Political Science

Ut 'ncept't fidels sic permanett The British North America Act (BNA Act)' has been "patriated." At last, Canadians have their own basic law. The historical context of this constitutional change is the history of a political system that did not work as its creators had intended, of constitutional reform efforts that ended in stalemate, and of analysts "fallen into speaking the language of doubt when describing their society." ' 2 Why, then, should we bother about the past? The past is important for three simple reasons: 1) A large proportion of the reasoning still employed in the analysis of contemporary government and politics rests explicitly or implicitly on an interpretation of the historical record of constitutional change; past experience could discredit this current reasoning; 2) The modelling and remodelling of constitutional arrangements are well enough documented to suggest conclusions which could become plausible working hypotheses about constitutional choice; and 3) The Constitution of 19823 could be checked against the working hypotheses about past experiences in order to explain its successful patriation and to predict its applicability for resolving old problems. But the method of the attack of the historical record will determine the utility of the analysis. First, the importance of constitutionalism for a liberal democratic society is well enough established to require no extended elaboration or defense. 4 Laws, regulations, organizations, and property rights-the institutional arrangements in society that create incentive systems through which citizens and public officials

Does freedom of religion protect religious institutions, or does it only protect the individual religious conscience? Canadian jurisprudence after the Charter of Rights and Freedoms takes a decidedly individualist turn, deliberately avoiding the question of the rights of religious institutions. This individualist focus neglects the historical trajectory of religious freedom, the social understanding of religious faith by religious adherents themselves, and the institutional structures in which religion emerges and develops, and though which it is ultimately protected. An institutional account of religious liberty can complement the individualist account, as it better explains the legal order, better reflects actual religious practice, and better preserves both institutional and individual religious liberty. Recent decisions of the Supreme Court of Canada go some way towards correcting this individualist bias, but balk at resolving the legal status of religious institutions. This persistent ambiguity will prove problematic in controversies over religious autonomy already making their way through the courts.

This chapter seeks to differentiate religious liberty from multiculturalism as theoretical categories and to identify some of the consequences of this differentiation. This chapter discusses the multicultural paradigm, as well as its limits, such as the challenge in recognizing religious institutions or associations, which do not follow the same boundaries as other cultural minorities. It posits that religious claims have a different historical origin from multicultural claims and that this historical origin influences both the subjects of religious freedom and the types of claims it endorses. This chapter concludes by asserting that religious liberty has as its object both individual practitioners and believers who can be analogized to members of cultural communities and religions associations, which cannot be so analogized.

In The Birthright Lottery, Ayelet Shachar subjects the institution of birthright citizenship to close scrutiny by applying to citizenship the historical and philosophical critique of hereditary ownership built up over four centuries of liberal and democratic theory, and proposing compelling alternatives drawn from the theory of private law to the usual modes of conveyance of membership. Nonetheless, there are some difficulties with this critique. First, the analogy between entailed property and birthright citizenship is not as illustrative as Shachar intends it to be; second, the mechanism of the birthright privilege levy is insufficient for addressing structural impediments to growth; and third, the principle of ius nexi, while an important corrective to currently dominant principles of nationality, will likely have effects both unnecessary and insufficient to correct the injustices that Shachar identifies. In the end, the most significant improvements in the lives of the neediest persons on the planet are more likely advanced through conventional arguments for the lowering of barriers to the circulation of goods, labor, and capital. This shift in attention from opening borders to extending citizenship risks being a distraction from more effective means of addressing the injustices associated with global inequality.

Is it unjust to future generations for those presently-living to adopt a constitution that binds both present and future members of a political society? I shall refer to this question as the problem of a perpetual constitution. Put more formally, are there good reasons to think that fundamental laws have normative authority extending beyond the generation responsible for their enactment or, to the contrary, is this presumption of perpetuity an unjust curtailment of the liberty of future persons to choose their own political arrangements?

Pluralism proceeds from the observation that many associations in liberal democracies claim to possess, and attempt to exercise, a measure of legitimate authority over their members. They assert that this authority does not derive from the magnanimity of a liberal and tolerant state but is grounded, rather, on the common practices and aspirations of those individuals who choose to take part in a common endeavor.

