Constitutional Roundtable – Richard Albert

Richard Albert
Associate Professor of Law and Dean’s Research Scholar at Boston College
12:30 – 2:00 p.m.

Tuesday, March 15, 2016

Solarium, Falconer Hall

The Conventions of Constitutional Amendment in Canada

Commentators have suggested that the unsuccessful national referendum to ratify the 1992 Charlottetown Accord has created an expectation of popular participation requiring national referendal consultation in major reforms to the Constitution of Canada. In this Article, I inquire whether federal political actors are bound by a constitutional convention of national referendal consultation for formal amendments to the basic structure of the Constitution of Canada. Drawing from the Supreme Court of Canada’s Patriation Reference, I suggest that we cannot know whether federal political actors are bound by such a convention until they are confronted with the question whether or not to hold a national referendum in connection with a change to the Constitution’s basic structure. I conclude by suggesting, perhaps counterintuitively, that layering a conventional requirement of national referendal consultation onto the existing requirements for formal amendments to the Constitution’s basic structure could well undermine democracy, despite our common association of referenda with democratic legitimacy.

Richard Albert is an Associate Professor at Boston College Law School, where he specializes in constitutional law and comparative constitutional law. He holds degrees from Yale University, Oxford University, and Harvard University.