11 Jan Shaping the Constitutional Dialogue on Federalism: The Canadian Supreme Court as Meta-Political Actor

This article challenges the view that the Supreme Court has become the predominant authority on the constitutional distribution of rights and entitlements among governments in the Canadian federation. By assuming this position of constitutional supremacy, critics continue, the Court has usurped key policy functions that belong to political actors, a move that has undermined democratic governance in Canada. Against this view, we argue that the management of Canada’s federal constitutional architecture is a responsibility the courts share with key political actors. We describe the Court’s role as meta-political, whereby the Court’s federalism jurisprudence supplements rather than subverts the constitutional role of political actors. We develop our thesis in relation to two subnational constituencies with a distinctive constitutional status in Canada: the province of Quebec and Aboriginal First Nations.

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(2005) “Shaping the Constitutional Dialogue on Federalism: The Canadian Supreme Court as Meta-Political Actor,” with James Kelly. Publius: The Journal of Federalism 35, 217-43