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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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