Constitutional Law Commons^™

Are Courts Competent To Decide Competency Questions? Stripping The Facade From United States V. Charters, Michael L. Perlin

Articles & Chapters

No abstract provided.

On Checking The Artifacts Of Canaan: A Comment On Levinson's "Confrontation", Thomas L. Shaffer

Journal Articles

My friend Levinson has been prominent of late among constitutional scholars who use religious metaphors to describe the curious American political experiment. In the image he uses, we lawyers are priests in the practice of a constitutional faith; the federal constitution is our scripture, our creed, and our oath. Levinson, though, is not a television evangelist or street preacher. He is, instead, a theologian. He is unique in the honesty and thoroughness he brings to the discussion-as evidenced here by his looking at the possibility that we priests of the American constitutional faith have another faith to take into account …

Developments In Constitutional Law: The 1988-89 Term, A. Wayne Mackay, Dianne Pothier

Articles, Book Chapters, & Popular Press

This article canvasses the major developments from the 1988-89 term of the Supreme Court of Canada.

In terms of Charter jurisprudence there were major developments concerning equality rights, mobility rights, freedom of expression, and section 7.

More generally, there were also important developments in the federal trade and commerce power and broad hints as to the Supreme Court's leanings in relation to the federal spending power. There is clarification on how both federal and provincial laws affect federal undertakings, and re-affirmation of the ancillary nature of powers in relation to language. The Court reassesses the tests of when a provincial …

Justice Scalia And The Elusive Idea Of Discrimination Against Interstate Commerce, Richard B. Collins

Publications

No abstract provided.

Meeting The Enemy, Robert F. Nagel

Publications

No abstract provided.

The Evolution Of The Limitation Clause, Janet Hiebert

Osgoode Hall Law Journal

The evolution of the limitation clause reveals a rigorous and changing political discourse about the nature of rights and limitations. While the larger issue in the entrenchment debate focussed on whether legislatures or courts were best suited to protect Canadians' interests, a fundamental concern underlying the debate was the scope of permissible limitations on protected rights. Many commentators argued that an explicit limitation clause was not necessary because courts would fashion the appropriate limits on rights. Provincial and federal drafters, however, rejected the assumption implicit in this suggestion: that the Charter was to provide an exhaustive statement of all values …

Advice, Consent, And Influence, Robert F. Nagel

Publications

No abstract provided.

Contempt For Workers, Harry J. Glasbeek

Osgoode Hall Law Journal

Charter proponents have been hopeful that the courts will use the constitutional entrenchment of rights to enlarge the political freedom of Canadians. Charter opponents have been doubtful of the court's ability to do so and, more importantly, of their willingness to do so where the enhancement of rights would undermine existing power relations. While many cases which come before the courts do not raise this issue squarely, the contradictory propositions are tested where capital labour conflicts are the subject of litigation. The argument is that it is the courts' historic mission to safeguard capital from working class challenges. Two recent …

What Is A Church By Law Established?, M. H. Ogilvie

Osgoode Hall Law Journal

This paper examines one narrow question which is raised tangentially by virtue of the Constitution Act 1867, section 93 and the Constitution Act 1982, section 29 as interpreted by the Supreme Court of Canada in the Reference Re An Act to Amend the Education Act: what is an established church? It argues that when a single church alone enjoys constitutionally entrenched state support for its schools to the exclusion of all other religious groups, the real legal question is not about the legal protection of that church as a religious minority, especially when the recipient of state support is the …

The Continued Importance Of The Maryland Declaration Of Rights, William L. Reynolds

Faculty Scholarship

An analysis of the origins and development of Maryland's 'Declaration of Rights.'

