Provincializing Constitutions: History, Narrative, and the Disappearance of Canada’s Provincial Constitutions

“Constitutional scholarship in Canada since Confederation has been characterized by two primary narratives. The dualist narrative, which characterized constitutional scholarship between the late-nineteenth and mid-twentieth centuries, focused on the parallel developments of provincial and federal constitutions. The monist narrative, which has become the dominant model of interpretation since the mid-twentieth century, focuses on the federal constitution as a singular foundation of constitutionalism in Canada. As a result of the shift from dualism to monism, provincial constitutions have become largely ignored in Canada and subsumed by the “mega-constitutional” politics of the federal constitution. This paper examines provincial constitutions to highlight the significant reorientation of constitutional scholarship in Canada over the past 150 years, which has become primarily focused on post-Confederation constitutional history and written constitutionalism.”

“The diminishment of provincial constitutions in Canada is less a reflection of their secondary significance than the changing narratives of the constitution in Canada, which over time have come to focus almost exclusively on the federal constitution as the singular legal architecture of the state in Canada…a reorientation in constitutional and legal scholarship over the past one hundred and fifty years has produced a constitution that is largely unmoored from the pre-Confederation foundations of its development.”

“The disappearance of provincial constitutions is directly connected to the diminishing place of pre-Confederation history in modern legal scholarship, a process that began following the turn of the twentieth century.”

“In the case of Nova Scotia, the 1749 Instructions to Edward Cornwallis, the colony’s first British governor, established a legislative and judicial framework that are considered foundations of the province’s constitution.”

Price, Peter. “Provincializing Constitutions: History, Narrative, and the Disappearance of Canada’s Provincial Constitutions” Perspectives on Federalism, Vol. 9, issue 3, 2017.