Schneiderman on Constitutional Interpretation in an Age of Anxiety (19th C. Canada)

Constitutional Interpretation in an Age of Anxiety: A Reconsideration of the Local Prohibition Case is an article by David Schneiderman, University of Toronto - Faculty of Law. It appeared in the McGill Law Review, (1996). Here's the abstract:

The author argues that late-nineteenth century judicial review of the British North America Act, 1867 was not limited solely to the task of determining which level of government was entitled to jurisdictional authority in division of powers disputes. Rather, he contends that the judiciary had serious concerns about the potentially unlimited exercise of legislative power under the Canadian Constitution. The design of the Constitution facilitated "energetic federalism", a concept which holds that, together, both levels of government possess plenary and unbounded legislative power.

The prevailing view in the late-nineteenth century, shared by legal thinkers on both sides of the Atlantic, was that governmental power ought to be circumscribed in deference to the primacy of private property and for the sake of the greater productivity of society. Drawing on the work of Locke and Blackstone, Anglo-American legal thought condoned interference with property only when it was in the "public interest", for the good of society as a whole, and not partial or "special interest" legislation.

The author argues that one aspect of Lord Watson's judgment in the Local Prohibition case is best explained in light of this ideology. By carefully restricting the federal government's trade and commerce power to the regulation of trade and by disabling it from prohibiting trade, Lord Watson exhibited a preference for leaving local governments with the ability to interfere with productivity. This meant that productivity could be impaired primarily on a local, rather than a national, scale.

In conclusion, the author points out that the economic ideology of productivity remains relevant to modern Canadian constitutional discourse, most notably in regard to the issue of aboriginal title. The recent trial decision in Delgamuukw v. British Columbia (A.G.) illustrates the judiciary's use of the Lockean conceptions of labour, property, and productivity to deny land title to aboriginal peoples.