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Review Essay of Judicial power and the Charter: Canada and the paradox of liberal constitutionalism

Authors:
Book reviews
Judicial power and the Charter: Canada and the paradox of liberal
constitutionalism, Christopher P. Manfredi, 2d ed., Toronto: Oxford University
Press, 2001. xvii, 276 pp.
Reviewed by Sujit Choudhry*
1. The judicial activism debate in Canada
Canada is in the midst of a national debate over judicial activism under the Canadian
Charter of Rights and Freedoms.1To be sure, fears of judicial activism have been voiced
since the coming into force of the Charter in 1982. The first wave of Charter criticism
came principally from the left, was largely confined to academic circles, and focused on
the concern that notwithstanding the exclusion of rights of property and contract from
the Charter, the courts would erect constitutional obstacles to the interventionist,
regulatory state.2However, in recent years, the discourse of activism has been taken up
by the right and has moved to the center stage of political discourse. There is a litany of
charges here—that under the cloak of constitutional judicial review, the Supreme
Court of Canada is foisting a particular political agenda upon the Canadian public, a
mixture of gay rights, feminism, and under the aboriginal rights provisions of the
Canadian Constitution, rights for indigenous peoples.3
Quite remarkably, the criticisms have reached such a fevered pitch that they have
forced a response from the Court itself. Members of the Court, both in public addresses
and in their judgments, have spoken out in defense of the institution of judicial review.4
On occasion, they have conceded ground to the Court’s critics. Thus, members of the
© Oxford University Press and New York University School of Law 2003, 379
I.CON, Volume 1, Number 2, 2003, pp. 379–403
* Faculty of Law, University of Toronto. I thank Claire Hunter, Ira Parghi, David Schneiderman, and
Lorne Sossin for helpful comments, and Claire Hunter for excellent research assistance.
1Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter].
2See, e.g., MICHAEL MANDEL, THE CHARTER OF RIGHTS AND THE LEGALIZATION OF POLITICS IN CANADA
(Thompson Educational Publishing, rev. ed. 1994); Andrew Petter, The Politics of the Charter, 8
SUP. CT. L. REV. 473 (1986); Andrew Petter, Immaculate Deception: The Charter’s Hidden Agenda, 45
THE ADVOCATE 857 (1987).
3See FREDERICK L. MORTON & RAINER KNOPFF, THE CHARTER REVOLUTION AND THE COURT PARTY (Broadview
Press 2000).
4See the majority judgment in Vriend v. Alberta, [1998] 1 S.C.R. 493.
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Court announced in one media interview a policy decision to restrict interventions by
public interest groups in appeals,5and Justice Michel Bastarache opined in another
that the Court had perhaps gone too far in protecting the rights of the accused and
indigenous peoples.6Indeed, the Court recently went so far as to uphold legislation that
clearly departed from one of its earlier judgments, on the basis of a theory of coordi-
nate construction that apparently does not require Parliament to invoke the Charter’s
legislative override.7
For students of comparative constitutionalism, the rise of the right-wing critique of
Charter adjudication is instructive. Just as the Charter has shaped the drafting of bills
of rights in several jurisdictions, so too can the Canadian experience provide important
lessons on the politics of judicial review that will likely emerge in those jurisdictions as
well. The second edition of McGill University political scientist Christopher Manfredi’s
Judicial Power and the Charter is therefore worth reading, not only for its discussion of
Canadian developments, but also for the light it sheds on the comparative politics of
judicial review. Although Manfredi is viewed by many legal scholars as a political con-
servative, Judicial Power and the Charter is a serious, sober academic work, in contrast to
the invective that characterizes the writings of some right-of-center commentators.8
Moreover, given that Manfredi is generally critical of the Court, some of his positions
are surprising. He accepts, for example, that the Charter is here to stay. Moreover, he
argues that it should stay because a constitution, including a bill of rights, is an inte-
gral component of a liberal political order.
