Law - Dr. B.W. Miller Law 101 September 24, 2010 WHAT IS...

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Dr. B.W. Miller Law 101 September 24, 2010 WHAT IS THE CONSTITUTION OF CANADA? Purposes and Sources Lecture #2 Sept 23, 2010 I. What is constitutional law? What does a constitution do? Now that we have an idea about what law is for, and what it does, we’ll turn to constitutional law specifically. Constitutional law is concerned with the rules governing the use of government power. Unlike other branches of the law (such as contracts, property, and torts, which govern obligations between persons), constitutional law concerns governments – either their dealings with other governments, or their dealings with persons. Constitutional law sets limits on what governments can do, by appealing to a body of law known as “the constitution.” In general (and before turning to the constitutional documents of Canada), what is the purpose of a constitution? Typically, a constitution has several purposes: 1. Separation of powers: A constitution assigns responsibilities to different institutions within the government. Although we colloquially refer to the “government” as the people who are in charge – PM, cabinet, and backbenchers, in a constitutional sense, government is composed of three distinct branches: i. Legislative : the legislature that is given the task of enacting legislation. 1
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Dr. B.W. Miller Law 101 September 24, 2010 ii. Executive: tasked with implementing laws made by the legislature. In practice, the executive runs the whole show, tells the majority in the legislature what to do. Legislature has little power. iii. Judicial: tasked with hearing disputes. Does not make statutes or implement laws. 2. Division of powers (in a federal state only). Feds and provinces each have their own legislatures and executives. So the provincial government would be acting outside of its sphere if it enacted a law in an area that was specifically assigned to the federal government, like criminal law. A court could strike down such a law as being invalid. Reasons for a federal state are largely outside the scope of this course. Note that in Canada, there was a French-speaking, Catholic population to consider. It seemed best to allow the provinces to have jurisdiction over cultural matters where there could be considerable variation among local religious and linguistic groups. So education and solemnization of marriage, two religious institutions, were left to the provinces. 3. Civil rights: It limits government power by providing legal rights to individuals. So the Charter provides individuals with relief against infringements. In Canada, only since 1982. In UK, not until 2000. 4. Asserting the principles of a nation: particularly when marking the transition from one legal order to another. Consider post-revolutionary societies such as the US: 2
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Dr. B.W. Miller Law 101 September 24, 2010 We the people of the United States, in order to form a more perfect union,  establish justice, insure domestic tranquility, provide for the common defense, 
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Law - Dr. B.W. Miller Law 101 September 24, 2010 WHAT IS...

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