1,721,064 research outputs found
On the blurred methodological matrix of comparative constitutional law
No full textThese are relative heydays for comparative constitutional law scholarship. After a near century of embedded parochialism and intellectual stalemate, the field has recently seen a certain renaissance. From comparative inquiries of constitutional transformation to sophisticated analyses of comparative constitutional jurisprudence, the field has made a tremendous leap forward over the last few years. Even the US Supreme Court – perhaps the last bastion of parochialism among the world's leading constitutional courts – has recently joined the comparative-reference trend. But in spite of the growing interest in comparative constitutional systems, too little has changed in the epistemology and methodology of comparative constitutional law. Fundamental questions concerning the very purpose and rationale of comparative inquiry (and how that enterprise is to be undertaken) remain largely outside the purview of mainstream constitutional law scholarship. Genuinely comparative, problem-driven, and inference-oriented scholarship is still difficult to come by. More specifically, comparative constitutional law scholarship produced by legal academics often overlooks (or is unaware of) basic methodological principles of controlled comparison, research design, and case selection. The chapter addresses this lacuna by contrasting the approaches of legal academics and political scientists to the same sets of comparative constitutional phenomena. It suggests that while the study of comparative constitutional law by legal academics has contributed significantly to the accumulation of knowledge through the development of novel concepts and thinking, it has, for the most part, fallen short of advancing knowledge through tracing causal links among pertinent variables, let alone contributing to theory building through substantiation or refutation of testable hypotheses
Constitutional interpretation in the Third Wave: the importance of text and context
No full textThis chapter explores constitutional interpretation in the Third Wave, arguing that it has two main components: constitutional text and constitutional context. The constitutional text extends beyond the operative text to constitutive commitments found in preambles, epilogues, directive principles, substantive limits on constitutional amendments, and the overall constitutional “structure”. There are a variety of modalities to interpret the constitutional text: literal and purposive interpretation, living constitutionalism, history and precedent, aversive interpretation, popular constitutionalism, and teleological interpretation. One factor of constitutional context is that constitutions are often drafted at times of political transition, which often yields a mission-driven constitution. There are at least five archetypal forms of constitutional mission: plurinationalism, transitional contexts, social transformation, post-authoritarianism, and defensive anti-authoritarianism. A second factor is geographic location, especially when the state combines a domestic law commitment to judicial review with international legal obligations to subject themselves to regional human rights treaties enforced by a regional court. A third factor is legal professional culture – as developed and defined by courts and lawyers
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Constitutional Change in the 21st Century: A New Debate over the Spending Power
Full text linkThe author offers his views on the future of the federal spending power debate in Canada. First, he explores the original purposes of Canada's 19th century federal constitution and its evolution in the evolution in the 20th century in response to a changed sense of what a modern state should be and Canada's place in the world. He contends that the debates over the federal spending power grow out of the friction between Canada 19th century political constitution and its 20th century fiscal constitution. Turning to the 21st century, the author posits that demographic shifts will drive future debates about the federal spending power. These shifts will bring political representation to the fore and raise issues about the appropriate role of federal spending on economic and social policy.</p
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The Enforcement of the Canada Health Act
Full text linkThe commitment to comprehensive and universal health care, as reflected in the Canada Health Act (CHA), is often regarded as a defining characteristic of our country. Today, Medicare in Canada faces a number of challenges which pose a serious threat to its survival. Overlooked in the political debate about the future of Medicare has been the potential to achieve social justice through the existing statutory framework of the Act. The author examines whether the basic criteria laid down in the CHA are capable of giving rise to legal liability and proposes a legal strategy for enforcing the terms of the Act. To this end, the feasibility of a legal claim against both federal and provincial governments is examined in turn. The author discusses the many hurdles that must be overcome in order for an individual to successfully bring a claim against the government. The author concludes that the CHA can function as both a political and a legal document. In terms of legally enforcing the CHA's criteria, liability is likely to be restricted to the federal government, since the Act is probably not enforceable against the provinces. A successful claim would have the effect of inducing greater vigilance with respect to meeting the criteria of the CHA. Ultimately, however, it is argued that regardless of whether an individual legal claim is successful, it is the political value of litigation that could make a challenge worthwhile. The result of such litigation would be to raise public awareness of the challenges facing Medicare and, thus, lead to political change. In this way, the CHA can serve a dual purpose and prove to be an effective tool for ensuring the integrity of the Medicare system.</p
Constitutional Possibilities: An Inquiry Concerning Constitutionalism in British Columbia