Despite its widespread influence in political science circles, the first edition of
Manfredi’s book in 1992 was not reviewed by a single Canadian law review. I suspect that
the refusal to engage with political scientists reflects a belief in the legal community that
nonlawyers have little to contribute to the study of law and legal institutions. But surely
the more intellectually open approach is for legal scholars to take the work of political
scientists seriously. In this review, I scrutinize two of Manfredi’s principal arguments. The
first is that liberal democracy in Canada is under threat from the Supreme Court’s Charter
jurisprudence. The second is the claim that the distinctive Canadian solution to the threat
of judicial activism, the legislative override, has been delegitimized, thereby rendering it
effectively inoperative as an external check on judicial review. Manfredi links these two
arguments, by asserting that the delegitimization of the override has led to a rise in judi-
cial activism. Upon closer examination, though, both of these arguments are flawed.
2. The Charter and democratic self-government
Manfredi’s first argument begins with the observation, made most recently by Stephen
Holmes,9that in the liberal political imagination, written constitutions serve both an
380 BOOK REVIEWS
5Luiza Chwialkowska, Rein in Lobby Groups, Senior Judges Suggest, NATIONAL POST, April 6, 2000, at A1.
6Cristin Schmitz, The Bastarache Interview: Reasoning to Results at SCC, 20(35) LAWYERS WEEKLY 19
(2001).
7R. v. Mills, [1999] 3 S.C.R. 668.
8See, e.g., Morton & Knopff, supra note 3.
9STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY (Univ. of Chicago
Press 1995).
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enabling and a restraining function. They enable by creating various institutions and
defining the rules whereby those institutions can make decisions; they disable by erecting
roadblocks that retard the functioning of those same institutions, and by setting sub-
stantive limits on the range of decisions that those institutions can make in order to pre-
vent the abuse of public power. The obvious tension between the different functions of
liberal constitutions creates serious problems for judicial review, because instead of
merely checking the abuse of power, judicial review may go further and threaten the
very objective of liberal constitutionalism itself: democratic self-government. In
Manfredi’s terminology, instead of merely protecting “constitutional supremacy”—
defined as the “subordination of all political power, including judicial power, to proce-
dural and substantive constitutional rules” (p. 193)—judicial review can degenerate
into “judicial supremacy.”
Thus far, the argument is hardly original. What makes it more interesting is
Manfredi’s positive claim that under the Charter, “the emergence of judicial supremacy
out of the process of enforcing constitutional supremacy—has become one of the dom-
inant features of Canadian politics” (p. 196). Since Manfredi is making an empirical
claim—and a fairly strong one at that—it would seem that he must do two things to
make his argument work. First, he must define what it means for a court to undermine
democratic self-government. Second, in light of this definition, he must identify the
kinds of evidence that could substantiate this claim and assess the available evidence.
Surprisingly, Manfredi does not address either of these central methodological issues
explicitly. Moreover, if we examine his argument in order to infer how he would address
them, he fares poorly. What does it mean for a court to undermine democratic self-
government? There are two possible answers here. The simplest answer comes from the
strongest formulation of the countermajoritarian dilemma—that is, whenever a court
second-guesses the decision of a democratically elected legislature, there is some kind
of loss for democracy. This is the most straightforward answer that Manfredi could have
given. However, he cannot give it, because he makes extremely clear his commitment to
constitutional as opposed to parliamentary supremacy, which on his own definition
contemplates some legal limits on democratic decision making. For a constitutional
supremacist, like Manfredi, not every instance of countermajoritarian decision making
is wrong just because it is countermajoritarian, as it is for the parliamentary suprema-
cist. Rather, what the constitutional supremacist who is also a liberal democrat must
hold is that there is a right way and a wrong way to be countermajoritarian. And this
in turn requires an underlying political theory of the sources and nature of political
legitimacy in which an account of legitimate and illegitimate judicial decision making
is embedded. On his own terms, then, Manfredi must put some flesh on the bones of his
otherwise rather formal conception of constitutional supremacy in order to satisfacto-
rily explain what it means for a court to undermine democratic self-government.
Unfortunately, he does not deliver.
Even worse, he rarely addresses this central question, and as a consequence loses the
main thread of his argument. Instead, the bulk of the book is devoted to a close analysis
of the Supreme Court’s jurisprudence, with separate chapters on fundamental free-
doms (expression, religion, association, assembly), legal rights (e.g., the right against
unreasonable search and seizure, the right to be presumed innocent), and equality
rights. These chapters are disappointing. The discussions of the case law are largely
descriptive, and are rather superficial and dated. For example, on the question of appli-
cation (i.e., state action), there have been significant developments, which Manfredi
BOOK REVIEWS 381
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does not really address, since the Court’s landmark judgment in Dolphin Delivery.10 This
is a pity, since those cases grapple with and narrow one of the central and most contro-
versial holdings of Dolphin, namely that courts are not bound by the Charter, a ruling
that for Manfredi is strong evidence of the rise of judicial supremacy. Moreover, to the
extent that he offers any analysis, it is largely derivative from the existing secondary lit-
erature. This is especially true of the material on application and fundamental freedoms.
