New Judicial Thinking on Sovereignty and Federalism: American and Canadian Comparisons

This article surveys the development of new doctrines of federalism by the U.S. Supreme Court since the court decided Garcia v. San Antonio Metropolitan Transit Authority (1985). This period is notable for the emergence of diverging attitudes on sovereignty and the role of the states in American federalism. This article discusses the development of these contending models and recent developments in the jurisprudence of federalism by the Supreme Court of Canada. Recent Canadian decisions do not discuss sovereignty. Instead, the Canadian Court promotes a balanced view of federalism, which is particularly evident in Reference Re: Firearms Act (Can.). The Canadian Court's studious avoidance of a principled position may be more deceptive politics than that plied by the highly criticized American Court. More important, the Canadian experience, which patiently builds up doctrines around precedent rather than theory, may be an example for the American Court.