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Full-Text Articles in Law
Race And The Australian Constitution: From Federation To Reconciliation, George Williams
Race And The Australian Constitution: From Federation To Reconciliation, George Williams
Osgoode Hall Law Journal
The framing of the Australian Constitution initiated a pattern of discrimination against Australia's Indigenous peoples. They were cast as outsiders to the nation brought about in 1901. This pattern was broken in 1967 by the deletion of the discriminatory provisions from the Constitution. Today, there is strong community support in Australia for the reconciliation process, which would involve recognition of Indigenous peoples as an integral and unique component of the Australian nation. However, this has yet to be translated into substantive legal outcomes. The author analyses the interaction of issues of race and the Australian Constitution as it has affected …
The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe
The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe
Osgoode Hall Law Journal
Chief Justice Brian Dickson played a central role in the elaboration of the fundamental values of the Canadian Constitution. He took a balanced approach to federalism, favouring neither federal nor provincial claims and inviting cooperation through overlapping jurisdiction. Dickson transformed the rule of law from a background value to an operative constitutional principle. His judgments on the rights of minorities reflect a remarkable empathy for the plight of the disadvantaged. Democracy informed all aspects of his constitutional thinking. Dickson rejected the contention that judicial review is anti-democratic, and his constitutional legacy reflects a sustained effort to harmonize all four fundament …
Law's Expression: The Promise And Perils Of Judicial Opinion Writing In Canadian Constitutional Law, Paul Horwitz
Law's Expression: The Promise And Perils Of Judicial Opinion Writing In Canadian Constitutional Law, Paul Horwitz
Osgoode Hall Law Journal
This article argues that there is a link between one's theory of constitutional law, and one's judgments about style in judicial opinion writing. It identifies several special functions of the constitutional opinion, including the democratic function of responding to the counter-majoritarian difficulty through an act of public justification, and the inter-generational function of provoking a temporally extended dialogue about constitutional values. Drawing on these functions, it argues for an opinion writing style dubbed "open-textured minimalism," that seeks to resolve cases narrowly, articulate fundamental values and principles, and spark long-term debates about the underlying constitutional values supporting each decision. The author …