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 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 ProvincePop (1,000s)% Pop NFLD PEI NS NB QC ON MB1, SK AB BC NUN Canada32, Veto Points in the Amendment Process

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