Constitutional Rights Jurisprudence in Canada and the United States: Significant Convergence or Enduring Divergence?

Posted: 16 Feb 2004

Abstract

In analyzing trends of quantitative and qualitative convergence/divergence of Canadian and American constitutional rights jurisprudence, the traditional distinction between negative, positive, and group rights continues to provide an organizing principle for understanding prevalent patterns of convergence and divergence in the two countries' contemporary rights jurisprudence. The article examines North American rights jurisprudence relating to criminal due process and legal rights, freedom of religion and association, privacy and formal equality rights (classic "first generation" negative liberties); subsistence social rights ("second generation" positive rights); and language rights, affirmative action and Aboriginal peoples' rights ("third generation" collective rights).

The analysis suggest that: (a) over the past two decades, the rights jurisprudence of the two countries has converged rapidly in matters that deal with procedural justice, as well as Lockean-style "negative liberty" aspects of constitutional rights; with a few notable caveats the Supreme Court of Canada has adopted the traditional conception of rights as protecting the private sphere (human and economic) from interference by the "collective" (often understood as the state and its regulatory institutions); (b) a significant convergence has developed over the past few years in the two countries' judicial interpretation of positive entitlements - the Supreme Court of Canada has excluded positive social welfare rights from the Charter of Rights and Freedoms' ambit; (c) in spite of the powerful centripetal forces of convergence found within American and Canadian constitutional rights jurisprudence, there still remains a significant difference between the two countries' constitutional rights adjudication pertaining to claims for the preservation and enhancement of minority cultures. Over the past two decades, certain types of group rights - primarily minority language and education rights, as well as Aboriginal peoples' rights, and affirmative action guarantees - have been awarded wider constitutional recognition and relatively more generous judicial interpretation in Canada than in the United States.

These prevalent patterns of constitutional rights jurisprudence in the two countries highlight an important difference in the challenges Canadian and American Supreme Court justices will have to face in the years to come. The SCC is bound to find itself at the center of a clash between an "Americanization" of Canadian rights discourse and counter-pressure to preserve the Canadian legacy of relative collectivism and meaningful multicultural accommodation. The U.S. Supreme Court, on the other hand, will have to reconsider its strict adherence to an Lockean-style conception of constitutional rights in view of the vast racial, regional, linguistic, and economic disparities in U.S. society.

Suggested Citation

Hirschl, Ran, Constitutional Rights Jurisprudence in Canada and the United States: Significant Convergence or Enduring Divergence?. CONSTITUTIONAL POLITICS IN CANADA AND THE UNITED STATES, Stephen Newman, ed., SUNY Press, 2004. Available at SSRN: https://ssrn.com/abstract=503283

Ran Hirschl (Contact Author)

University of Toronto ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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