Constitutionalism v Diversity

Essays on Federal Democracy

by Dave Guénette (Author) Félix Mathieu (Author)
Monographs 250 Pages
Series: Diversitas, Volume 31


This book provides an in-depth analysis of how constitutionalism and diversity can be friends and foes alike in contemporary multinational democracies. By focusing mainly on the dynamics between Quebec and Canada and comparing these with ongoing issues in Catalonia and Spain, Flanders and Belgium, and South Tyrol and Italy, the authors offer new insights into the public management of national diversity. In doing so, they sought to unpack the numerous challenges divided societies are facing.
The pieces that together form the title of this book are not merely of symbolic significance. Constitutionalism v Diversity: Essays on Federal Democracy echoes the four underlying principles of the Canadian Constitution that the Supreme Court of Canada identified in its famous 1998 Reference re Secession of Quebec. These are (1) federalism, (2) democracy, (3) constitutionalism and the rule of law, and (4) protection of minorities. While these four concepts are at the very core of both authors’ argument and approach, the Supreme Court of Canada’s Secession Reference is guiding them through the book by providing a robust and meaningful theoretical and analytical framework.
These principles appear as universal normative parameters societies should see as ideals to pursue and translate – while adapting their content to the specific context – into concrete institutions and practices. Even more today this book shows the great analytical value of these four principles to critically appraise of the way multinational liberal democracies in general and federal systems in particular are evolving.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the authors
  • About the book
  • This eBook can be cited
  • Acknowledgements
  • Table of Content
  • Introduction: Fundamental Principles at Work
  • 1. The Secession Reference in Its Context
  • 2. The Underlying Principles of the Canadian Constitution
  • 2.1. The Principle of Federalism
  • 2.2. The Principle of Democracy
  • 2.3. The Principle of Constitutionalism and the Rule of Law
  • 2.4. The Principle of the Protection of Minorities
  • 3. The Intertwined Nature of the Principles
  • 3.1. The Intertwined Nature of Federalism and Democracy
  • 3.2. The Intertwined Nature of Democracy and Constitutionalism
  • 3.3. The Intertwined Nature of Constitutionalism and the Protection of Minorities
  • 3.4. The Intertwined Nature of Constitutionalism and Federalism
  • 4. The Structure of the Book
  • Part 1 Fragile Nations: Quebec–Canada in a Comparative Perspective
  • Chapter 1 Fragile Nations: A Theoretical and Analytical Framework
  • 1. Nations, Minority Nations, and Multinational Democracy: An Overview
  • 1.1. The Nation and the People
  • 1.1.1. Defining the “Nation”
  • 1.1.2. The Concept of “People”
  • 1.2. The Minority Nation in Its Context
  • 1.2.1. The Minority Nation and the Multinational State
  • 1.2.2. Managing Societal Diversity: Comparing Models of the State
  • 2. Societal Cultures and Minority Nations
  • 2.1. National Fragility and Its Connection to Societal Culture
  • 2.1.1. National Fragility and the Institutionalization of a Societal Culture
  • 2.1.2. The Imaginary of National Fragility
  • 2.2. The Impact of the Constitutional Order on National Fragility
  • Conclusion
  • Chapter 2 The Societal Culture Index and the Quebec–Canada Dynamics in Perspective
  • 1. Legal Pillars and the Societal Culture Index
  • 1.1. National Recognition
  • 1.2. Linguistic Rights
  • 1.3. Immigration and Integration Powers
  • 1.4. Fiscal Autonomy
  • 1.5. Internal Self-Determination
  • 1.6. External Self-Determination
  • 2. Studying Quebec with the SCI
  • 2.1. Mention of Recognition
  • 2.2. Constitutional Asymmetry
  • 2.3. Official Language
  • 2.4. Language of Education
  • 2.5. Immigration Policy
  • 2.6. Selection and Integration Powers
  • 2.7. Power to Raise Taxes
  • 2.8. Wealth Redistribution
  • 2.9. Constitutional Initiative
  • 2.10. Veto Power
