constitutional amendment, judicial activism, authorship, Supreme Court of Canada, Senate Reference, Patriation Reference, Quebec Veto Reference, Secession Reference, courts
The author surveys various theories related to the concept of constitutional amendment, reviewing the importance of the notion of authorship to the amending process, and the related theories about constitutional legitimacy and judicial activism. In seeking an alternative conceptualization of authorship that is applicable to constitutional amendment, she reviews Michel Foucault's essay on authorship, and specifically his notion of the transdiscursive author who originates a "return" to an original text, which she presents as a useful context in which to read the constitutional amendment process. Constitutional discourse, using Foucault's approach to discourse, occupies a significant cultural and social position. She then provides a reading of four Supreme Court of Canada judgments on the issue of constitutional amendment (The Senate Reference, the Patriation Reference, the Quebec Veto Reference, and the Secession Reference), arguing that the Court moves towards a discursive view of Canadian constitutionalism and amendment that conceptualizes the legitimate amending authors of the Canadian constitution as the Canadian people, recognizing the relevance of the Constitutional text itself, the nature of Canadian democracy, regionalism, and Charter values. Thus, the author argues, the Court's analysis of constitutional amendment provides a significant moment in nation building by constituting Canadian citizens as self-governing, self-constituting, and self-writing.
Barbara Darby, "Amending Authors and Constitutional Discourse" (2002) 25:2 Dal LJ 215.