Constitutional Re-Engineering: Dialogue's Migration from Canada to Australia

Abstract

Foreign sources affect the development of constitutional systems in a variety of ways. In this article, I examine the intentional modification, or re-engineering, of foreign constitutional ideas. The study of constitutional re-engineering offers insights into how and why actors use foreign constitutional ideas and informs analysis of convergence and divergence among constitutional systems.

To highlight the process and implications of constitutional re-engineering, I analyze dialogue’s migration from Canada to Australia. Canadians develop the idea of dialogue to differentiate its Charter of Rights and Freedoms from the United States Bill of Rights, suggesting that the Charter facilitates unique forms of institutional interaction, or dialogue, between courts and legislatures on the meaning of rights. Australians appropriate and re-engineer the idea, expanding dialogue to include the executive and public and reorienting it to differentiate Australia’s statutory form of rights protection from the status quo ante, namely a system of legislative supremacy.

This study of re-engineering complicates existing comparative analyses of rights protection in the Commonwealth, which suggest these rights instruments establish a middle ground between the paradigms of judicial and legislative supremacy. First, debates about dialogue in Australia and Canada underscore the difficulty in what it means to establish a middle ground in the context of rights protection. Second, Australia’s re-engineered idea of dialogue emphasizes the importance of examining not only which institution gets the final say, the typical means of conceptualizing the middle ground, but also the dynamics of the law making process.

Keywords: constitutional law, comparative law, human rights, dialogue, Australia, Canada