respect the eminence of my two predecessors, I think it is fair to suggest that I enjoy one distinction which they do not — namely, that I was a student of Dean Cronkite.
I have chosen for these lectures the general title “Patriation and Constitutional Legitimacy”. During the last two years, this country has gone through a constitutional trauma in which we have seen the former legal mechanisms for changing the Canadian constitution abandoned in Britain and their replacement established in Canada. I want to examine questions such as how this was done legally, and whether it was legally effective. I also want to raise for your consideration some broad questions concerning the political processes involved in constitution-making, and how they relate to the political acceptability of the constitution. These different aspects of the process of patriation and amendment I shall be referring to as legal legitimacy and political legitimacy.
Before launching on what might be thought to be a dangerous adventure, a word first from my non-sponsor. While the views which follow are mine and not necessarily those of the Government of Canada, I cannot entirely cast off my status as a federal public servant. You will understand, therefore, that I am posing certain questions about public attitudes and positions not for the purpose of engaging in political controversy but, I hope, to stimulate thought about the true tests of acceptability for a constitution in this country. I will pose the questions without answering them.
To begin, a word about “legitimacy”. When I speak of a legitimate constitution, I am speaking of a constitution which works. I suppose that makes me a pragmatist. While in some parts of the world it may be that constitutions are made to work through the use of force, for my purposes I am talking about constitutions which work because they are generally accepted by the people whom they govern. As I already have suggested, legitimacy has two aspects: legal and political. A legally legitimate constitution is one which has been adopted or amended by some preexisting body or process that was legally authorized to adopt or amend the constitution. That is, if you have a legal system which provides the means for making or amending the constitution, and you adopt constitutional provisions in accordance with that process, the end product is legally legitimate even if it is vastly different from the earlier constitution. A constitution is politically legitimate when it is generally acceptable to the people it governs because it was adopted or altered by persons or agencies that they generally accept as having the political right to decide such matters. Normally, legal legitimacy and political legitimacy are found together in any working constitution. But sometimes you have one without the other, as I shall demonstrate shortly. Where this happens, it is political legitimacy which, in the long run, is decisive as to whether a constitution survives.