Exchanging Constitutions: Constitutional Bricolage in Canada
Osgoode Hall Law Journal, Vol. 40, No's 3&4, pp. 401-424, 2002
24 Pages Posted: 16 Jul 2009 Last revised: 27 Jul 2010
Date Written: 2002
Judicial recourse to constitutional law sources from abroad has been likened to the process of bricolage, coined by anthropologist Claude Levi-Strauss, this refers to the 'borrowing from materials readily at hand.' Building on the idea of constitutional borrowing, this paper aims to take account of the role dominant culture plays in constitutional interpretation, in particular, the values associated with economic globalization. If resort to comparative constitutional sources is on the rise, dominant political culture will likely have the effect of limiting the stock of tools available to judges. The author argues that, in an age of economic globalization, the 'buyer-seller' model of constitutional interpretation will be one of the principle interpretative sources readily at hand. This is a model which valorizes market relations of free and mutual exchange, ideas familiar to U.S. constitutional law particularly in the Lochner era. It is argued that this market model has emerged as an important mode of interpretation in Canadian constitutional law since 1982. This is suggested by an examination of recent decisions in the realms of federalism, Charter rights, Aboriginal rights, though not all cases can be explained in this way. Nor is this a phenomenon isolated to Canada; rather, it is to be expected that the buyer-seller model will have universal appeal, for it appears to be the best available method of securing economic success in an era of intense competition between national states for foreign capital.
Keywords: constitutional law, economic globalization, US constitutional law, Canadian constitutional law, buyer-seller model
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