Document Type

Article

Publication Date

10-16-2017

Abstract

What makes a constitution difficult to amend? The answer varies across jurisdictions. In the United States, for example, the threshold problem is getting two-thirds of Congress to initiate an amendment—a virtually impossibility in our present day given that Congress has a hard enough time agreeing by a simple majority to pass a simple law. In Australia and Switzerland, it is largely the combination of subnational approval and referendal ratification that complicates matters. In Canada—the subject of this paper—constitutional amendment difficulty derives from similar challenges associated with initiation and ratification but perhaps even more from the use of omnibus amendment bills that combine the good with the bad and give political actors as much a reason to vote in favour as to vote against. In this paper prepared for a symposium on “Rewriting the Canadian Constitution,” I suggest that amending the Constitution of Canada could become easier under a new single-subject rule that prohibits omnibus amendment bills but permits multiple single-amendment bills only if voted on separately and differentiated by subject-matter. Imposing a single-subject rule for constitutional amendments in Canada is likely to make the Constitution much more flexible in some important ways but perhaps much more rigid in others.

Comments

"Rewriting the Canadian Constitution" was sponsored by the Clough Center for the Study of Constitutional Democracy and held at Boston College Law School on October 19-20, 2017.

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