Exchanging constitutions: Constitutional bricolage in canada

Osgoode Hall Law Journal

Volumn 40, Issue 3, 2002, Pages 401-424

  Schneiderman, David ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

Canada; Canada. Canadian Charter of Rights and Freedoms; Constitutional law

Indexed keywords

EID: 84927014216     PISSN: None     EISSN: 28175069     Source Type: Journal    
DOI: 10.60082/2817-5069.1441     Document Type: Article

References (132)

1. Charles de Secondât, Baron de Montesquieu, The Spirit of the Laws, ed. and trans. by Anne M. Cohler, Basia Carolyn Miller & Harold Samuel Stone (Cambridge: Cambridge University Press, 1989) at 8.
2. Bruce Ackerman, “The Rise of World Constitutionalism” (1997) 83 Va. L. Rev. 771.
3. Mark Tushnet, “The Possibilities of Comparative Constitutional Law” (1999) 108 Yale L.J. 1225 at 1286 [Tushnet, “Possibilities of Comparative Constitutional Law”]. For an earlier invocation of the bricoleur, see Mark Tushnet, “The Bricoleur at the Center,” Book Review of The Partial Constitution by Cass R. Sunstein (1993) 60 U. Chicago L. Rev. 1071.
4. David Beatty, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995) at 10, 142.
5. See Tush net, “Possibilities of Comparative Constitutional Law "supra note 3. See also Annelise Riles, “Wigmore’s Treasure Box: Comparative Law in the Era of Information” (1999) 40 Harv. Int’l L.J. 221 at 279, n. 205.
6. Claude Lévi-Strauss, The Savage Mind (Chicago: University of Chicago Press, 1966) at 17-36.
7. Sujit Choudhry, “Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation” (1999) 74 Ind. L.J. 819 at 830-32.
8. See Hugh Tulloch, James Bryce’s American Commonwealth: The Anglo-American Background (Suffolk: Boydell Press, 1988); David Schneiderman, “Constitutionalism in an Age of Anxiety: A Reconsideration of the Local Prohibition Case” (1996) 41 McGill L.J. 411 [Schneiderman, “Constitutionalism in an Age of Anxiety”). On classical legal thought, see Duncan Kennedy, “Towards a Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940” (1980) 3 Res. L. & Soc. 3.
9. See David Schneiderman, “Constitutional Approaches to Privatization: An Inquiry Into the Magnitude of Neo-Liberal Constitutionalism” (2000) 63 Law and Contemp. Probs. 83.
10. See e.g. my discussion of Israeli and Colombian high courts in David Schneiderman, “Comparative Constitutional Law in an Age of Economic Globalization” in Vicki C. Jackson & Mark Tushnet, eds., Defining the Field of Comparative Constitutional Law (Westport, Conn.: Praeger, 2002) 237 [Schneiderman, “Age of Economic Globalization”].
11. Gerald Garvey, Constitutional Bricolage (Princeton: Princeton University Press, 1971).
12. It also enabled legislative authority to remove obstacles to market exchange. See ibid. at 102.
13. Ibid. at 113.
14. Law was “brought into harmony with the broader culture.” See ibid. at 3.
15. Ibid. at 14-15.
16. On this, see Stephen Clarkson, Uncle Sam and US: Globalization, Neoconservatism, and the Canadian State (Toronto: University of Toronto Press, 2002).
17. Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
18. See Schneiderman, “Constitutionalism in an Age of Anxiety,” supra note 8. See also J.R. Mallory, “The Courts and the Sovereignty of Canadian Parliament” (1944) 10 Can. J. Ec. Pol. Sc. 167.
19. Being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
20. See the classic statement in Max Lerner, “The Supreme Court and American Capitalism” (1933) 42 Yale L.J. 668 and the fuller account in Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field” (1987) 38 Hastings L.J. 805.
21. H.W. Arthurs, “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields” (1997) 12 C.J.L.S. 219.
22. Manitoba Provincial Judges Association v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3 at 78.
23. Supra note 6 at 17-36.
24. See Tushnet, “Possibilities of Comparative Constitutional Law,” supra note 3.
25. Constitution of the Republic of South Africa 1996, No. 108 of 1996, s. 39(1). See discussion in Choudhry, supra note 7 at 84Iff.