Moreover, when Manfredi does address himself to his principal question, the result
is unsatisfactory. When he tries to distinguish between the right and wrong ways of
being countermajoritarian, he simply relies on well-known distinctions, without prob-
ing their cogency, and even worse, without mentioning, let alone engaging with, the
extensive critical literature on each. Thus, he variously invokes the distinctions between
law and policy (p. 67), political losses and malicious acts of legislative majorities
(p. 135), and principle and policy (p. 196), without defining these concepts. As a result,
his analysis feels more rhetorical than substantive. This is all the more worrying
since many of these distinctions—most famously, the distinction between policy and
principle—collapse under scrutiny.
Manfredi might respond that he is ultimately concerned with something more basic,
namely the capacity for self-government, and might argue with Mark Tushnet11 that
judicial review exacts two democratic costs: (a) the debilitation of democracy by dulling
the habits of self-government through the removal from the political agenda of the
most controversial and important questions of political morality; and (b) the distortion
of policy choices because political institutions must work within the constitutional
framework laid down by the courts, either ex post (if a law is struck down), or ex ante
(in anticipation of a finding of unconstitutionality). Fair enough. So what kinds of
proof could Manfredi use to substantiate these claims? With respect to democratic
debilitation, he might point to studies of citizen engagement, or evidence of widespread
citizen dissatisfaction with the Court’s Charter jurisprudence. With respect to policy
distortion, he might discuss situations where political actors avoided policy options that
they would have considered but for the presence of the Charter, or cases in which pub-
lic discourse was diverted from the consideration of fundamental questions of political
morality into finely tuned analyses of constitutional doctrine. Given the strength of his
claims, this sort of evidence should be widespread.
Unfortunately, Manfredi by and large does not cite this sort of evidence. On the citi-
zen engagement side, there is some evidence available, and it tells quite a different story
from Manfredi’s. The Centre for Research and Information on Canada published opinion
poll results in April 2002 that demonstrate high levels of public support for both the
Charter and the Court’s role in Charter adjudication.12 Thus, 88 percent indicated that
the Charter was “a good thing,” with 71 percent indicating that the Court should
have the “final say” in Charter cases; the latter figure also indicates general satisfaction
with the Court’s Charter jurisprudence. And going beyond the Charter context, in poll
382 BOOK REVIEWS
10 RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573.
11 Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the
Countermajoritarian Difficulty, 84 MICH. L. REV. 245 (1995).
12 Centre for Research and Information on Canada, The Charter: Dividing or Uniting Canadians? CRIC
Paper No. 5, April 2002, available at http://www.cric.ca/pdf/cahiers/cricpapers_april2002.pdf
(last visited July 26, 2002).
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results published in May 2000, 73 percent strongly agreed or agreed with the statement
that the Court could “usually be trusted to make decisions that are right for the country
as a whole,” and 79 percent were “somewhat” or “very satisfied” with the way the Court
has been working.13 The picture that emerges from this cursory overview is one of a
Court with widespread public support as an institution (so-called diffuse support).
How about policy distortion? On reflection, Manfredi’s failure to cite widespread
evidence of policy distortions should not be surprising, because the whole point of con-
stitutional supremacy is to impose limits on the political process. But surely, one relev-
ant piece of data, easily ascertainable albeit extremely crude, is the rate at which
democratic decisions have been second-guessed by the Supreme Court. In a work in
progress, Claire Hunter and I try to quantify the extent to which the Court has been
countermajoritarian, by calculating the rate of government wins and losses in Charter
cases involving primary legislation, as well as municipal bylaws and regulations
(because the latter are often, though not always, issued by institutions that are under
the control of political actors). Upon reading Manfredi, a casual observer could come to
the conclusion that the Court routinely strikes down the decisions of democratically
elected or democratically accountable bodies. However, according to our preliminary
results, the government wins the overwhelming majority of Charter cases involving
challenges to majoritarian decisions. Between 1983 and mid-2001, the govern-
ment win rate was over 70 percent. Manfredi might respond that the court’s activism
has grown, because the rate at which it second-guesses majoritarian decisions has
increased over time. However, this has not happened. Indeed, from 1999 to mid-2001,
the government win rate stands at approximately 75 percent, suggesting, at least on
this measure, that activism is on the wane, not on the rise.