The Politics Of The Imagination: A Life Of F.R. Scott, J King Gordon

Dalhousie Law Journal

The task of a biographer is a challenging one at best. And when the subject is one who has achieved distinction in many fields the difficulties are magnified many times. Better, perhaps, to settle for a Festschift where colleagues and friends in fields in which the subject has excelled join together to pay their separate tributes. So in the case of Frank Scott and his biographer, Sandra Djwa. She is a professor of literature and has achieved recognition for the work she has done on the writings and life of E.J. Pratt. It was undoubtedly Frank Scott, the distinguished Canadian …

Eminent Domain, Police Power, And Business Regulation: Economic Liberty And The Constitution, Philip P. Houle

West Virginia Law Review

No abstract provided.

Mastery, Slavery, And Emancipation, Guyora Binder

Journal Articles

Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …

Interpreting An Unwritten Constitution, Ronald D. Rotunda

Law Faculty Articles and Research

No abstract provided.

James Wilson's "Assimilation Of The Common-Law Mind", Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.

Are Constitutional Cases Political?, Brian Slattery

Articles & Book Chapters

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …

Diagnostic Adjudication In Appellate Courts: The Supreme Court Of Canada And The Charter Of Rights, Carl Baar, Ellen Baar

Osgoode Hall Law Journal

Three distinct adjudicatory processes are found in appellate courts: decisional adjudication (applying principles), procedural adjudication (choosing among principles), and diagnostic adjudication (defining and developing principles). The Supreme Court of Canada has traditionally used procedural adjudication, in which the adversary process frames issues and generates supporting material. However, the Court's decreased caseload, its increased discretion to select cases, and the arrival of a new wave of issues under the Charter of Rights has shifted the Court's work to diagnostic adjudication. As judgment becomes less a choice problem and more a creative exercise, both the degree and kind of judicial involvement changes. …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Faculty Scholarship

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law – text and interpretation – to accommodate such developments?

Presidential Management Of Agency Rulemaking, Harold H. Bruff

Publications

No abstract provided.

Indian Consent To American Government, Richard B. Collins

Publications

No abstract provided.

Public Programs, Private Deciders: The Constitutionality Of Arbitration In Federal Programs, Harold H. Bruff

Publications

No abstract provided.

Commentary, The Selling Of Jury Deliberations, Robert F. Nagel

Publications

No abstract provided.

A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel

Publications

No abstract provided.

Forgetting The Constitution, Robert F. Nagel

Publications

No abstract provided.

Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel

Publications

No abstract provided.

Constitutional Arguments: Interpretation And Legitimacy In Canadian Constitutional Thought, Joel C. Bakan

Osgoode Hall Law Journal

The author provides an analysis and critique of the various types of arguments advanced by Canadian constitutional jurists to establish formal grounds for the legitimacy of judicial review under the Canadian constitution. He demonstrates how two variables - constitutional truth and trust in the judiciary - are relied upon in past and contemporary debates about constitutional adjudication to construct four different types of argument about the legitimacy of judicial review. Each of these types of argument is then criticized in the context of recent Charter decisions. It is argued that none of them can sustain the burden of legitimating judicial …

Methods Of Constitutional Argument, Philip C. Bobbitt

Faculty Scholarship

The methods of constitutional argument1 that may be denominated, historical, textual, doctrinal, structural, prudential and ethical, have not grown according to a plan. They have grown up in the United States because of our history and traditions – the sort of people we have become and are still becoming. To that extent, they are arbitrary and contingent. They are not the same for every culture. I would be surprised if they were very different for Canada because Canadians and Americans share so much of the same legal tradition. One can, however, easily imagine cultures around the world where legal arguments …

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …

Constitutional Law (Kempo), Jutta Brunnée

Dalhousie Law Journal

In 1976 Carl Heymanns Verlag published the first volume of a series on Japanese law. A recent addition to this collection covering areas as diverse as civil and criminal procedure, labor law, nuclear energy law, and international law, is Miyazawa Toshiyoshi's (1899-1976) book on constitutional law. With this German translation, Robert Heuser and Yamasaki Kazuaki provide their readers with the first systematical overview on Japanese constitutional law in a western language.

Constitutionalism In Asia: Asian Views Of The American Influence, Lawrence W. Beer

Maryland Series in Contemporary Asian Studies

No abstract provided.