  • 2.11. Holding a Referendum
  • 2.12. Secession Right
  • 3. Comparing Quebec Using the SCI
  • 3.1. Mention of Recognition
  • 3.2. Constitutional Asymmetry
  • 3.3. Official Language
  • 3.4. Language of Education
  • 3.5. Immigration Policy
  • 3.6. Selection and Integration Powers
  • 3.7. Power to Raise Taxes
  • 3.8. Wealth Redistribution
  • 3.9. Constitutional Initiative
  • 3.10. Veto Power
  • 3.11. Holding a referendum
  • 3.12. Secession Right
  • Conclusion
  • Chapter 3 Fiscal Federalism and Social Justice in Canada and Spain: In Search of a Dual Equilibrium
  • 1. Federations, (Multinational) Federalism, and Fiscal Equalization
  • 2. Fiscal Federalism and Minority Nations’ Capacity to Develop Their Societal Culture
  • 3. Justice and Fairness in the Equalization System: A Comparative Look at Canada and Spain
  • 3.1. The Equalization Systems in Canada and Spain
  • 3.2. Applying Equalization Systems in Canada and Spain
  • 3.2.1. Fiscal Equalization in Canada and Quebec’s Position
  • 3.2.2. Fiscal Equalization in Spain and Catalonia’s Position
  • 3.3. Three Principles for an Equalitarian Fiscal Equalization System
  • Conclusion
  • Chapter 4 Constitutional Initiatives in Quebec and Catalonia: The Illusion of the First Impression
  • 1. Initiative Processes in Canada and Spain: Some Common Grounds
  • 1.1. Bilateral Amendments
  • 1.2. Multilateral Amendments
  • 2. Processes Applied Differently
  • 2.1. The Real Constitutional Initiatives Capacity of Quebec and Catalonia
  • 2.2. Limiting the Constitutional Pact and the Principle of Dual Equilibrium
  • Conclusion
  • Part 2 Diving Deeper into Quebec–Canada Dynamics
  • Chapter 5 Pierre Trudeau and Quebec’s Fragility
  • 1. Liberal Nationalism: An Overview
  • 2. The Political and Constitutional Vision of Pierre Trudeau
  • 3. How Pierre Trudeau’s Actions Affected Quebec’s Fragility
  • Conclusion
  • Chapter 6 Canada-Quebec v Federal Democracy: (Still) In Search of the Federal Spirit
  • 1. The Federal Spirit
  • 2. Negotiating Autonomy and Self-Determination
  • 2.1. The 1980 Sovereignty-Association Referendum and the 1982 Patriation
  • 2.2. With Honour and Enthusiasm: Meech Lake and Charlottetown Accords
  • 2.3. The 1995 Sovereignty-Partnership Referendum and the Clarity Act
  • 2.4. Open Federalism and Trudeau 2.0
  • 3. (Still) In Search of the Federal Spirit
  • Conclusion
  • Chapter 7 Still Not Cheering, 40 Years Later: Understanding Quebec’s Perspective on 1982
  • 1. Federalism
  • 1.1. Canada as a “Pact” Between…
  • 1.2. Reducing the Provinces’ Institutional Capacity as Self-Governing Entities
  • 2. Democracy
  • 2.1. A Tale of Two Legitimate Majorities One Legitimate Majority
  • 2.2. Federal Unitarian Democracy
  • 3. Constitutionalism and the Rule of Law
  • 3.1. The 1981 and 1982 References: Gang of Eight v Ottawa and Quebec v Ottawa
  • 3.2. Denying Quebec’s Veto… Only to Give It Back Again
  • Conclusion
  • Part 3 Contemporary Issues and Ongoing Developments in Quebec–Canada
  • Chapter 8 Canada and the COVID-19 Crisis: What About the Fundamental Principles?
  • 1. The Principle of Federalism
  • 1.1. Respect for Self-Rule
  • 1.2. Shared Rule and Intergovernmental Relations
  • 2. The Principle of Democracy
  • 2.1. The Postponement of Some Elections
  • 2.2. The Altered Functioning of Parliamentary Institutions
  • 3. The Principle of the Rule of Law and Constitutionalism
  • 3.1. The Rule of Law and the Legislative Framework for Emergency Measures
  • 3.2. Constitutionalism and the (Un)Justifiable Nature of Measures Taken
  • 4. The Principle of the Protection of Minorities
  • 4.1. Linguistic Minorities and Indigenous Peoples
  • 4.2. Individual Rights of Minority Communities and Vulnerable Groups
  • Conclusion
  • Chapter 9 Personal Federalism and the Protection of Minorities in Quebec’s English-Language School Boards
  • 1. The Historical and Constitutional Context of Local Governments in Canada
  • 2. Recent Developments in Quebec
  • 3. From Minority Language Educational Rights to Personal Federalism?
  • Conclusion
  • Concluding Remarks
  • Bibliography
  • Series index

