E LAW | Murdoch University Electronic Journal of Law - Copyright Policy

Getting Out: Secession and Constitutional Law

Author: James A Thomson LLB (Hons), BA (UWA); LLM, SJD (Harvard)

Subjects: Constitutional law Canada cases (Other articles)
Federalism (Other articles)
Secession (Other articles)

Issue: Volume 6, Number 1 (March 1999)

Category: Current Developments

Note: Some Comparative Reflections On The Québec Secession Decision: Three Papers
The release on August 20 1998 of the Supreme of Canada's advisory opinion on the right of the Province of Québec to secede from the Canadian federation (the Québec Secession case) occasioned considerable interest from observers of federal systems. The decision prompted the School of Law at Murdoch University, in collaboration with the Federal Court of Australia in Perth, to organise a roundtable discussion. This became "Constitutional Principles for a Principled Constitution: Lessons from the Québec Secession Decision", Murdoch University, School Of Law Seminar Series, Federal Court Boardroom, Perth, Thursday, 15 October 1998.
The purpose of the roundtable was to stimulate interest in the decision, by exploring different ways in which it might be considered. Three of the four contributions to that roundtable are published in this issue of E Law with some modifications made after their presentation.
Each such contribution indeed adopts a different perspective on the decision. Taking the authors alphabetically, Professor Greg Craven's paper (The Quebec Secession Reference: The Law Of Politics Or The Politics Of Law?) considers the problematic character of the decision considered as a formal legal document. His concern is with the strains produced by the variety of objectives the Supreme Court could be seen to have set itself. His particular interest is in the use of Canadian material in the current constitutional discussions in Australia, in which he has been an active participant. Professor Craven has written extensively on secession.
Professor Ralph Simmonds (Why Québec Secession Matters) focusses on and celebrates one of those objectives of concern to Professor Craven, the decision's intended contribution to the debate about the nature of Canadian federalism. His particular interest stems from his background as some one who has spent considerable time living and working in Québec, and who is interested in theories of federalism when it is under threat.
Dr James Thomson (Getting Out: Secession and Constitutional Law) reflects on the character of the Québec secession decision particularly when viewed from the perspectives of provinces and states in a federation and comparative constitutional law.

