The Amending Process in Canada and the United States: A Comparative Perspective

Abstract

For 115 years the basic written constitution of Canada had been a statute of the United Kingdom Parliament, the British North America Act of 1867 (BNA) and its amendments.' On April 17, 1982, Queen Elizabeth II brought these acts home to Canada in a ceremony celebrating the recent passage by the United Kingdom Parliament of the Canada Act of 1982.2 The Canada Act was the final amendment by the Parliament in London of the BNA Act; this basic document will henceforth be a wholly domestic Canadian law, amendable by Canada alone without the unseemly necessity of petition to the parliament of a foreign government. Passed two years after the American Civil War, the British North America Act united the British colonies of Canada (Ontario and Quebec), Nova Scotia, and New Brunswick into a new federated nation. The BNA Act provided the basic constitution of Canada, allocating authority between the federal and provincial governments. As a statute of the United Kingdom, however, it could be changed only by the Parliament in London. In practice amendments have been made upon (and only upon) formal request by the government of Canada.3 For half a century, efforts have been made to patriate the Canadian Constitution: that is, to terminate the formal power of the United Kingdom Parliament to change the BNA and to make its provisions a part of the law of Canada, amendable by processes wholly Canadian. And for half a century these efforts were unsuccessful, for the Canadian federal government and the governments of the ten Canadian provinces were unable to agree upon a formula for amending the constitution once it became part of Canadian law and no longer subject to revision by the United Kingdom Parliament.4 Finally, in November 1981, after months of intense controversy, the Canadian federal government and nine of the ten provinces reached agreement on a future amending process.5 In spite of the objections of Quebec, the Parliament of the