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Comparative Constitutional Law

Comparative Constitutional Law. Professor Fischer Class 12: September 29, 2008. State Action. What is the U.S. state action doctrine?. State Action. U.S.: Theoretical approach – vertical effect What is horizontal effect?. Values served. By doctrine of vertical effect?

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Comparative Constitutional Law

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  1. Comparative Constitutional Law Professor Fischer Class 12: September 29, 2008

  2. State Action • What is the U.S. state action doctrine?

  3. State Action • U.S.: Theoretical approach – vertical effect • What is horizontal effect?

  4. Values served • By doctrine of vertical effect? • By doctrine of horizontal effect?

  5. Approach to horizontal effect: Canadian Charter of Rights and Freedoms

  6. State Action s. 32 • 32.(1)  This Charter applies • (a)  to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and • (b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

  7. RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 • What did this case hold about the Charter’s application?

  8. State Action • The words of s. 32(1) give a strong message that the Charter is confined to government action.  This Court has repeatedly drawn attention to the fact that the Charter is essentially an instrument for checking the powers of government over the individual.  The exclusion of private activity from Charter protection was deliberate.  See Retail, Wholesale and Department Store Union et al. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573

  9. Indirect horizontal effect • CANADA • GERMANY • Is the approach the same or different?

  10. Lüth Case (1958): Drittwirkung, Objective Order of Values

  11. Compare Canada and Germany • Both – indirect horizontal effect • Canada: WEAK VERSION common law must be interpreted in accordance with the Charter • Germany: STRONG VERSION Civil codes are invalid unless they conform to the Basic Law; Basic Law is a DIRECTLY APPLICABLE higher law norm (Drittwirkung)

  12. Back to U.S. State Action Doctrine • Charles Black (typical): A “conceptual disaster area”. Why?

  13. Supreme Court • Has tried to draw what Gardbaum calles “some principled line between state and private action”

  14. Exceptions • Governmental functions exception e.g. Marsh v. Alabama (1946) • Entanglement exception e.g. Shelley v. Kraemer (1948) • Entwinement: Brentwood (2001)

  15. Gardman thesis • U.S. constitutional law does not really adhere to the vertical effect position • Rather, all law (public private, statute, common law) is “directly, fully, and equally “ subject to the Constitution – he thinks this is required by the Supremacy Clause in art VI § 1

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