Ralph Simmonds, April 1999

Contents

Introduction
Provincial Secession
Judicial Review Of Secession
Conclusion
Notes

Introduction

Exiting from federations [1] is not impossible. Secession of component entities - states, provinces, cantons or territories - does, however, confront, in addition to political, cultural, economic, religious, military and other issues, a major legal conundrum: does constitutional law authorise secession? One extreme includes express authorisation.[2] Opposing that position is preclusion of any secession.[3] Juxtaposed somewhere near the middle, at least according to the Canadian Supreme Court,[4] is Canada.[5] More indeterminate, especially without judicial perspectives,[6] is secession under Australian constitutional law.[7] Of course, in this context [8] comparative constitutional law flourishes.[9] Combined with the Australian High Court's not infrequent consideration of other countries' constitutional law,[10] that pushes the Quebec Secession case [11] into a position of some prominence.[12]
Responding to two central questions [13] - did the National Assembly, Legislature or government of Quebec have a right to unilaterally secede from Canada under the Canadian Constitution or international law? - the Canadian Supreme Court, in a unanimous opinion and decision, appears to have rendered an unequivocal response: "[T]here is no right, under the [Canadian] Constitution or at international law, to unilateral secession . . . ."[14] Even so, a puzzle remains. From a perspective of constitutional law, who won? In this context, one response can be proffered: Two winners - Quebec and the Canadian Supreme Court - emerged from the Quebec Secession case.
Provincial Secession
Why did Quebec win? The answer inheres in the recognition or endorsement of three propositions by Canada's Supreme Court justices. First, despite the absence of an express provision in the Canadian Constitution,[15] secession is constitutionally possible and feasible under that Constitution if there are, at least, negotiations between the provinces and central government and radical and extensive constitutional amendments which come within the Constitution's amendment power. Secondly, Quebec has a constitutional right to pursue (that is, to propose and seek) secession from Canada. Thirdly, secession is possible and feasible on a totally unilateral basis and legitimacy and legality may come to attach to that secession prospectively but not, for Canadian law purposes, retrospectively.
Comparatively, four observations ensue. First, the Quebec Secession case confirms President Lincoln's view, before and during the 1861-1865 American Civil War, that southern states' unilateral secession could not, constitutionally or by force, be achieved. Only via the Constitution's amendment procedures in Article V was secession legally attainable.[16] However, the US Supreme Court's view in Texas v White is more restrictive:[17] "[t]he [US] Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."[18] Interestingly, the Quebec Secession case does not refer to these events despite their virtual simultaneous occurrence with the drafting and debating, between 1864-1867, of Canada's Constitution.[19] For some, that American background and its apparent message that the US constitutional structure adumbrated a weak central government and too powerful states may have given impetus to the intention to form a strong central Canadian government with relatively weaker provinces.[20] That traditional view of the Canadian framers' intentions - a dominant centre and dependent provinces [21] - does not provide an historical foundation for a constitutional recognition of secession. More helpful, though also not mentioned in the Quebec Secession case, is the emerging revisionist provincial autonomy thesis.[22] Intriguingly, this newer perspective of Canadian constitutional history may have given some credibility to the Court's three secessionist propositions.
Secondly, those three Quebec Secession case propositions are opposite to the 1935 decision - that state secession was unconstitutional in Australia - of the Joint Select Committee of the House of Lords and House of Commons.[23] Again, like the American comparison, this Australian analogy is missing from the Quebec Secession case.
Thirdly, this Canadian recognition of secession is opposite to the Australian High Court's general tendency [24] to favour unity and nationhood (especially through the expansion and dominance of Commonwealth legislative and fiscal powers) over state powers and rights.[25] Of course, historical and textual factors may erect a Canadian-Australian distinction. For example,[26] the ability of Canada's provinces, but not Australia's states, to formally initiate constitutional amendments [27] and the Judicial Committee of the Privy Council's solicitude for provincial powers and rights compared with the Engineers [28] and post-Engineers [29] position of the High Court.[30]
Fourthly, however, the Quebec Secession case, without any overt citation, confirms two occurrences. First is the American colonies' unilateral secession from England.[31] That is, even if the 1776 Declaration of Independence [32] was unlawful and unconstitutional,[33] subsequent events [34] have conferred legitimacy and legality on that secession. Second is the severance - constitutionally or unilaterally - of Australia from United Kingdom parliamentary sovereignty.[35] Without elaboration or explanation it has been asserted that "the Australia Act (UK) marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people."[36] Assistance with doctrinal reasoning and analyses as to how and why such an Australian revolution occurred and its consequences may well come from the Quebec Secession case.
Judicial Review Of Secession
A second answer to the constitutional law puzzle - who won? - is the Canadian Supreme Court.[37] Without a hint of hesitation,[38] that Court was prepared to and did decide "momentous questions"[39] relating to the constitutional validity of secession.[40] This occurred on several levels. Firstly, the Canadian Supreme Court decided whether (and to what extent) these secession questions and issues were justiciable. In this context, the Canadian Court's position is similar to that adopted by the United States Supreme Court and Australian High Court; namely, the question - is this issue justiciable or non justiciable? - is itself a justiciable issue.[41] Secondly, on a substantive dimension, the Supreme Court of Canada decided at least three Canadian constitutional issues: no constitutional right or power exists in relation to unilateral provincial secession; provinces (including Quebec) have a constitutional right to pursue secession; and provincial secession is constitutionally feasible. Thirdly, the Quebec Secession case decided that a number of aspects, for example, issues concerning the content and process of secession negotiations between provinces and the federal government, were non-justiciable. Fourthly, the Canadian Supreme Court left for future consideration an important and, perhaps, ominous [42] question: Would the Court intervene (and, if so, when and how) if secession negotiations did not conform to the Quebec case observations or reached an impasse?
To achieve this position the Canadian Supreme Court [43] used a generalised two-step methodology to surmount or avoid the gruelling debate between interpretivism and non-interpretivism.[44] First, the Quebec Secession case declares that the Canadian Constitution is more than a textual document or documents:[45] it consists of written and unwritten rules, principles and conventions. Secondly, the Canadian Supreme Court indicated that these unwritten (and justiciable) aspects of Canada's Constitution emerge from an understanding - presumably, the Court's understanding - of that Constitution's text, history and prior judicial adumbration.
Conclusion
Of course, the Quebec Secession case, like all judicial opinions, can be criticised [46] and praised.[47] Whatever position might be chosen, a larger quandary emerges: Is the Canadian Supreme Court a continuing Constitutional Convention permanently [48] in session? Perhaps, not unlike other jurisdictions,[49] the answer is - yes.

