Prologue: North American constitutionalism?

Constitutional supremacy—long a major pillar of the American political order—is now shared, in one form or another, by more than one hundred countries across the globe. Numerous postauthoritarian regimes in the former Eastern bloc, southern Europe, Latin America, and Asia have been quick to endorse the principles of modern constitutionalism upon their transition to democracy. Even countries such as the United Kingdom or New Zealand—not long ago described as the last bastions of Westminster-style parliamentary sovereignty—have gradually embarked on the global trend toward constitutionalization. Meanwhile, national high courts and supranational tribunals have become crucial translators of constitutional provisions into practical guidelines for public life. Almost every day newspapers report on issues such as judicial appointments to the United States Supreme Court, constitutionalization processes in Iraq or in the European Union, or politically charged judgments in Russia, Israel, Germany, or South Africa. It is little surprise that this wide-ranging trend toward constitutionalization has also had a considerable effect on the United States' two continental neighbors, Canada and Mexico. While the U.S. legacy of constitutionalism and active judicial review has passed its bicentennial anniversary, Canada, not to mention Mexico, is a relative newcomer to the new world of constitutionalism. Most readers of this journal will know that the adoption of The Constitution Act 1982 (the first thirty-four sections of which constitute the Canadian Charter of Rights and Freedoms) marked Canada's departure from the deferential, British-style exercise of restrained judicial review. Few could doubt that the introduction of the Charter marked a dramatic change in the de jure status of rights and liberties in Canada, thereby providing the Supreme Court of Canada (SCC) with the necessary institutional framework to become more effective as a protector of the basic rights of disadvantaged groups and individuals. In fact, since the enactment of the Charter, the SCC has become one of the country's most important policy-making bodies, much like its U.S. counterpart. Beyond its traditionally significant role in adjudicating disputes involving federalism and the separation of powers, it has been called upon to make decisions regarding fundamental rights and liberties, such as freedom of expression, religion and assembly, due process rights, the right to privacy and the right to have an abortion, and equality rights in various contexts. Indeed, in 1992—ten years after the Charter came into effect—Antonio Lamer, then chief justice of the SCC, declared that “the introduction of the Charter has been nothing less than a revolution on the scale of the introduction of the metric system, the great medical discoveries of Louis Pasteur, and the invention of penicillin and the laser.”1 Over the last decade, the SCC has become entangled with such hotly contested political questions as the rights of indigenous peoples, same-sex marriage, the right to private health care, language rights, and the political and cultural status of Québec. In short, since 1982, there has been a significant convergence of Canadian and U.S. constitutional politics with respect to rights jurisprudence and judicial activism. Jeff Sallot, How the Charter Changes Justice, The Globe and Mail (Toronto), April 17, 1992, at A11. Mexico is a different story. Whereas the significant changes in Canada's constitutional discourse can be attributed mainly to the adoption of the Charter, recent changes in the Mexican constitutional landscape reflect the remarkable political transformation this country has undergone over the last two decades. The Mexican Constitution of 1917 is still in force. However, the far-reaching electoral reforms of the 1980s and 1990s; the 1987 and 1994 constitutional amendments bolstering the independence of the Suprema Corte de Justicia de la Nación (Mexico's Supreme Court) and establishing its role as the ultimate interpreter of the Mexican constitution; and the historic election of President Vicente Fox in 2000 after seventy-one years of PRI (Partido Revolucionario Institucional, or Institutional Revolutionary Party) rule have marked the demise of Mexico's authoritarian regime, or presidencialismo, and ushered in a new constitutional order in that country. Political liberalization has prompted both a more vibrant federalism and a greater separation of powers. The Mexican Supreme Court now plays a more prominent role in Mexican public and political life than ever before.2 In these important respects, at least, the new de facto constitutional order in Mexico is notably closer to that of the United States and Canada than it was only a decade ago. Stephen Zamora et al., Mexican Law (Oxford Univ. Press 2004), vii. Another noteworthy factor in the constitutionalization process was the tripartite North American Free Trade Agreement (NAFTA) of 1994—an agreement interpreted by a growing number of Canadian and Mexican scholars as establishing a quasi-constitutional framework to govern crucial aspects of economic life in North America.3 Moreover, apart from these various transformations at the