This article highlights the trials and tribulations of citizenship in a world of increasing mobility and diversity. The discussion is divided into three parts. Section I provides a concise overview of citizenship's multiple meanings and interpretations. Section II constitutes the bulk of the discussion. It begins by exploring questions of membership acquisition and transfer, which legally determine ‘who belongs’ within the boundaries of a given political community, either by birth or naturalization. It then assesses three recent developments: the growing recognition of dual nationality; the revival of debates about involuntary citizenship revocation; and the ‘cultural turn’ in citizenship discourse, which often makes inclusion in the body politic more difficult for those deemed ‘too different’ from the majority community. Section III charts the major challenges and opportunities facing citizenship in the twenty-first century.
Michael Les Benedict
This chapter examines constitutional developments during the period from the inauguration of President Andrew Jackson through Reconstruction. It begins with an overview of the tension between constitutional politics and constitutional law before turning to a discussion of constitutional issues in the Jacksonian Era, with particular emphasis on the constitutional politics of state rights, Jackson’s increased power, equal rights and democracy, how the Supreme Court addressed constitutional issues of the period, and constitutional issues of slavery. It then explores constitutional issues during the Civil War by tackling ones related to secession, civil liberties and emancipation under the administration of Abraham Lincoln, and the accretion of federal power. The chapter concludes with an analysis of the constitutional issues during Reconstruction, focusing on efforts to restore the Southern states to normal relations in the Union, instability in the South and federal protection of rights, and the role of the Supreme Court.
This chapter examines the scope and protection of democratic rights in Canada. After outlining the source of democratic rights, it focuses on the right to vote by considering judicial decisions on such issues as voter qualifications, residency rules, and the entitlement to vote. It then shows how the Supreme Court has interpreted the right to vote as consisting of a bundle of democratic rights. By using the bundle of rights, the Supreme Court has been able to regulate a wide array of democratic institutions and processes. The chapter proceeds to examine the Court’s intervention in the electoral process by discussing its cases on electoral redistricting, political parties, campaign finance, and the dissemination of electoral information. The chapter concludes with an analysis of current and future challenges facing democratic rights and their protection by the courts.
Niamh Nic Shuibhne
This chapter explores how the legal dimensions of Union citizenship are developing, more than 20 years after its genesis through the Maastricht Treaty. It first provides a brief overview of the current Treaty framework, and of its implementation through secondary law. The developing legal dimensions of citizenship are then examined in a more substantive sense. Two complementary case studies—the interpretation of Directive 2004/38 and the primary citizenship rights conferred by the Treaty—are presented in order to tease out the themes shaping the construction of citizenship law. The chapter concludes by reflecting on the deficiencies of citizenship when seen purely from the perspective of its legal development, especially when confronted with an intensifying migration debate that challenges the very fundamentals of free movement rights.
Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15
This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.
This chapter highlights law’s participation in the colonizing projects that initiated the establishment of the Canadian constitutional order. Imperial and subsequently Canadian law deemed legally insignificant the deep connections that Indigenous peoples had with their ancestral territories, and imposed alien norms of conduct on diverse Indigenous ways of life. In doing so, law legitimated the manifold political, social, and economic acts of dispossession and dislocation that collectively bear the label of colonialism. The constitutional entrenchment of Aboriginal and treaty rights in 1982 formally recognized a distinctive constitutional relationship between Indigenous peoples and Canada. The judiciary has begun to see the purpose of formal constitutional recognition to be a process of substantive constitutional reconciliation of the interests of Canada and Indigenous peoples. This chapter argues that constitutional reconciliation can only commence by comprehending Aboriginal rights and title as protecting Indigenous interests associated with culture, territory, treaties, and sovereignty in robust terms.