Notes

*LLB (Hons), BA (UWA); LLM, SJD (Harvard).

[1] For a variety of federations see, eg, G Sawer, Modern Federalism (Pitman, Melbourne, new ed 1976); R Watts, New Federations: Experiments in the Commonwealth (Oxford UP, Oxford, 1966); R Bowie and C Friedrich (eds), Studies in Federalism (Little, Brown, Boston, 1954); D Currie (ed), Federalism and the New Nations of Africa (University of Chicago Press, Chicago, 1964); M Forsyth (ed), Federalism and Nationalism (St Martin's Press, New York, 1989).

[2] See, eg, article 72 of the Constitution (Fundamental Law) of the Union of Soviet Republics: "Each Union Republic shall retain the right to freely secede from the USSR" (quoted in Sunstein, "Constitutionalism and Secession" (1991) 58 U Chicago LR 633 n 1). See also K Wheare, Federal Government (Oxford UP, Oxford, 4th ed 1963), pp 85-87 (arguing that a constitutional grant of the right to secede is consistent with federal government).

[3] See, eg, Texas v White (1869) 74 US (7 Wall.) 700 (Texas' secession from the Union unconstitutional). See also infra note 18.

[4] Reference re Secession of Quebec from Canada (1998) 161 DLR (4th) 385. This decision may also be found at http://www.droit.umontreal.ca/doc/csc-scc/en/pub/1998/vol2/html/1998scr2_0217.html. Background to this litigation is in Janigan, "The meat of the matter" (16 Feb 1998) Macleans: Canada's Weekly News magazine 16. Initial commentary includes Russell, "The Supreme Court Ruling, a Lesson in Democracy" (Oct-Nov 1998) Citre libre 29; "Quebec Secession Reference" (Fall 1998) 10 Constitutional Forum 1-30; Mullan, "Quebec Unilateral Secession Reference: 'A Ruling that Will Stand the Test of Time'" (1998) 9 Pub L Rev 231; Rayfuse, "Reference re Secession of Quebec from Canada: Breaking Up Is Hard to Do" (1998) 21 UNSW LJ 834.

[5] For pre-Quebec Secession case scholarship see, eg, Webber, "The Legality of a Unilateral Declaration of Independence under Canadian Law" (1997) 42 McGill LJ 281 (concluding that unilateral secession is unconstitutional); Monahan, "The Law and Politics of Quebec Secession" (1995) 33 Osgoode Hall LJ 1 (concluding that unilateral, but not secession pursuant to the Canadian Constitution's amendment procedure, is unconstitutional); P Hogg, Constitutional Law of Canada (Carswell, Toronto, 4th ed 1997), pp 5-30 to 5-37 (same); Marchildon and Maxwell, "Quebec's Right of Secession under Canadian and International Law" (1992) 32 Virginia J Int'l L 583 (concluding that Quebec may have an implied Canadian constitutional right to secede); Craven, "Of Federalism, Secession, Canada and Quebec" (1991) 14 Dalhousie LJ 231 (setting forth opposing arguments).

[6] But see infra note 22 (1935 UK Parliament's Joint Select Committee's decision).

[7] See generally Thomson, "Cutting Loose: Secession and Australian Constitutional Law" (1987) 17 UWALR 160 (reviewing G Craven, Secession: The Ultimate States Right (Melbourne UP, Melbourne, 1986)); Besant, "Two Nations, Two Destinies: A Reflection on the Significance of the Western Australian Secession Movement to Australia, Canada and the British Empire" (1990) 20 UWALR 209.

