This chapter examines the influence of elements of Canada’s constitutional model abroad, in three areas: (1) the Canadian Charter of Rights and Freedoms as an innovative way to institutionalize the relationship among legislatures, executives, and courts with respect to the enforcement of a constitutional bill of rights, as justified by “dialogue theory”, that contrasts starkly with its leading alternatives, the American and German systems of judicial supremacy; (2) Canada’s plurinational federalism as a strategy to accommodate minority nationalism and dampen the demand for secession and independence within the context of a single state, by divorcing the equation of state and nation; and (3) the complex interplay between a constitutional bill of rights and minority nation-building, as reflected in the constitutional politics surrounding the recognition of Quebec’s distinctiveness, and the role of the Supreme Court of Canada in adjudicating constitutional conflicts over official language policy arising out of Quebec.
Malcolm M. Feeley
This article explores several of the more widely used constitutional devices used to structure political life in complex societies in ways that give voice to each distinct segment of society while at the same time fostering stable democratic government. Constitutional devices here are understood in a broad sense of the term, to include both formal provisions in constitutions and law, as well as established political ‘arrangements’ that are part of a ‘living constitution’. The emphasis, however, will be on planned structural devices — formal constitutional architecture — that have been consciously adopted with specific objectives in mind. These several devices are: consociational political arrangements; majoritarian democracy with limited government; federalism; devolution and decentralization; voting systems (e.g., single-member representative districts, proportional representation, preferential voting); and multiculturalism recognized in bills or charters of rights that extend rights to individuals or groups.
Paul W. Kahn
This chapter examines constitutional culture in the United States and argues that a popular culture of constitutionalism forms the basis of the care and trust that are necessary conditions of the rule of law. It first considers the relationship between professional culture and popular culture before turning to a discussion of the role of culture in the alignment of the Constitution and political claims. It then explores the relationship between popular culture and the Constitution, along with the relationship between law and sacrifice. It also sketches the architecture and genealogy of U.S. constitutional culture by approaching it as a civil religion and concludes by commenting on the national culture of popular sovereignty and constitutionalism.
This chapter examines educational concerns and controversies in the U.S. Constitution and how they have significantly shaped—and been shaped by—every era of constitutional development in the country. It first outlines the four major waves of constitutional development related to education in the United States, with particular emphasis on the roles played by state constitutional conventions and legislatures, Congress, and presidents. It then considers the involvement of the Supreme Court and other federal courts in education cases and controversies over fundamental rights and civil liberties. Finally, it discusses issues related to civic and constitutional education: what is taught about the Constitution, how it occurs, and why it matters.
Beverley Baines and Ruth Rubio-Marin
This chapter examines the Canadian Constitution through feminist lenses. It proposes a feminist framework to evaluate constitutional law. Feminist constitutionalism aims to promote women’s agency and to protect their rights fully. Feminist constitutionalism examines women’s agency in constitutional law. It also examines critically the interpretation of traditional rights, the impact of constitutionally structured diversity, and the approach to equality rights. Feminist constitutionalism pays attention to the constitutional protection of women’s reproductive rights and sexual autonomy (domains of autonomy neglected by classical constitutionalism); it also aims to ensure women’s equal rights within the family, and to promote women’s socioeconomic development and democratic rights. This chapter develops the idea of feminist constitutionalism and uses this framework to evaluate critically some aspects of Canadian women’s constitutional experience.
Sean Brennan and Megan Davis
This chapter explores the constitutional silence regarding Australia's First Peoples and the story behind it. In the process, the chapter illuminates the nature of future challenges. It draws attention to the legal domains beyond the founding document of 1901, such as legislation and the common law, as well as government policy and practice, and their interplay with the Constitution, in its original and amended form. The situation regarding Australia's First Peoples is thus analysed through four prisms: sovereignty and treaty-making, rights and freedoms, political participation and decision-making, and constitutional symbolism. Each theme draws on particular events from the past.
