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53 Alta. L. Rev. 85 (2015-2016)
The Difficulty of Constitutional Amendment in Canada

handle is hein.journals/alblr53 and id is 93 raw text is: 

            THE DIFFICULTY OF CONSTITUTIONAL AMENDMENT IN CANADA                        85

                                THE DIFFICULTY OF
                 CONSTITUTIONAL AMENDMENT IN CANADA

                                   RICHARD ALBERT*

        Scholars ofcomparative constitutional law wouldsuggest that the UnitedStates Constitution
        is the world's most difficult democratic constitution to change by formal amendment. This
        article suggests that the Constitution of Canada may be even harder to amend Canadian
        constitutional politics have proven the textual requirements for major constitutional
        amendment sofar impossible to satisfy. But the extraordinary difficulty offormal amendment
        in Canada derives equallyfrom sources external to the text. Major constitutional amendment
        also requires conformity with extra-textual requirements imposed by Supreme Court
        decisions interpreting the Constitution of Canada, parliamentary and provincial as well as
        territorial statutes, and arguably also by constitutional conventions - additional rules that
        may well make major constitutional amendment impossible today in Canada. These as yet
        underappreciated extra-textual sources of formal amendment difficulty raise important
        questions for Canadian constitutionalism, namely whether in making the Constitution
        virtually impossible to amend they weaken democracy and undermine the purpose of
        writtenness.

                                  TABLE OF CONTENTS

  I.  INTRODUCTION    ..............................................              86
  II. FORMAL AMENDMENT RULES IN DEMOCRATIC CONSTITUTIONS ........ 89
      A.   STUDIES OF AMENDMENT DIFFICULTY ......................... 90
      B.   RIGID CONSTITUTIONS AND THEIR AMENDMENT RULES .......... 92
      C.   FORMAL AMENDMENT RULES IN CANADA ...................... 93
III.  EXTRA-TEXTUAL AMENDMENT RULES IN CANADA ................... 96
      A.   STATUTORY CONDITIONS        ................................. 97
      B.   POPULAR EXPECTATIONS ................................. 100
      C.   JUDICIAL STANDARDS ................................... 102
IV.   CANADIAN CONSTITUTIONALISM AND FORMAL AMENDMENT ......... 105
      A.   DEMOCRACY AND AMENDMENT ............................. 106
      B.   THE WEAKENING OF WRITTENNESS ........................... 107
      C.   FORMAL AMENDMENT RULES
           AND THE VALUE OF WRITTENNESS ........................... 110
 V .  CONCLUSION     ..............................................              112









        Associate Professor, Boston College Law School; Visiting Associate Professor of Law and Canadian
        Bicentennial Visiting Associate Professor of Political Science, Yale University (2015-16); Yale
        University (BA, JD); Oxford University (BCL); Harvard University (LLM). Email: richard.albert@
        bc.edu. I have benefitted from comments on earlier drafts of this article from Farrah Ahmed, Joel Col6n-
        Rios, Xenophon Contiades, Hoi Kong, Ronald Krotoszynski, Derek O'Brien, Adam Perry, Peter Russell,
        and the three anonymous reviewers, commissioned by the Alberta Law Review, who recommended this
        article for publication. I have also received useful suggestions in the course of presentations at Boston
        College, McGill University, Queen's University, the University of Ottawa, and the University of Oxford.
        My thanks to the Boston College Law School Fund for so generously supporting my scholarly research.

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