Deciding in the Heat of the Constitutional Moment: Constitutional Change in the Quebec Secession Reference

Dalhousie Law Journal, Vol. 28, No. 1, 2006

44 Pages Posted: 17 May 2006 Last revised: 24 Jul 2017

See all articles by Jon Penney

Jon Penney

Osgoode Hall Law School; Harvard University - Berkman Klein Center for Internet & Society; Citizen Lab, University of Toronto

Date Written: December 1, 2012

Abstract

The Quebec Secession Reference addressed divisive issues with far-reaching implications for the Canadian constitutional order. Recently, commentators have called for a less traditional and more systematic approach to understanding the decision and its place in the broader scheme of Canadian constitutionalism. This paper challenges the predominant narrative concerning the Quebec Secession Reference, which is largely judge-centred, showing little regard for the important historical, political, and popular forces crucial to understanding the decision. The challenge is mounted through the work of Yale constitutional scholar Bruce Ackerman and his theory of constitutional moments. This paper uses Ackerman's criteria for higher lawmaking and constitutional moments - signalling, proposal, mobilized popular deliberation and synthesis - as an analytical framework to advance a new understanding of the Supreme Court of Canada's decision. The author suggests that the events surrounding the decision could be understood as a constitutional moment, and argues that key aspects of the new constitutional doctrine introduced in the decision - particularly the much heralded duty to negotiate - was shaped more by political and popular forces than the Court itself. In exploring the implications of the analysis, the author re-assesses academic commentary on the decision and recommends a new dialogical theory of constitutional adjudication that considers not just the courts and Parliament, but also the role of popular and political forces in constitutional change.

Keywords: Canadian constitutionalism, constitutional law, charter, parti quebecois, Quebec, Canada, politics, secession, liberals, duty to negotiate, Quebec secession reference, Supreme Court, judicial activism, constitutional moments, Bruce, Ackerman, theory of constitutional moments, higher lawmaking

JEL Classification: K1, K10, K19, K30, K33, K39

Suggested Citation

Penney, Jonathon, Deciding in the Heat of the Constitutional Moment: Constitutional Change in the Quebec Secession Reference (December 1, 2012). Dalhousie Law Journal, Vol. 28, No. 1, 2006, Available at SSRN: https://ssrn.com/abstract=902287

Jonathon Penney (Contact Author)

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

Citizen Lab, University of Toronto ( email )

Munk School of Global Affairs
University of Toronto
Toronto, Ontario M5S 3K7
Canada

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