Insights From Canada for American Constitutional Federalism

Abstract

The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police federalism, with anything more than the raw policy preferences of a the justices as to whether a particular legislative issue is best resolved at the federal or state/provincial/local level? Do doctrines that limit the ability of a national political majority to enact into law policy preferences that are not shared by national political minorities who constitute a majority in one or more states or provinces reflect a country's constitutional values?

This Article summarizes the salient aspects of Canadian federalism jurisprudence to shed light on current American controversies. Part I offers brief thoughts on the American constitutional doctrine, suggesting that it fails to provide a coherent and meaningful line between what is national and what is local. Part II discusses the origins of Canadian constitutional federalism and the significantly greater restraints that Canadian judges impose on Parliament than American judges impose on Congress. Part III traces significant differences between Canada and the United States relevant to judicial arbitration of federalism disputes. Part IV analyzes two important aspects of Canadian constitutional doctrine that limit much federal legislation to situations where provinces are unable to act and suggests that these doctrines reflect both historical and contemporary Canadian constitutional values. Next, the Article questions whether current American doctrine similarly reflects historical and contemporary American federalism values. It suggests that this comparative analysis presents American Justices with a clear opportunity to enhance the judicial manageability of federalism standards by borrowing two doctrines from north of the border. These doctrines would significantly limit the ability of national majorities to adopt legislation preventing national minorities that control one or more state legislatures from enacting policies that, in the majority's view, harm the welfare of the entire nation. The Article concludes by questioning whether this importation reflects American constitutional values, and, if not, whether the search for a judicial standard to distinguish what is national and what is local should be abandoned.