Benjamin L. Berger
This chapter examines freedom of religion in the Canadian Constitution. After locating the modern protection of freedom of religion within Canadian constitutional history, the chapter explores the Supreme Court of Canada’s interpretation of that right, drawing particular attention to how constitutional law defines and understands religion itself. The chapter then turns to three themes that have emerged as central in the freedom of religion jurisprudence, but that also reflect broader issues within Canadian constitutionalism: the instability of the public/private divide as a means of analysing constitutional problems, the tension between individual rights and regard for collective and community interests, and the paradoxes involved in the aspiration for state neutrality. Ultimately, the chapter argues that freedom of religion offers a unique avenue into understanding the deeper themes, tensions, ideologies, and politics at work in the Canadian state, as well as the history and logic of its constitutional order.
This chapter examines aspects of Canada’s constitution related to its Indigenous roots. It explores the different ways in which Indigenous peoples in Canada possessed constitutional structures prior to European arrival. Indigenous constitutionalism has provided standards through which Indigenous societies have resisted or engaged with the broader Canadian state. Traditions of Indigenous constitutionalism are varied and diverse because they developed in diverse ecological spaces over vast epochs of time. This vast range of Indigenous constitutional practices has contributed to Canada’s broader constitutional order in many ways. Inuit, Métis, Mikmaq, Haudenosaunee, Anishinaabe, Cree, Secwepmec, and Gitksan constitutional traditions are reviewed to illustrate these themes.
This chapter turns to section 116 of the Commonwealth Constitution in Australia, which prohibits the Commonwealth from legislating in respect of religion. After an overview of the history and context of section 116, this chapter examines the way that the High Court has interpreted the term ‘religion’, the free exercise clause, and the establishment clause. The definitional issue brings the Court closest to the usual interpretative exercise relevant to other constitutional and statutory provisions. Its case law in this area has been more sophisticated and detailed than has been in the other two areas. With respect to religious freedom and non-establishment, the Court has had a focus on technical aspects of interpretation, parliamentary sovereignty, and limitations of the role of the courts that have allowed it to avoid the necessity of engaging in the deeper, more complex issues that arise in similar constitutional contexts.
This chapter examines what the U.S. Constitution says about the right to bear arms. It begins with an overview of the changing meaning of the right to bear arms in American history, along with the English origins of the right to bear arms. It then considers the origins of the Second Amendment before turning to a discussion of the right to bear arms during the antebellum period, with emphasis on the emergence of the first gun laws aimed expressly at the problem of gun violence and the first cases focused on evaluating such laws in constitutional terms. It also explores the emergence of a federal Second Amendment jurisprudence during the Civil War and Reconstruction and the debate over gun rights versus gun control, and concludes by citing how the dynamics of that debate was influenced by the massacre at Sandy Hook Elementary School in Newtown, Connecticut, in December 2012.
This chapter examines how social movements, as institutions of civil society, have affected the development and interpretation of the U.S. Constitution. It first provides an overview of social movements and their relationship with interest groups and political parties before turning to a discussion of social movements’ three mechanisms of influence: direct effects, effects through the political parties, and effects through cultural change. It then considers the social movements’ influence on courts through litigation campaigns, as well as the normative dimension and significance of social movements, and concludes by assessing the complex ways in which they influence the development of constitutional law as well as constitutional interpretation.
D. M. Davis
This article has two primary objectives: to interrogate objections to social and economic rights and, secondly, to examine the extent to which these objections have given rise to different forms of judicial and constitutional responses to social and economic rights in comparative national jurisdictions. It suggests that when courts have compelled the legislature or the executive to justify a policy choice in terms of an articulated conception the meaning of a social and economic right, a process of deliberation flows therefrom which cannot be discounted. It leads to more accountable government, it provides a voice for litigants who would otherwise be silenced, and, in a number of cases, results in the provision of a basic minimum of goods and services to those who otherwise would have been left out in the proverbial cold.