Against constitutionalism

I remember some years ago a program on CBC Radio which contrasted American and Canadian perspectives on constitutional law, asking the question, ‘why don't Canadians cling as strongly to our own Constitution?’.

It’s a question I’ve often considered through the years, and I suspect one of the reasons I was drawn to Martin Loughlin’s new book, "Against Constitutionalism".

Canada is a constitutional monarchy and parliamentary democracy, founded on the rule of law and respect for rights and freedoms (https://www.ourcommons.ca/procedure/our-procedure/ParliamentaryFramework/c_g_parliamentaryframework-e.html). The framework was first established in The Constitution Act, 1867, and every matter of political controversy finds resolution through its corresponding constitutional order. 

In the book, Loughlin explains how a constitution can give rise to ‘constitutionalism’, or “a discrete concept expressing a specific philosophy of governing” (pg 7).

The Supreme Court of Canada has identified the principle of constitutionalism in subsection 52(1) of the Constitution Act, 1982, which provides: 

“[t]he Constitution 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.” (https://laws-lois.justice.gc.ca/eng/const/page-13.html)

Our Constitution sets out a system of fundamental laws that outline the nature, functions, and limits of both Canada’s federal and provincial systems of government, which is as Loughlin might suggest, an ideology of governance.*

This ideology is characterized by a (i) system, which establishes (ii) a representative government with (iii) limited and separated powers, which is (iv) overseen by a judiciary (v) adhering to an operational framework principled on public reason, (vi) condensed into a constitution which represents the regime’s authoritative political identity. (pg 6–7).

For Loughlin, our modern era has seen the ideology of constitutionalism develop from an instrument of utility, to a ‘civil religion’ or a symbol deserving of reverence. (pg 118, 122). As that CBC program suggested, this is likely the case in the US, where Americans’ veneration of the Constitution is excessive and perhaps unhealthy. In that context, the ‘Constitution’ in American political discourse often refers to a symbolized ideology, or the speaker’s conception of American political values, as opposed to the document itself.

With pernicious effects, this transition from document to symbol impedes democracy, by restricting progressive movements only through the channels established in the constitutional framework (pp. 177, 198). 

Loughlin’s exploration of constitutionalism offers an accessible look at the tension between democratic determination and constitutional legality, the consequences of which have had a direct impact on our current political moment.

Against constitutionalism Loughlin, Martin, author. Book , 2022 xi, 258 pages ;   ISBN: 0674268024, 9780674268029

*Among other aspects of Constitutionalism, Loughlin’s examination references the Québécois, raising the question “is there a constitutional right to secede from the state?”(pg. 177)