Restrictive National Identities and Constitution-building

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Wilkie

        The term ‘national identity’ is often very misleading. To suggest that a single unifying image can accurately portray a diverse body of individuals, regardless of cultural, racial, religious, sexual or political affiliation, would be an over-statement to say the least. Failure to characterize oneself as a nation with one particular all-encompassing identity is not necessarily indicative of an inability of the citizens to live together in a peaceful and mutually beneficial fashion; on the contrary, in fact. A statement defining ‘who we are’ is nothing more than a projection of certain values, beliefs and traditions held to be true and important by those responsible for the proclamation. Contemporary societies have far too diverse of a make-up to be categorized as a single brand of people, and entrenching a restrictive ‘national identity’ only serves to alienate portions of the population who do not subscribe to it. Thus, it is important that governing institutions do not become established as a support structure for perpetuation of any such oppression. What has just been described is a method of nation-building known as modern constitutionalism. By outlining the ideological positions of a state in its constitution, the government (and in a democracy the majority) can hope to mold society into what they believe it should be. It is often said that in a modern constitution the goal is to transform the populace, not reflect it. This, however, does not correctly describe the current Canadian experience. As Simone Chambers espouses, “the constitutional identity of Canadians was never fixed at some historical founding moment,” (68). This essay will focus on the peoples’ involvement in the historical evolution of the constitution, as well as the processes of decentralization and liberalization, to show that ancient constitutionalism has gradually become the defining political philosophy in Canadian constitutional politics. In order to do so a brief analysis of the tenets of ancient constitutionalism is necessary, followed by a chronological examination of elements that can be observed in the Canadian context.

        Several scholars in the field of constitutional change address ancient constitutionalism, though not always under the same name. In an overview of Daniel Elazar’s four models of constitutions, Banting and Simeon describe the “Anglo-American Model,” in which, “the constitution [acts] as a framework of government, setting out basic political relationships, but leaving many more elements unstated, to be fleshed out by practice and informal adaptation…” (7). Chambers, seemingly supports this definition by differentiating between the two forms of constitutionalism:

Modern constitutions, like the American one, are first and foremost written constitutions. It’s a written document, the modern constitution is a concise, deliberate formulation of the fundamental law that defines and limits government. In the ancient conception, a constitution is not the product of a conscious and deliberate at one time and place but represents the accumulation of custom and practice of a political body over time. (75)

It is here that the relationship between constitution and national identity becomes clear. In a modern constitution the identity of the people is outlined and enforced, whereas in an ancient one it is cultivated and developed over time. This allows for greater harmony in multiculturalism, as, “the two main characteristics of a[n] [ancient] constitutionalism are increased recognition and respect for diversity and a growing demand for popular consultation and accountability,” (Chambers 71). Being open-ended is an important characteristic of ancient constitutionalism, as it allows new voices to enter at any time and be heard. Indeed, “rapid change in the status, self-definition and aspirations of important groups may also lead to demands to constitutional change,” (Banting 8) and therefore an ancient constitution must be adaptable to these shifts in self-image.

On a more practical level, Banting and Simeon explain that another, “mechanism of incremental adaptation is provided by the processes of judicial review,” a role which is, “especially important in the Anglo-American model,” (9). Decisions made by courts are part of the constitutional process, as they provide the progressive legal backbone of an ancient constitution despite being the subject of constant contentiousness and controversy. It is the ability to mobilize interests into political and legal action that allows people to instrumentally effect constitutional change, and in ancient constitutionalism the possibility to do so is there.

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Based on an analysis of published works by scholars in the field, the definition of ancient constitutionalism which will be employed for the purpose of this argument is as follows; a reflective form of long-term evolutionary constitution-drafting which combines elements of written legislation and non-written convention, is subject to extensive judicial review, and attempts to accommodate diversity through responsible and representative government. From this point forward, the focus of this essay will be on the Canadian experience and the embodiments of these characteristics in the country’s constitutional processes.

It is widely held that the constitution predates Canada’s formation as a ...

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