[8] For comparative secession scholarship see, eg, Craven, op cit n 5; Craven, op cit n 7; Besant, op cit n 7; Hiller, "Western Separatism in Australia and Canada: The Regional Thesis" (1987) 5 Aust-Can Stud 39. See generally D Gordon (ed), Secession, State & Liberty (Transaction Publishers, New Brunswick, 1998).

[9] See generally Thomson, "Comparative Constitutional Law: Entering the Quagmire" (1989) 6 Ariz J Int'l & Comp L 22; Thomson, "American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law" (1997) 30 John Marshall L Rev 627.

[10] See, eg, Sawer, "The Supreme Court and the High Court of Australia" [1957] J Pub L 482; von Nessen, "The Use of American Precedents by the High Court of Australia, 1901-1987 (1992) 14 Adel L Rev 181; Stone, "Freedom of Political Communication, the Constitution and the Common Law" (1998) 26 FLR 220. See also McGinty v Western Australia (1996) 186 CLR 140; Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 190 CLR 410 at 508-509 n 371 (Kirby J) (referring to Canadian and American cases and noting that "[t]he references in argument to other federal constitutions were limited and undeveloped").

[11] Quebec Secession Case, op cit n 4.

[12] Other cases within this category include Texas v White, op cit n 3; Madzimbamuto v Lardner Burke [1969] 1 AC 645 (Privy Council deciding that acts of the Legislature and government of Southern Rhodesia after the 1965 unilateral declaration of independence from Britain were invalid); R v Ndhlovu [1968] 4 SALR 515 (Rhodesia's High Court Appellate Division holding that the post-1965 government and constitution were valid). See Hogg, op cit n 5, pp 5-36.1 to 36.4, 37.

[13] Other questions concerned the Canadian Supreme Court's advisory jurisdiction and issues (see infra n 39) concerning justiciability.

[14] Quebec Secession case, op cit n 4, p 449. This starkly contrasts with the Court's observation that the 1992 amendments to the Canadian Constitution "have the important effect that, despite the refusal of the government of Quebec to join in its adoption, Quebec has become bound to the terms of a Constitution that is different from that which prevailed previously, particularly as regards provisions governing its amendment, and the Canadian Charter of Rights and Freedoms." Ibid, p 449. Therefore, can a province constitutionally be coerced into the Canadian Constitution and required, at the behest of other constituent components of the federation, to remain within the Constitution?

[15] See Hogg, op cit n 5, pp A-1 to A-31 (Appendix 1) (consolidation of Canada's Constitution Act, 1867 formerly the British North America Act, 1867 (UK)). See generally Banks, "Citing Canada's Constitution" (1983) 61 Can Bar Rev 499 (indicating documents comprising that Constitution).