26. See Tushnet, “Possibilities of Comparative Constitutional Law,” supra note 3 at 1286.
27. Ibid. at 1301.
28. Dick Hebdige, Subculture: The Meaning of Style (London: Methuen, 1979) at 102-06.
29. Ibid. at 107-08.
30. Ibid. at 103,116.
31. Ranajit Guha, Elementary Aspects of Peasant Insurgency in Colonial India (Delhi: Oxford University Press, 1983) at 75. Guha writes about the appropriation of symbols in Indian peasant insurgencies—as in forms of dress or an upturned moustache—as only “the very beginning” of class consciousness and self-awareness. These forms of rebel discourse were in the “borrowed language” of the enemy. See ibid. at 19ff, 75.
32. See Nicholas Garnham, “Political Economy and Cultural Studies: Reconciliation or Divorce?” (1995) 12 Critical Studies in Mass Communication 62.
33. Supra note 6 at 18.
34. Ibid. at 18.
35. Ibid. at 19.
36. Ibid.
37. Mark V. Tushnet, “Following the Rules Laid Down: Critique of Interpretivism and Neutral Principles” (1983) 96 Harv. L. Rev. 781 at 824.
38. On the claim to universality in law, see Bourdieu, supra note 20 at 844. For the argument that this “master narrative” of U.S. constitutional law does not represent U.S. constitutional history, see William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).
39. William E. Scheuerman, “Constitutionalism in an Age of Speed” Const. Commentary [forthcoming in 2002]. Canadian constitutional courts, it might be said, have eagerly embraced the capacity for judicial innovation in constitutional interpretation. Cases like the Quebec Secession Reference suggest that the Supreme Court has great confidence in its ability to adapt constitutional law to the demands of socio-political realpolitik. See Reference Re Secession of Quebec, [1998] 2 S.C.R. 217.
40. Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977); Bernard J. Hibbitts, “Progress and Principle: The Legal Thought of Sir John Béverley Robinson” (1989) 34 McGill L.J. 454.
41. Schneiderman, “Age of Economic Globalization,” supra note 10.
42. Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1957).
43. As Wolin reminds us, political economy “reveals a depoliticized state rather than the depoliticized economy emphasized by the economists.” See Sheldon S. Wolin, Tocqueville Between Two Worlds: The Making of a Political and Theoretical Life (Princeton: Princeton University Press, 2001) at 349.
44. Alexander Hamilton, James Madison & John Jay, The Federalist Papers, ed. by Clinton Rossiter (New York: Mentor Books, 1961) at 78-79.
45. See discussion in Schneiderman, “Constitutionalism in an Age of Anxiety,” supra note 8.
46. Supra note 42 at 225.
47. Zygmunt Bauman, In Search of Politics (Stanford: Stanford University Press, 1999) at 120.
48. Supra note 11 at 5.
49. See Kirk Makin, “Canadian Legal Wisdom a Hot Commodity Abroad” The Globe and Mail (28 August 2000) Al.
50. Nicos Poulantzas, State, Power, Socialism, trans. by Patrick Camiller (London: Verso Books, 1980) at 135.
51. William H. Sewell, Jr., “A Theory of Structure: Duality, Agency, and Transformation” (1992) 98 Am. Jour. Soc. 1 at 19.
52. The typical economic explanation, as Marx describes it, is that “in exchange, production and consumption are mediated through the contingent specificity of individuals.” See T. Carver, ed., Karl Marx: Later Political Writings (Cambridge: Cambridge University Press, 1996) at 134.
53. For instance, the model is generalizable to other spheres, like the sexual division of labour. See Garvey, supra note 11 at 29.
54. Ibid. at 31.
55. A realization the U.S. Supreme Court came to only in West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
56. See Zygmunt Bauman, Freedom (Minneapolis: University of Minnesota Press, 1988) at 61.
57. Supra note 28. For a critique, see Garnham, supra note 32. For a defence, see Lawrence Grossberg, “Cultural Studies vs. Political Economy: Is Anybody Bored With This Debate?” (1995) 12 Critical Studies in Mass Communication 72.
58. I draw here on Aristotle’s formulation. See Politics, Books III and IV, trans. by Richard Robinson (Oxford: Oxford University Press, 1995) at 1275"5, 1277h39. This also is suggested in Zygmunt Bauman, Work, Consumerism and the New Poor (Buckingham: Open University Press, 1998) at 38.
59. Leslie Sklair, The Transnational Capitalist Class (Oxford: Blackwells, 2001).
60. I borrow this phrase from Néstor García Canclini, Consumers and Citizens: Globalization and Multicultural Conflicts, trans. by George Yúdice (Minneapolis: University of Minnesota Press, 2001).