domestic and supranational level, one must additionally consider the common challenge of security needs versus civil liberties in the “war on terror,” the increasing significance of indigenous peoples' rights issues in Canada and Mexico; persisting tensions with respect to intra-continental movement of people and commodities; as well as the increasing openness of American jurists, including a few United States Supreme Court justices, to foreign constitutional concepts. In light of these developments, North American constitutionalism seems to merit far more serious inquiry than it has received in recent years. For a discussion of NAFTA qua constitution, see, e.g., Stephen Clarkson, Unclesam and Us: Globalization, Neoconservatism, and the Canadian State (Univ. Toronto Press 2002). Canada and the United States form an especially promising context for comparative scholarship. Granted, there are significant differences between the two countries. However, they share important similarities, including core linguistic and cultural propensities, comparable levels of economic development, legal systems with significant roots in British common law, multiethnic immigrant populations, expansive size and political structures that are (broadly speaking) federal in character, not to mention the fact that Canada and the United States are joined by the world's longest undefended border, with cross-border trade amounting to US$1 billion per day. Remarkably, however, scholars for the most part have not yet exploited the potential of Canada–United States comparison. Canada is featured in an increasing number of comparative studies of constitutional law and politics published by top American publishers.4 A somewhat dated comparison of constitutionally protected rights in Canada and the United States is to be found in Seymour Martin Lipset's Continental Divide—a thought-provoking account of Canadian and American cultural and political differences.5 Other more recent publications address civil liberty jurisprudence in the U.S. and Canada (primarily concerned with freedom of expression and reproductive freedoms).6 Our comprehensive search yielded only one recently published collection of essays devoted to comparative studies of constitutionalism in Canada and the United States.7 See, e.g., Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Univ. of Chicago 1998); Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard Univ. Press 2004). Seymour M. Lipset, Continental Divide: The Values and Institutions of the United States and Canada (Routledge 1990), 101–110. See, e.g., Mayo Moran, Talking about Hate Speech: A Rhetorical Analysis of American and Canadian Approaches, 1994 Wisc. L. Rev. 1425 (1994); Melissa Haussman, Abortion Politics in North America (Lynne Rienner Pub. 2005). See, e.g. Stephen Newman, ed., Constitutional Politics in Canada and the United States (SUNY Press 2004); Ran Hirschl, Constitutional Rights Jurisprudence in Canada and in the United States: Significant Convergence or Enduring Divergence? in Newman, id at 63. There is considerably more literature of a comparative nature relating to constitutional theory. As is the case for many other countries, the United States' rich history of constitutionalism and judicial review has served as a benchmark and resource for Canadian constitutional theorists entangled with the well-rehearsed debate over the questionable democratic credentials of judicial review.8 Like its U.S. counterpart, the SCC has been the target of numerous, mainly ideological, attacks by opponents of judicial activism from both ends of the political spectrum. And, again as in the U.S., the more vocal criticism of judicial activism in Canada over the last few years comes from right-wing social conservatives.9 While the specific content and style of these critiques are distinctly Canadian, they ultimately echo similar arguments raised by critics of judicial activism in other polities. See, e.g., F. L. Morton & Rainer Knopff, The Charter Revolution and the Court Party (Broadview 2d ed. 2000); Christopher Manfredi, Judicial Power and the Charter (Oxford Univ. Press 2d ed. 2001); Robert Martin, The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy (McGill-Queen's Univ. Press 2003). This trend may soon change with President George W. Bush's recent appointments of Chief Justice John Roberts and Justice Samuel Alito to the United States Supreme Court, as well as with the January 2006 election of a Tory government in Canada, and the introduction of a televised public hearing as part of the process for appointing judges to the Supreme Court of Canada. Perhaps more interesting for the scholar of comparative constitutionalism is the fact that the persisting political traditions of parliamentary sovereignty had to be taken into account by the framers of the new constitutional arrangements in Canada, as well as in other former strongholds of parliamentary sovereignty such as Israel, South Africa, New Zealand, and Britain itself (to mention but a few examples). A few innovative mechanisms adopted as part of the 1982 constitutional overhaul in Canada, for example, were designed to mitigate the tension between rigid constitutionalism and judicial activism, on the one hand, and fundamental