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Lecture 2

LECTURE 2 Sept 16.docx

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Political Science
Nelson Wiseman

LECTURE 2 1) Big “C” constitution, Small “c” constitution - Big “C” constitution (formal written text of the constitution; the law of the constitution) - Big “C” includes the small “c” constitution, which is made up of some regular laws (eg. The Canadian parliament expanded the number of seats in the house of common  amendment to the constitution of Canada)  Small “c” constitution includes  Orders in council (the cabinet)  something that the parliament doesn’t pass but the cabinet does pass  Judicial decisions (what the court says)  decision can change over time  Custom, usage, and convention (custom and usage are rules that are generally followed but NOT obligatory, while convention IS obligatory)  The prime minister asked the governor in general for the prorogation (no prorogation has ever been denied by the governor in general)  The old custom of a prorogation doesn’t apply anymore - **A custom can change, while the convention cannot** 2) The SCC (supreme court of Canada) on the constitution - P.131 and 533 - **Practices that emerge overtime and is accepted as the binding rules of the legal system** - The leader of the house of common shall be called upon to work with the majority - If the government loses the confidence of the common, they must resign - The governor of general does whatever the PM assigns him to do, with very rare exceptions - A convention is a constitutional requirement but not written  **The convention assures that the legal framework of the “C” constitution will be operated in accordance with the prevailing “c” constitution values of principles overtime**  Not enforced by the court (conventions aren’t dealt with by the court) - In 1998, the cabinet of Canada asked, “Can Quebec succeed unilaterally?” - The constitution is the expression of the authority of Canadian people (sovereignty), while the court points out that it lies in the power of the Canadian people but they have to do it through the legislature and the government - Every participant (federal, parliament, and provincial legislature) in the federation has the right to initiate change of the constitution - Constitution is more than a written text, it embraces the entire global system of rules and principles which govern the exercise of “c” constitutional authority - **Things that inspire the constitution**  Federalism (in Canada, there are other partners in the federal system i.e there is not only the Ontario government)  Democracy (if the Quebec people ask questions in a clear majority, it has to be taken into account)  Constitutionalism and the Rule of Law (i.e things have to be done in an orderly manner)  Respect for minorities 3) Competing constitutional visions (4 types) - Pan-Canadian view  Between the 1960s and 1980s, PM can have the constitutional conferences  1) Articulated by Pierre Trudeau: parliament of Canada could go unilaterally and ask the British to let the Canadians change the constitution freely. Trudeau said that the parliament of Canada represents the national interest; it is the only body in Canada in which the Canadian can vote, thus it is expressing the sovereignty of Canada  2) Generates the image of Canada as the equal system that is governed by the majority and the rule of law. Trudeau: this is a pan-Canadian view of sovereignty and the parliament of Canada can change the constitution without talking to anyone else. The court: if you did it, it would be legal but it is not constitutional - Federal-provincial ensemble  Where sovereignty lies in Canada is articulated by the premiers of the English speaking provinces  Canadians can vote for the parliament, but they also vote for provincial legislatures. The ultimate so
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