No full textConstitutional change is relentless. Today, states jockey with regional associations, international organizations, transnational networks and sub-state authorities to define the scope of legitimate political conduct and establish rival bases for political affiliation. Constitutional theorists must be resolute but they should not be rigid. Especially in such uncertain conditions, theories are best understood not as plans to be implemented but as hypotheses to be tested. Charles Sabel and David Dyzenhaus write separately but share this pragmatic orientation, in which doubt is indispensable and truth is the end of public inquiry. They also share a distinctive belief that constitutionalism serves a moral end: it is the project of cultivating citizens who conceive their political community in terms of the commitments revealed by its practices. Their position, which is well suited for contemporary challenges, warrants elaboration and examination. British Columbia offers an ideal constitutional laboratory for that test. During the 1970s and 1980s, doubts mounted about the legitimacy of the constitutional settlement imposed by the Crown in the westernmost province of Canada. Legal, political and constitutional decisions raised the possibility that aboriginal rights and title survived colonization and Confederation. Since 1990, their existence has been confirmed in a cascade of constitutional experiments. Those initiatives can be distilled into four procedures: litigation, negotiation, consultation and collaboration. Although they have delivered practical benefits to some indigenous peoples, these procedures have not transformed provincial politics into a moral endeavour. The constraints on constitutionalism in British Columbia are both conceptual and institutional. Despite marginal improvements, those constraints endure and constitutionalism remains for now the sporadic pursuit of a small elite. To conceive constitutionalism as a project is to set a sound but exacting standard. Although British Columbia falls short, its failure is informative: the theory is useful.SJ
Constitutional Approaches to Resource Control in Oil Producing Federations
No full textThis thesis considers models of approach adopted by oil producing federations in the way their constitutions regulate the control of such resources, particularly in the assignment of ownership and legislative competence to federal and sub-national authorities. I argue that any federal democratic constitution adopted in any oil rich country after 1973 is more likely to provide for an approach in favour of greater federal involvement through a central control model that vests ownership of such oil resources in the federal authority coupled with the legislative competence to regulate such resources. This is because (a.) oil is now a more lucrative commodity, (b.) the means and technology used to exploit it are now safer, more advanced and more available (c.) and because in today’s global economy, federal and national governments face more challenges and responsibilities, thus requiring access to more resources and greater flexibility to address these challenges.MAS
Constitutional Possibilities: An Inquiry Concerning Constitutionalism in British Columbia
Full text linkConstitutional change is relentless. Today, states jockey with regional associations, international organizations, transnational networks and sub-state authorities to define the scope of legitimate political conduct and establish rival bases for political affiliation. Constitutional theorists must be resolute but they should not be rigid. Especially in such uncertain conditions, theories are best understood not as plans to be implemented but as hypotheses to be tested. Charles Sabel and David Dyzenhaus write separately but share this pragmatic orientation, in which doubt is indispensable and truth is the end of public inquiry. They also share a distinctive belief that constitutionalism serves a moral end: it is the project of cultivating citizens who conceive their political community in terms of the commitments revealed by its practices. Their position, which is well suited for contemporary challenges, warrants elaboration and examination. British Columbia offers an ideal constitutional laboratory for that test. During the 1970s and 1980s, doubts mounted about the legitimacy of the constitutional settlement imposed by the Crown in the westernmost province of Canada. Legal, political and constitutional decisions raised the possibility that aboriginal rights and title survived colonization and Confederation. Since 1990, their existence has been confirmed in a cascade of constitutional experiments. Those initiatives can be distilled into four procedures: litigation, negotiation, consultation and collaboration. Although they have delivered practical benefits to some indigenous peoples, these procedures have not transformed provincial politics into a moral endeavour. The constraints on constitutionalism in British Columbia are both conceptual and institutional. Despite marginal improvements, those constraints endure and constitutionalism remains for now the sporadic pursuit of a small elite. To conceive constitutionalism as a project is to set a sound but exacting standard. Although British Columbia falls short, its failure is informative: the theory is useful.SJ
Constitutional Approaches to Resource Control in Oil Producing Federations
Full text linkThis thesis considers models of approach adopted by oil producing federations in the way their constitutions regulate the control of such resources, particularly in the assignment of ownership and legislative competence to federal and sub-national authorities. I argue that any federal democratic constitution adopted in any oil rich country after 1973 is more likely to provide for an approach in favour of greater federal involvement through a central control model that vests ownership of such oil resources in the federal authority coupled with the legislative competence to regulate such resources. This is because (a.) oil is now a more lucrative commodity, (b.) the means and technology used to exploit it are now safer, more advanced and more available (c.) and because in today’s global economy, federal and national governments face more challenges and responsibilities, thus requiring access to more resources and greater flexibility to address these challenges.MAS
Asymmetric Federalism
No full textThis chapter examines the legal status and consequences of the asymmetrically federal provisions included in the Indian Constitution. In particular, it considers constitutional amendments relating to autonomy arrangements in India’s North-eastern region, along with the ‘special status’ of Jammu and Kashmir. After providing an overview of the significance of asymmetric federalism in India, the article discusses the administration of tribal areas under the Fifth and Sixth Schedules. It also explores provisions aimed at mitigating intra-State inequalities in the States of Gujarat, Andhra Pradesh, Maharashtra, and Karnataka; the Indian Supreme Court’s rulings on the asymmetric features of the Constitution; and the role of the courts in upholding asymmetrical provisions and protecting the rights of territorially concentrated minorities in the context of democratic politics
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