Liberty, Authority and the State in American Constitutionalism
Osgoode Hall Law Journal, Vol. 25, pp. 258-304, 1989
48 Pages Posted: 12 May 2010
Date Written: May 11, 2010
My hope is that, even without any examination of Canadian constitutional culture, this article will advance our understanding of the Charter. It is time we recognize that, although our interpretation of it must be distinctly Canadian, the Charter itself is inescapably and irreversibly the offspring of American constitutional ideology. As such, we should approach it with a realistic understanding of that ideology. In order to give the Charter an interpretation that is distinctly Canadian, we must first free our minds of the misperceptions we hold about constitutional rights and judicial review.
The article proceeds in six parts. Following the introduction, Part II describes the cult of the U.S. Constitution, then calls its assumptions into question by exposing the gap between romanticized accounts and the reality of constitutional experience. Once having doubted American orthodoxy that the preservation of liberty requires constitutional rights and judicial review, Part III examines the idea of constitutional liberty. A brief comparison of British and American conceptions of constitutional liberty establishes that, far from representing abstract or immutable principles, the expression is largely descriptive, drawing its definition from the historical, political, and cultural experiences of particular societies. In light of that observation, Part IV explores the historical and jurisprudential roots of American constitutional culture. This inquiry attempts to understand why Americans define liberty so dogmatically in terms of constitutional rights and judicial review, and to ascertain what the institutional consequences of doing so have been. Part V offers brief reflections on the requirements of liberty, and is followed by a Conclusion which identifies the challenge we face in re-fashioning Canadian ideology in the era of the Charter.
Keywords: Canadian Charter, interpretation, American Constitutionalism
JEL Classification: K30, K33
Suggested Citation: Suggested Citation