Lect 1 Jan 15.docx - Public Lawr | Class 2 September 20m...

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Unformatted text preview: Public Lawr | Class 2 September 20m, 2016 Introduction to Constitutional Law Administrative announcements: The take home mid—term exam is worth 30% Case brief instead of case study— just summarize the most salient features of the case — extracting the most common law — can’t do the same case as the one for midterm Final exam — definitions, short definitions The take home final exam will be related to case study so instead of writing another essay, analyze the case you've chosen Class Notes 1. Constitution: 0 Purpose- it reflects the soul of the nation, protecting its values. How do constitutions actually reflect the soul of the nation — it does this by mapping out the civil liberties and civil fights. Not every constitution guarantees constitutional fights and freedoms. That means in the abstract constitutions don’t necessary have to outline rights and freedoms {the ambition to protecting rights and freedom is important to the constitution. Not all liberal democracies have constitutions. Ex. U.I{ have parliamentary supremacy instead of an entrenched rule of rights but others do like Canada, U.S. and Russia etc. It is master law, it can’t be amended by the forms of government. It is fixed and rigid and the only way to change the constitution is to change the legal tools provided by the constitution itself. The constitution says about the country this is country ruled by law and that it is protected by arbitrary law. A constitution reflects one concern: d'EI'LJl I WEI . 0 Function — it express inherent values. To give provinces more autonomy. It is the slow dismantling ofthe oentralized state and haphazard national unity. 0 Form— it divides jurisdiction—Centralized power from state [in terms of Canada provinces). Our constitutional acts states that the federal is responsible for banking, commons, trade, interprovincial trade, foreign importing and exporting. Central is the Family. military. The BNA gives the federal the power to override provincial. The provincial has autonomy to administrate laws as they see fit. The nature of our federalism is this: our federal and supreme oourts are hesitant to interfere in regional affairs because of the power of political legitimacy within the provinoes. The federal government relies on provincial government for its own legitimacy 2. Relationship between modern constitutions and the rule of law in lib —demos — Our constitution is based on broke—ridge power. We are a broke—ridge country meaning that 0131361888 find more resources at oneclass.com GneClaSS find more resources at oneclass.com we try to please everyone. Its essence is conventional but broke—ridge power is modern. The existence of the Supreme Court which has the power at review all law and provide remedies. It is the guardian of the constitution, it gives definition to the phrases in the constitution yet they are not part of the constitution — it exists as an independent judiciary. Their existenoe is both legal and conventional. The constitution gives the when governments creates laws that interferes with rights and freedoms 3. Canadian Constitution —we are known as a constitutional monarchy. This redundant because the constitution says no one is about the law but the monarchy implies that one person is the law. However a constitutional monarchy says that the constitution is law so it’s not about the rule of people but the rule of law. |. Confederation + BNA to reparation — what is confederationI what was its value? Moving ourselves from the monarchy. A group so colonies that come together for federation. Confederation is the coming together of newly minted provinces that have already adopted a western style of governance under the power of the imperial empire' lose legal groups of independent bodies who come together for the purpose of protection but mostly trading and economic wealth where everyone can benefit. It is far easier to maintain your identity and culture while ripping the benefits of the confederation than goingto war. It is easier. The creation of the BNA act consolidates the existence of the EII'III'I E Ell" E | "E l' Is outlinede the BNA ||. Canada + U.S distinctions— ours exists as a document that are articulated through conventions {not legal rules they are informal rules] and the interpretation of the courts but the U.5 doesn’t. It breaks down power.. ”I. Sources of the Canadian Constitution —in the U.S constitution the machinery of the government is clearly outlined. In the U.S the existence of law is co—evil with the constitution. The constitution gives power to laws. The sources are the BNA act and the constitutional act of 1982 but both were awarded by the United Kingdom. In both of them the purpose of the government is set out in broad terms. BNA outlines the machinery of the government but is based on the context ofthe 18th cent. That is why there is a necessity of the court to interpret the constitution because the age and the language make so that the courts have to define it. The next sources are case and common law—judge made decisions to add clarity to the meaning of the constitution and to resolve conflict between the people and the state. The next are conventions— political practices that are specific to the constitution that are not law. These are practices that are continued to be followed. We also have ordinary statues that give value to the constitution as well as parliamentary privilege — the parliament has the privilege to act in ways which are insulated from law ex. Whatever is said on the floor of the house of commons cannot be strike down by law. The members of parliament can do something illegal but as long as it benefits the country. The final source is ex to exercise power that is also immune from parliamentary scrutiny and judiciary review. IV. The executive ability to create law that the parliament does not need to review ex. foreign diplomacy. Role of Governments — a responsible government implies that the government are held by the will of the people and there are constraints to ensure that. Most people think that these constitutional constraints are part of the constitution but they are not they are conventions. Impact of 1982 — the BNA still gives the United Kingdom power but no court would validate. The constitutional act of 1982 was given to us by imperial orders and it left residual powers however no courts would actually validate. We now have the Canadian charter of rights and freedoms so that the supreme court is supreme notjust in name unlike in the before 1982 ...
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