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Introduction: Fundamental Principles at Work

Contemporary liberal democracies have become increasingly diversified over the past few decades. Since the second half of the twentieth century, diversity resulting from immigration to the West has been an ever-increasing phenomenon. Nonetheless, one should bear in mind that the “depth” of diversity is far more complex. “Incomplete conquests,”1 imperfect assimilationist policies, or even internal schisms have given rise to another type of diversity enriching pluralism: minority nations, or more broadly, societal minorities.2 To put it in a nutshell, this kind of diversity refers to non-sovereign demoi, i.e. political communities that typically demand to have access to some degree of autonomy through institutional self-governance and political self-determination. By focusing primarily on the dynamics of the Quebec–Canada relationship, the main purpose of this book is to provide a better understanding of the conditions under which such minority national communities have been treated under the constitutional architecture of the sovereign state in which they evolve.

Even though few polities have willingly empowered the political and constitutional salience of this kind of diversity from their very inception as sovereign entities, the sole existence of minority nations has significantly affected the evolution of modern constitutionalism. In every country, the constitution establishes the legal, philosophical, and normative foundations pertaining to the formal recognition—or lack thereof—of the diversity that is constitutive of the political body it holds together. Nevertheless, the constitutional order of a polity always constrains the degree of institutional liberty any societal minority enjoys to protect and enrich its distinctive character. Moreover, the legal system is what governs the mechanisms that protect internal minorities evolving within such minority national communities from the potential abuse of power of other groups. In liberal democracies, constitutions do provide ←17 | 18→safeguards for individual liberty and fundamental freedoms, and group rights for certain cultural, religious, or linguistic minorities. Sometimes, they even entail the formal recognition of the societal minorities constitutive of the “political association.” Indeed, in modern democratic systems, the notions of diversity and constitutionalism are inextricably linked.

In any case, the constitution of a state is much more than the sum of a number of provisions. It generates a legal order that is both encompassing and structuring, capable of producing performative effects. On the one hand, when reading a constitution, its preamble and most important provisions, one can decode the way a given country organizes its territory, various institutions, amending formula, and so on. On the other hand, while reading a constitution, one can not only have a deeper understanding of what constitutes a given society, but also a legitimate grasp of what the society aspires to be.3 Hence, one is able to appreciate the symbolic representation a society makes of itself and wishes to project on its significant others.4 Obviously, there is always a gap between reality and constitutional texts. Nevertheless, constitutions are the bearer of what a society commands to establish as its core foundations for achieving some form of togetherness.

That said, just as liberal democracies may comprise multiple “societal partners” (i.e. demoi or national communities), various and usually conflicted visions of what such foundations should be can coexist along political and sociological divisions. As such, depending on the context and society in which one is interested, a constitution can prove to be both a barrier for some of its members while quite hospitable from the perspective of others. Similarly, the constitutional order of a polity may appear as a driving force enhancing the claims for recognition of groups stemming from societal diversity. Therefore, just as it can negate the legitimacy of these grievances, it can also contribute to the relative “fragility” of minority nations. Furthermore, both dynamics may be at play simultaneously.

