Charles R. Epp

Do Bills of Rights Matter? The Canadian Charter of Rights and Freedoms

A although constitutional protection for rights is increasingly popular, there is little systematic research on the extent to which bills of rights affect the process of government. This article examines the effects a bill of rights may be expected to produce, and then uses a quasi-experimental design to analyze the effects of the Canadian Charter of Rights and Freedoms on the Canadian Supreme Courts agenda. The data suggest that the Charter indeed has influenced the Courts agenda, although the effects are more limited than generally recognized. More important, the data suggest that a number of the influences often attributed to the Charter likely resulted instead from the growth of what I call the support structure for legal mobilization, consisting of various resources that enable litigants to pursue rights-claims in court. The political significance of a bill of rights, then, depends on factors in civil society that are independent of constitutional structure.

The Support Structure as a Necessary Condition for Sustained Judicial Attention to Rights: A Response

Urribarri, Schorpp, Randazzo, and Songer pose an important question in the comparative study of courts: why do some high courts devote sustained attention to rights while others do not? I have argued that a rights-advocacy support structure is a necessary condition, making sustained judicial attention to rights possible. Claiming to test this thesis, USRS propose and test a different hypothesis, that changes in a country’s support structure directly cause changes in judicial attention to rights. This represents a misunderstanding of the nature of a necessary-condition thesis. USRS, however, devote most of their paper to testing this direct-cause thesis. Near the end of their paper they briefly assess my necessary-condition thesis, asserting that several countries’ high courts have had rights agendas in the absence of a support structure. Research on these countries, however, demonstrates that each had a support structure at the relevant time, confirming my thesis.