Commons.
    Constitution (BNA) Act 1867 IV.53
The Constitution
Malcomlson & Myers Chapter 2


Legislative Authority

    It shall not be lawful for the House of Commons to adopt
    or pass any Vote, Resolution, Address, or Bill for the
    Appropriation of any Part of the Public Revenue, or of any
    Tax or Impost, to any Purpose that has not been first
    recommended to that House by Message of the Governor
    General in the Session in which such Vote, Resolution,
    Address, or Bill is proposed.

    Constitution (BNA) Act 1867 IV.54
The Constitution
Malcomlson & Myers Chapter 2



Judicial Authority

    (1) Subject to subsection two of this section, the
    Judges of the Superior Courts shall hold office
    during good behaviour, but shall be removable by
    the Governor General on Address of the Senate
    and House of Commons.

    Constitution (BNA) Act 1867 VII.99
The Constitution
Malcomlson & Myers Chapter 2


Constitution (BNA) Act 1867
•    No entrenchment or amending formula
    –   Act of British Parliament


•    No Bill of Rights
    –   Conventions via British law & tradition
    –   Utilitarian approach of Fathers of Confederation
The Constitution
Malcomlson & Myers Chapter 2


Constitution (BNA) Act 1867
•    No entrenchment or amending formula
    –   Act of British Parliament


•    No Bill of Rights
    –   Conventions via British law & tradition
    –   Utilitarian approach of Fathers of Confederation
The Constitution
Malcomlson & Myers Chapter 2


Constitution Act 1982


•    Impetus
    –   Patriation
    –   Amending formula


•    Several contending agendas
    –   Provincial power (Quebec)
    –   Bill of Rights (Trudeau)
The Constitution
Malcomlson & Myers Chapter 2


           US Post-Election Forum
Wednesday, November 5, 3-4:30.
Scarfe Education Building, Room 100
2125 Main Mall
The Constitution
Malcomlson & Myers Chapter 2


Constitution Act 1982

•       Part I: Charter of Rights & Freedoms
    –      Positive vs. Negative Rights; the Notwithstanding Clause

•       Part III: Equalization
    –      National standards, regional tension & economic impact

•       Part V: Amending Procedure
    –      Veto Points & Gridlock

•       Part VII
    –      Section 52
The Constitution
Malcomlson & Myers Chapter 2

                   PART III
      EQUALIZATION AND REGIONAL DISPARITIES


36. (2) Parliament and the government of Canada are committed
     to the principle of making equalization payments to ensure
     that provincial governments have sufficient revenues to
     provide reasonably comparable levels of public services at
     reasonably comparable levels of taxation.
The Constitution
Malcomlson & Myers Chapter 2


Constitution Act 1982

•       Part I: Charter of Rights & Freedoms
    –      Positive vs. Negative Rights; the Notwithstanding Clause

•       Part III: Equalization
    –      National standards, regional tension & economic impact

•       Part V: Amending Procedure
    –      Veto Points & Gridlock

•       Part VII
    –      Section 52
The Constitution
Malcomlson & Myers Chapter 2

                                 PART V
      PROCEDURE FOR AMENDING CONSTITUTION OF CANADA


    General procedure for amending Constitution of Canada 38. (1)


    An amendment to the Constitution of Canada may be made by
    proclamation issued by the Governor General under the Great Seal of
    Canada where so authorized by


    (a) resolutions of the Senate and House of Commons; and


    (b) resolutions of the legislative assemblies of at least two-thirds of the
    provinces that have, in the aggregate, according to the then latest general
    census, at least fifty per cent of the population of all the provinces.
The Constitution
Malcomlson & Myers Chapter 2

  Veto Points in the Amendment Process

  Province                               Pop (1,000s)    % Pop
  NFLD                                          516.0       1.60
  PEI                                           138.1       0.43
  NS                                            937.9       2.91
  NB                                            752.0       2.33
  QC                                           7598.1      23.55
  ON                                          12541.4      38.86
  MB                                           1,177.6      3.65
  SK                                            994.1       3.08
  AB                                           3256.8      10.09
  BC                                           4254.5      13.18
  NUN                                              30       0.09
  Canada                                      32,270.5     99.77
The Constitution
Malcomlson & Myers Chapter 2


Constitution Act 1982

•       Part I: Charter of Rights & Freedoms
    –      Positive vs. Negative Rights; the Notwithstanding Clause

•       Part III: Equalization
    –      National standards, regional tension & economic impact

•       Part V: Amending Procedure
    –      Veto Points & Gridlock

•       Part VII
    –      Section 52
The Constitution
Malcomlson & Myers Chapter 2

A Constitutional Democracy:


52. (1) The Constitution of Canada is the supreme law of Canada,
     and any law that is inconsistent with the provisions of the
     Constitution is, to the extent of the inconsistency, of no force
     or effect.
The Constitution
Malcomlson & Myers Chapter 2


Implications of the Constitution

•    Injection of judicial review into Canadian politics
    –   Demise of Parliamentary Supremacy


•    Place of Quebec in constitutional regime
    –   Non-ratification
    –   Distinct Society status
    –   Clarity Act 2000

				
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