Chapter 5 The constitution
Constitution-Fundamental law of a political system. It is ‘fundamental’ because all other laws
must conform to the constitution in terms of how they are made and in terms of their substance.
• Expected to establish order.
• Without a constitution, no civilized way of resolving conflicts.
Alternative to constitution is anarchy. When anarchy reigns, there are generally no rules for
resolving the differences between faction and population.
2 rules that make up a constitution deal with two sets of relations.
Relationship between citizens and state
1. Empowers state to act, to pass laws on behalf of the community.
2. Limit power
Relationship of powers between sectors of government
• Legislature-making law
• Executive-implementing law
• Judiciary-interpreting the law
A constitution is a set of rules that govern the political life. Rules may take place in three forms;
1. Written documents
2. Decisions from court (called common law)
3. Unwritten conventions (also called constitutional conventions-are those practices that
emerge over time and are generally accepted as binding rules of the political system.
-Politicians make decisions on behalf of those who elect them.
Constitution describes both the basis of political representation and the method by which
representatives are chose (typically by election or appointment).
-Constitution may also accord representation to groups. I.e. senate must guarantee spots for
aboriginals and women in the senate. Power
Constitution provides the basis for legitimate exercise of state power. But it also limits and
divides power, at least under a democratic constitution.
A right is something a person in entitled to, like the right to vote or the right not to be held
against one’s will without a reason being given.
-Constitution sets out the minimum rights of individuals.
Community and Identity
-Constitution is a set of rules that govern political life in a particular territory. Individuals from
opposite ends of the country fall under the same constitution.
-Constitution generates a shared identity among the citizens of a country to the extent that most
people have positive feelings towards the political community it creates and the values it
-Not one simple document, but a series of laws passed between 1867 and 1982.
Has always been one of the fundament, unwritten givens of Canada’s constitution.
Not until 1982 with the inclusion of the Charter of Rights and Freedoms has it been worded.
-A nationwide majority does not trump a provincial majority if the matter in question belongs
constitutionally to the provinces or requires the approval of some number of provincial
legislature (e.g. most constitutional amendments)
Constitutionalism and the Rule of Law
-The rule of law vouchsafes to the citizens and residents of the country a stable, predictable and
ordered society in which to conduct their affairs.
-It also guarantees that all public authority must ultimately be exercised in accordance with the
law and there will be one law for all persons.
-The pre charter era was one of Parliamentary Supremacy, which essentially meant that so
long as one level of government did not trespass onto jurisdictional turf that the constitution
assigned, it was free to do as it liked.
The Charter of Rights and Freedoms
Since 1982, Canada’s Constitution has included formal distinction between fundamental political
freedoms, democratic rights, mobility rights, legal