Structure, Substance and Spirit: Lessons in Constitutional Architecture from the Senate Reform Reference

This paper explores what we did and did not learn from the Senate Reform Reference about the role of constitutional architecture in understanding and applying our constitutional amending formulas . It first summarizes the Court’s opinion in the Reference and explains why we must be attentive to procedure when amending the constitution. It then shows that the Court relied on traditional structural analysis to give meaning to the amending formulas, while still reflecting its commitment to constitutional text. Next, the paper contends that the internal structure of Part V of the Constitution Act, 1982 could have been of greater interpretive assistance to the Court. Third, the paper shows that the logic of Part V is constitutive of constitutional architecture insofar as it creates a two-step analytical structure for working through procedural disputes about constitutional amendment. The paper concludes by summarizing the architectural lessons learned from the Reference , the collection of which show that: (1) In order to interpret and apply Canada’s constitutional amending procedures, we should be attentive to various forms of constitutional structure; (2) In the interpretation and application process, the multiple types of constitutional structure matter to different degrees; (3) Constitutional structure is not merely a formal issue or tool; it is a matter of substance.