61. Harvey’s quote continues “… while rendering large segments of the world’s population permanently redundant in relation to the basic dynamics of capital accumulation.” See David Harvey, Spaces of Hope (Berkeley: University of California Press, 2000) at 68.
62. W.R. Lederman, “Classification of Laws Under the British North America Act” in W.R. Lederman, ed., The Courts and the Canadian Constitution (Toronto: McClelland and Stewart, 1964) at 177.
63. (U.K.), 30 & 31 Viet., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
64. I have argued that elite anxiety with “class rule”—an anxiety common to legal elites in the United States and the United Kingdom—entered in Canadian constitutional adjudication in the late-nineteenth century. See David Schneiderman, “A.V. Dicey, Lord Watson, and the Law of the Canadian Constitution in the Late Nineteenth Century” (1998) 16 L.H.R. 495.
65. One could begin this discussion by citing the non-binding Agreement on Internal Trade designed to remove non-tariff restrictions on the movement of goods, services, and persons across provincial boundaries.
66. 4 S.C.R. 289 [Hunt]. Here I draw on an arguments made earlier in Joel Bakan et al., “Developments in Constitutional Law: The 1993–94 Term” (1995) 6 Sup. Ct. L. Rev. (2d) 67 at 119-25.
67. Hunt, ibid. at 304.
68. Ibid. at 295.
69. Art. IV, § 1 states: “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”
70. Hunt, supra note 66 at 327.
71. Ibid. at 330.
72. Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 at 1098 [Morguard], See also Justice La Forest’s related judgment in Black v. Law Society of Alberta (1989), 58 D.L.R. (4th) 317 (S.C.C.).
73. Morguard, ibid. at 1095.
74. Ibid. at 1096, 1098.
75. There are notable exceptions. See e.g. Canadian Egg Marketing Agency v. Richardson (1999), 166 D.L.R. (4th) 1 (S.C.C.) [Richardson]. The allocation of egg quotas under Canada’s national marketing scheme for the production and distribution of eggs was challenged under the mobility rights section of the Charter (section 6). Though egg producers in the Northwest Terrorities were barred permanently from participating in the interprovincial marketing scheme, the Court ruled that the scheme was prompted not by discriminatory purposes but by historical patterns of egg production. As the quota system did not discriminate “primarily” on the basis of residence, it did not offend section 6 rights. Justice McLachlin, dissenting, found that mobility rights were infringed as equality of opportunity was denied and the scheme did not advance any pressing and substantial objective. Both the majority and minority in Richardson agreed, however, that barriers to the mobility of capital, goods, and services that unreasonably discriminate primarily along provincial lines are constitutionally prohibited under section 6. Yet this is not expressly part of the Charter’s mobility rights provisions—in fact, reform of section 121 of the Constitution Act, /5<57along just these lines was rejected in the 1980s and 1990s. So even in Richardson, where a majority of the Court appeared to rebuff the market model, its influence can be observed.
76. Bourdieu, supra note 20 at 827.
77. Following Stuart Hall, we might call this typically ideological: “representing the order of things… with that natural or divine inevitability which makes them appear universal, natural and coterminous with ‘reality’ itself.” See Stuart Hall, “The Rediscovery of Ideology: Return of the Repressed in Media Studies” in Michael Gurevitch et al., eds., Culture, Society and the Media (London: Methuen, 1982) 56 at 65.
78. See Brenda Cossman, “Lesbians, Gay Men, and the Canadian Charter of Rights and Freedoms" (2002) 40 Osgoode Hall L.J. 223 at 225.
79. Brad Daisley, “New Era of Charter Litigation on the Horizon” The Lawyer’s Weekly (6 June 1997) 16. Justice McLachlin is quoted there as saying: “Where we have [Charter rights], the state has a new tool to aid them in this protection, and indeed the Charter has been a way for disempowered individuals, people who have no voice, to… come before the court and bring [forward] issues like discrimination on the basis of gender, poverty.”
80. RWDSU, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 [Pepsi-Cola].
81. Ibid. at para. 21.
82. Gregory Hein, “Interest Group Litigation and Canadian Democracy” in Paul Howe & Peter H. Russell, eds., Judicial Power and Canadian Democracy (Montreal: McGill-Queen’s University Press, 2001) 214.
83. Richard W. Bauman, “Business, Economic Rights, and the Charter” in David Schneiderman & Kate Sutherland, eds., Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 58. This is a phenomenon which, curiously, escapes the attention of F.L. Morton & Rainer Knopff, The Charter Revolution and the Court Party (Peterborough, Ont.: Broadview Press, 2000).
