The role of theory in Canadian constitutional law

Abstract

Canadian constitutional law has been shaped by tacit assumptions about the philosophical foundations of the Constitution, and also by the articulate theorizing of judges, legal scholars, and legal practitioners. We discuss the assumptions behind the country's choice in 1867 of a distinct form of federalism, a parliamentary form of government very different from American republicanism, and a role for judges (particularly in adjudicating the federal division of powers, and in their innovative reference jurisdiction) that judges had never had in the United Kingdom Constitution. The principles of parliamentary government and of federalism, while giving the Constitution a remarkably robust framework, developed in a changing context with the end of Imperial governance. We discuss those developments, and ways in which the judges' role as theorists of the Constitution—enhanced by the Constitution Act, 1982—has burgeoned in that changing context, through their approach to the principles of the Constitution.