Canada's "Newer Constitutional Law" and the Idea of Constitutional Rights
Adams, Eric M., McGill Law Journal
This article places F.R. Scott's 1935 call for entrenched constitutional rights within the context of marked changes in constitutional scholarship in the 1930s--what the author refers to as the "newer constitutional law". Influenced by broader currents in legal theory and inspired by the political and economic upheavals of the Depression, constitutional scholars broke away from the formalist traditions of a previous generation and engaged in new ways of thinking and writing about Canadian constitutional law. In this new approach, scholars questioned Canada's constitutional connection to Britain and argued instead for a made-in-Canada constitutional law that could functionally address the changing needs of Canada and its citizens. In the process, scholars legitimated the prospects and possibilities of constitutional adaptation and change. Scott's vision of constitutional renewal entailed a strong central government capable of national economic planning, but he added constitutional rights to protect the personal liberties he viewed as particularly under threat in the 1930s. In so doing, Scott subtly recast the meaning of constitutional rights and took the first tentative steps in a rights revolution that would fundamentally transform Canada in the decades that followed.
L'article situe l'appel de F.R. Scott de 1935 pour des droits constitutionnels enchasses dans le contexte des grands changements ayant marques la doctrine constitutionnelle durant les annees 1930, ce que l'auteur considere comme le <
Introduction I. Constitutional Scholarship in the Early Twentieth Century: The "Older Constitutional Law" II. The Newer Constitutional Law A. First Challenges B. A New Nationalism C. Roscoe Pound and Sociological Jurisprudence in Canada D. The Politics of Constitutional Law E. Civil Liberties and Constitutional Law III. A Constitutional Bill of Rights for Canada Conclusion
"[F]or many years constitutional law has been under a shadow," observed William Paul McClure Kennedy in the 1931 volume of the Canadian Bar Review. For this gloomy assessment, Kennedy blamed "incomparably dull" textbooks crammed with "the minutiae or unrealities of legal or constitutional history" and other such "barren gustations". Yet Kennedy saw hope for his beloved subject. Times were changing and the "insistent demands of modern life" were compelling scholars to view constitutional law from "newer and more urgent angles." The "older constitutional law", Kennedy insisted, was "being handed over to the historians to make way" for a new, robust, and energized constitutional scholarship. …