The Constitution as Political History

On the fundamental importance of custom and practice

One of the two major projects I’m working on at the moment is a book manuscript on Canada’s Unwritten Constitution. I’ve roped Phil Lagassé into writing this with me (we’re not at the writing stage yet).

In preparation, one of the things I spent the summer doing was reading British constitutional history. If you’re going to understand the origins of many of Canada’s constitutional conventions, as well as the underlying “principles” of the constitution, it’s a good idea to know how they first emerged, and as Canada inherited its system from the UK, this was essential reading.

Ann Lyon’s Constitutional History of the UK is a particularly good book, going so far back as the seventh century and English kings before the Norman Conquest, and taking the reader on the country’s journey from absolute monarchies through to the (slow, gradual) emergence of Parliament, the Revolution, and modern times to about a decade ago (constitutional reform of the UK in the last 10 years alone could - and will - fill many a book). Lyon’s book is especially interesting because the narrative stories of the various kings really do illuminate how the famously ‘unwritten’ British constitution developed while also revealing where George R. R. Martin drew a lot of his inspiration for Game of Thrones (it’s a bloody history, indeed!).

Our book manuscript will examine and analyze the various components comprising Canada’s unwritten constitution and their relationship to 1) its written components, and 2) each other, as well as the implications for constitutional amendment/change, and judicial review.

I think the book will contribute to the theory of the Canadian constitution but the focus will very much be descriptive or ‘empirical’, precisely because legal constitutional theory seems to frequently adopt historically revisionist approaches to understanding the constitution and especially to asserting what role the unwritten components can and should play.

From conservative ‘natural law’-type theories that promote ‘absolute rights’ premised on mythical understandings of Magna Carta to progressive theories that adopt an extreme form of ‘common law constitutionalism’ that assert common law principles as effectively overriding, or at least providing the basis for, the written, entrenched elements of the constitution (and inviting courts to leverage the unwritten constitution in a manner that privileges the unwritten over the written - upending our understanding of entrenched constitutional provisions as supreme law in the process), there’s a lot of constitutional theory from legal scholars that effectively abandons any pretense to the way history and politics actually defines much of our constitution.

This is in part because the political elements of the constitution are squeezed out of these theories in favour of legalizing everything, or at least subjecting everything to a strong form of judicial review that desires a vision of the constitution as a single coherent whole. It doesn’t allow for the recognition that our constitution evolved in a messy, sometimes incoherent, way, and that different aspects of the constitution are actually in tension, if not outright contradiction with each other. (The book will elaborate far more on this, and it may or may not be a major thesis of the project).

Most of the fundamental political rules of the constitution, not just those core constitutional conventions that are regarded as binding non-legal rules of behaviour but the broader practices, customs, and norms that shape our institutions and governance, emerged not out of some grand theoretical design but as historical happenstance and years of slow evolution.

A proper account of the broader constitution - Canada’s being a unique blend of entrenched constitutional law and unwritten constitutional practice - is thus inherently at least in part a political history of the constitution. To the extent that we’re emphatically not writing a Canadian ‘constitutional law’ textbook, I’m not sure a study like this has ever been written before.