The Politics of Constitutional Change

Abstract

One of most useful characteristics of federalism is that it makes it possible to offload some issues which produce conflict in system onto regional units, where local majorities can achieve policies never acceptable to country as a whole. The persistence of such conflict if they cannot be hived off in this way can overload system, poison its politics, and reduce it to immobility of a political stalemate. It is well known that political leaders in province of Canada attempted to overcome such avoidable conflict through device of federation with other provinces of British North America. The most troublesome conflict was schools question. In Lower Canada (which became Quebec) substantial Catholic majority was content with nothing less than a Catholic school system, an anathema to Protestant majority in Upper Canada (which became province of Ontario). The best way to resolve this divisive struggle was to make education a provincial responsibility, while at same time inserting a guarantee in constitution protecting right to separate schools to the Queen's Protestant and Roman Catholic subjects in both provinces. Similarly, historic right to preserve civil law, rather than common law, in Quebec made it essential that civil law and procedure should be a provincial concern. All federal constitutions have a certain rigidity, necessary to protect perceived interests of their component parts. Through time environment changes, demands on government alter, and later generations may find old form irksome and possibly irrelevant. How can they be changed without generating conflicts which put excessive strain on system? This is a perennial problem with federations, amplified in last hundred years by rapid changes brought about by modernization. In Canada pressure for change has reverberated through political system, colouring motives of politicians and governments, and inevitably involving courts in task of discerning and redefining original bargain in contemporary terms.