Published on 14 Feb 2011
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POL214Y1 Course Readings
Sept 13 2010
Brooks Chapter 5: The Constitution
•A constitution is the fundamental law of a political system, but it does not guarantee
the rights and freedoms of people within the country
•All laws made most conform to the constitution both in how they are made and their
substance
•“state of nature” is a state of chaos where no individual can feel secure
•Alternatives to a constitutional government in modern times are anarchy or
totalitarianism
•A constitution empowers the state to act on behalf of the people and at the same time
limits the powers of the state. This is done by the identification of individual rights
•Constitutions also distributes the powers between different parts of the state
oLegislature, executive and judiciary
•Three forms: written documents, court decisions (common law) or unwritten
conventions, however conventions are not a part of constitutional law
•The constitution describes the basis and method by which representations in
government are chosen
oRepresentation by population, federalism (territorial representation),
proportional representation
•A constitution provides a legitimate exercise of state power, at the same time
limiting it with tools like elections which make politicians accountable
•The fundamental right the constitution guarantees is the right to the vote but also
extends to various human rights
•Constitutions establish community
•Canada`s constitution is based on a series of laws passed between 1867 and 1982
•Provinces are not constitutionally subordinate to the federal government
www.notesolution.com
•Relationships that the constitution deals with are:
oBetween individual and state, between institutions and government, between
national and regional governments
•Fundamental freedoms: freedom of religion, belief, expression, media, assembly and
association
•Democratic Rights: right to vote on a regular basis
•Mobility rights: allows reasonable residency rights
•Legal rights: procedural aspects of law
•Equality rights: rule or law principle (everyone is equal under the law)
•Language rights: French and English are the official languages of Canada
•Aboriginal rights:
•The UK constitution is a series of political traditions, rather than laws, which the
Canadian Constitution is modelled after
•Parliament
oConsist of the Queen (ceremonial role) and the legislature
oPrivy Council: all members of the present and past cabinets, however only
present members exercise the powers of the privy council.
oExecutive Branch: Queen Governor General Prime Minister Cabinet
oLegislative Brach: House of Commons and Senate
oMembers of the executive branch are drawn from the legislative after a
political party gains a majority of seats in the House of Commons. If the
majority is lost, tradition requires a resignation and a new election
•Responsible Government
oWhen the Prime Minister requires the support of a majority of members in
the House of Commons in order to govern. If the government loses confidence
then it must resign
oParty Discipline: MPs of a particular party vote as a unified block in the
legislature
www.notesolution.com
oRights of the legislature and the obligations of the government
•Ministerial Responsibility
oThe obligation of cabinet ministers to explain and defend policies and actions
carried out in their name. This is a combination of constitutional law and
parliamentary tradition
•Parliamentary Supremacy vs. Constitutional supremacy
oParliament’s authority is superior to that of all other institutions
oCourts cannot second guess laws passed by parliament which embodies the
popular vote
oCritics of the charter have said that it transfers the power from legislature to
the courts
oConstitutional supremacy means that the laws of all the governments and its
bodies must conform to the charter as it has superior power
•Judicial independence and the separation of powers
oSuperior court judges must retire at 75
oThe Constitution is silent on the Supreme Court
oJudicial independence: judges are to be free from any and all interference in
their decision making
oSeparation of powers: special role of the judiciary to interpret law and the
Constitution
oThe enforcement of the charter is to be in the courts
•Relations between the house of commons and the senate
oElected of house commons (lower house) and the appointed senate (upper
house). The Constitution states they are equal in power but that money bills
must be introduced in the house of commons
oBrazen government appointments to the senate undermine its legitimacy
oAll bills must pass between both the senate and the House of Commons to be
law and the stages in each house are identical. It is generally accepted that
the senate will always pass bills unhindered or with minor changes
www.notesolution.com