Comparison of US Bill of Rights and The Canadian Charter of Rights

BACKGROUND OF THE BILL OF RIGHTS

The United States Bill of Rights came into being as a result of a promise made by the Fathers of Confederation to the states during the struggle for ratification of the Constitution in 1787-88. A great number of the states made as a condition for their ratification, the addition of amendments, which would guarantee citizens protection of their rights against the central government. Thus, we have a rather interesting situation in which the entrenchment of a bill of rights in the American Constitution was done by the virtual demand of the states, they themselves fearing a central government which was not legally constrained and restricted as far as its powers were concerned.

The resulting Bill of Rights is appended to the American Constitution as the first ten amendments. These amendments automatically became an integral part of the original document, making them part of ‘The Supreme Law of the Land.’ It was then actually ‘entrenched,’ as the phrase is used in Canadian terminology.

The American Civil War had a very profound effect upon the American Constitution and upon American constitutionalism generally. The Civil war had indeed been fought over a question of states’ rights, among other things, and the states’ rights interpretation had actually lost and was, to a degree, a casualty of the wartime period. Further, that casualty was swiftly hammered into its coffin by three amendments which were enacted in 1865, 1868 and 1870 – the Thirteenth, Fourteenth and Fifteenth Amendments. The Fourteenth Amendment ultimately became the heart and soul of the modern American Constitution. Most of the legal battle’s surrounding the United States Bill of Rights have been to make it a truly national document – such that states may not violate its provisions. The Fourteenth Amendment finally made this possible.

A more sudden, but perhaps equally profound event is the adoption in 1982 of the Canadian Charter of Rights and Freedoms. Whereas before the adoption of the Charter Canadian legislatures were supreme, having power without limit within their jurisdictions, they now have debatable supremacy within altered jurisdictions. Moreover, although no powers or rights have been explicitly ‘reserved’ to the people, supporters of the charter nevertheless appear to give Canadians hope that the possibility may exist.

COMPARISON OF B...

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...wo constitutional documents may be similar in respect to their provisions respecting rights, it would not necessarily follow that claims of violation of rights would receive the same response from the courts of both nations. A proper analysis of why this is so would require a book-length account of the constitutional and political history of Canada and the United States. It would include but would not be limited to the selection and role of judges, the role of legislatures and political leadership, the attitudes and practices of the police and administrative agencies, and, not least, popular attitudes towards rights, minorities, and government. In short, the whole of a people’s way of life.

Bibliography

McKercher, William R., ed. The U.S. Bill of Rights and the Canadian Charter of Rights

and Freedoms. Toronto: Ontario Economic Council, 1983

Dumbauld, Edward. The Bill of Rights and What it Means Today Norman: University

Of Oklahoma Press, 1977.

Steven Talos, Michael Liepner and Gregory Dickinson. Understanding The Law

Toronto: McGraw-Hill Ryerson Ltd, 1990.

Black, Charles L. The People and the Court: Judicial Review in a Democracy

New York: Macmillan, 1960.