Academic journal article Harvard Law Review

Forty-Ninth Parallel Constitutionalism: How Canadians Invoke American Constitutional Traditions

Academic journal article Harvard Law Review

Forty-Ninth Parallel Constitutionalism: How Canadians Invoke American Constitutional Traditions

Article excerpt


While a debate over citing foreign law rages in America, Canadian constitutional discourse references the United States with frequency, familiarity, and no second thoughts. This is nothing new. After all, Canada's original constitutional framework was in some ways a reaction against American constitutionalism. (1) Similarly, the drafters of the Canadian Charter of Rights and Freedoms, (2) passed in 1982, took careful account of the American Bill of Rights. (3)

Nevertheless, today's burgeoning of comparative constitutionalism invites a closer and more structured look at the role America plays in Canadian constitutional discourse. As comparative constitutionalists strive for methodological discipline, (4) setting out criteria for how and when foreign constitutional experience should be employed, the Canadian example, with its rich references to American constitutionalism, serves as a useful case study. (5)

This Note proposes a framework for understanding the ways in which Canadian constitutional discourse invokes American constitutionalism. Canadian political and legal actors, it suggests, use American sources in three ways: as a model to follow, as an anti-model to avoid, and as a dialogical resource for reflecting on Canada's own constitutional identity. (6) Each of these positions, moreover, is situated within one of three larger narratives about Canadian legal and political culture, each of which forms a basis for political mobilization. This Note calls these the evolution narrative, the degeneration narrative, and the independence narrative. Part II explicates in broad terms each of the three narratives and its relationship to the uses of American sources. Part III shows each of the three narratives at work in a specific context: an ongoing debate about appointments to the Supreme Court of Canada. Part IV concludes by assessing the relevance of this narrative structure for comparative constitutionalism.


"No set of legal institutions or prescriptions," writes Professor Robert Cover in his influential Harvard Law Review Foreword, "exists apart from the narratives that locate it and give it meaning." (7) Professor Cover goes on:

    For every constitution there is an epic, for each decalogue a
    scripture. Once understood in the context of the narratives that
    give it meaning, law becomes not merely a system of rules to be
    observed, but a world in which we live.
    In this normative world, law and narrative are inseparably related.
    Every prescription is insistent in its demand to be located in
    discourse--to be supplied with history and destiny, beginning and
    end, explanation and purpose. . . . History and literature cannot
    escape their location in a normative universe, nor can prescription,
    even when embodied in a legal text, escape its origin and its end
    inexperience, in the narratives that are the trajectories plotted
    upon material reality by our imaginations. (8)

This Note accepts Professor Cover's insistence on the interrelatedness of law and its institutions on the one hand, and broader patterns of social and political discourse on the other. Situating references to the American constitutional tradition within larger narratives about Canadian politics and society can enrich our understanding of American constitutionalism's role in Canada. (9) If one accepts Professor Cover's framework, Canadian references to American constitutionalism have meaning only when viewed in the context of these narratives.

This Part attempts to link three positions on the use of American sources--model, anti-model, dialogue--with three narratives about Canadian constitutionalism. The model position links to a narrative of evolution, the anti-model position to a narrative of degeneration, and the dialogue position to a narrative of independence. The narratives are sketched below in broad terms. …

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