The Embarrassing Preamble? Understanding the 'Supremacy of God' and the Charter

Abstract

The reference to the supremacy of God (the clause) found in the preamble to the Canadian Charter of Rights and Freedoms has been either marginalized or completely ignored by Courts and legal scholars. This leaves the impression that most are either embarrassed by the clause, or just wish to ignore it. Given the importance the Supreme Court of Canada has ascribed to constitutional preambles, it is time to acknowledge the supremacy of God clause and make a good faith attempt to determine its meaning and role in Canadian constitutionalism. This paper constitutes just such an attempt. Our thesis is straightforward. The clause recognizes a fundamental principle upon which the theory of the Charter is based: people possess universal and inalienable rights derived from sources beyond the state, and the Charter purports to enumerate positivist protections for these pre-existing human rights. This understanding of the clause is rooted in the historical development of human rights theory out of the natural law tradition and finds support both in the dicta of the Supreme Court of Canada as well as the thinking of the Charter's framers. This analysis restores meaning and dignity to the clause and, as we will argue, has important normative and practical implications for our understanding of the Charter itself, including the limitation of people's rights under Section 1.

Keywords: constitutional law, embarrassing, constitutionalism, God, natural law, Canada, political theory, normative theory, Charter, Section 1, limitation on rights, preamble, Locke, human rights, natural rights, supremacy of God, religion, public law, preamble, Canadian Charter of Rights and Freedoms

JEL Classification: N40, K39