Developments in Constitutional Law: The 1993-94 Term

Abstract

This paper seeks to draw out four different, and often conflicting, themes that inform the Supreme Court of Canada's constitutional decision making. Each theme expresses a conception of the Canadian state, and taken together they represent, arguably, the current range of dominant views regarding the appropriate role of the state in Canada: classical liberalism, federalism, social democracy and neo-liberalism. Explicit and implicit reliance upon these conceptions of the state can be understood as reflecting the Court's concern to stay in step with its perception of contemporary social consensus on the large political issues lurking behind every constitutional question it addresses. The fact that four different and potentially conflicting themes are developed in answer to this question suggests that the members of the Court have not been able to identify what the social consensus is; or, far more likely, a social consensus does not exist on the desirable scope and content of state power, only competing ideals.