Academic journal article The George Washington International Law Review

MARBURY V. MADISON AND CANADIAN CONSTITUTIONALISM: RHETORIC AND PRACTICE

Academic journal article The George Washington International Law Review

MARBURY V. MADISON AND CANADIAN CONSTITUTIONALISM: RHETORIC AND PRACTICE

Article excerpt

Marbury v. Madison1 established important constitutional principles that have legitimate claim to universality. Indeed, Chief Justice John Marshall's reasoning is partly responsible for the worldwide spread of judicial review.2 Since the entrenchment of the Canadian Charter of Rights and Freedoms3 in the Constitution in 1982, Marbury has become an explicit part of Canadian constitutional rhetoric. The main issue addressed here is the extent to which the constitutional principles recognized in Marbury underlie and can make sense in Canadian constitutional discourse and practice.

Marbury is a complex case; it deals with many difficult issues and suggests various levels of understanding. For Canadian constitutional lawyers, for example, the case is generally understood as supplying the basic legal and logical justification of two principles: the supremacy of the written Constitution and the legitimacy of judicial review of the constitutionality of legislative and executive acts.4 But Marbury can also be understood as expressing the dominant characteristics of what I shall call the "American model of constitutionalism." Now Canadian constitutionalism also recognizes the supremacy of the written Constitution and the legitimate authority of the judiciary to review the constitutionality of legislative and executive acts. Moreover, it has become almost natural to hear in Canada that the Canadian Constitution has been "Americanized," at least to a certain extent. Given the British legal heritage of Canada and the preamble of the British North America Act, now the Constitution Act, 1867, which provides that the Constitution is "similar in Principle to that of the United Kingdom,"5 it is interesting to verify whether, or the extent to which, the U.S. model of constitutionalism underlies and can make sense of Canadian constitutional discourse and practice.

The question as to whether the Canadian Constitution is similar in principle to that of the United States, as opposed to that of the United Kingdom, has always been a contested issue within Anglo-Canadian constitutional theory. For example, Albert V. Dicey, the most important British constitutional theorist in modern times, argued in 1885 that the preamble of the British North America Act was a "diplomatic inaccuracy." The truth required one to substitute the word "States" for the word "Kingdom." In Dicey's mind, it was clear that "the Constitution of the Dominion [was] in its essential features modelled on that of the Union [that is, the United States]."6 Many Canadian constitutional lawyers disagreed. For example, in 1892, in his treatise on constitutional law, William Henry Pope Clement argued that Dicey's view was "quite erroneous [and] founded upon a very superficial observation of the structure of government in this Dominion."7 In 1889, in his own treatise, J.E.C. Munro asserted that Dicey's view was "very far from the truth."8 Of course, the value of these positions might depend on what elements are taken as "essential" characteristics of the Canadian, U.S., and British constitutions. For example, Dicey emphasized the federal nature of the Canadian system whereas Clement and Munro emphasized the parliamentary nature of the Canadian system of governance. Moreover, the value of the contested positions might depend on what essential characteristics are taken as similarities and differences in "principle."

The first Section of this Article describes the meaning of the U.S. model of constitutionalism. The second Section contends that this model of constitutionalism played no significant role in Canadian constitutional law and theory from the creation of Canada in 1867 up until 1982. The third Section shows that since 1982, however, the U.S. model of constitutionalism has become part of Canadian constitutional rhetoric. Chief Justice Marshall's reasoning in Marbury has actually been conceived as offering the theoretical premises that can justify the supremacy of the Canadian Constitution and the legitimacy of judicial review in Canada. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.