[16] "Lincoln believed the real object of the [southern] secessionists was to change the nature of the American government. In his view there were only two ways that could be done. One was through amending the Constitution, a right that everyone recognized . . . . The other way of changing a government was through revolution. Since the [1846] Mexican War, Lincoln had been on record as a defender of the right of revolution, of that 'most sacred right' of a people 'to rise up, and shake off the existing government, and form a new one that suits them better.' In theory, then, [Lincoln] might have approved when the Southern states declared their independence. But he had always carefully qualified his support of the right of revolution by insisting that it was a moral, rather than a legal, right that must be 'exercised for a morally justifiable cause.' 'Without such a cause,' he thought 'revolution is no right, but simply a wicked exercise of physical power.' . . . 'The right of a State to secede is not an open or debateable question' [Lincoln] told [his presidential secretary John G Nicolay] . . . 'It is the duty of the President to execute the laws and maintain the existing Government. He cannot entertain any proposition for dissolution or dismemberment.' Consequently, [Lincoln] . . . wrote . . . 'No state can, in any way lawfully, get out of the Union, without the consent of the others . . .'" D Donald, Lincoln (Simon and Schuster, New York, 1995), pp 268-269. For elaboration see, eg, G Wills, Lincoln at Gettysburg: The Words that Remade America (Simon and Schuster, New York, 1992), pp 121-133 Pressly, "Bullets and Ballots: Lincoln and the 'Right of Revolution'" (1962) 67 Am Hist Rev 647; Abbott, "The Lincoln Propositions and the Spirit of Secession" (1996) 10 Stud. Am. Pol. Development 103; Ostrowski, "Was the Union Army's Invasion of the Confederate States a Lawful Act? An Analysis of President Lincoln's Legal Arguments Against Secession", in Gordon, supra note 8 at 155-190; K Stamp, The Imperiled Union: Essays on the Background of the Civil War (Oxford UP, New York, 1980), pp 162-188 ("Lincoln and the Secession Crisis"). See generally M Brandon, Free in the World: American Slavery and Constitutional Failure (Princeton UP, Princeton, New Jersey, 1998) pp 167-199; D Potter, The Impending Crisis: 1848-1861 (Harper and Row, New York, 1976), pp 448-583; H Hyman and W Wiecek, Equal Justice Under Law: Constitutional Development 1835-1875 (Harper and Row, New York, 1982), pp 203-231; G Rable, The Confederate Republic: A Revolution Against Politics (U North Carolina P, Chapel Hill, 1994), pp 20-38; Amar, "Of Sovereignty and Federalism" (1987) 96 Yale LJ 1425 at pp 1499-1500 (describing "moderate" and "extreme" theories of southern confederate secession where the former is based on state claims of material breaches, for example, by federal usurpation or other states active or passive non-co-operation, of the federal compact and the later flows from claims that each State's people retain a sovereign right to "alter or abolish their [federal] government at any time for any reason"); Craven, op cit n 7, pp 62-74 (elaborating southern confederate compact and sovereignty secession theories).

[17] Even so, it has been suggested that "'We the People of the United States' may choose to destroy states by constitutional amendment." Amar, "Of Sovereignty" (1987) op cit note 16 p 1465 n 167. Could the people, by the same means, "choose to destroy" the union but not the states? For Professor Amar (but not President Lincoln) those means are not the US Constitution's formal amendment procedures in Article V but popular sovereignty via a national referendum. See ibid, p 1464 n 166; Amar, "Some New World Lessons for the Old World" (1991) 58 U. Chicago L Rev 483 at 503 ("Only a national majority, not a majority of a single state or region, can lawfully dissolve the American Union") (footnote omitted).

[18] Texas v White (1869) 74 US (7 Wall.) 700, 725. On this case, see eg, D Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888 (U Chicago P, Chicago, 1985), pp 311-316; C Fairman, Reconstruction and Reunion 1864-88: Part One (Macmillan Co, New York, 1971) (Vol 6: The Oliver Wendell Holmes Devise History of the Supreme Court of the United States), pp 619, 628-676; Benedict, "Salmon P. Chase and Constitutional Politics" [1997] Law and Social Inquiry 459 at 482-483.

[19] On those debates and drafting see, eg, Quebec Secession case, op cit n 4, pp 404-408 ("Historical Context : The Significance of Confederation"); D Creighton, The Road to Confederation: The Emergence of Canada: 1863-1867 (Houghton Mifflin Co, Boston, 1965 rep 1976); P Waite, The Life and Times of Confederation 1864-1867: Politics, Newspapers, and the Union of British North America (U Toronto P, Toronto, 2nd ed 1962 rep 1967); W P M Kennedy, The Constitution of Canada 1534-1937: An Introduction to Its Development Law and Custom (Oxford UP, London, 2nd ed 1938); R Cheffins and P Johnson, The Revised Canadian Constitution : Politics as Law (McGraw-Hill Ryerson Ltd, Toronto, 1986), pp 35-40; C Moore, 1867: How the Fathers Made a Deal (McClelland & Stewart, Toronto, 1997).

