A. V. Dicey, Lord Watson, and the Law of the Canadian Constitution in the Late Nineteenth Century

Abstract

It is a well-accepted postulate of Canadian constitutional history that, in the years following the confederation of the colonies of British North America in 1867, the law of the Canadian constitution did not concern itself with individual rights. Rather, constitutional law in the late nineteenth century involved the division of legislative powers between the federal and provincial governments—disputes that neither addressed claims to individual liberty nor the power of an unbridled state. If liberties were at stake, they were subsumed under arguments about which level of government was authorized to legislate on the specific subject matter at issue. In this way, Canadian constitutionalism resembled the “well-regulated society” of the antebellum United States: in the pursuit of the common good, public power was authorized to regulate liberty and private property to the fullest extent possible.