The Canadian Charter, the British Connection, and the Americanization Thesis: Toward a Montesquieuean Analysis of Rights and Their Protection

In: Canadian journal of political science: CJPS = Revue canadienne de science politique, Band 50, Heft 4, S. 1061-1081

Abstract

AbstractThis article examines the Canadian Charter with reference to "the British connection" and "the Americanization thesis." It also attempts to demonstrate the importance of Montesquieu'sThe Spirit of the Lawsin addressing these issues. Pierre Trudeau insisted that a Charter of Human Rights would provide Canadians with a new beginning and settle difficult questions about the Canadian identity. His critics said that fundamental rights were already protected because Canada had a constitution similar in principle to the United Kingdom, and that the proposed Charter was a step in the Americanization of Canada. What a Montesquieuean analysis helps to identify are significant limitations in both "the British connection" account and "the Americanization thesis." And, by the avoiding the abstract universalism of Trudeau's "inalienable rights" theorizing and Dworkin's "rights as trumps" regime, a Montesquieuean analysis also helps to demonstrate the distinctiveness of Canadian constitutionalism from Confederation to the Charter.