[20] The "conventional view" suggests that "[i]f the Canadian Fathers of Confederation held any truth to be self-evident, it was that the architects of the U.S. Constitution had made a fundamental mistake in 1787, the terrible consequences of which were being played out . . . [in] the mid-1860s . . . on the battlefield. John A. Macdonald the central figure of the Confederation movement, argued bluntly that the Americans, in declaring "by their Constitution that each State was a sovereignty in itself," had begun "at the wrong end." Macdonald was not alone. As Peter Waite [op cit n 19, p 33] argues, "no understanding of [Canada's] Confederation is possible unless it be recognized that its founders, many of its supporters, and many of its opponents were all animated by a powerful antipathy to the whole federal principle." [W]hat Macdonald conceived as an express attempt to overcome the "errors" of the U.S. federal constitution ended in the creation of . . . the British North America . . . Act . . . 1867 . . ." R Vipond, Liberty and Community: Canadian Federalism and the Failure of the Constitution (State University of New York P, Albany, 1991), p 15 (footnotes omitted). See generally, Smith, "Canadian Confederation and the Influence of American Federalism" (1988) 21 Can J Pol Sci 443; Massey, "The Locus of Sovereignty : Judicial Review, Legislative Supremacy, and Federalism in the Constitutional Traditions of Canada and the United States" [1990] Duke LJ 1229.

[21] "[I]t was the original intention of the framers [of the British North America Act 1867] to empower a federal government with all of the plenary power necessary to build a new nationality, while establishing subordinate local, law-making authorities in the form of provinces." Schneiderman, "A.V. Dicey, Lord Watson, and the Law of the Canadian Constitution in the date Nineteenth Century" (1998) 16 Law and Hist. Rev. 495 at 497.

[22] "A richer narrative has [now] emerged . . . suggest[ing] that the true nature of the [Canadian] federation was not simply the version expressed by centralist politicians such as . . . John A. McDonald. Rather, an alternative vision was articulated by provincial politicians . . . . It represented the two levels of government as coequal and sovereign within their respective spheres of jurisdiction . . . . [T]his more reasonable interpretation of the British North America Act offered by . . . leaders of the provincial rights movement . . . viewed provinces as autonomous, co-ordinate, and sovereign powers within the federation." Ibid, p 487-488 (footnote omitted). For this revisionist scholarship see Baker, "The Province of Post-Confederation Rights" (1995) 45 U Toronto LJ 77 (reviewing Vipond, op cit n 20).

[23] "The [Commonwealth of Australia Constitution] Act gives no power to any State to secede. The Commonwealth itself has no power to amend the Constitution to the extent of enabling any State to secede. It is only by legislation in the Parliament of the United Kingdom, therefore, that the dissolution of the Commonwealth or the secession of any of its constituent parts can be effected." Report by the Joint Committee of the House of Lords and the House of Commons appointed to consider the Petition of the State of Western Australia (UK Parliament House of Commons Parliamentary Papers, 1935) (quoted in Besant, op cit n 7, pp 287-288). For discussions see ibid; Craven, op cit n 7.

[24] Exceptions include Melbourne Corporation v Commonwealth (1947) 74 CLR 1; Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192; New South Wales v Commonwealth (1990) 169 CLR 482.

[25] See, e.g., G Winterton, H P Lee, A Glass and J A Thomson, Australian Federal Constitutional Law: Commentary and Materials (LBC Information Services, Sydney, 1999).

[26] For bibliographies of comparative Australian-Canadian constitutional law see Thomson, "Quagmire" op cit n 9, pp 49-51; Thomson, "Adventures" op cit n 7, pp 686-687.

[27] Compare s 128 of the Australian Constitution and Parts V and VI in Appendix III to the Constitution Act 1867.

[28] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 746. See, eg, Winterton et al, op cit n 25, pp 744-757.

[29] See, eg, Winterton et al, op cit, n 25.

