In the decades since the horrors of the Second World War, a transformative model of constitutionalism has emerged in jurisdictions around the world: rights-based constitutional order. The aim of this model is to fundamentally transform the practice of the relationship between rulers and ruled. Whereas other forms of governance place some or all legal subjects at the mercy of their government, rights-based constitutional order establishes a set of normative, institutional, and doctrinal commitments that render all public authority accountable to the inherent dignity and fundamental rights of each legal subject.
This course explores a set of contemporary challenges confronting rights-based constitutional order: What is a constitutional right? Are positive rights genuine rights? How should constitutional rights be interpreted? Is balancing a threat to rights? Are constitutional commitments to the inherent and universal human dignity of persons empty? What are the institutional roles of legislative, executive, and judicial institutions in the joint project of rights-protection? Is judicial review a threat to democratic self-governance? Is Canada an instance of or an alternative to rights-based constitutional order? These questions will be explored in reference to comparative case law and commentary.