Lorraine Weinrib

The Postwar Paradigm and American Exceptionalism

The Constitution of the United States provided the inspiration for the rights-protecting constitutions of liberal democracies throughout the world. Yet the constitutional systems developed or newly established since the Second World War now differ from their US precursor. These systems have come to share a sophisticated legal paradigm that facilitates - indeed, perhaps necessitates - comparative engagement. The constitutional jurisprudence of the United States stands apart from this shared legal paradigm. Recently, prominent US judges and politicians have crossed swords on the issue of comparative reflection. This debate raises an important question: how should US scholars and judges define the relationship of their Constitution to the constitutional systems of liberal democracies that operate within the postwar constitutional paradigm?In this chapter I focus, in the light of the postwar constitutional conception and its juridical paradigm, on two interrelated strands of the purported justification for the exceptionalist constitutional conception with which it competes. In the first strand, the Constitution stands as the unique product of the US founding, so that constitutional interpretation operates within the parameters of US constitutional tradition and history. Deference to past and present expressions of the people shape legal reasoning about constitutional rights. In the second strand, any deviation from such deference invites subjective and unaccountable judicial preference to reign supreme. The classical exemplar of this danger is the Lochner case. Recoiling from the perceived judicial hubris of Peckhams majority opinion, courts and commentators in the United States have endorsed Holmess extreme deference to majoritarianism, history, and tradition.The postwar constitutional conception demonstrates the vulnerability of both strands in this argument. The growing development of a transnational culture of rights suggests an alternative to the conception of rights-protection as the unique product of US experience. Moreover, the traditional reading of Lochner is mistaken in asserting, as the sole corrective to Peckhams majority opinion, Holmess policy of deference to majority, history, and tradition. Rather, we should take up the neglected reasoning of Harlan, who carefully examined the impugned limitation of freedom of contract and found it justified as an exercise of the traditional police power of the state.This chapter develops these themes. The following section traces the emergence and legal structure of the postwar constitutional paradigm. The next section traces the features of this juridical paradigm within the Warren Court. The final section revisits the legitimacy of the Warren Courts constitutional methodology, by arguing that Harlans dissent - the road not taken, as it were - delineates the legal ordering now acknowledged to be the precursor of the postwar paradigm. The conclusion draws out some of the implications of the overall argument. For example, this reassessment of Harlans opinion would not merely enrich the recent revisionary examination of the Lochner crisis and its resolution; it would also vindicate as juridical even the most controversial judgments of the Warren Court. If the postwar constitutional paradigm were to be recognized as an integral part of US constitutional legal structure, the door would open to comparative constitutional engagement in the further development of that paradigm within the distinctive contours of US constitutional law.

'This New Democracy.. . ': Justice Iacobucci and Canada's Rights Revolution

Justice Frank Iacobucci’s years on the Supreme Court of Canada, 1991 to 2004, coincided with an unexpectedly volatile period in the Court’s history. The Court had delineated the main features of the Charter’s legal structure and methodology in the first generation of cases. It was reasonable, therefore, to anticipate a period of consolidation. Instead, a second generation of cases precipitated re-evaluation of some of the most basic questions of Charter interpretation, argumentation, and institutional roles. These challenging cases gave Justice Iacobucci the opportunity to think deeply about particular issues in the light of larger questions. In the tradition of other great common law judges, he built upon the strengths of his predecessors’ work as he analysed the particulars raised in each new case in the light of the applicable principles. Justice Iacobucci brought distinctive strengths to the Court. His academic background gave him a firm grounding in structured areas of law. While specialization in corporate, commercial, and tax law might appear to be an unusual preparation for Charter adjudication, these specialized fields raise a similar tangle of concerns – the interplay between the individual and the collective, substantive and procedural fairness, rights and duties, written and unwritten norms, and self-interest versus the public interest. As a teacher, Justice Iacobucci was admired for his ability to build courses from first principles to their full legal complexity and social import, the precise skill necessary for adjudication in an evolving area of law. His administrative, organizational, and leadership

The Canadian Charter as a Model for Israel's Basic Laws

Although there are vast contrasts in the constitutional arrangements, history, economic substructure, demographics, security and political cultures of Canada and Israel, these countries share a common approach to rights protection. Israel has continually looked to Canadas Charter experience to inform its own stance. To understand this phenomenon one must look beyond the contrasts: the appeal lies at a deeper, more abstract level. The attraction is the Canadian Charters membership in the post-World War Two family of rights protecting instruments. By capturing a coherent national statement of constitutional priorities based on these instruments, and in particular a network of institutionally sound roles, the Canadian Charter offers a more attractive system of rights protection than, for example, its American counterpart.