Unwritten constitutional principles often find their place into Canadian constitutional law via their supposed foothold in the part of the Preamble to the Constitution Act, 1867 that refers to 'a Constitution similar in principle to that of the United Kingdom'. Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble in this way. This paper looks through over a hundred years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time. It then proposes a reading of the Preamble and constitutional principles that is attentive to text, case law, principles and an evolving Canadian context: a sustainable jurisprudence.
The paper considers whether the nature of the state as a particular type of social institution has any necessary implications for the content of the rules of state constitutions; so, whether there are any rules that must be included in the constitution because of the nature of the state. It argues that there are some rules, including rules that identify the point of the state and some rules relating to constitutional change, that all states must possess. These are the foundational rules of the state, and cannot be altered if any state is to remain an instantiation of this type of social form.
Scholars generally write about popular sovereignty in terms of the expression of the people’s will alone. They do not treat territory as part of the definition of popular sovereignty. My work on Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide published in the Cardozo Law Review reveals that popular sovereignty is a territorial concept. In this paper, I argue that the overwhelming majority of world constitutions are not terribly concerned with immigration or emigration of people. They are also not concerned with the redrawing of borders alone. Rather, constitutions treat the combined challenge of withdrawal of citizens with territory as a revolutionary act in the Kelsenian sense. Such an act requires a new constitutional beginning by both the seceding and the remaining populations. The article thus explores the meaning of popular sovereignty as a territorial concept protected from constitutional change from within the system.