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Abstract:
Significant disagreement exists among scholars and practitioners as to the political, legal and social implications of constitutional change. This article evaluates the impacts of constitutional change through an empirical study of Aboriginal title litigation in Canada. Through the historical comparison of Aboriginal title claims brought before and after the constitutional incorporation of Aboriginal rights, it demonstrates how Aboriginal title doctrine and rates of litigation have changed since Aboriginal rights were incorporated into the Canadian Constitution. It suggests that these changes in Aboriginal title litigation should be understood through an evaluation of several possible explanations in addition to textual change, including the evolution of the common law, shifts in judicial personnel, and the rise of legal support networks. It concludes that while the Canadian Supreme Court and Aboriginal title claimants' heavy reliance on constitutional arguments indicates that the constitutional recognition of Aboriginal rights has influenced the development of Aboriginal title litigation since 1982, these changes are best understood as the result of sustained interactions among multiple influences.

Abstract:
Many constitutional orders, including the United States, have yet to determine the legal and political status of pre-constitutional documents written prior to the enactment of a final constitution. This article argues that pre-constitutional documents should be critically analyzed by their respective constitutional communities. It maintains that pre-constitutional documents play a key role in constitutional orders by identifying conflicts that remain over time and contends that critical analysis of these documents will facilitate deeper understandings of constitutional politics. It demonstrates how pre-constitutional documents can be used as diagnostic tools for identifying and better understanding persistent constitutional tensions through a case study of a Peruvian pre-constitutional document. The case study indicates that even currently understudied pre-constitutional documents can broaden understandings of contemporary constitutional politics. The article concludes that pre-constitutional documents play a role in current constitutionalism and that legal communities should consider them more seriously.