[30] For debates and divergent views about the Privy Council and Canadian constitutional law see, eg, P Russell, Leading Constitutional Decisions: Cases on the British North America Act (Carleton UP, Ottawa, 1984) pp 6, 12-13 (noting the Judicial Committee's "commitment to classical federalism" and "balanced federalism [which] may better reflect the historical balance of hopes and expectations [of Canada's constitution-makers] than the very centralist position of [John A. Macdonald and] the early [Canadian] Supreme Court"); Cairns, "The Judicial Committee and Its Critics" (1971) 3 Can J Pol Sci 301 (reprinted in D E Williams (ed), Constitution, Government, and Society in Canada (McClelland and Stewart, Toronto, 1984), p66); Cheffins and Johnson, op cit n 19, pp 47-50 (noting that "the real significance of the Judicial Committee was its recognition of a coordinate and equal role for the provinces with respect to the [Constitution's] division of executive and legislative powers"); Massey, op cit n 20, pp 1259-1265 (noting that [j]udicially decreed decentralization has shaped Canadian federalism despite constitutional amendments intended to foster centralization"); Schneiderman, op cit n 21, pp 497-498 (juxtaposing Privy Council critics arguing that the Judicial Committee's pro-provincial doctrines and decisions "perverted" framers' centralist intentions with revisionist scholarship which is more "supportive" of the Judicial Committee).

[31] On the American Revolution see, eg, R Middlekauff, The Glorious Cause: The American Revolution, 1763-1789 (Oxford UP, New York, 1982); G Wood, The Radicalism of the American Revolution (Alfred A. Knopf, New York, 1992); "Forum: How Revolutionary was the Revolution? A Discussion of Gordon Wood's The Radicalism of the American Revolution" (1994) 51 William and Mary Q 677-716

[32] See eg G Wills, Inventing America: Jefferson's Declaration of Independence (Doubleday and Co, New York, 1978); P Maier, American Scripture: Making the Declaration of Independence (Alfred A. Knopf, New York, 1997)

[33] For this debate see, eg, Black, "The Constitution of Empire: The Case for the Colonists" (1976) 124 U Pa L Rev 1157; Flaherty, "The Empire Strickes Back: Annesley v. Sherlock and the Triumph of Imperial Parliamentary Supremacy" (1987) 87 Columbia L Rev 593; O'Melinn, "The American Revolution and Constitutionalism in the Seventeenth-Century West Indies" (1995) 95 Columbia L Rev 104; P Lawson (ed), Parliament and the Atlantic Empire (Edinburgh U Press, Edinburgh, 1995).

[34] See, eg, Statute Law Revision Act 1964 (UK) (repealing American Colonies Act 1766 (UK)). See generally Klan, "A Legal Theory of Revolutions" (1987) 5 Boston U Int'l LJ 1; Eckelaar, "Principles of Revolutionary Legality" in A Simpson (ed), Oxford Essays in Jurisprudence (Clarenden Press, Oxford, 2nd series, 1973), p22; Finnis, "Revolutions and Continuity in Law" ibid, p44.

[35] See, eg, the Australia Act 1986 (UK) and (Clth); Thomson, "The Australia Acts 1986: A State Constitutional Law Perspective" (1990) 20 UWAL Rev 409; Lee, "The Australia Act 1986 - Some Legal Conundrums" (1988) 14 Monash U L Rev 298.

[36] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 138 (Mason CJ). Similarly see McGinty v Western Australia (1996) 186 CLR 140 at 230 (McHugh J). But compare Ibid, p275 (Gummow J) (questioning correctness, at least from a "legal" (rather than "popular or political") perspective of the "reposition[ing] of 'sovereignty' in the 'the people' of Australia"). See generally Winterton, "Popular Sovereignty and Constitutional Continuity" (1998) 26 FL Rev 1; Zines, "The Sovereignty of the People" in M Coper and G Williams (ed), Power, Parliament and the People (Federation Press, Sydney, 1997) p91.

[37] See generally J Snell and F Vaughan, The Supreme Court of Canada: History of the Institution (The Osgoode Society, Toronto, 1985); I Bushnell, The Captive Court: A Study of the Supreme Court of Canada (McGill-Queen's UP, Montreal, 1992).

