Clashing Constitutionalisms in the Bill-of-Rights Era: Strength, Reach and Rights Values
Date
2017-12-14
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Abstract
This study contributes to a debate within the tradition of liberal democratic constitutionalism about how best to protect rights. One side (“political constitutionalism”) holds that rights are best protected through “political” channels, such as the elected offices of government; the competing view (“legal constitutionalism”) elevates the judiciary as the primary custodians in rights disputes. Although the original battle between political and legal constitutionalism – whether or not to have an explicit, judicially enforceable rights document – has been decisively won by legal constitutionalists, this “clash of constitutionalisms” continues in the bill-of-rights era, partly though the different designs of rights documents and partly through the politics of interpretation generated by those documents. Taking a comparative approach to the issues, this study focuses on the quarrels between political and legal constitutionalism in Canada, New Zealand, and the United Kingdom.
Political and legal constitutionalists in these countries (as elsewhere) disagree about how strongly judicial interpretations of the different rights documents should withstand the more obviously political branches (“constitutional strength”), and about the scope of public and private activity captured by the judicial application of rights documents (“constitutional reach”). The issue of constitutional reach into the private sphere involves a second “clash of constitutionalisms” – between liberal constitutionalism, which seeks constitutional protection of the private sphere against state intrusion, and post-liberal constitutionalism, which is skeptical of the public-private distinction and wants the constitution to combat “private” injustice.
The two kinds of clashing constitutionalisms (political/legal, liberal/post-liberal) – and the intersection between them – illuminate important debates about subtle forms of judicial policy-making through revision of common-law rules and strained statutory interpretation (which, say its critics, “fixes” a statute by essentially rewriting it). Very few studies address the phenomena of judicial actors interpretively fixing laws and even fewer emphasize the impact bills of rights have on the common law. One aim of this study is to shed light on such still underexplored aspects of the clash of constitutionalisms in the bill of rights era. An even more important aim is to provide a novel integration of the debate’s many dimensions.
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constiutionalism, bills of rights, Commonwealth, constitutional strength, constitutional reach
Citation
Harding, Mark Stevens (2017). Clashing Constitutionalisms in the Bill-of-Rights Era: Strength, Reach and Rights Values (Doctoral thesis, University of Calgary, Calgary, Canada). Retrieved from https://prism.ucalgary.ca.