How we actually change our Constitution

Here is a quick, rough sketch of a research project on Canadian constitutional change that I have been contemplating for a while and intend to pursue as my schedule permits:

1. Prairie grievance federalism is an emergent (or perhaps resurgent) bundle of attitudes, arguments, and actions, in which judges and politicians from Alberta and Saskatchewan invoke the foundational injustice of unequal provincial authority over natural resources to contest the legitimacy of the Canadian constitutional order while also seeking to extract specific concessions from the federal government
   • The champions of prairie grievance jeopardize national unity to pursue their political goals, typically but not exclusively related to natural resources
   • They blur the line that exists – at least in theory – between ordinary and constitutional politics
   • They invoke and (to varying degrees) articulate a version of Canadian constitutional history that, in spirit if not in detail, is unfamiliar to me: raised in suburbs of Vancouver, educated in New York and Toronto, returned to practice in BC
   • Examples of prairie grievance abound in the news today, but also include:
     • Judgments:
       • Reference re Impact Assessment Act, 2022 ABCA 165
       • Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74
     • Legislation:
       • Saskatchewan First Act, SS 2023, c 9
       • Alberta Sovereignty within a United Canada Act, SA 2022, c A-33.8
       • The SaskEnergy (Carbon Tax Fairness for Families) Amendment Act, 2023, SS 2023, c 50
       • Alberta Firearms Act, SA 2023, c A-18.5
2. Prairie grievance federalism has structural similarities to other constitutional contests in Canada, namely those conducted by Quebec and Indigenous peoples
   • Those similarities include:
     • Foundational historic injustice: a certain normative orientation to place and past, which implicates identity, legitimacy, and claims on the future
     • Ambivalence toward constitutional text: criticize it but also use it
     • Invocation of constitutional conventions and unwritten constitutional principles
     • Strategic use of courts: reference cases and test cases to challenge specific points of law while advancing broader constitutional narratives
     • Official government reports: leverage existing institutions and resources, including named third-party experts, to produce formal reports that legitimize concerns and proposed solutions
     • Legal scholarship: cultivate and use networks of legal academics to elaborate and inculcate this orientation toward the constitution
   • These examples are not identical, or do not yet appear identical, based on preliminary research that suggests different roles and importance for factors such as:
     • International law
     • Other legal orders
     • Popular sovereignty
   • Caveat: I am working intentionally with stylized facts at a level of abstraction that may obscure interesting and even important features of these traditions
     • Specifically, I am aware this approach will not capture the myriad details of Quebec’s constitutional negotiations nor the full range of tactics, strategies, and practices used by Indigenous peoples to challenge the Canadian legal and constitutional order
3. The similarities between these three actions suggest a common model or underlying archetype of Canadian constitutional contestation
   • So-called “Western alienation” (more accurately, prairie grievance) can be seen as just another fissure in the Canadian body politic
     • If so, an appropriate response could be to investigate and diagnose that fissure (repair) or to search for other such rifts that could doom Confederation (despair)
   • Or the proliferation of these movements could be understood as confirming the generative character of the Canadian constitutional order: a bundle of orientations, resources, and practices that enable the Constitution to evolve (even without amendment) and accommodate multiple agendas and dynamic identities
     • The rise of prairie grievance federalism provides an auspicious opportunity to learn how individuals develop, use, and change this playbook
       • Prairie grievance federalism is still emerging, less settled, and (for many) less familiar than the stories about and strategies deployed by Quebec and Indigenous peoples
       • The connections between the ideas, institutions, and identities used in prairie grievance federalism are still themselves uncertain and contested
   • By examining prairie grievance federalism on multiple dimensions – comparative and developmental – we may be able to identify critical contributions, decisions, and inflection points for the deeper Canadian model
4. Advocates and other groups can use that common model to develop and improve their own strategies for contesting and ultimately changing the Canadian constitutional settlement
   • To the extent we can elaborate an underlying model, we can use that model to enhance the legitimacy and improve the effectiveness of other such efforts
     • For example, youth, children, and future generations could benefit from a more comprehensive strategy for constitutional change that is expressly informed by and grounded in Canadian traditions, especially if those traditions accommodate significant substantive evolution and institutional experimentation
   • The ways in which we try to change the Constitution can reveal basic truths about our beliefs and its normative foundations
     • Consider, for example, our preoccupation with historic injustices and the normative claims we allow the past to make on the future

I will develop these ideas with reference to materials in a matrix posted (and updated) here. And I will elaborate more significant elements or implications of this project in future posts.

Main St., Vancouver, BC