Lessons from Europe’s and Canada’s constitutional experiences

WP 2 - Constitutional politics 


Oslo, 20-21 March 2009

This workshop is organised within RECON's work package 2, which deals with (a) the constitutionalisation of the EU, (b) the Europeanisation of national constitutions, and (c) comparisons of constitutionalism in the EU and in other selected entities.

The purpose of this workshop is to compare the EU with Canada (a multinational and multicultural state), in an area that is of particular relevance to democracy and also to the present European situation: the representative and participatory character of constitution-making and their link to constitutional failure.

The dynamics of Canada’s approach to constitution-making has important parallels with that of the EU:

  • Both have seen a transition from a closed executive-style and intergovernmental approach to constitution-making to a more open and participatory style (in Canada first with the patriation of the constitution in 1981-2, and in the EU with the Laeken process 2003-4);
  • The outcome fails to obtain agreement among the key stakeholders (Quebec in Canada, France and the Netherlands in the EU);
  • The next effort sees a retreat back to closed, executive-style constitution making (in Canada: Meech Lake, in the EU: the Lisbon Treaty);
  • In both instances this is also rejected (in Canada by Manitoba and Newfoundland, in the EU by Ireland);
  • In Canada the process was re-opened and resulted in the Charlottetown Accord 1991-2 which also failed. The character and result of the further EU process is still uncertain. 

How to undertand and interpret these processes and their results? Were they failures?

The workshop will take up and discuss three sets of aspects of the Canadian case, with direct bearing on the EU. These are: (a) constitutional refashioning of community as a gender empowering device; (b) the effects of democratically inclusive participation in constitutional change processes on outcomes; and (c) what constitutes constitutional failure? Here the focus is on the relation between failed reform efforts and how these can be understood in normative terms.

All of these are clearly relevant to the contemporary European situation. The purpose of the workshop is thus twofold: (a) to scrutinize these for possible lessons and (b) to reflect on the lessons for democracy and democratic theory.


Outline of themes and questions

1. Overview of the Canadian and the European constitutional experiences

The purpose of this section is to provide two general – synthetic – overviews of the two cases of the EU and Canada so as to clarify the issues and to provide a basis for the comparison of the two cases.

2. Chartered constitutional refashioning of community in a gender-empowering direction

The Canadian ‘Charter revolution’ is marked by a radical increase in gendered participation and political contestation, as groups found the courts and the legal system as a vital additional channel for the promotion and protection of their concerns and grievances. To what extent can this be attributed to rights empowerment as opposed to other factors related to organizational resources, other public policy measures etc.? What are the relative participatory merits of representative systems in relation to Court-based litigation in terms of social empowerment and gendered restructuring of society? The European case provides a useful comparative reference here. How should we interpret the European situation? What are the general lessons we can draw from the constitutional reform efforts?

3. Democratizing constitution making

Canada’s constitutional experiences since 1982 can be construed as a large-scale experimentation with democratically inclusive participation in constitutional change processes. The EU did so also during the Laeken process (2001-5). There are important similarities between the cases in process construction and process dynamics. 

From these experiences, under what circumstances can we establish a positive relationship between participation and extensive constitutional deliberation on the one hand and constitutional agreement on the other?

4. How to interpret and understand constitutional failure?

Both Canada and the EU operate under constitutional systems that are not based on a democratically agreed constitutional arrangement, but they still continue to hang together. Why is that? Which RECON model accounts best for the reason why these entities hang together? Is it the same model or do they differ? What broader implications for constitutional democracy may we discern from the cases?