<Institution>
Introduction
Neoliberalism is both an economic and political ideology which proposes a new way in which states are restricted from interfering with the economic affairs and general day to day dealings of their private citizens. This concept was developed by Adam Smith in 1770 when he posited that government should not be allowed to be involved in the economy of the country and initially it was called liberalism. This stance borrowed heavily from the laissez faire principle which required that traders should be let free to negotiate their own terms of engagement. Adam’s conception was challenged in 1930 by the Keynesian model which opined that governments still had a role to play in moderating the economic engagements of the country. However, in 1970s, there were fresh initiatives of resuscitating liberalism and this time around, scholars called it neoliberalism (Brown, 2015).
According to Harvey, all countries across the globe have since adopted policies of neoliberalism (Harvey, 2005). This discussion seeks to present a concise argument in dispute of this position and assert that in Canada and United States, there is nothing like absolute neoliberalism. The paper will narrow down its focus to dissect the manner in which issues of Human Rights have been dealt with in these two jurisdictions.
The relationship between Human Rights and Neoliberalism
At the heart of every democratic state with an organized structure of governance is a uniform code or charter also known as a constitution which governs the relationship between citizens and fellow citizens on one hand and on the other it oversees the dealings between the people and their government (Ten, 2008). The concept of constitutionality heavily borrows from the social contract theory; an assertion prominently propounded by Jean-Jacques Rousseau and John S Locke. Under this theory, in any structured state, the government enters into a contract with the people such that the people cede some of their rights to the government and also pay taxes. On the other side of the bargain, the state is required to offer security to all the citizens (Faulk, 2012). This entails not only protection from both internal and external aggression but also social security such that the social welfare of all citizens is well taken care of. Therefore, it is incumbent upon the state to govern the relationship between all persons within the realm and punish offenders. It is thus within the behest of the state to uphold the fundamental human rights of people.
The concepts of Human Rights and neoliberalism are so intertwined because neoliberalism itself is an offspring of Human Rights activism. Under neoliberalism, it is imperative that the state exercises no intervention into the affairs of all citizens. The affairs in question are civil dealings between private citizens including marriage, contractual relationships in the business context and their civic duties to elect leaders of their choice (Wickstrom, 2012). Therefore Human Rights is a magnanimous sword used to protect neoliberalist rights from being snatched away by the government.
Human Rights Status in Canada
The legal regime in Canada provides steadfast protection of the basic and fundamental rights of citizens. The governing document in the country is the Canadian Charter of Rights and Freedoms which was enacted in 1982. The Charter provides for a number of freedoms and liberties for all citizens; entitlements which have to be upheld by all courts objectively if there ensues a dispute between private citizens and the government. The legal instrument stipulates in Article 1 that the rights contained in it are only subject to reasonable limitation if it is demonstrated that it is justified to do so in any democratic society. Therefore the Charter explicitly bars the government from arbitrarily limiting the rights of persons without reasonable cause (Howe, 2010). This was evidenced in the case of Alberta v Hutterian Brethren of Wilson Colony. This case involved a petition against a directive by the Province of Alberta that all driving licenses should have a photograph of the driver in question. The Hutterian Brethren of Wilson Colony; a sectarian religious organization contended that this policy infringed on their freedom of religion because according to their religious beliefs, they were not allowed to take photos at all. The court employed the test laid out in R v Oakes where it determined whether the limitation of the right was reasonable and if its benefits would outweigh the benefits of upholding the right. The decision made was that minimizing identity theft was an overarching public goal and since the photo requirement would not limit the right more than it requires for survival; the benefits of limiting the right outweighed the demerits.
Human Rights Status in the United States
The Primary document which is recognized as the custodian of all fundamental rights of people in the United States is the US Bill of Rights plus its amendments. The first ten amendments harbor the most significant rights of citizens. The First Amendment guarantees the freedom of speech, petition and assembly. The Second Amendment authorizes private citizens to hold possession of arms essential for the security of person and the country. The citizens are also protected from arbitrary arrests and searches according to the Fourth Amendment. Here is a highlight of the salient entitlements recognized by the legal regime in the United States suggests that the implementation of rights in this jurisdiction is more inclined towards a neoliberalist approach.
The courts have exhibited mixed approaches while implementing these legal provisions. For instance, in the case of Obergefell v Hodges (2004), the court was faced with a rare dispute in which the appellant wanted the Director of a Hospital to acknowledge him on the death certificate of his deceased husband as a spouse. The two had gotten married in Maryland, evading the regime in Ohio which still defined marriage as a relationship between one man and one woman. The Court of Appeal had initially invalidated all laws that had recognized same sex couples on such documentation even in other states. Justice Kennedy’s opinion which represented the majority decision started; by examining whether the Due Process requirement as provided for under the Fourteenth Amendment had been complied with. This provision stipulates that a state cannot deprive a person of their property, liberty or rights without following due process of the law. One important observation that the judge made was that the rights referred to by the amendment rely on the Judicial bodies for interpretation so that they can have life in themselves. Unfortunately, as noted in Poe v Ullman, there is no specific formula that has been laid down to govern interpretation. In light of this, judges ought to devise the best possible reasoning so as to give a verdict that is in tandem with the provisions of the law.
