Friday, 23 March 2012

What's the Purpose of a Constitution Anyway?

What is the purpose of our constitution? Among other things, our constitution is a special type of law. It is our supreme law. This means that it is the standard by which all our other laws are measured. It is organizational. It sets some of the rules for how our state is to function. But most importantly, our constitution limits the authority of government. It does this in at least two ways: first, by prohibiting the government from enacting laws that infringe individual freedoms without justification; and second, by preventing the government from passing laws over certain matters. In both of these instances, even though it is accomplished by different means, government authority is limited. This is one of the chief purposes of our constitution.

The Canadian Charter of Rights and Freedoms limits government authority. The Charter prevents both the provincial and federal governments from enacting “unconstitutional” laws. Section 2 of the Charter provides a good example. Section 2(b) prevents the government from enacting legislation that infringes upon the fundamental freedom of freedom of expression. If a court finds that a law infringes freedom of expression without sufficient justification, that law will be made powerless. In this way, the constitution protects individuals from both federal and provincial governments that might otherwise infringe on their freedom.

The Constitution Act, 1867, originally called the British North America Act, 1867, also limits government authority. Sections 91 and 92 of the Constitution Act, 1867, state whether the federal or provincial governments have the requisite authority to enact laws regarding health, education, banks, trade and commerce, etc. Sections 91 and 92 grant this legislative authority exclusively. This means, for example, that since the provinces have the direct authority to enact laws regarding healthcare under section 92(7), the federal government has no direct authority over healthcare. The constitution limits the federal government’s authority by prohibiting it from directly interfering with the authority of the provinces over healthcare.

It is easy to forget that one of the most important purposes of our constitution is to place limitations on government. Our constitution should protect the freedom of individuals from the intrusion of government on their lives. Our constitution is supposed to prevent overreaching governments from exercising more authority than they have been granted. All too often, Canadians seem to believe that the freedom we enjoy needs to be justified. Yet it is the opposite that is true. It is the government that needs to justify its intrusion in the lives of individuals.

Since it is government actions, not those of individuals, that need to be justified, each government act should be scrutinized in the light of our constitution. That includes both those that infringe individual freedoms and those that go beyond the authority granted to the government.

This appeared in the Canadian Constitution Foundation blog in June 2011.

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