Friday, June 03, 2011

On the Quebec question: (5) The Constitution

Final point I want to consider on this issue. Some objections to Quebec separatism or nationalism seem to turn on a fear of "opening up" -- that is, amending -- the Constitution. After all, Mulroney tried it twice, and was sunk both times. Constitutional amendments in Canada will inevitably lead to all the provinces clamouring for changes, and the 7/50 formula makes it incredibly difficult to override provincial objections or worries.

I have zero sympathy for this worry. In fact, I think it's a little childish. Yes, of course, amending the Constitution is hard and fraught. This is actually a good thing.

If it were easy to amend the Constitution, then it wouldn't be able to work as a constitution. H.L.A. Hart notes that all systems of law require rules of recognition -- rules about the status of action-guiding rules, which determine that they are indeed legitimate rules. A Constitution is one, explicit and articulate, form of such a rule. Since this rule is necessary for having a system of law at all, it seems reasonable that it would be pretty hard to change.

There is something genuinely infantile about not wanting to engage in difficult conflicts that could accomplish something important. It's a recipe not only for conservatism, but mediocrity.

A Constitution needs to be a living document, in the sense that it changes as the country's circumstances and needs change. The US is illustrative here -- it is screaming out for Constitutional changes, as its political system becomes ever more incapable of doing anything constructive. However, it may have passed the point at which such changes are reasonably possible. The only way forward may be to destroy the country, or allow it to rip itself apart,and reconstitute a new one.

Is this really the way we want Canada to go? To fail to function as a singular state, because we're too scared to enter serious constitutional discussions? Let's have the adult conversation and consider whether there are terms -- possibly many terms -- within the federation that do need to be addressed.

One fair point to consider is that this may be a process that will work better without getting the politicians involved at the initial stages. Acitizen-driven initiative might have a better chance of persuading the pols to go along, as compared to a pol-driven initiative which no one really cares about. Issues like electoral reform, Senate reform, republicanism -- as well as Quebec -- could thus be put on the table in a way that might produce real and useful results.

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