The United States and Canada have many common traits, including a constitutional heritage originally derived in part from British common law and statute, a written constitution declared to be supreme law, a federal and local state (or provincial) division of legislative powers, an entrenched bill of rights, written procedures for constitutional amendment, and constitutional judicial review. However, while the United States has a presidential and congressional system of government, Canada is a constitutional monarchy with a parliamentary system of responsible government. Moreover, unlike the United States, Canada achieved its independence from the United Kingdom gradually and incrementally, within the existing legal and constitutional framework. The corollary to this evolution is that there is no predominant revolutionary tradition or discourse in Canadian constitutional discourse or jurisprudence. Canadian legal and political culture places great value on the maintenance of legal continuity and stability, and in adhering to prescribed forms and processes of law-making.
Professor Richard Kay’s scholarship has long explored the nature and essence of American constitutionalism and the importance, in that tradition, of its commitment to a written document. And in his master work, The Glorious Revolution and the Continuity of Law, he examined the fraught and tenuous relationship between law and revolution. The following essay examines Professor Kay’s article, “Constitutional Chronometry,” and tests some of the ideas and assumptions therein, notably from a Canadian perspective. The essay concludes that revolutionary breaks with existing constitutional and legal orders are not the inevitable outcomes of anachronistic constitutions, however much revolutionaries may attempt to justify their actions ex post facto in that light. If revolutions do occur and liberal constitutions are overthrown, it will not be because the constitutions themselves are out of date, but because the commitment to constitutionalism itself has been abandoned.
Newman, Warren J., "Constitutional Chronometry, Legal Continuity, Stability and the Rule of Law: A Canadian Perspective on Aspects of Richard Kay’s Scholarship" (2021). Connecticut Law Review. 479.