[38] Compare, for example, the political question doctrine. In the US see, eg, Henkin, "Is There a 'Political Question' Doctrine?" (1976) 85 Yale LJ 597; Mulhern "In Defense of the Political Question Doctrine" (1988) 137 U Pa L Rev 97; Gerhardt, "Rediscovering Nonjusticiability: Judicial Review of Impeachments after Nixon" (1994) 43 Duke LJ 231. In Australia see, eg, Thomson, "Non-justiciability and the Australian Constitution" in Coper and Williams, op cit n 36, p 56; Williams, "The Australian Parliament and High Court: Determination of Constitutional Questions" in C Sampford and K Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (Federation Press, Sydney, 1996), p203. It has been suggested "that there is no political questions doctrine in Canada." Hogg, op cit n 5, p 33-13 (referring to Operation Dismantle v Queen [1985] 1 SCR 441). However, the Quebec Secession case op cit n 4 , p 400-403 discussed justiciability including non-justiciability criteria.

[39] Quebec Secession case, op cit n 4, p 403.

[40] Similarly compare Re Resolution to Amend the Constitution [1981] 1 SCR 753 (holding that provincial consent was a convention, but not legal, requirement before requesting the UK Parliament to amend Canada's Constitution); Re Objection by Quebec to Resolution to Amend the Constitution [1982] 2 SCR 793 (holding that Quebec's consent not required, where nine other provinces had agreed to the patriation and Charter of Rights amendments). See, eg, Hogg, op cit n 5, pp 1-18 to 1-21.

[41] See, eg, Thomson, op cit n 38, p 64 (citing Winterton, "The Third Man: Sir Garfield Barwick" (April 1984) 28 Quadrant 23 at 26).

[42] On the history of Quebec and its secession aspirations see, eg, D Latouche, Canada and Quebec, Past and Future: An Essay (U Toronto Press, Toronto, 1986); E McWhinney, Quebec and the Constitution, 1960-1978 (U Toronto Press, Toronto, 1979). Also, on 30 November 1998 Quebec voters re-elected the separatist Parti Quebecois. Nickerson, "Separatists reelected in Quebec" Boston Globe, 1 Dec 1998, p AI.

[43] For previous examples see, eg. Reference re Language Rights [1985] 1 SCR 721 (invoking the rule of law doctrine); Reference re Renumeration of Judges of the Provincial Court of Prince Edward Island [1997] 2 SCR 3 (using constitutional principles to fill gaps in Constitution's text).

[44] See, eg, J. Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard UP, Cambridge, 1980), pp 1-72.

[45] Quebec Secession case, op cit n 4, p 393, 445.

[46] See, eg, Reilly, "Constitutional Principles in Canada and Australia: Lessons from the Quebec Secession Decision" (1999) 8 Public Law Review forthcoming.

[47] See, eg, Russell, op cit n 4; Simmonds, Why Quebec Secession Matters (1999) E Law Vol 6 No 1 (this issue).

[48] Subject, for example, to jurisdiction stripping and removal (and non-appointment) of judges. On the former see, eg, Liebman and Ryan, "'Some Effectual Power': The Quantity and Quality of Decisionmaking that Article III and the Supremacy Clause Demand of the Federal Courts" (1998) 98 Columbia L Rev 696.

[49] See, eg, C N Tate and T Vallinder, The Global Expansion of Judical Power (New York UP, New York, 1995); D Jackson and C N Tate, Comparative Judical Review and Public Policy (Greenwood Press, Connecticut, 1992); W Murphy, J Tanenhaus and D Kastner, Public Evaluations of Constitutional Courts: Alternative Explanations (Sage Publications, Beverly Hills, 1973); Bzdera, "Comparative Analysis of Federal Judical Review" (1993) 26 Can J Pol Sci 3; Symposium, "The New Constitutional Courts" (1993) 2 Eastern European Constitutional Rev 28-57.

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Document creation: March, 1999
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Modified by: Tim Gibson, Technical Editor, E Law
Authorised by: Archie Zariski, Managing Editor, E Law
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URL: http://www.murdoch.edu.au/elaw/issues/v6n1/thomson61nf.html

Author:	James A Thomson LLB (Hons), BA (UWA); LLM, SJD (Harvard)
Subjects:	Constitutional law Canada cases (Other articles) Federalism (Other articles) Secession (Other articles)
Issue:	Volume 6, Number 1 (March 1999)
Category:	Current Developments