As an account of the authority of associations, pluralism is distinct from other attempts to accommodate groups like multiculturalism, subsidiarity, corporatism, and associational democracy. It is consistent with the explanation of legal authority proposed by contemporary legal positivists, and recommends that the formal normative systems of highly organized groups be accorded the status of fully legal norms when they encounter the laws of the state.

In this book, Muniz-Fraticelli argues that political pluralism is a convincing political tradition that makes distinctive and radical claims regarding the sources of political authority and the relationship between associations and the state. Drawing on the intellectual tradition of the British political pluralists, as well as recent developments in legal philosophy and social ontology, the book argues that political pluralism makes distinctive and radical claims regarding the sources of political authority and the relationship between associations and the state.

A Principle of Subsidiarity regulates the allocation and/or use of authority within a political order where authority is dispersed between a centre and various sub-units. Section 1 sketches the role of such principle of subsidiarity in the EU, and some of its significance in Canada. Section 2 presents some conceptions of subsidiarity that indicate the range of alternatives. Section 3 considers some areas where such conceptions might add value to constitutional and political deliberations in Canada. Section 4 concludes with some reminders of crucial contested issues not fully resolved by appeals to subsidiarity alone, exemplified by the protection of human rights.

In The Birthright Lottery, Ayelet Shachar subjects the institution of birthright citizenship to close scrutiny by applying to citizenship the historical and philosophical critique of hereditary ownership built up over four centuries of liberal and democratic theory, and proposing compelling alternatives drawn from the theory of private law to the usual modes of conveyance of membership. Nonetheless, there are some difficulties with this critique. First, the analogy between entailed property and birthright citizenship is not as illustrative as Shachar intends it to be; second, the mechanism of the birthright privilege levy is insufficient for addressing structural impediments to growth; and third, the principle of ius nexi, while an important corrective to currently dominant principles of nationality, will likely have effects both unnecessary and insufficient to correct the injustices that Shachar identifies. In the end, the most significant improvements in the lives of the neediest ...

This paper explores subsidiarity as a constitutional principle in international law. Some authors have appealed to a principle of subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, the leeway in assessing state compliance and weak sanctions in its absence. The article presents such defences of state-centric aspects of international law by appeals to subsidiarity, and finds them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US federalists, Pope Leo XIII, and others. One upshot is that the principle of subsidiarity cannot provide normative legitimacy to the state-centric aspects of current international law on its own. It ...

Despite its broad ambitions, the Dodd-Frank Wall Street Reform and Consumer Protection Act is a piecemeal attempt to realign conflicting interests, rather than an effort to fundamentally address the systemic design questions in the current financial system. Some of the central difficulties involved in the legislation are the group-targeting method of bringing only some business entities under federal regulation, the inability of backward-looking legislation to respond to future market innovations, and the weakness of fines as a deterrent mechanism for actions that lead to future instability. A preferred alternative would be a functional approach to financial regulation, which acknowledges the role and limits of legislation and leaves discretion to both the administrative bodies and the courts to identify specific abusive acts.

For every constitution there is an epic, for each decalogue a scripture. 1 The controversy over the recitation of prayer at the sessions of the municipal council of the city of Saguenay laid bare the tensions between religious neutrality and historical identity that continue to play out in the constitutional politics of Quebec. At stake is control of the narrative of what Quebec was and is becoming, and thus control of the meaning of those symbols and norms that shape and direct its normative order. Mouvement laïque québécois v. Saguenay (City) 2 is as much a case about constitutional doctrine as it is about the narrative of secularization in Canadian and (especially) Quebec society, and the ongoing displacement of a tacit Christian identity for a multicultural and civic ethos. In many ways, MLQ v. Saguenay is a distinctly Québécois controversy: It is the culmination of a long and often tumultuous struggle to define the place of Roman Catholicism in the civil and political life of the province after centuries of ecclesiastical hegemony and decades of reaction against this hegemony. The players in the drama were not new to the stage, but had been intervening in public life for years, most recently in the Consultation Commission on Accommodation Practices Related to Cultural Differencesthe Bouchard-Taylor commission. 3 The complaint that led to the actual case was originally brought before a forum charged with promoting the 1976 Quebec Charter of Human Rights