←18 | 19→For instance, in Spain, while the 1978 Constitution provides the framework for a minority nation like Catalonia to develop its own set of autonomous institutions, the normative rationale of the very same document was used to prevent the unfolding of an institutional path that could lead to political (internal or external) self-determination of a societal minority. In Canada, the Constitution recognizes the existence of aboriginal and treaty rights for Indigenous peoples, although these legal documents have been used to define quite narrowly or even limit altogether their concrete exercise. The same is true of many similar mechanisms providing for the “protection” of minority nations and linguistic minorities throughout the world. Therefore, while constitutionalism and diversity are inextricably connected, they can also be pitted against each other.

Considering this “love–hate” relationship between the two concepts, the title of this book could also have been Constitutionalism and Diversity, or Constitutionalism in an Age of Diversity. To avoid any misunderstanding, our aim here is not to argue that constitutionalism is now being used against diversity, or that diversity is a threat to constitutionalism, or both at the same time. Rather, our ultimate goal is to provide, by focusing mainly on the dynamics between Quebec and Canada, an in-depth analysis of how constitutionalism and diversity can be friends and foes alike.

Without a doubt, this is a colossal task—one that we do not claim to fully accomplish with a single book. However, the relatively narrow focus of our study allows us to better circumscribe our subject and explain—we hope—the connections between constitutionalism and “deep” diversity through our knowledge of the dynamics between Quebec and Canada. As such, we believe that fair management of societal diversity is directly related to the ideas and ideals of both federalism and democracy.

But there is more. The pieces that together form the title of this book are not merely of symbolic significance. Constitutionalism v Diversity: Essays on Federal Democracy echoes the four underlying principles of the Canadian Constitution that the Supreme Court of Canada identified in its famous 1998 Reference re Secession of Quebec. These are (1) federalism, (2) democracy, (3) constitutionalism and the rule of law, and (4) protection of minorities. While these four concepts are at the very core of both our argument and approach, the Supreme Court of Canada’s Secession Reference will be guiding us through the ←19 | 20→book by providing a robust and meaningful theoretical and analytical framework.

In the next few pages we first offer a contextual background to better understand the rationale behind the Secession Reference (1). We then address how the Supreme Court of Canada dealt with each of the four principles (2) and discuss the many connections between these principles (3). Lastly, in the concluding remarks of this introduction, we present the structure of the book with federalism, democracy, constitutionalism, and the protection of minorities as the foundations of our work (4).

1. The Secession Reference in Its Context

The Secession Reference was the culmination of two decades of intense constitutional debates and tensions in Quebec–Canada.5 It was preceded by the 1980 Quebec independence referendum, the patriation of the Canadian Constitution in 1982, the failures of the Meech Lake Accord in 1990 and of the Charlottetown Accord in 1992, as well as the second Quebec independence referendum in 1995. These heated episodes not only preceded the reference, but they embody the political saga that led to it. In particular, the 1995 referendum can be understood as the most direct trigger leading to the reference. The referendum—which resulted in the No option winning by a narrow majority with 50.58 % of the votes against 49.42 % for the Yes option—prompted federal authorities to show some activism to counter the Quebec independence movement. The Secession Reference was at the heart of this new strategy.

←20 | 21→In September 1996, the federal government asked the Supreme Court whether Quebec could potentially proceed unilaterally to secede from the rest of Canada, both under Canadian constitutional law and international law. “Wishing to avoid giving any legitimacy to a process in which a federal institution would rule on Quebec’s right to declare independence, [the Quebec government] decided not to take part in the debate before the Supreme Court.”6 Indeed, the authorities in La Belle Province “refused to participate in what it saw as nine federally appointed judges deciding on the right to self-determination of the Quebec people.”7


ISBN (Softcover)
Publication date
2023 (January)
Bruxelles, Berlin, Bern, New York, Oxford, Warszawa, Wien, 2023. 250 pp., 4 tables.

Biographical notes

Dave Guénette (Author) Félix Mathieu (Author)

Dave Guénette is Assistant Professor at the Faculty of Law of Université de Sherbrooke. Félix Mathieu is Assistant Professor in the department of political science at the University of Winnipeg. He is also co-editor of the Canadian Journal of Political Science.


Title: Constitutionalism v Diversity