Sujit Choudhry, Beyond the Flight from Constitutional Legalism: Rethinking the Politics of Social Policy-Charlottetown, 12 Const. F. 77 (2003)
A decade after the demise of the Charlottetown Accord in 1992,1 one of the most visible features of federal-provincial relations is the replacement of constitutional with non-constitutional policy instruments to secure many of the same ends—the “flight from constitutional legalism.” Instead of constitutional amendments, the instrument of choice is the non-legal, intergovernmental accord. The leading examples are the Social Union Framework Agreement and the Agreement on Internal Trade, which in differing levels of detail set out both a normative framework and an institutional architecture to manage the Social Union and the Economic Union, respectively. I argue, focusing on the Social Union, that this picture is radically incomplete in two respects. I suggest that the politics of social policy in the post-Charlottetown era are now somewhat broader in scope than they were before 1992, and encompass not just issues of substance, but issues of process as well, with the latter arguably assuming central importance. Moreover, I demonstrate that the shift to non-constitutional means should not obscure two facts. First, the law of the Constitution and constitutional litigation have played a limited role in the politics of social policy. Second, constitutional discourse outside the courts has been the primary vehicle for constitutional evolution. Indeed, the SUFA should, in this light, be interpreted as a constitutional policy instrument. Finally, I propose that, going forward, the courts should regard the shift from substance to process as a constitutional cue to play a limited but important role in the management of the Social Union.