Banging Constitutional Bibles: Observing Constitutional Culture in Transition

In an emotional presidential address to the Canadian Political Science Association in June 1997, Jane Jenson declared that Canadians 'face a moment of change.' 'To put the matter bluntly,' she wrote, 'we face a choice between a new Canada and no Canada.'¹ Jenson's address was a celebration of Canada's post-war citizenship regime, in which the 'state's relationship to markets was active and pan-Canadian social programmes replaced provincial and private provision.'² 'Large projects,' she wrote, 'became symbols of our modernity' – the St. Lawrence Seaway, the Trans-Canada Pipeline, and Expo 67.³ Due to 'pressures from, among other things, processes of globalization and ideological realignment,' pressures we ordinarily associate with the rise of neoliberalism,⁴ that regime now was under threat. We were in a moment of transition, Jenson warned us, and it was time to face the facts. Others have been less gloomy about Canada's prospects in the face of the integrationist pressures associated with economic globalization, in particular, those pressures emanating from Canada's southern border.⁵ Canada remains resiliently independent, writes Daniel Drache, and continues to be able to pursue a distinctively different political and social project from that of the United States.⁶ Over the past two years alone, however, debates have ensued about North American security perimeters, Canada's joining the United States in war, continental missile-defence shield systems, deeper bilateral integration with the United States, common external tariffs, and the adoption of a North American – wide currency.⁷ If this is no time to be alarmist, neither is it a time to be sanguine about Canada's future.

John Willis was witness to another transition having to do with Canada's 'constitutional culture.' Despite a relatively static constitutional text up until 1982, constitutional values changed over the course of Canada's twentieth century. Willis was not the first or only legal academic to give voice to changing times. He did so in a way, however, that starkly contrasted two competing world views – between the eighteenth-century 'lawyer's values' policing innumerable legislative initiatives not 'particularly tender towards the property of others,'⁸ on the one hand, and the new administrative state, which was designed to set 'public welfare above private rights,'⁹ on the other. The 'banging of constitutional bibles' in the title of this article¹⁰ refers to the theological objections of lawyers to the ascendance of this 'new constitution.'¹¹ By reading John Willis over time, we better understand how one set of values partly, but not entirely, gave way to the other.¹²

By observing transitions in constitutional culture through Willis's work, we also can begin to speculate whether Canadian constitutional culture is undergoing another transition. As Jenson's address suggests, where she bangs a version of her constitutional bible, this one follows from the legal-integrationist push associated with economic globalization. I have in mind the web of legally enforceable investment protections found in the North American Free Trade Agreement's (NAFTA) Chapter 11 and in the many bilateral investment treaties that have been signed by Canada and most states in the world, protections that are discussed in the first part of this article. The question attended to in the second part of the article is whether this regime signals the beginnings of a shift of constitutional culture in the direction of market citizenship (a phenomenon not confined, of course, to Canada alone).¹³ Or perhaps, more accurately, the question is whether this represents a return to a past where state regulation of the market was actively discouraged, if not legally constrained. If Willis's oeuvre¹⁴ is documentary witness to Canadian constitutional culture in transition over the last century, as a result of structural changes occurring within and beyond Canada, that culture may be undergoing further change, movement in a direction that probably would have alarmed Willis.

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