84. Ford v. Quebec (A.C.), [1988] 2 S.C.R. 712 [Ford],
85. RJR-MacDonald Inc. v. Canada (A.G.), [1995] 3 S.C.R. 199 [RJR-MacDonald].
86. Attorney General of Quebec v. Irwin Toy, [1989] 1 S.C.R. 927 at 968-69.
87. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 at 765 (1975) [Virginia State Board of Pharmacy], For an argument that this amounts to the disguised revival of discredited Lochnerism, see Thomas H. Jackson & John Calvin Jeffries, Jr., “Commençai Speech: Economic Due Process and the First Amendment” (1979) 65 Va. L. Rev. 1 at 30-32.
88. Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 at 247; RJR-MacDonald, supra note 85 at 347. Admittedly, this too attracts the U.S. Supreme Court in Virginia State Board of Pharmacy, ibid.
89. Ford, supra note 84 at 767.
90. United Food and Commercial Workers, Local 1518 (U.F.C.W.) k KMart Canada Ltd., [1999] 2 S.C.R. 1083 at 1105.
91. Pepsi-Cola, supra note 80 at paras. 34-35.
92. By endowing commercial speech with constitutional protection, the Court has helped to promote what Leslie Sklair calls the “culture-ideology of consumerism”: A “set of practices, attitudes and values, based on advertising… that encourages ever-expanding consumption of consumer goods.” See Leslie Sklair, “The Culture-ideology of Consumerism in Urban China: Some Findings From a Survey in Shanghai” in Clifford J. Shultz, Russell W. Belk & Giiliz Ger, eds., Research in Consumer Behavior: Consumption in Marketizing Economies, vol. 7 (Greenwich, Conn.: Jai Press, 1994) at 260.
93. 2002 SCC 14 [Guignard].
94. Ibid. at para. 3.
95. Ibid. at paras. 21, 23.
96. This conclusion was embraced readily by the Ontario Court of Appeal in Vann Niagara Ltd. v. Oakville (Town of) (14 June 2002), Toronto C36773 (Ont. C.A.). According to Justice Borins, for the majority, commercial expression is “a key component to our economic system and therefore merits Charter protection.” See ibid. at para. 17.
97. Guignard, supra note 93 at para. 23.
98. On culture jamming, see any number of AdBusters and, for the definitive statement, see Kalle Lasn, Culture Jam: How to Reverse America 's Suicidal Consumer Binge—And Why We Must (New York: Quill, 2000).
99. R. v. Sparrow, [1990] 1 S.C.R. 1075 [Sparrow],
100. R. v. Van der Peet, [1996] 2 S.C.R. 507 [Van der Peet]; R. v. Gladstone, [1996] 2 S.C.R. 672 [Gladstone].
101. See Michael Asch, “From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973–96” in Paul Havemann, ed., Indigenous People's Rights in Australia, Canada, and New Zealand (Auckland: Oxford University Press, 1999) 428.
102. These practices are comprehensively documented and discussed in Darlene Johnston, The Taking of Indian Lands in Canada: Consent or Coercion? (Saskatoon: University of Saskatchewan Native Law Centre, 1989) at 8.
103. Sub-Commission on Prevention of Discrimination and Protection of Minorities (final report by Miguel Alfonso Martínez), Human Rights of Indigenous Peoples: Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations, UN ESCOR, 51st Sess., UN Doc. E/CN.4/Sub.2/1999/20 at para. 105.
104. See Robert A. Williams, Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (New York: Oxford University Press, 1997) at 25.
105. Arthur Lenhoff, “Development of the Concept of Eminent Domain” (1942) 42 Colum. L. Rev. 596 at 601.
106. Montesquieu, supra note 1 at 510, writes: “If the political magistrate wants to build some public edifice, some new road, he must pay compensation; in this regard the public is like an individual who deals with another individual.”
107. Indian Act, S.C. 1868, c. 42, s. 25; Indian Act, S.C. 1876, c. 18, s. 20.
108. Johnston, supra note 102 at 86-88.
109. This is in contrast to statutory regimes for the expropriation of private property in place across Canada which ordinarily require the payment of compensation.
110. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
111. Supra note 100.
112. Delgamuukw, supra note 110 at 1111.
113. Supra note 99.
114. Delgamuukw, supra note 110 at 1114.
115. The “public use” requirement has ceased to act as an impediment in modern U.S. law. This is the subject of complaint in Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985) at 161-81.
