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8.22.2009

The Continental Divide Writ Small

One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.


One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.

Yet constitutional differences, some quite significant, continue to endure. While the major differences between the two countries’ systems of government, political histories and constitutional legacies, are relatively well known, the less spectacular differences remain underexplored.

In July 2008, for example, a week after the U.S. Supreme Court ruling in Heller (essentially expanding the right to bear arms to individual/private use), Canada’s Governor General appointed Dr. Henry Morgentaler (currently 86 years old) to the Order of Canada – the highest official recognition of one’s contribution to Canadian society. Morgentaler, for those of you who do not follow constitutional law and politics north of parallel 49, is one of the most daring and progressive activists in Canadian constitutional history, and has been the champion of abortion rights in Canada for over 30 years. He and his clinics have been the target of many assaults by pro-life activists over the years.

Another reminder of these differences came in this weekend’s criminal underworld news: a former model was viciously murdered in LA, allegedly by her ex-husband, a reality TV star and a Canadian. (How the victim’s body was identified by police is an altogether different story, suitable for a forensic medicine blog). The suspect, still on the loose, is thought to have fled the US to Canada by boat. In 2001, the Supreme Court of Canada ruled in United States v. Burns that Canadian citizens facing serious criminal charges in the United States that may lead to their execution are not to be extradited to face trial unless a guarantee not to seek the death penalty in provided by American prosecutors. The main constitutional ground for the ruling was breach of “fundamental justice” guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. Although the Court did not rule on whether the death penalty was unconstitutional (section 12 of the Charter prohibits cruel and unusual punishment), at the principled level the ruling in Burns may be seen as a progressive, anti capital punishment statement. At the same time, the potentially grave consequences for law enforcement are obvious.

Either way, although dated in some respects, parts of Seymour M. Lipset’s classic account of the US/Canada continental divide remain as relevant today as they have ever been.

3 comments:

  1. This is an interesting comparison, especially given the popularity of "legal origins" explanations so prevalent in comparative law (but not comparative constitutional law) these days. Both countries would be categorized as having English legal heritage, with pockets of French influence. Both were "settler" regimes, to which European populations moved voluntarily, rather than resource extraction regimes that seem to be associated with negative governance outcomes. The legal origins people would predict convergence, I think. Yet Ran points out continuing divergence.

    here is a question: are Canadian social values different in any appreciable sense from European social values?

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  2. Interesting post, Ran.

    One thing that interests me, particularly given what I am writing these days, is the very similar structure of the legal (academic) professions in the two countries. Can we think of any other countries besides the United States and Canada where clerkships play such a role in training law professors? And then the number of academics (such as yourself) with audiences in both countries has to be as high as any two pair-wise countries (maybe some of the jurisprudence scholars from the UK or the law and econ scholars from Israeli schools could match it, but I doubt it).

    One thing I have wondered about on this point: Has there been a meaningful legal realism-style movement in Canada? In many other countries with other similar legal features as the United States (UK, India, whatever), there is still a stronger sense that internalist accounts of law are sufficient. In addition to some of your work, I now notice many attitudinalist accounts of the Canadian Supreme Court, etc. Is this new/prominent/etc.?

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  3. Thanks for the interesting comments. Tom's one is hard to address as different observers may have different views on this. In some respects, Canadian social values do indeed emulate European social values, primarily those associated with the Scandinavian welfare state. At the same time, no other country in the world shares such a long border, indeed its only land border, with the world's major superpower. So inevitably, American values and culture infiltrate Canadian society. In fact, over half of Canada’s private economic sector is said to be owned by foreign conglomerates, most notably American. That said, the Caandian national ethos is much more accommodationist (the mosaic metaphor) than assimilationist (the melting pot metaphor), and so remains unique in terms of its genuine commitment to multiculuralism, something that neither Europe nor the United States is committed to.

    On David’s point: there have been two waves of Canadian “realist” literature on law and courts. One was essentially a post-Charter leftist reaction. It thrived in the 1980s and early 1990 following the CLS movement. Allan Hutchinson, Joel Bakan, and Michael Mandel are three of the more powerful authors of this branch of thought. The last decade of Charter jurisprudence (e.g. with respect to workers’ rights) has been less business friendly than the 1980s and 1990s so the leftist critique subsided a bit. The second wave came in the last 3-4 years, when the “attitudinal” model “made Alia” to Canada. These recent works examine the model and its premises vis-à-vis the Canadian experience, and show the difficulties in applying the American version of the model to the Canadian context, where judicial appointment processes are different, and where binary ideological labeling has little bite. With few exceptions, the theoretical sophistication of the scholarly debate over the attitudinal or strategic models of judicial behavior exceeds that of its Canadian counterpart.

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