Contestatory Federalism and Rights: Resisting Incorporation in the US, Canada and the EU

Contestatory Federalism and Rights: Resisting Incorporation in the US, Canada, and the EU examines the complex relationship between centralized rights and subnational autonomy in federal and quasi-federal systems.

While the incorporation of rights often aims to ensure legal uniformity, it can simultaneously provoke resistance by infringing on the identity and regulatory authority of constituent units. This dual dynamic of incorporation and contestation is explored through comparative analysis of the United States, Canada, and the European Union.

In the United States, federal rights were strongly asserted during the Warren Court era, particularly in dismantling segregation. As the Court shifted ideologically, liberal actors turned to state constitutions, giving rise to New Judicial Federalism-a form of resistance that now includes subnational constitutional amendments.

In Canada, the 1982 Charter of Rights and Freedoms introduced federal rights alongside the notwithstanding clause, allowing legislatures to override certain rights. Quebec has used this clause to resist federal authority, while other provinces invoke it to assert legislative supremacy.

In the EU, rights were judicially incorporated to harmonize standards, but recent rule of law challenges have led Member States to invoke constitutional identity to resist supranational authority. A part of the Oxford Comparative Constitutionalism series, this book reveals how rights function not only as legal guarantees but also as instruments of political struggle.

It is essential reading for scholars of constitutional law, federalism, and political theory.