This chapter is about the interpretation of section 1 of the Canadian Charter of Rights and Freedoms. Section 1 allows ‘limits’ to constitutional rights insofar as they are reasonable and justified in a free and democratic society. It asks the state for moral justification when a right has been infringed by state action. Moral justification has formal and substantive aspects; therefore the application of section 1 deploys a formal framework of proportionality nestled within a thin conception of liberal democratic political morality. The chapter also addresses the relative moral importance of the notion of ‘rights’, as well as the relevance of institutional considerations. It concludes that the section 1 framework follows a standard model of moral justification and cannot be significantly improved upon.
Linda Cardinal and Pierre Foucher
The chapter discusses minority education language rights in Canada. It argues that there are institutional constraints to the development of those rights, foremost amongst them constitutionalism and federalism. Minority education language rights concern the English-speaking minority in Quebec and the French-speaking minorities in the rest of the country. First, the chapter reviews minority education and language debates in Canada since 1867. Second, it explains how in the 1960s, English and French became the official languages of the Canadian government and how provinces started to address the schooling needs of their official language minority. Third, the chapter discusses the recognition of minority education language rights in the 1982 Canadian Charter of Rights and Freedom. It takes a positive lens in discussing minority language education rights but concludes that constitutionalism and federalism remain important factors in understanding the development and future of minority education language rights in the Canadian context.
This chapter examines the status of positive rights in the U.S. Constitution, paying particular attention to disagreements about the nature of positive rights, the meaning and material foundations of the Constitution, and the significance of judicial enforcement. It first considers how positive rights are commonly defined and distinguished from negative rights, together with the view that positive rights are excluded from the Constitution. It then discusses the argument that there is no coherent distinction between positive and negative rights. Next, it traces the long history of the claim that positive rights are contained or implied in the Constitution, and then addresses the Supreme Court’s jurisprudence with respect to positive rights. The chapter concludes by describing the relatively recent scholarly emphasis on sources of positive rights other than the Constitution as interpreted by the Supreme Court.
Girardeau A. Spann
This chapter examines race as a contentious issue and a destabilizing influence on the U.S. Constitution. It begins with a review of the evolution of the Constitution from a document that protected racial discrimination to a document that prohibited it. It then considers Supreme Court interpretations of the Constitution that have typically reflected prevailing racial attitudes as well as its increased sensitivity to the civil rights of racial minorities. It also discusses slavery, constitutional amendments during Reconstruction, Jim Crow, minority voting rights, affirmative action, the equal protection clause of the Fourteenth Amendment, the Voting Rights Act, and the inclusion of minority districts in redistricting. Finally, the chapter explores various theories of constitutional interpretation, including originalism, process theories, moral theories, popular theories, and critical race theory.
Section 7 jurisprudence shows strong application of the rights to life, liberty, and security of the person to a range of state action and actors. However, courts have significantly limited the progressive potential of these rights through two doctrinal concerns: the negative/positive rights distinction and causation issues. The result is a bounded jurisprudence reflecting both the strengths and weakness of liberal legalism. In particular, claims targeting the twenty-first century crises of Canadian society—social and economic inequality, as well as environmental degradation—while meaningfully apiece with the values of life, liberty, and security of the person, are unlikely to succeed under section 7 without critical and pointed judicial movement beyond liberalism’s divide between public and private action.
Martha Jackman and Bruce Porter
This chapter examines the status of socio-economic rights in Canada and the competing constitutional visions that confront Canadian courts in this area. The chapter presents the historical context and legislative history of the Canadian Charter as a source of socio-economic rights protection. It describes the Supreme Court’s approach to the Charter in light of Canada’s international human rights obligations and considers sections 7 and 15 with specific reference to the positive versus negative rights debate to which social and economic rights claims have frequently given rise. The chapter discusses recent challenges in two of the most active areas of current socio-economic rights litigation in Canada: housing and health. The chapter concludes by referring to the recommendations of the UN Committee on Economic, Social and Cultural Rights for resolving the opposing paradigms that characterize this important area of constitutional rights.