Rights Adjudication in a Plurinational State: The Supreme Court of Canada, Freedom of Religion, and the Politics of Reasonable Accommodation

A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on the Supreme Court have sometimes tracked a large and arguably growing divide between Quebec and the rest of Canada on these questions. I link this line of cases to earlier disputes about the constitutionality of Quebec’s policies to promote the French language that were ultimately resolved by the Court. The fact that the Court spoke in a single voice in those earlier cases can be explained, in part, by the need to preserve its institutional legitimacy. This time, the point of dispute is not language, but religion. The Supreme Court is groping incrementally toward a kind of consensus position on the character of the “neutral” state to close this divide within the Court against the backdrop of an intense political debate on these issues in Quebec

Living Originalism in India? “Our Law” and Comparative Constitutional Law

Living Originalism is about American constitutional practice. But it raises two sets of interesting questions for scholars of comparative constitutional law. First, Balkin is largely silent on the role of comparative materials in living originalism. But the negative implication from his understanding of constitutions is that comparative materials are irrelevant to constitutional construction. One of the central ideas in Living Originalism is the notion that the Constitution is “our law,” because the American people “identify with it and are attached to it.” The notion of the Constitution as “our law” has embedded within a conception of an intergenerational “collective subject”—We the People—“with a collective destiny that engages in collective activities,” which include the construction of the Constitution itself. And so living originalism means that “we understand our present situation and the possibilities and needs of the future through the trajectory of our interpretation of the meaning of the past—both the principles we committed ourselves to achieving and the evils we promised we would not permit again.” Constitutional construction is an internally and historically oriented process that draws upon local sources that are situated or particular to American constitutional culture, and seeks to reinterpret and adapt them in light of contemporary circumstances. Comparative materials have no place within this argumentative matrix. So here is my first question: Is it possible to reinterpret living originalism in a way that renders it comparatively engaged while still acknowledging the distinctiveness of the American constitutional identity? Indeed, can a comparatively inflected living originalism actually sharpen an awareness of national constitutional difference? Second, Balkin is self-consciously writing for an American audience about the nature of American constitutional practice. He presents living originalism, fidelity, text and principle, original meaning and original expected application, and constitutional construction as indigenous constitutional concepts, in a manner that is deeply reminiscent of Bruce Ackerman‟s call to reject foreign constitutional frameworks in We the People. But, of course, the issues that Balkin grapples with are not peculiarly American. It is entirely possible that his conceptual tools might have some analytic purchase outside the United States. Indeed, in a footnote Balkin opens the door to this possibility, even while he denies it. Balkin doubts the comparative relevance of his argument, by underlining that Living Originalism is directed at “the American constitutional tradition and may not be readily generalizable to the constitutions of other countries.” The reason is that a contingent combination of factors gives rise to American constitutional culture, and he suggests it is unlikely that these factors are found in other constitutional systems. For example, Balkin draws a link between the sociological legitimacy of the American Constitution to “an imagined transgenerational project of constitutional politics,” and opines that “[i]n many cases, a country may play only a minor role in the construction of a national identity.” Likewise, he contrasts how America‟s Constitution “emerged from a revolutionary tradition” with how other “constitutions developed through longer, more gradual, and relatively peaceful transitions from colonial status.” But, of course, these are contingent points of contrast that are not necessarily true in every case, and represent differences more in degree than in kind. The American case may be distinctive, but is not utterly unique. This possibility gives rise to my second set of questions: Does Balkin‟s account of the phenomenology of constitutional argument have purchase outside the American constitutional tradition? If so, what can we learn by exploring the culture of constitutional argument in these foreign constitutional cultures

Rights Adjudication in a Plurinational State: The Supreme Court of Canada, Freedom of Religion, and the Politics of Reasonable Accommodation

A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on the Supreme Court have sometimes tracked a large and arguably growing divide between Quebec and the rest of Canada on these questions. I link this line of cases to earlier disputes about the constitutionality of Quebec’s policies to promote the French language that were ultimately resolved by the Court. The fact that the Court spoke in a single voice in those earlier cases can be explained, in part, by the need to preserve its institutional legitimacy. This time, the point of dispute is not language, but religion. The Supreme Court is groping incrementally toward a kind of consensus position on the character of the “neutral” state to close this divide within the Court against the backdrop of an intense political debate on these issues in Quebec

Bill 11, the Canada Health Act and the Social Union: The Need for Institutions

This article argues that the debate over the future of Medicare has been dominated by financial considerations at the expense of an examination of the place of supervisory institutions in the health care system. Supervisory institutions will be of central importance to the future of Medicare because any future system will include some national standards, which, to be effective, must be interpreted, applied and enforced by institutions of some kind. This article focuses on two specific institutional questions: the dismal record of federal enforcement of the existing national standards of the Canada Health Act, and the pressing need for dispute-settlement machinery under the Social Union Framework signed by Ottawa and nine provinces in 1999. The article also examines the compliance of Alberta\u27s Bill 11 with the Canada Health Act

Boletín oficial de la provincia de León: Número 73 - 1976 marzo 29

Copia digital. Valladolid : Junta de Castilla y León. Consejería de Cultura y Turismo, 2011-201

Ackerman\u27s Higher Lawmaking in Comparative Constitutional Perspective: Constitutional Moments as Constitutional Failures?

Bruce Ackerman speaks in two voices. He is one of the most prominent students of comparative constitutionalism. But Ackerman is far better known for his imaginative theory of American constitutional development, set out in We the People. Ackerman observes that notwithstanding a remarkable continuity in governing constitutions, American constitutional history can be sharply divided into distinct regimes. His contribution is his account of the process whereby the transitions between these different constitutional regimes have taken place: through a process of “higher lawmaking” which fails to comply with the written legal rules governing constitutional amendment in Article V. Although Ackerman is one of the most widely-discussed constitutional theorists of his generation, what has never been observed is the underlying disagreement within his work about the relevance of comparative analysis for constitutional scholarship. While Ackerman the comparativist lambastes American constitutional scholars for their “emphatic provincialism”, Ackerman in We the People calls on American constitutional scholars issues a nationalist call to American constitutional scholars to ground their theories of the American constitution in domestic political practice and to ignore comparative experiences. This article is the first attempt to reconcile the two strands of Ackerman’s work. It asks whether other constitutional systems experience constitutional moments, and what we can learn about constitutional moments from studying them both inside and outside the United States. This comparative move is possible only if we accept a completely new account of what lies at the core of constitutional moments – an extra-legal constitutional change resorted to as a direct consequence of the failure of formal rules of constitutional amendment. Amending rules are designed to constitute and regulate constitutional politics without becoming part of it. To perform this function, rules for constitutional amendment must be regarded as standing outside the terrain of substantive constitutional politics, and as being indifferent among the competing constitutional positions at play. This attitude will become most difficult to sustain when those rules reflect one of the competing, substantive constitutional positions on the table. The Founding and the Reconstruction – two of Ackerman’s constitutional moments – may have been such occasions