Double Aspect

Last week I wrote about Quebec’s Bill 1, which, if enacted, will ostensibly set up an entrenched constitution for the province. My post focused on technical issues, though some of them are substantive concerns as well, notably the way in which Quebec is trying to evade constitutional requirements preventing unilateral reform to the monarchy and unilateral secession.

Today, The Line has kindly published my op-ed on Bill 1, which addresses some of the more substantive issues with it, notably its doubling down on Quebec’s longstanding illiberal collectivism, as well as the procedural issues with the way in which Bill 1 is being pushed through. From the introduction:

Scholars and even politicians have from time to time mused about the desirability of writing down a Quebec constitution … As it happens, Richard Albert and I have co-edited a book called A Written Constitution for Quebec? We were asking the question. Now, the Quebec government wants to answer in the affirmative. … The opposition parties are against, and much of the commentary so far is aghast. One excitable law professor has described the bill as a “legislative coup.” I would not go that far, but I too think that Bill 1 is fatally flawed in terms of its content and its compatibility both with the Constitution of Canada and sound legal principle.

Beyond alerting the readers to the piece, I also wanted to use this post to elaborate a bit on the process point. The original version I submitted to The Line had more on this, but some it was (sensibly) cut to keep the whole down to a manageable size.

The process by which the Quebec Constitution is supposed to be enacted is a purely legislative one, and not a very good version of that. What I mean is that there has been no special-purpose body, such as a citizens commission or even a government-appointed one that drafted the constitution package or even proposed its broad outlines. The draft was developed by the government in consultation with hand-picked supportive academics, and was not made public before Bill 1 was introduced. There was, I take it, some sort of consultation with opposition parties, but considering they all voted against Bill 1 at first reading, it doesn’t sound like their input, if any, counted for much. In short, the Quebec Constitution will only ever be debated within the Quebec legislature, and it will be approved (or, hypothetically, rejected) by the legislature, without a referendum or, by the looks of it, even an intervening election.

Quite a few people have criticized this approach. Dale Smith’s report in the CBA National Magazine quotes some of them. Some would have wanted a “constituent assembly”, others perhaps a referendum. For my part, I am not persuaded that these things are necessary or even desirable. Quebec has had quite enough referendums already, and seems to be on course for yet another one. Referendums do not serve to enlighten anyone, and I don’t think much good would come out of putting a project as messy as Bill 1 to a popular vote. It is a fundamentally political project, and I do not mind politicians taking responsibility for it, just as politicians took responsibility for devising and ratifying both the Constitution Act, 1867 and the Constitution Act, 1982.

That said, how the legislature goes about things matters a great deal. The Quebec government seems initially to have wanted to limit select committee hearings so that only the people the relevant committee itself invited could make submissions. They have backed down, so that there will be a process of open submissions, but the time allowed to make them is quite short — shorter than it normally is for bills of lesser significance. This is not good. As I say in The Line piece,

process is not an end in itself, but it is a means for building the kind of broad consensus that could legitimize the Quebec Constitution in the eyes of the voters. The government’s procedural choices are not inherently unreasonable, but they limit opportunities for consensus-building. So too does limiting the time civil society has for engaging with the draft. Invoking closure or otherwise cutting off debate in the legislature would also signal that the government has no time for seeking agreement, yet with only a year left before the next election is due, the temptation to do so will be strong.

And there is a further issue to think about. I didn’t even try to get into it in The Line piece, not least because it turns in part on a technical discussion I had no room for there, but I will flag it here. That is: how would we know that something like a suitable level of consensus has in fact been achieved? Whose agreement makes a provincial constitution legitimate? This question can be approached from two perspectives: procedural, and political.

Consider the procedural point first. Bill 1 will be law if it passes by a simple majority of the Quebec legislature. Easy? Yes… and not quite. The Quebec Constitution is supposed to be entrenched. As I explain in detail in my lost post and allude to in The Line, it is so incompetently drafted that it may fail to achieve this objective, but suppose this is remedied by the addition of a proper amending formula that provides for some sort of supermajority or even a referendum for a constitutional amendment. In that case, there would be something underhanded if the legislature were to enact this with anything less than the same majority. For the record, one might criticize Patriation on the same ground, since Part V of the Constitution Act, 1982 requires unanimous provincial agreement for certain constitutional amendments, and yet was not assented to do by all the provinces, though Patriation’s supporters have often argued that Quebec’s MPs, who almost unanimously supported it, were just as good representatives of the belle province as its government.

Now, as it happens, this may or may not be an issue for the Quebec Constitution. As things now stand, the CAQ government has 84 seats out the 124 that are currently occupied: just over 2/3. If the amendment threshold for the Quebec Constitution is set at 3/4 or involves a referendum then an enactment with the CAQ’s votes alone won’t cut it. But if it is set at 2/3, then the government will be in the clear. Query: what should the threashold for amending a provincial constitution be (assuming a province can entrench its constitution at all: Maxime St-Hilaire and Patrick Baud have argued to the contrary)? 2/3 might be reasonable, but elections in Quebec as in other provinces not infrequently result in lopsided legislatures where a single party has such a majority or even more. That seems less than ideal.

And this brings me to the more political perspective on the consensus necessary to enact the Quebec Constitution. It is not just about head-counting, but about who these heads belong to. When Quebec nationalists criticize Patriation, they are not so concerned about the fact that nine provinces brought in an amending formula that sometimes requires all ten to agree to an amendment. What they care about is which province was not on board: namely, theirs, the only francophone province. If we apply this logic to Quebec, then, bluntly, I don’t think that — large as it is — the CAQ’s majority is large enough. The CAQ has virtually no representation on the Island of Montreal, none outside the very heavily francophone districts on the island’s far east. The minorities whose members’ rights would be most imperiled by the Quebec Constitution overwhelmingly vote for other parties. By my lights, enacting a Quebec Constitution without some meaningful support from minorities — whether expressed through the parties they support in the legislature or through some other means — would be illegitimate. Some of the contributions to A Written Constitution for Quebec?, a book Richard Albert and I have co-edited, raise concerns of this sort. Evidently they have been ignored.

Supporters of the Quebec Constitution will say that this argument is misguided, because, in effect, the Quebec nation is one and indivisible, and what matters is its view as a whole, not how some sub-groups might feel. On this view, the analogy with Canada, whether one thinks of it as composed of two founding peoples or of 10 equal provinces, simply does not work. But this merely begs the question. So long as they proceed on their assumption without securing broader assent to it, the supporters of the Quebec Constitution will impose it by virtue of the raw power of their greater numbers, but they will not make it legitimate.

As I say in The Line piece, so far, Bill 1 looks rather like “a last roll of the dice or a vanity project undertaken by a government elected three years ago without a mandate for constitutional reform, and facing not merely electoral defeat but, as of this writing, complete annihilation“. The Quebec government could, conceivably, dispel this impression by welcoming and indeed soliciting the input and the support of people and groups beyond the increasingly thin ranks of its partisan or ideological supporters. I just wouldn’t count on that.