Is the Constitution of Canada the World’s Most Difficult to Amend?

—Richard Albert, Boston College Law School

Studies of constitutional rigidity suggest that the United States Constitution is one of the world’s most difficult to change by formal amendment.[1] In light of the low rate of amendment success in the United States, this is hard to dispute: of the over 11,000 amendment proposals introduced in Congress since 1789, only 27 have ultimately been ratified. The most recent formal amendment in the United States was ratified over a generation ago in 1992, and next-most recent was passed twenty years earlier.

The difficulty of formal amendment in the United States derives from textual, structural and political sources. Textually, the requirements for formal amendment are particularly onerous: two-thirds of Congress and three-quarters of the states must agree to alter the constitutional text.[2] Structurally, the Union has grown from 13 to 50 states since the founding, and this has made it harder to assemble the three-quarters supermajority of states required to ratify an amendment proposal.[3] And, politically, there is evidence of increasing polarization between political parties, which makes is difficult to assemble the supermajority agreement required for a constitutional amendment.[4]

No one can deny the difficulty of formally amending the United States Constitution. But the Constitution of Canada may be even more difficult to amend.

In a forthcoming paper on “The Difficulty of Constitutional Amendment in Canada,” I explain why the Constitution of Canada is so difficult to amend.

I show that the sources of amendment difficulty in Canada are both conventional and not, and that they derive from not only textual, structural and political sources but also from judicial interpretation, parliamentary and provincial as well as territorial statutes, and also arguably by constitutional convention.

Of course, Canada’s formal amendment rules are themselves an important source of amendment difficulty, particularly at the high end of what I have described in a published paper as the Constitution’s “escalating” structure of formal amendment.

Canada has five formal amendment procedures, each designated for amendments to specific provisions or principles.[5] Under one procedure, provinces may amend their own constitutions by simple legislative majority (all provinces are unicameral) and under another, Parliament may amend its own internal constitution by simple majority in the bicameral legislature. Third, Parliament and one or some but not all of the provinces may pass an amendment by simple majorities in their respective legislatures to amend something concerning a particular province, a grouping of provinces or a region of Canada. Fourth, the general amendment procedure requires Parliament’s consent as well as the support of seven out of the ten provincial legislatures, where the consenting provincial legislatures represent at least fifty percent of the total provincial population. And finally, fifth, the unanimity rule requires Parliament and each of the provincial legislatures to consent to an amendment.

Sometimes the constitutional text is clear about which amendment procedure applies. But sometimes it is unclear, as I describe elsewhere in another forthcoming paper in connection with a failed effort to amend the way Senators are selected. This ambiguity about which amendment rule applies may itself be a source of amendment difficulty too.

There are three additional yet under-appreciated sources of formal amendment difficulty in Canada—additional rules that appear nowhere in the constitutional text:

1. The Supreme Court of Canada’s interpretation of formal amendment rules to make them even more difficult to use than they already are, for instance both as to secession and as to changes to the “essential features” of the Court itself.
2. Parliamentary laws, like the Regional Veto Law and the Clarity Act, as well as provincial and territorial laws requiring a referendum or plebiscite before legislators can vote to ratify an amendment proposal.
3. Arguably a new constitutional convention that now requires a national consultative referendum to follow the precedent set in the 1992 Charlottetown Accord referendum.

In the paper, I explain in detail these under-appreciated sources of amendment difficulty. I then develop the argument that these extra-textual sources of formal amendment difficulty threaten to weaken democracy in Canada and also to undermine the very purpose of having a codified constitution with formal amendment rules.

I am currently working on a follow-up paper in which I build a more fulsome case about informal changes to formal amendment rules elsewhere in the democratic world. I welcome suggestions for useful country studies to help develop this follow-up paper.

As for my current paper on “The Difficulty of Constitutional Amendment in Canada,” the takeaway is neither that Canada’s Constitution is more difficult to amend formally than the United States Constitution nor that Canada’s Constitution is the most difficult democratic constitution in the world to amend formally. It is instead that we need to look beyond text-based analyses of amendment difficulty in order to understand the full measure of constraints that apply to political actors seeking to formally amend their constitution.

Suggested Citation: Richard Albert, Is the Constitution of Canada the World’s Most Difficult to Amend?, Int’l J. Const. L. Blog, June 16, 2015, at: http://www.iconnectblog.com/2015/06/amendment-difficulty-in-Canada

[1] See, e.g., See Donald S. Lutz, Principles of Constitutional Design (New York: Cambridge University Press, 2006) at 170; Astrid Lorenz, “How to Measure Constitutional Rigidity” (2005) 17 J. Theoretical Pol. 339 at 358-59.

[2] U.S. Const., art. V.

[3] See Rosalind Dixon, Partial Constitutional Amendments, 13 U. Pa. J. Const. L. 643, 653 (2011).

[4] See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2312, 2333 (2006).

[5] Procedure for Amending Constitution of Canada, Part V of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.).