The meta-constitution: amendment, recognition, and the continuing puzzle of supreme law in Canada

Abstract

15 The term constitutional can have a dual meaning in that it can refer to things which are allowed under the constitutionis a law constitutional, for examplebut it can also refer to things which are part of the constitution. Throughout the paper I try to, as far as possible, use it to mean the former but the context will make it clear when I am using it in the latter sense. Both meanings can occur simultaneously.

The Place of Constitutional Conventions in the Constitutional Architecture, and in the Courts

“…The Court's decision and its invocation of the ill-defined constitutional architecture has led a number of scholars to question the status of constitutional conventions in the legal, as opposed to political, constitution (Glover, 2014; Pal, 2016; Hamill, 2016; Scholtz, 2018; Sirota, 2020; Macfarlane, 2021a). If constitutional conventions are part of the architecture of the Constitution such that any changes to them implicate the formal amending formula, then the Court has, without expressly saying so, transformed at least some conventions into constitutional law.…”