Property rights and regulatory innovation: Comparing constitutional cultures

Abstract

This paper examines the relation between constitutional property rights and the capacity of self-governing communities to engage in regulatory innovation. Through the lens of ‘‘constitutional culture,’’ property rights in Canada’s constitutional order are compared with those in the United States. Thinking about constitutions in cultural terms aids in understanding the changes occurring in national constitutional systems resulting from the constitution-like disciplines associated with economic globalization. In the Canadian case, constitutional culture helps us to locate a constitutional property right with some normative force that does not quite rise to the level of constitutional text. This attenuated right fits the conception of the Canadian state as being better able to handle problems of transition and to take measures for societal selfprotection. To some extent, this capacity may be under threat, given the commitments of the North American Free Trade Agreement, and may move Canadian constitutional culture further toward a U.S.-style limited government.