The Story of Constitutions, Constitutionalism and Reconciliation: A Work of Prose? Poetry? Or Both?

Abstract

Reconciliation is a profoundly political matter, and politics having to do with power, so does true reconciliation. First, it has to do with how power is constituted, i.e. set up. Second, inasmuch as reconciliation is generally associated with claims for greater participation in a State’s political arrangements or for greater autonomy within the State, it raises the question of how the power of dominant social-political elites can be limited. Now those are precisely the questions that constitutions and constitutionalism have been designed to address. The study of constitutions and constitutionalism, i.e. the business of constituting and limiting power, has a very long history. A great variety of normative conceptions of constitutionalism have been proposed in order to mend Canada’s broken relationship with Turtle Island’s Indigenous peoples. Many are rooted in deeply aspirational perspectives orbiting around the idea of a dialogic democracy according to which, if we could collectively construct a new vocabulary and a more embracing kind of shared understanding, a non-imperialist form of constitutionalism would eventually blossom. I call this constitutional idealism or poetic constitutionalism. Some dismiss such normative approaches by claiming a more realist conception of constitutionalism. They argue that, if looked at from a bottom-up perspective, rather than the top-down perspective of normativists, constitutionalism as a form of government has only allowed for legally limited government when and where it served the dominant political elites. I call this constitutional realism or prosaic constitutionalism. My claim is that both the poets and the prosaists are partly right. I argue that, although fragile and reversible, a form of imperfect, diffuse and reflexive constitutionalism has grown out of Canada’s non-indigenous constitutional tradition. One that, under certain circumstances and conditions, has the potential of helping Indigenous peoples obtain greater self-governing powers than our constitutional structure now allows for.