democratic governing principles, on the other. Chief among these mechanisms are two important limitations on the rights protected by the Charter of Rights and Freedoms. First, the Charter contains an explicit limitation clause (section 1) stating that the rights protected by the Charter are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In other words, if any limits are to be put on such rights, then the government must establish to the satisfaction of the courts that these limits can be justified in a free and democratic society.10 In its landmark judgment of R. v. Oakes [1986] S.C.R. 103 the SCC introduced a two-pronged approach to interpreting the Charter's “limitation clause.” Another significant limitation to rights and freedoms lies in section 33—the famous “notwithstanding clause.” This clause enables elected politicians, in either the federal Parliament or the provincial legislatures, to legally limit the rights and freedoms protected by section 2 (fundamental freedoms) and sections 7 to 15 (due process and equality rights) of the Charter by passing renewable overriding legislation valid for a period of up to five years. This means that any invocation of section 33 essentially grants a parliamentary fiat over these rights and freedoms. This, in turn, means that, at least in theory, both the federal Parliament (with regard to federal matters) and the provincial legislatures (with regard to matters within provincial jurisdictions) are ultimately sovereign over these affairs.11 In practice, however, section 33 lacks wide public legitimacy. While to describe it as a political “dead-letter” would be an exaggeration, since 1982 there have only been a handful of significant instances in which governments have either invoked (or seriously attempted to invoke) this clause. See Tsvi Kahana, The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter, 44 Can. Pub. Admin. 255 (2001). A number of scholars have drawn on studies of the theory and practice of these mechanisms in Canada and elsewhere to develop the idea of judicial review as part of a democratic dialogue between courts and legislatures—an apex court's decision on a contested issue is not seen as a final judgment on the matter but, rather, as a judicial invitation for further conversation with legislatures and society.12 After all, in most rule-of-law polities, under the Charter and other modern bills of rights, legislatures can still respond to court decisions by limiting or overriding the rights the courts have proclaimed.13 Possibilities for dialogue exist within the American system, too. Though many American scholars would dispute Louis Fisher's claim that “[f]or the most part, Court decisions are tentative and reversible like other political events,”14 a growing number of constitutional theorists have propounded theories that regard American judicial review as an integral part of a healthy democratic conversation.15 The dialogue thesis purports to free the debate concerning the democratic credentials of judicial review from its preoccupation with the well-worn normative debate over the countermajoritarian nature of judicial review. It also questions the blurred distinction between law and politics by shedding light on the ways courts, governments, and parliaments overlap and even tacitly collaborate in certain areas of public policy making. See, e.g., Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such A Bad Thing After All), 35 Osgoode Hall L. J. 75 (1997); Kent Roach, The Supreme Court on Trial (Irwin 2001); Janet Hiebert, Interpreting a Bill of Rights: The Importance of Legislative Rights Review, 35 British J. Pol. Sci. 235 for a recent The of Judicial The of Dialogue between Courts and J. L. Roach, at Louis The in Judicial L. Rev. See, e.g., Dialogue and Judicial Review, L. Rev. Christopher L. Constitutional (Harvard Univ. Press in the dialogue there is a least on the United States' of the comparative constitutional scholarship. Even American constitutional theorists have to the of comparative to their across the to than to Canada. While most Canadian scholars of constitutional law know a or two about American constitutional law and few American constitutional would consider in Canadian constitutional and In fact, American with the Canadian constitutional landscape seems to the in any American and of the U.S. at the of the with areas to the and the could be for the of the world to to the a a of both and less than the Canadian in U.S. constitutional law literature is the fact that legal in both Canada and the United States know to nothing about the Mexican constitutional Granted, as a civil law and mainly Mexico is not comparable with the common law of Canada and the United constitutionalism and active judicial review have been Mexico's claim to As a to Mexican law in both countries and seen the of at the of is the recent transformation of Mexico's constitutional has of The first comprehensive in with Mexican law, public and was published in the United States in In short, it would be a to that North American constitutionalism is both and The for comparative studies of North American constitutionalism as great as Zamora et al., is the of with respect to the of constitutional discourse in the United States