Resumen de Constitutional change and constitutional amendment: A Canadian conundrum
American Chief Justice John Marshall’s admonition that “we must never forget, that it is a constitution we are expounding” is the stuff of jurisprudential applepie.1 Its beauty and banality are indispensable elements of its enduring appeal. As a key to interpretive practice and doctrinal change, it is itself open to varied interpretations. Whereas some jurists draw upon its rhetorical force to justify a program of continuing efforts for “expounding” the Constitution in a way that keeps it current and in tune with a prevailing ethos, others enlist it as part of a campaign to put the constitution beyond generational tampering and to make change a matter for formal amendment of the written document, not for judicial alteration through incremental elaboration. Notwithstanding this division of opinion, there is almost universal recognition that constitutions deserve especial solicitude and should hold special sway in society’s understanding of law and politics. The overarching challenge is to offer some account of constitutional meaning and authority that both recognizes the need for stability and the desire for change-how is it possible to establish a practical set of institutional arrangements that treats constitutions as an authoritative and enduring body of super-norms and, at the same time, allows for a certain responsiveness to the changing values and ideas of society?
