Classical Liberalism Meets the New Constitutional Order: A Comment on Mark Tushnet

The Canadian courts have held that the state cannot enter the world of discrimination or collective bargaining by half-measures. The state\u27s generalized guarantee of equality requires it to jump in with both feet once it has begun its journey. Likewise the state may not have to provide for anyone\u27s medical care, but once it does, the norm of equality requires it to defray the costs of the deaf person. Tushnet argues that the Canadian Charter necessarily displaces the background rules of property and contract so central to the system of laissez-faire, which, in fact, they do. Indeed these Canadian cases seem to go beyond the usual American decisions on underinclusion. Underinclusion occurs when a statute that gives some benefit to members of one race declines to give it to members of another. It has never been read to require a state to prohibit discrimination on one ground because it has done so on another, which the Canadian cases do require. In many ways Tushnet welcomes this rejection of the classical liberal synthesis that I, for one, have long defended. His basic challenge asks whether the classical liberal tradition is coherent. If not, then what becomes the status of the judicial enforcement of constitutional liberties? [CONT