The Supreme Court of Canada and Constitutional (Equality) Baselines

In its approach to defining “analogous grounds” for the purposes of subsection 15(1) of the Charter of Rights and Freedoms, the Supreme Court of Canada has adopted an unusual mix of broad and generous interpretation, and high formalism. This article argues that one potential reason for this is the degree of heterogeneity among the nine distinct enumerated grounds in section 15. Heterogeneity of this kind can produce quite different interpretive consequences, depending on whether a court adopts a direct, “multi-pronged,” or a more synthetic, “common denominator,” approach to the question of analogical development. The Court, over time, has implicitly shifted from the first to the second of these approaches. For comparative constitutional scholars, a lesson of Canadian Charter jurisprudence is thus that the number and scope of the analogical baseline categories in a constitution—and how courts approach their relationship to each other—can matter a great deal for the subsequent recognition of new constitutional categories. For those seeking to design broad constitutional guarantees of equality, or other provisions containing express analogical baselines, the lesson is potentially even more specific: More may not always be better when it comes to encouraging judges to give effect to a preferred constitutional understanding

The Supreme Court of Canada and Constitutional (Equality) Baselines

In its approach to defining “analogous grounds” for the purposes of subsection 15(1) of the Charter of Rights and Freedoms, the Supreme Court of Canada has adopted an unusual mix of broad and generous interpretation, and high formalism. This article argues that one potential reason for this is the degree of heterogeneity among the nine distinct enumerated grounds in section 15. Heterogeneity of this kind can produce quite different interpretive consequences, depending on whether a court adopts a direct, “multi-pronged,” or a more synthetic, “common denominator,” approach to the question of analogical development. The Court, over time, has implicitly shifted from the first to the second of these approaches. For comparative constitutional scholars, a lesson of Canadian Charter jurisprudence is thus that the number and scope of the analogical baseline categories in a constitution—and how courts approach their relationship to each other—can matter a great deal for the subsequent recognition of new constitutional categories. For those seeking to design broad constitutional guarantees of equality, or other provisions containing express analogical baselines, the lesson is potentially even more specific: More may not always be better when it comes to encouraging judges to give effect to a preferred constitutional understanding

The Supreme Court of Canada, Charter Dialogue, and Deference

For those concerned about the democratic legitimacy of Charter review by Canadian courts, the idea of dialogue offers a promising middle path between the extremes of judicial and legislative supremacy. Current dialogue theory, however, largely fails to live up to this promise of compromise. Instead of distinguishing democratic worries associated with US style, strong-form judicial review, it largely endorses the legitimacy of such review. For dialogue to live up to its original promise, a new theory that more clearly distinguishes Canada from the United States is required. This article offers a new theory of dialogue in which the willingness of the Supreme Court of Canada (SCC) to defer to reasonable legislative sequels will be the key to success. As a result, section 33 of the Charter will play a valuable, but largely background role in promoting dialogue. The advantage of this approach, compared to rival approaches that would weaken judicial review, is that it is more realistic and more in line with existing SCC practice. Moreover, this approach is normatively desirable when judged from the perspective of the courts\u27 capacity to counter blockages in the legislative process that might otherwise impair the enjoyment of Charter rights

Tiered Constitutional Design

Scholarship has posited two models of constitutionalism. One is short, abstract, and rigid, like the United States Constitution. The other is lengthy, detailed, and flexible, like the constitutions found in many U.S. states and in many other countries around the world. This Article argues that there is a descriptively common and normatively attractive third model: tiered constitutional design. A tiered design aims to combine the virtues of rigidity and flexibility by creating different rules of constitutional amendment for different parts of the constitution. Most provisions are made fairly easy to change, but certain articles or principles are given higher levels of entrenchment. A tiered design can potentially preserve space for needed updates to the constitutional text, a virtue of flexible design, while also providing stability for the core of the constitution and protection against antidemocratic forms of constitutional change, a benefit of rigid forms of constitutionalism as demonstrated by Article V of the U.S. Constitution. Drawing on numerous examples of tiered designs including U.S. states like California and countries as diverse as Canada, Ecuador, India, and Ghana, this Article offers a critical analysis of the architecture of tiered designs and explores how they work in practice. While finding unsurprisingly that enforcement is often imperfect, this Article concludes that judicial and popular enforcement of tiered designs does show promise in helping to combat the wave of antidemocratic constitutional projects that is threatening to engulf much of the world

Comparative Constitutional Law: Introduction

Comparative constitutional law is a newly energized field in the early 21st century. Never before has the field had such a broad range of interdisciplinary interest, with lawyers, political scientists, sociologists and even economists making contributions to our collective understanding of how constitutions are formed and how they operate. Never before has there been such demand from courts, lawyers and constitution-makers in a wide range of countries for comparative legal analysis. And never before has the field been so institutionalized, with new regional and international associations providing fora for the exchange of ideas and the organization of collaborative projects. This Handbook is one such collaborative project, a small effort to provide an overview of the field. It is inherent that any such effort will be incomplete, and we surely recognize the limitations of any effort to distill such a rich field into a single volume. But we also believe that the time has come for some organization of the various issues and controversies that structure academic and legal debate. As the field matures, such efforts will help to advance scholarship to the next level, by focusing attention on outstanding questions as well as raising awareness of issues worth pursuing in under-analyzed jurisdictions. This Introduction provides a brief history of the field, and wrestles with the definitional issues of the boundaries of the constitution. It then draws out the common themes that emerge from a reading of the chapters, particularly as they relate to patterns of constitutional similarity versus difference, or convergence versus divergence. The conclusion briefly speculates on future directions for the field

Extending the Critical Rereading Project

In this reflection, we want to explain a project in Australia that extends the feminist judgments project and adapts it specifically for the purpose of teaching critical theory, critical legal thinking, and the assumptions inherent in the legal method