'Canadian Constitutional Identities' by Eric M. Adams in (2015) 38(2)
Dalhousie Law Journal (Forthcoming)
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Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms.
Adams states
Today, Canada’s constitution serves as an object of law for lawyers, a set of rules for governments, and as a repository of politics for political scientists and journalists. A constitution is, of course, all of those things, but a constitution also consists of the stories a nation tells about itself. A constitution finds full meaning and expression in the multiple, diverse, layered, and conflicting claims made about its histories, purposes, and defining characteristics. Just as personal identity is forged and sustained in a narrative of the self, constitutional stories are driven by the desire to make coherent these varied strands of constitutional text, perspective, and experience. Such stories serve as a living oral history, always in the process of being made and re-made in the telling. A particular constitutional story may be dominant or subversive, popular or obscure at any particular moment, but regardless these stories draw from, and also give shape and meaning to, the constitution itself as well as the constitutional law, politics, and culture in which it is embedded. The creation of constitutional meanings, in this sense, are the products not only of judges, politicians, and civil servants, but of a broader “interpretive community” comprising lawyers, scholars, journalists, artists, and citizens. Not all are equally influential, but all may play a role in telling more or less compelling stories of constitutional significance. The stories themselves tell us much in their content and omissions, proponents and critics, tenor and tone. In this, Sanborn was surely right: a constitution endures in its capacity for affection, in the stories it tells, in the identities it fosters.
This article argues that a great deal of constitutional law, culture, and politics can be explained in terms of the making, contestation, and transformation of such struggles to define the balance of federalism in the relationship between the provinces and federal government, to ongoing controversies concerning the place of Quebec in the federation, the application of individual rights and their proportionate limits, judicial remedial discretion and deference, and aboriginal rights and sovereignty, Canada’s constitution has been defined as much by a struggle to determine Canada’s constitutional identity as to interpret its formal constitutional text. My purpose in this article is to examine one particularly enduring strand among the battles over Canada’s constitutional identity: the search for “constitutional autochthony,” or, what Peter Oliver usefully describes as the “constitution of independence”. The term autochthony originates in the comparative constitutional work of Kenneth Wheare as a way of explaining the twentieth-century desire of some Commonwealth countries, including Canada, to constitutionally separate from Great Britain. But Wheare intended the term to gesture to something altogether deeper and less tangible than mere autonomy: authochthony, he observed, described the desire for an indigenous constitutionalism “sprung from their own soil.”
Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada ... Desire ... a Constitution similar in Principle to that of the United Kingdom,” much of Canada’s constitutional history can be understood as the search for an autochthonous and distinctly domestic Canadian constitutional identity, one tied up with, but not limited to, independence, a domestic amending formula, and recognition and expression of the diverse political, social, and cultural realities of Canada. That yearning for a uniquely Canadian constitutional identity emerged from and textured Canada’s constitutional jurisprudence, scholarship, and culture just as it came to drive the constitutional politics of Confederation, independence, patriation, and the Meech Lake and Charlottetown Accords.
This article has three parts. Part I sketches more fully what I mean by constitutional identity, charts the forces which create those identities, and argues that constitutional identities play a crucial role in Canadian constitutional law, politics, and culture. Part II identifies constitutional nationalism as an early and influential strand in the formation of Canadian constitutional identity. As I have explained elsewhere, constitutional nationalism “locates its demand for national self-determination, ideology, and sovereignty in formal constitutional instruments. It takes seriously the legal authority of the constitution to effect change but also the symbolic role of the constitution as an instrument to construct and cement national identity, unity, and purpose.” Early efforts to define Canadian constitutional distinctiveness by Thomas D’Arcy McGee, among others, transformed into calls for constitutional autonomy from Great Britain, and, ultimately, the search for complete constitutional independence, alongside a distinct and indigenous expression of Canadian constitutionalism. Part III examines arguments for a Canadian constitutional identity within the context of the political, cultural, and constitutional debates of the 1960s. In discussions about the new national flag, national unity, and repatriation of the constitution, Canadians were at once unified by a desire for constitutional self-definition, but also on the cusp of profound disagreement about how new constitutional arrangements might best express and reflect the nation’s true nature and essential characteristics.
