Abstract
A Constitution is a social contract defining a set of rules by which the governed agree to be governed. As such a Constitution ascribes power resources to governors while restraining the way they are expected to use them. But a Constitution is also a discourse on the prevailing conceptions of power relations in the society where it originated. More specifically, it tells a story about the types of power that need to be ascribed or restrained and those that need not. Looking at a Constitution from both viewpoints opens a new window for uncovering the motivations that drove its drafters in the Constitution-making process in which they were involved. In particular, it helps reveal the impact of uncertainty on Constitutional choices.
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- 1.
For example, such a perspective has been applied to the analysis of the Constitution-making process that followed the breakdown of the Soviet Empire in the early 1990s. Rowley (2008, p. 24) noted that “scholars recognized that Rawls’s ‘veil of ignorance’ played no role in [that] process.”
- 2.
As Brennan and Hamlin argue, “capital-C Constitutions [i.e., Constitutional documents] are only a small part of the set of rules that govern ‘in-period’ choices. Equally, capital-C Constitutions often include elements that are not small-c ‘Constitutional’ in our sense at all” (2001, p. 117).
- 3.
For a general discussion of the concept of power in policy analysis, see Imbeau and Couture 2010.
- 4.
For an articulate argument contesting this view, see Chap. 2.
- 5.
- 6.
For an empirical analysis of the relationship between the ministers of Finance, taxpayers and investors in the Canadian provinces, see Imbeau 2009.
- 7.
For a discussion, see Imbeau 2007, pp. 177–181.
- 8.
The Canadian Constitution is scattered in 42 laws, most of which are statutes of the United Kingdom. For a list, see http://canada.justice.gc.ca/eng/pi/const/index.html.
- 9.
This content analysis was very useful to the authors to refine their conceptual framework. We think that this low intercoder agreement does not invalidate our results as the whole process was done over again so as to make sure no misunderstanding remained.
- 10.
Of course, Constitutional conventions have stripped the Governor General of almost all real power in favor of the Prime Minister. We ignore these, concentrating as we are on Constitutional texts.
- 11.
Instrumental power relations which are, by assumption, associated with social power relations were ignored.
- 12.
1867 Act, section 91.
- 13.
1982 Act, section 38(3).
- 14.
1867 Act, section 91.
- 15.
1982, section 38(1).
- 16.
A systematic comparison of the discourse during the drafting stage prior to 1867 to the discourse during the ratifying process in each of the former British Dominions would be necessary to confirm McGuire and Ohsfeldt’s results.
- 17.
The 1982 Act was not, strictly speaking, an amendment to the 1867 Act. In fact, the 1867 Act is not even mentioned in the 1982 Act. But, it was clearly a complement to the original act and as such may be conceived as an amending document in our terms or as an explicit change in Voigt’s terms.
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Imbeau, L.M., Jacob, S. (2011). Is the “Veil of Ignorance” in Constitutional Choice a Myth? An Empirical Exploration Informed by a Theory of Power. In: Marciano, A. (eds) Constitutional Mythologies. Studies in Public Choice, vol 23. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-6784-8_5
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