116. The comparison also is noted in James Youngblood Henderson, Marjorie L. Benson & Isobel Findlay, Aboriginal Tenure in the Constitution of Canada (Scarborough, Ont.: Carswell, 2000) at 332.
117. See Molly S. McUsic, “The Ghost of Lochner: Modern Takings Doctrine and Its Impact on Economic Legislation” (1996) 76 B.U.L. Rev. 605.
118. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) [Tee-Hit-Ton], This decision was adopted with approval by Justice Judson in Colder v. British Columbia (A.G.) (1973), 34 D.L.R. (3d) 145 at 168 (S.C.C.).
119. Johnson v. McIntosh, 21 U.S. 543 (1823).
120. Tee-Hit-Ton, supra note 118 at 322-23.
121. It is not troublesome that the doctrine accords constitutional status only to Aboriginal property interests. As Macklem argues, the fact of Aboriginal occupancy prior to the establishment of the Canadian state justifies this differential treatment. See Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001).
122. Consultation is always required, but “full consent” is required only in some cases, “particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.” See Delgamuukw, supra note 110 at 1113.
123. See Michael Asch & Patrick Macklem, “Aboriginal Rights and Canadian Sovereignty: An Essay on R.v. Sparrow” (1991) 29 Alta. L. Rev. 498 at 510. The absorption of Aboriginal peoples within the Canadian political community for the purposes of eminent domain does not mean equivalency with all citizens in regard to all property matters. Note that the content of Aboriginal title in Delgamuukw is limited to land use not “irreconcilable” with the “nature” of Aboriginal title. A variety of commercial uses inconsistent with that specific title (the Court mentions strip mining and construction of a parking lot) are permitted only if land then is surrendered to the Crown for the purposes of economic development along these lines (see Delgamuukw, supra note 110 at 1089). The author thanks Darlene Johnston for this point.
124. Garvey, supra note 11 at 5.
125. The same claim might be made about the Van der Peet test—that s. 35(1) Aboriginal rights are only those that are “a central and significant part of the society’s distinctive culture.” See Van der Peet, supra note 100 at 553. Russel Barsh and James Henderson show that centrality requirement is derived from the American constitutional experience, where only those religious beliefs “central and indispensable” to an indigenous group will receive constitutional protection. They write: “Without referring to the American experience, Canada’s Supreme Court blithely copies it on an even grander scale, applying ‘centrality’ to all rights of Aboriginal peoples.” See Russel Lawrence Barsh & James Youngblood Henderson, “The Supreme Court’s Van der Peet Trilogy: Native Imperialism and Ropes of Sand” (1997) 42 McGill L.J. 993 at 1000. Another borrowed idea is the “honor of the King,” central to the Sparrow justification process, which has its origins in the Crown prerogative and sovereign immunity. See Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown (London: Butterworth, 1820) at 394. Justice Story of the U.S. Supreme Court invoked the concept so as to limit governmental interference with contractual rights in Charles River Bridge v. Warren Bridge, 36 U.S. 420 at 597 (1837).
126. See Andrée Lajoie, Expropriation et Fédéralisme au Canada (Montreal: Les Presses des Université de Montréal, 1971).
127. Note the presence of a property rights clause, though, in the Canadian Bill of Rights, S.C. 1960, c. 44, s. 1(a).
128. See David Schneiderman, “NAFTA’s Takings Rule: American Constitutionalism Comes to Canada” (1996) 46 U.T.L.J. 499.
129. Kenneth J. Vandevelde, “The Political Economy of a Bilateral Investment Treaty” (1998) 92 A.J.I.L. 621 at 639.
130. Lévi-Strauss, supra note 6 at 17.
131. On federalism, see e.g. Jean Leclair, “The Supreme Court’s Understanding of Federalism: Efficiency at the Expense of Diversity,” (Paper presented in Toronto to the Canadian Association of Law Teachers 2002 Annual Conference, May 2002) [unpublished]. On the Charter, see Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) c. 3-6.
132. See Patrick Macklem, “Constitutional Ideologies” (1988) 20 Ottawa L. Rev. 117 at 121; Roderick A. Macdonald, “The New Zealand Bill of Rights Act: How Far Does It Or Should It Stretch?” in The Law and Politics: Proceedings of the 1993 New Zealand Law Conference Held March 2 - 5, 1993, vol. 1 (Wellington: New Zealand Law Society, 1993) 94 at 104.