Constitutionalism by Stealth? CETA as an Exemplar of Clarkson’s Supra National Constitutionalism

Abstract

Among the themes explored by Stephen Clarkson, his interest in the transnational governance consequences of free-trade agreements and globalized economic networks retains relevance. Clarkson argued that commitments in international agreements like WTO, NAFTA, and CETA have constitutional implications by redefining the powers of elected officials and limiting democratic responsiveness. As Canada implements new and revised deals, the consequences for domestic governance are amplified. This chapter will focus on potential quasi-constitutional elements in CETA which have the potential to transform elements of the federal provincial relationship without the popular input and ratification expected after Meech Lake. The chapter uses Clarkson’s insights to assess whether such a comprehensive economic agreement can sustain legitimacy without public consultation and ratification. It assesses implications for the scholarly consensus that constitution making requires ratification by referenda and demonstrates the relevance of Clarkson’s perspectives, as supra-national constitutionalism remains a contested theme in liberal democratic governance.