Abstract ‘Deliberative Rights Theory’ evaluates what deliberative democratic scholarship can contribute to the constitutional question of how to protect fundamental rights and freedoms. That scholarship primarily focuses on what occurs within the legislature, judiciary and citizen assemblies to test the relationship between deliberation and rights. This article argues that what occurs within federalism can also significantly influence rights deliberation and thus should be part of the conversation. The article explores federalism’s effect on rights deliberation through two case studies from the COVID-19 pandemic. The first considers Australia’s decision to close its international border and the way federalism influenced discussion and debate on the right of citizens to return to the country. The second considers Canada’s decision to end the ‘Freedom Convoy’ against vaccination mandates and the way federalism affected discussion and debate on the right to protest. The article concludes by considering some directions for future research on the topic.
Scott Stephenson (Wed,) studied this question.