Document Type

Article

Publication Title

Chicago Journal of International Law

Abstract

Mark Tushnet's provocative paper, State Action, Social Wefare Rights, and the Judicial Role: Some Comparative Observations offers a typology of judicial review that throws into high relief some of the key elements of any system of constitutional law. One key component of the mix is substantive: just what rights should, or does, a particular constitution protect? A second is structural: what payoff comes from assigning any particular level of constitutional protection to any particular right? The differences can matter. The United States Constitution simply invalidates the offending law. In contrast, the Canadian Charter of Rights and Freedoms provides that any such law can be reenacted for a five year period by a simple provincial majority. These two questions-of content and potency-are interdependent. Many modern constitutions reject the baseline of the United States Constitution, with its system of strong rights in property and liberty and strong judicial review. In contrast, newer constitutions offer weak protection to private property and often contain an impressive list of positive rights, such as the right to a decent job or decent housing. How does content influence potency? Tushnet argues that the Canadian Charter necessarily displaces the background rules of property and contract so central to the system of laissez-faire, which, in fact, they do. Indeed these Canadian cases seem to go beyond the usual American decisions on underinclusion. Underinclusion occurs when a statute that gives some benefit to members of one race declines to give it to members of another. It has never been read to require a state to prohibit discrimination on one ground because it has done so on another, which the Canadian cases do require. In many ways Tushnet welcomes this rejection of the classical liberal synthesis that I, for one, have long defended His basic challenge asks whether the classical liberal tradition is coherent. If not, then what becomes the status of the judicial enforcement of constitutional liberties? All this is not to say that the current set of American legal rules counts as perfection. Quite the contrary, much needs to be done to mend it and make it whole. But it is better, by far, that we seek to improve our current model than to import (or even endorse) the dubious constitutional schemes of positive rights that seem to be making so much headway in the rest of the world today.

First Page

455

Volume

3

Publication Date

2002

Download

Share

COinS