In this case, the court reasoned that within marriage, there is an inherent right to personal choice which stems from upholding of a person’s individuality and autonomy. Secondly, it posited that the essence of marriage is simply companionship and therefore it would be unwise to bar any two people from sharing the same. Also, the court stated that if marriage is also purposed for procreation, then because most gay couples have successfully adopted and raised children; they too can be parents. Finally, since marriage is a core consideration for one to receive governmental benefits, rights and responsibilities, it would be so unjust to prevent people from enjoying the rights accompanying marriage. With these reasons, the court allowed the appeal.
The Supreme Court of the United States has also pronounced itself in other matters regarding the Right to Health. In the case of Burwell v. Hobby Lobby Stores (2014), the question of freedom of religion was once again revisited by the court. Hobby Lobby Stores argued that it was to be exempted from the application of the Patient Protection and Affordable Care Act of 2010. The Act required that all employers had to provide to their employees contraceptives and the only entities that are exempted from this policy are religious employers and religious nonprofit organization. Since the company was majorly owned by family members who held the same religious belief, they argued that they should be regarded as religious employers for purposes of this Act. Their main contention was that being forced to issue contraceptives to their employees was clearly a violation of the Free Exercise Clause and the Religious Freedom Restoration Act because they were being forced to partake in an exercise which their religious beliefs were diametrically opposed to.
The court decided in favor of the respondents and opined that closely held for-profit corporations like this one were to be considered “persons” for purposes of enforcing rights to the free exercise of religion. It added that the Religious Freedom Restoration Act required the Department of Health and Human Services to provide an exemption to the contraceptive mandate so as to protect the religious beliefs of this corporate person. Justice Ruth Ginsburg, in a dissenting opinion claimed that the majority opinion extended the freedom of religion to a startling breadth and this would ultimately open a Pandora box. Such that anyone can argue that a law should not be applied to them just because the slightest of their religious beliefs is at stake (Gillman, Graber & Whittington, 2012).
COMPARATIVE ANALYSIS OF HUMAN RIGHTS IN THE TWO JURISDICTIONS
This paper has demonstrated that in both Canada and the United States there are sanctified documents in the form of Constitutions which are expected to safeguard the common citizens from the excessive force of the government and other private citizens. The provisions in these instruments are clearly progressive and explicit in asserting the welfare of the people who enacted it. However, the real implementation of the entitlements in these documents varies greatly. That is the first premise of disputing Harvey’s postulate that neoliberalism is practiced everywhere.
The role of upholding and defending the rights which are beautifully codified in the Constitution is exclusively vested within the judicial arm of government. As such, it is the Judiciary which decides direction in which a right has to be interpreted and to what extent it has to be implemented. Therefore, if a court employs a restrictive approach of interpreting the rights, then definitely the much celebrated neoliberalist rights will be restrictively realized. On the other hand, if the courts view these rights from a broader spectrum, it still follows that the rights will be implemented to their greatest heights (Schwartz, 2016).
This has been the case with the United States and Canada. In the US, judges in the highest court of the land, the Supreme Court have approached contentious cases entailing the Bill of Rights with much caution and trepidation as well as an open mind. That is why the civil rights like marriage have significantly evolved even though with time. Judicial decisions have progressively improved from Bowers v Hardwick, where certain acts of homosexuality were outlawed in 1986. Then in 1996, Romer v Evans ensured protection of persons discriminated against on grounds of sexuality. In 2003, the court overruled the Bowers decision stating that laws which punish same sex intimacy were demeaning to the persons involved. And now most recently, Obergefell v Hodges recognized same sex marriages. This is how expansive the interpretation of the courts in the United States has been. The same cannot be said about Canadian Jurisprudence. The courts have always propagated a restrictive approach when interpreting the Charter of Human Rights and this tremendously curtails the emancipation of the rights of private citizens especially the minorities within the country.
CONCLUSION
In a nutshell, the concept of neoliberalism cannot be said to be everywhere. Even the countries with the most progressive legal instruments of a neoliberal nature are still grappling with enforcement of these rights. The ability of a state to have progressive neoliberalist values lies with the independence of the judiciary in that country. Essentially, the rights in question are what the court interprets them to be and if it doesn’t recognize them to exist to a certain extent, then they don’t. Therefore, if there is any government intervention in the business of the Judiciary, then the distinction between public and private affairs will be blurred because at that point the court cannot stand for the common citizen. The realization of any rights within a country thus lies with the liberalism of the judges. If there is no liberalism at this cadre, then neoliberalism remains just another fairytale.
References
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