We Are Players in "The Game"

Preparing for my guests this weekend I started to clean off a few books shelves to accommodate the myriad of papers I have strewn about the place.

Amongst the long forgotten book Bleeding Manipur, an advertisement of the 46th Annual Art Directors Show of 1967 and articles on dense wavelength division multiplexing, I came across two books I purchased for .25 cents each at the Windsor Public Library from Dr. H. MacIvor's 4th year course (45-314 to be exact) in the 2004 Winter semester on Constitutional Law and Politics.

Serendipitous to find the book after the Liberals maneuvered themselves to dis the Constitution? Anyway, I wanted to share Dr. MacIvor's material from his lecture course load in the following.

So what is a Constitution anyway?

"It sets out the rules of the political game, which must be followed by political actors (including the individual citizens who make up the electorate) and enforced by the courts.

It reflects the political and cultural symbols which distinguish one nation from another, and which unite the members of that nation.

It divides legitimate authority among the various parts of the state, both within the national government and between the national and sub-national governments.

It restricts the overall authority of the state, forbidding political and governmental actors from intruding on the rights and freedoms of the citizens.

In general, it lays out the ways in which rulers and the ruled expect each other to behave in the public arena, and sets the standard by which their actions are to be measured."

St. Thomas Aquinas: "Law is a rule and measure of human acts, whereby man is induced to act or is restrained from acting".

Dr. MacIvor explains the Constitution:

Four Primary Elements of a Constitution

1) Entrenched written law
2) Non-entrenched written law
3) Unwritten conventions
4) Case Law (also known as common law)

Entrenched Constitutional Law vs. Ordinary Statutes

1) Entrenched constitutional laws must be ratified by a special process
2) Entrenched constitutional laws override regular statutes, when the two conflict.

Judicial Review of the Constitution

Definition: The process by which judges interpret the entrenched text, whether in the course of applying it to the resolution of particular disputes, or in response to a reference question from the executive branch.

Non-Entrenced Constitutional Law

Definition: Written laws which, although not ratified under the constitutional amending formula, have acquired quasi-constitutional status by virtue of their subject-matter; laws which define and apply the broad principles set out in the constitutional text.

Examples: the Canada Elections Act, the Electoral Boundaries readjustment Act, the 1996 Constitutional Veto Act, the 2000 Clarity Act, and the 1960 Bill of Rights.

What is a Constitutional Convention?

Definition: An unwritten rule of legitimate procedure which has evolved over decades or centuries of political practice.

Conventions are not enforceable by the courts, but they may carry a powerful normative force which binds political actors to follow it or risk serious political consequences.

Example: "a Constitution Similar in Principle to that of the United Kingdom" (preamble to the Constitution Act, 1867)

Three Tests for Establishing a Constitutional Convention

From the 1981 Sumpreme Court ruling in the Patriation Reference:

1) What are the precedents? How often has this practice been followed in the past, and under what circumstances?

2) Is there solid historical evidence that the actors in the precedents believed that they were morally bound to follow this practice?

3) Is there a good reason for the practice? Does it make sense to recognize it as a morally binding rule for future political actors?

Case Law

Definition: The body of constitutional jurisprudence which builds up over decades or centuries of judicial review.

To fully understand the entrenched constitutional test, and the ways in which it is animated by constitutional principles and conventions, it is essential to grasp the core principles laid down by the Supreme Court in its various interpretations of the constitution.

Why Do We Need Case Law?

The importance of case law rests on Aristotle's' concept of "equity": while laws are written in general language to cover a multitude of unforeseeable situations, they must be applied to resolve particular disputes. Therefore, judges must be allowed to interpret the general language of a law in such a way that it becomes relevant to the individual case under adjudication.

Constitutional "Equity"

This principle applies with particular force to constitutional laws, which are necessarily written in broad terms which will stand the test of time. Therefore, the courts are deliberately given wide latitude to interpret the general language of entrenched constitutional law so that it may be adapted to changing circumstances, even though these interpretations may vary widely from the (real or alleged) intentions of those who wrote the Constitution.

Stare Decesis

The Supreme Court is bound by its own prior precedents, under the legal doctrine of stare decisis ("the decision stands"). But the Court has some freedom: it can distinguish existing doctrines (explain why they do not apply to the case at bar), or overturn existing doctrines and replace them with new interpretations of the Constitution.

The doctrine of stare decisis applies with greater force to the lower courts. Therefore, the judicial review of the Charter has become a high-stakes political contest.


For background on Canadian the Constitution check out the post "While My Blog Gently Weeps"