Republican Theory and Federalism

Republican theory has been largely absent from Canadian constitutional law scholarship and this absence is particularly noticeable in the federalism literature.  In part, this may be because constitutional law scholars have accepted some political scientists’ claims that the fathers of Confederation rejected outright republican thought and institutions. This view has been challenged by historians who have found republican influences in the writings and speeches of politicians supporting Confederation. I engage this historical debate in a glancing manner in this essay, but my focus lies elsewhere. With this essay, I intend to show that republican theory provides a promising normative framework for analyzing Canadian federalism. In so doing, I hope to address some debates among republican theorists and to show how they can be resolved, at least in the context of Canadian federalism. In particular, I intend to show that despite claims to the contrary in the literature, constitutional entrenchment and judicial review of state action in light of an entrenched constitution can be accommodated within republican theory.  I shall argue that at least in the Canadian case, a constitutionally entrenched division of powers between the federal and provincial orders of government, and judicial review of state action in light of that division of powers can be justified on republican grounds. In order to advance this argument, I will in Part I demonstrate that federalism in Canada can plausibly be understood in republican terms. Once that argument is in place, I will in Part II (a) argue that a constitutionally entrenched division of powers and judicial review on federalism grounds are consistent with the republican norm of non-domination and (b) illustrate this argument with reference to a specific doctrinal dispute over the scope of the criminal law power.