Friday, June 16, 2006

Entrenched Property Rights in Canada

Some talk by Harper in the last election of entrenching property rights in the Charter. The Liberals responded with a parade of horribles based on the Lochner era in the United States. Few in the punditry noted that Trudeau originally proposed including property rights in what is now section 7 of the Charter, although he didn't really care about them one way or the other, and was willing to trade them for support from the NDP.

In Lochner, the US Supreme Court struck down a New York state law limiting work hours in bakeries on the grounds that this interfered with the employers and employees freedom of contract, and could not be justified on the basis of the state's traditional "police powers" (i.e. traditional reasons for limiting common law freedoms). Obviously incompatible with the project of twentieth-century social democracy, Lochner was effectively overruled during the New Deal. It has a few academic supporters today on the libertarian right, but mainstream right- wing judges see Lochner as an exemplar of the kind of "judicial activism" they think they are against.

Contra Paul Martin, the prospect of a Lochner revival in Canada if property rights are entrenched is remote. It is remote in the US, and legal libertarianism is even more marginal north of 49. Canada has its own common law tradition for deciding when legislation "takes" private property -- cases like Manitoba Fisheries and Tener and that tradition is certain to be more influential than Professor Epstein's system.

Anyway, if the Canadian judiciary do somehow become converted to Epsteinianism, there is always the notwithstanding clause.

Greater security of investment is good economically - it lessens political risk, and is therefore particularly valuable for those like immigrants and foreign investors who are unlikely to be politically connected. Provincial legislation, where it exists as in Alberta, is very weak. Finally, it seems anomalous that the property of American investors is protected under NAFTA, and the property rights of aboriginal people are protected under s.35 of the 1982 Constitution, but everyone else's property is left to the whims of the legislature.

However, there are significant political obstacles to ever entrenching property rights, so I will devote the next post to a equally effective and more realizable goal for property rights advocates.

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