1st Edition

Images of a Constitution

By William E. Conklin Copyright 1989

    Originally published in 1989, in this remarkable conjunction of constitutional theory, jurisprudence, literary theory, constitutional law, and political theory, William Conklin first tells us what a constitution is not: it is not a text, nor a compendium of judicial and legislative decisions interpreting a text, nor a set of doctrines, nor moral/political values, nor customs, nor a priori conceptions. A constitution, he argues, is an image which exists through the legal consciousness of a community.

    Using a wide range of Canadian judicial decisions as examples, Conklin shows that the classic cases have been those where the boundaries of two conflicting images clashed. In each instance, the subject-matter itself collapses into a search for a coherent image of what a constitution is all about.

    The dominant image of a constitution in Canadian judicial discourse has been a rationalist one emanating from the Enlightenment understanding of knowledge. Turning to academic writings on Canadian federalism law, Conklin goes on to identify clearly the boundaries of three versions of rationalism, and to show that Canadian scholars have shared with judges the dominant image of rationalism.

    In the third part of his essay, the author makes a prescriptive claim, namely that a text such as the Canadian Charter of Rights and Freedoms arguably raises issues which the rationalist image of a constitution precludes as legitimate inquiries. He identifies a further general image of a constitution in Canadian legal discourse, a teleological one which is rooted in the writings and judgments of Ivan Rand. Finally, he uses the contours of the Rand image to work out a further image of constitution, an image that allows lawyers to entertain issues of both theory and social/cultural practice, thereby placing them in a position to alleviate the pain and suffering of those in need.

    Preface.  1. Introduction: Images of a Constitution  Part I: Images and the Law of a Constitution  2. Images and Three Traditional Subjects of Canadian Constitutional Law  3. Images and Constitutional Procedure  4. Constitutional Amendment  5. The Canadian Bill of Rights  6. Lower Court Images of a Charter of Rights  7. Supreme Court Images of a Charter of Rights  Part II: The Rationalist Image of a Constitution  8. The Rule Rationalist Image of Federalism Law  9. The Policy Rationalist Image of Federalism Law  10. The Image of “Orthodox” Rationalism  Part III: An Image of a Constitution and the Text  11. Rand’s Teleological Image of a Constitution  12. The Text and the Text’s Questions  13. An Image of a Constitution.  Notes.  S ubject Index.  Name Index.  Index of Cases Reviewed.


    William E. Conklin