Constructive Unamendability in Canada and the United States

Abstract

Democratic constitutions often entrench provisions against formal amendment. For example, republicanism is formally unamendable in Italy, as is federalism in Germany, political pluralism in Portugal, and secularism in Turkey. Neither the Canadian Constitution nor the United States Constitution entrenches a similar form of formal unamendability. But both entrench a peculiar form of unamendability that results from neither constitutional design nor constitutional law but from constitutional politics. Constructive unamendability derives from a political climate that makes it practically unlikely, though not theoretically impossible, to meet the high thresholds the constitution sets for formal amendment unless constitutional politics somehow perform heroics. Faced with the constructive unamendability of a rule they wish to formally amend, political actors may resort to arguably legal though illegitimate methods to circumvent the strictures preventing formal amendment. In this Article, I classify the many forms of unamendability, I develop the concept of constructive unamendability, I illustrate that the Senate in both Canada and the United States is constructively unamendable, and I suggest how Canadian and American political actors might illegitimately amend the constructively unamendable Senate, a strategy the Government of Canada intended to pursue before the Supreme Court of Canada repudiated its Senate reform efforts in the recent Senate Reference.

Keywords: Constitutional Amendment, Unamendability, Constructive Unamendability, Senate Reform, Equal Suffrage Clause, Article V, Supreme Court of Canada