“Constituent Power” and Referendums in Quebec: Instrumentalizing Sieyès?

—Maxime St-Hilaire, Université de Sherbrooke

In Quebec nationalist constitutional thinking, the holding of a referendum is sometimes explicitly connected with the (somewhat fashionably) internationally revived idea of “pouvoir constituant”. Beyond proposals for referendums on secession or on the ratification of the constitution of an independent Quebec, there are now calls for holding a referendum on the ratification or on the amendment of a desired “Constitution” for a still non-independent, but federated, Quebec, the whole resting on the idea of the “constituent power” of the “Quebec People”.

Practically, this proceeds from a putting-the-cart-before-the-horse political strategy attempting to overcome defeat in referendums on secession in 1980 and 1995 through generating some “constitutional moment” – even in the stricter sense of the term, referring to a juncture where the legal rules for constitutional amendment are politically altered with precedential force (B. Ackerman: 1991, 1998, 2014; R. Albert: 2019). Indeed, as Daniel Turp, who replaced Jacques-Yvan Morin as the leading advocate of “a constitution for Quebec”, himself acknowledges (D. Turp: 2008), the project resurfaced in the context of the debate over (the misconceived notion of) “reasonable accommodation,” which itself followed the bizarre (and legally unfounded) proposal by the municipality of Hérouxville to impose a “code of conduct” upon immigrants residing within its boundaries. The “Charter of secularism and Québec values” bill (60) of 2013 was thus part of a larger “constituent process.” So was Bill 195 of 2007, titled Québec Identity Act, introduced by Parti Québécois MLA Pauline Marois (who went on to become Quebec Premier) the same day as Turp’s Bill 196 on “Quebec Constitution”. A Quebec Constitution then effectively became a means towards secession, rather than an outcome of it. Yet, this instrumentalization of the “constituent power” idea to create a Quebec Constitution predates, not only the fall, but even the rise of the modern Quebec secessionist movement. It was found in the combination of Union Nationale’s platform for the 1966 provincial general election and of a book which that political party’s leader, Daniel Johnson Sr., had authored the year before.

Of course, even since it became a federated unit in 1867, Quebec has had a “constitution”. It is made of both political and legal norms, with the latter norms fragmenting into formally constitutional (supra-legislative) provisions and derived jurisprudential principles; formally ordinary (although sometimes “quasi-constitutional”) provisions scattered across the provincial statute book and their judicial interpretation; and common law rules. But the project and discourse to which I refer above turns on the more specific call for Quebec giving itself a “constitution” in a single document – a constitution which would be binding on the province’s legislature. However, on this conceptual plane – as Patrick Baud and I explain in chapter we contribute to a forthcoming book edited by Richard Albert and Leonid Sirota – Canadian constitutional law cannot be compared to its American or South African counterparts. Canada, unlike other federations, cannot be viewed as holding competing “federal” and “state” (federated unit) supreme laws. For there is only one, genuinely federative (neither federal nor federated), supreme law in Canada – a supreme law that a province alone cannot amend, repeal or add to. It is at this juncture that Quebec nationalist constitutionalists call to the rescue the concept of (original) “constituent power.”

It is because they are aware of the legal objections to their project that Morin (1985; 2008) and Turp bring up “constituent power” within a “constituent process” discourse that fuels the ambiguity, not only between what is formally constitutional and what is “quasi constitutional” (on this concept, see my post here), not only between Canada’s constitutional amendment procedure which produces the supreme law and the provinces’s mere legislative power over limited and subsidiary aspects of their “constitution”, but also (and at the same time) between law and (sheer) politics. It is precisely on this last point that their discourse allusively refers to the, “if not derived, then original,” Quebec people’s constituent power, which would materialize through a referendum on either the ratification of a new Quebec constitution or at least on the ratification of its amendment.

Turp’s, Morin’s, and Johnson’s claims can be construed as instrumentalizing an idea generally attributed to Sieyès, although Martin Loughlin has recently shown that “the concept of constituent power was explicitly expressed during the [English] revolutionary debates of the mid-seventeenth century” (2007). Lacking exposure outside of France, Concordet also brilliantly worked on the concept, which later was made infamous by Schmitt, before Schmitt became somewhat trendy, and constituent power revived, in (anti-liberal) American constitutional scholarship. “Constituent power” is thus commonly thought as an extra-juridical, purely political, and irreducibly sovereign power.

The issue is, Sieyès’ famous pamphlet Qu’est-ce que le tiers-état? (1789) was a strategic publication to begin with, and, as it has been shown by Erwan Sommerer (2011), it does not provide a good account of his considered views on this concept of constituent power for which he is remembered by constitutionalists. Sieyès quickly dismissed the supremacy of the Nation’s constituent power as a form of pre-legal power. This dismissal was made to the benefit of a stable constitution, whose respect and amendment ought to be ensured by a “constitutional jury” (jury constitutionnaire). In fact, Sieyès eventually neutralized the people’s constituent power altogether. As for Schmitt, through whose prism Sieyès went on to be known to today’s international academia, we know that his idea of a “democracy” was “historical” and top-down (1928), and that, with him, the people’s constituent power came to be operationalized through the Bundespräsident‘s dictatorship – and eventually through the Führerprinzip.

In fact, one has to turn to Condorcet in order to find an operationalization of the constituent power. Referendums do play a role in this operationalization. Yet, can Condorcet’s work buttress Quebec nationalist constitutionalists’ discourse? This will be the subject of a chapter I am contributing to a book edited by Richard Albert and Richard Stacey on The Legality and Legitimacy of Referendums, to be published by Oxford University Press.

Suggested citation: Maxime St.-Hilaire, “Constituent Power” and Referendums in Quebec: Instrumentalizing Sieyès? Int’l J. Const. L. Blog, Jun. 24, 2020, at: http://www.iconnectblog.com/2020/06/constituent-power-and-referendums-in-quebec-instrumentalizing-sieyes/