Chapter 9: Federalism and Subnational Legal Systems: The Canadian Example of Provincial Constitutionalism
G. Alan Tarr* 1 INTRODUCTION Scholars have long recognized that studying the constitutional architecture of other countries enhances one’s understanding of one’s own constitutional arrangements by making the familiar and seemingly obvious problematic and contingent. As Kim Scheppele put it: ‘One reason [for studying comparative constitutionalism] is that many of the taken-for-granted fixed starting points of our field are actually variables connected to time and space, variables whose variable quality is obscured if we do not know the counterexamples.’1 With this in mind, this chapter analyzes provincial constitutionalism in Canada in light of American state constitutions and, to a lesser extent, the subnational constitutions of other federal systems. Such a study is valuable substantively, as previous research on Canadian constitutionalism has largely ignored provincial constitutions.2 In addition, looking at Canadian provincial constitutions from a comparative perspective highlights what is common and what distinctive in subnational constitutions in various federal systems. Finally, by examining Canadian provincial constitutionalism comparatively, this study reveals what these diverse experiences suggest about the role that subnational constitutions play in governance and in guaranteeing rights. This chapter pays particular attention to developments in Quebec, because the relation between provincial constitutions and rights has been a topic of more than scholarly interest in that province. The idea of a separate, entrenched Quebec constitution has periodically * Director of the Center for State Constitutional Studies and Distinguished Professor of Political Science, Rutgers University-Camden. The author began research on this chapter while he was a Fulbright scholar in Ottawa, Canada, and...
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