Sticking to Our Lanes: A Survey of Selected Studies on Federalism, Aboriginal Rights, and Charter Jurisprudence in Canada

Abstract

Abstract Canadian politics is shaped by three intersecting areas of constitutional law: Aboriginal rights, federalism and Charter jurisprudence. While a canon has emerged on the role of courts in Canadian democracy, it is often asserted that Charter scholarship dominates the field. Is this true—and does it matter? We address these questions through a systematic survey of 423 studies published between 2012 and 2022 in leading Canadian journals, books and edited volumes. We find that most work is produced by legal scholars, is descriptive, focuses on the Charter and examines a narrow range of cases and themes—most notably the court’s relationship with other institutions, its legitimacy and its power of judicial review. We argue that advancing our understanding of courts in Canadian democracy requires moving beyond our tendency to stick to our lanes—engaging core theories of judicial politics, employing explanatory methods and analyzing multiple areas of constitutional law.