Constitutional Pariah

The Canadian Senate has long been considered an institutional pariah, viewed as an undemocratic, outmoded warehouse for patronage appointments and mired in spending and workload scandals. In 2014, the federal government was compelled to refer constitutional questions to the Supreme Court relating to its attempts to enact senatorial elections and term limits. Constitutional Pariah explores the aftermath of Reference re Senate Reform, which barred major unilateral alteration of the Senate by Parliament. Ironically, the decision resulted in one of the most sweeping parliamentary reforms in Canadian history, creating a pathway to informal changes in the appointments process that have curbed patronage and partisanship. Despite reinvigorating the Senate, Reference re Senate Reform has far-reaching implications for constitutional reform in other contexts. Macfarlane’s sharp critique suggests that the Court’s nebulous approach to the amending formula raises the spectre of a frozen constitution, unable to evolve with the country.

"Four decades have passed since the adoption of the Constitution Act, 1982. Now it is time to assess its legacy. As Constitutional Crossroads makes clear, the 1982 constitutional package raises a host of questions about a number of important issues, including sovereignty, identity and pluralism, the scope and limits of rights, competing constitutional visions, the relationship between the state and Indigenous peoples, and the nature and methods of constitutional change. The patriation of the constitution and the entrenchment of a new bill of rights, Aboriginal and treaty rights, and a homegrown amending formula have had considerable consequences for Canadian governance, public policy, and the evolution of the constitution. Constitutional Crossroads brings together established and rising stars of political science and law not only to develop a robust account of the 1982 constitutional reform but to analyze the ensuing scholarship that has shaped our understanding of the constitution. Contributors bypass historical description to offer reflective analyses of different aspects of Canada's constitution as it is understood in the twenty-first century. With a focus on the themes of rights, reconciliation, and constitutional change, Constitutional Crossroads provides profound insights into institutional relationships, public policy, and the state of the fields of law and politics."--

When political victories are based on a fraction of the electoral register, perish looks like the only way towards reform.

Four decades have passed since the adoption of the Constitution Act, 1982. Now it is time to assess its legacy. Constitutional Crossroads brings together an impressive assembly of established and rising stars of political science and law, who not only provide a robust account of the 1982 constitutional reform but also analyze the ensuing scholarship that has shaped our understanding of the Constitution. Contributors bypass historical description to offer reflective assessments of issues such as sovereignty, identity and pluralism, the scope and limits of rights, competing constitutional visions, the relationship between the state and Indigenous peoples, and the nature and methods of constitutional change.

The rise of the New Judicial Federalism movement in the 1970s marked a sea-change in the history of state constitutional law by shifting the focus of power away from the central government in ways that had not occurred since the Equal Protection Clause was enacted in 1868. With New Judicial Federalism, many states rediscovered that they were empowered to enact their own constitutions and to interpret them as they saw fit, which enabled states to recognize civil rights and liberties beyond those recognized under the Federal Constitution. Equality and Liberty in the Golden Age of State Constitutional Law closely examines the evolution of the rights of liberty and equality under state constitutions from both a historical and jurisprudential perspective. In it, Professor Jeffrey M. Shaman explains that as New Judicial Federalism gained ground, state constitutional law became an important source for the protection of individual rights and liberties. States have since expanded the right of the citizen well beyond the limits of federal law by striking down laws that led to de facto segregation in public schools, discriminated against women, or allocated public benefits inequitably. State courts were the first to recognize a right of intimate association, spurring the U.S. Supreme Court to follow suit. Equality and Liberty in the Golden Age of State Constitutional Law is essential reading for anyone interested in this manifestation of law that has developed beyond the purview of national attention and in the resulting evolution of power in U.S. constitutional law.

Using a theoretical and comparative perspective, Aileen Kavanagh argues that protecting rights in a constitutional democracy is a collaborative enterprise between all three branches of government: the Executive, legislature, and courts. With examples from multiple jurisdictions, this book documents the dynamics of collaborative constitutionalism.

Citizen and Pariah explores the fragility of law, pluralism and democracy in South Africa by investigating Somali informal shopkeepers’ experiences of crime, justice and regulation in the country. Through a narrative account of their local experiences, the book sheds light on the legal and political predicaments they face.

In Governing from the Bench, Emmett Macfarlane draws on interviews with current and former justices, law clerks, and other staff members of the court to shed light on the institution’s internal environment and decision-making processes. He explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices’ behavior; and situates the court in its broader governmental and societal context, as it relates to the elected branches of government, the media, and the public.