Comparing Constitutional Historicities: The Case of Precedents in Canada and the United States

Jean-Christophe Bédard-Rubin

Jump to Content

Chapter 4 Comparing Constitutional Historicities

The Case of Precedents in Canada and the United States

In: Comparative Constitutional History

Author:

Jean-Christophe Bédard-Rubin

Jean-Christophe Bédard-Rubin
Search for other papers by Jean-Christophe Bédard-Rubin in
Current site
Google Scholar
PubMed

Type:: Chapter

Pages:: 113–145

DOI:: https://doi.org/10.1163/9789004523739_006

Purchase instant access (PDF download and unlimited online access):

€42.00€35.00 excl. VAT

Add to Cart

Redeem Access Token

Abstract

This chapter explores the role of precedents in Canada and the United States. Beyond surface resemblance in legal doctrines, precedents are used as a window into comparative constitutional historicity. While the Supreme Court of Canada has recently revisited its early rulings under the Canadian Charter of Rights and Freedoms without controversy, fierce arguments have kept recurring in the last decades in the United States about adherence to constitutional precedent (or lack therefore) in cases of fundamental rights. Starting from this contrast, the chapter illustrates the ways in which constitutional precedents have been problematized in the United States and in Canada. Canadian constitutional culture is shown to lack a single dominant constitutional narrative or a clear founding. It is characterized by metaphors of incompleteness and openness to change which give little authoritative force to precedents and provide significant latitude to judges to move the constitution forward. This approach contrasts with the narrativization of constitutional law in the United States where previous rulings are systematically embedded in a comprehensive story to justify stability as well as change. This is reinforced by institutional mechanisms such as public confirmation hearings for judicial nominees which generate super precedents that structure American constitutional disagreements and emphasize necessity in constitutional adjudication. These elements make for two distinct ways of addressing the historicity of constitutions.

Citation Info

Save
Cite
Email this content

Share link with colleague or librarian

You can email a link to this page to a colleague or librarian:
Email this content
or copy the link directly:

https://brill.edhh.ma/abstract/book/9789004523739/BP000007.xml
The link was not copied. Your current browser may not support copying via this button.

Link copied successfully

Collapse
Expand

Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

Series: History of European Political and Constitutional Thought, Volume: 10

Cover Comparative Constitutional History

E-Book ISBN:: 9789004523739

Publisher:: Brill

Print Publication Date:: 25 Nov 2022

Subjects

Front Matter

Part 1 Framing the Problem

Part 2 Historical Precedents and Inter-constitutional Interpretation

Part 3 A Matter of Narratives

Part 4 New Democracies and Illiberal Regimes

Back Matter

Metrics

	All Time	Past 365 days	Past 30 Days
Abstract Views	1410	446	32
Full Text Views	51	15	0
PDF Views & Downloads	43	10	1

African Studies	Education	Media Studies
American Studies	History	Middle East and Islamic Studies
Ancient Near East and Egypt	Human Rights and Humanitarian Law	Musicology
Art History	International Law	Philosophy
Asian Studies	International Relations	Religious Studies
Biblical Studies	Jewish Studies	Slavic and Eurasian Studies
Biology	Languages and Linguistics	Social Sciences
Book History and Cartography	Life Sciences	Theology and World Christianity
Classical Studies	Literature and Cultural Studies

Subjects

Authors

Open Access

Product Information

Company

Contact

Chapter 4 Comparing Constitutional Historicities

The Case of Precedents in Canada and the United States

Abstract

Citation Info

Share link with colleague or librarian

Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

Table of Contents

Metrics

Metrics