and There are noteworthy to be First, the of Canadian and of trade between the United States and its the adoption of economic in the two countries, and the 1982 constitutionalization of rights and the of judicial review in convergence of the two constitutional to be Canada the of parliamentary and judicial from there is that, the Charter Canada has with the United States with respect to judicial activism, the of most the of its constitutional rights there are also reflect in constitutional and and as well as the differences in systems between and both the U.S. Supreme Court and its Canadian to the of rights as the private and from by the as the and its American and Canadian constitutional jurisprudence by and on such issues as due the right to or However, they on other such as freedom of This is due in part to the fact that, in Canada, rights and under the of the Charter's section are to that are justified in a free and democratic in most other constitutional including the United such would the of rights jurisprudence per A few Louis The of New and in Can. J. & Pol. Sci. at and in Canada and the United Can. J. Pol. and Lipset, Another at least in a is the of the Canadian Constitution on the issue of rights and free economic is as one of the of American constitutionalism. the of a clause in the However, in the a few economic trade and a new foreign were in NAFTA (primarily in that thereby at least in part, for the of an explicit clause in the North American Free Trade 17, 1992, of NAFTA foreign the right to any of the agreement for taken by that government their that are to Lipset's distinction between American and Canadian seems less than it was years are on the more to a of the than their to the national and provincial election to health and as the two public policy issues they the most Moreover, the of a health is by as one of the most important and of Canadian with the of such a in the U.S. The Canada Act a status in public This was by the public to a recent SCC concerning the of private health in far health and are issues such as and See, e.g., The of Canadian in Perspective (Broadview Press v. S.C.R. that limits on the of private health in Charter of Rights and Freedoms. of the judges also that the limits on private health section 7 of the Charter of Rights and Freedoms. The decision could have significant on health policy in Canada and may be interpreted as the to a health in the U.S. to social rights have political As in a recent the most common on both the right and the in America is that the constitutional of federal are to liberties and processes of democratic The of a right to was a more in American constitutional discourse a few the people to have their to The few American and to that the American Constitution rights now of these rights not as but, rather, as A. and the Constitution Univ. Press 2003). See The New Constitutional and the of Constitutional L. Rev. 33 Justice in A of American Constitutional Practice Univ. Press 2004). Canadian and social rights on the other hand, have attempted over the two to a social that the to to basic and The most important of these was a in the which was by a national in the of these issues on Canada's public social rights are not protected by the Charter and have been from its by the SCC rights are protected by the U.S. and have been protected by the U.S. Supreme Court, at least of such language and rights, rights of peoples, and a constitutional for and by Canada's Constitution Act 1982, and have been further by the constitutional rights While aspects of North American constitutionalism have been by the literature on the many This that by of convergence and in Canadian, and Mexican constitutional law and In the elected not to on matters the convergence between American and Canadian constitutional discourse is not to on subject matter the differences in political and to account for most of the in the Canadian, and Mexican constitutional essays of the less of North American constitutionalism. and of the and differences in the constitutional law and politics of the United States and Canada as well as Mexico. Christopher and the between and the jurisprudence regarding freedoms in Canada and the United the convergence of Canadian and American the constitutional and political of in the two countries. Kent the of the thesis to the Canadian and American a few landmark Canadian and American due process the issue of constitutionalism and national in the United States and Canada. the constitutional theory and practice of in both countries. the of a constitutional as it to rights in the United Canada, and Mexico, on these to social and economic the politics of federalism in Mexico a on U.S. And, Stephen Zamora and describe in the new constitutional of Mexico. as a the essays in this be as an invitation for further conversation regarding the of North American constitutionalism. Such a conversation would not only the to in the countries regarding one but would also a more between and of constitutional discourse in North The essays in this are of of the at a American at the of Toronto in are to in Law and Public and the of of of Political and the for the of the United States for their of the

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