To be sure, Manfredi would rightly note that this kind of analysis is extremely crude,
because (a) it counts all Charter challenges equally without measuring the importance
or lack thereof of certain cases, and (b) it looks strictly at results without analyzing rea-
sons, because losses are sometimes also government wins (if the ruling adjusts the legal
standard to be more favorable to governments) and, conversely, victories can be losses
(if the opposite happens). With respect to limitation (a), for example, Manfredi could
correctly point out that the Court has struck down many important laws, such as those
establishing offenses of absolute liability14 and restricting the use of prior sexual
history in trials for sexual assault.15 But even here, governments have had many
important victories, winning constitutional challenges against antihate speech laws,16
antipornography laws,17 back-to-work legislation,18 strike bans,19 wage freezes,20
BOOK REVIEWS 383
13 Joseph F. Fletcher & Paul Howe, Public Opinion and the Courts, 6(3) CHOICES 1 (2000), also avail-
able at http://www.irpp.org/choices/archive/vol6no3.pdf (last visited Jan. 3, 2003).
14 Re Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486.
15 R. v. Seaboyer; R. v. Gayne, [1991] 2 S.C.R. 577.
16 R. v. Keegstra, [1990] 3 S.C.R. 697.
17 R. v. Butler, [1992] 1 S.C.R. 452.
18 RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460.
19 Re Public Service Employees Relations Act, [1987] 1 S.C.R. 313.
20 PSAC v. Canada, [1987] 1 S.C.R. 424.
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mandatory retirement,21 and the selective public funding of Roman Catholic schools.22
Indeed, labor law has been largely immunized from Charter scrutiny, which is a huge
government win.23 With respect to limitation (b), the burden of proof is on Manfredi,
should he wish to take it up.
This kind of data would have been easy for Manfredi to generate. At the very least,
he could have suggested that a relevant study be done. What accounts for the gap?
Perhaps, despite his protestations to the contrary, Manfredi is, in fact, a parliamentary
supremacist who has not truly come to terms with constitutional supremacy. Indeed,
readers will note that he is critical of the Court only for second-guessing majoritarian
decisions. Given the volume of Charter challenges that have been heard, one would also
expect him to criticize the Court for not second-guessing political decision makers. This
he never does, not once.
Perhaps realizing the difficulties of substantiating his claim that Canada is ruled by
the courts, Manfredi shifts ground toward the end of the book and argues that the defi-
ciency with the Charter is that it gives judges the final word over constitutional inter-
pretation. His solution is a regime of coordinate construction, whereby legislatures and
executives would “possess equal responsibility and authority to inject meaning into the
indeterminate words and phrases of the Charter” (p. 188), as do the courts. The prin-
cipal vehicle for legislative involvement, for Manfredi, would be the legislative override.
Now this is a very different sort of argument than the one that occupies the bulk of his
book. It focuses not on how the Supreme Court has interpreted the Charter, but instead
on the institutional arrangements surrounding constitutional interpretation. For
Manfredi, the purpose of the override is not to suspend constitutional rights, but rather
to allow legislatures to reevaluate the balance struck by the courts between constitu-
tional rights and other interests. And the fact that the override has been delegitimized
is a real problem, because legislatures cannot engage in constitutional interpretation,
thereby leaving the field to the courts.
But if this is Manfredi’s argument, it raises new questions. If his real concern is with
judicial finality in constitutional interpretation, the whole point of his earlier analysis
is thrown into question. Recall that Manfredi’s basic argument had been that it was the
interpretations given to the Charter by the Supreme Court that had undermined con-
stitutional supremacy. Now Manfredi tells us that the problem is not with those inter-
pretations per se, but rather with the failure of the override to function as a check
on judicial constitutional interpretations. Even worse, if constitutional supremacy is
understood in primarily institutional as opposed to interpretative terms, it does not sug-
gest any obvious criteria for legitimate and illegitimate adjudication. And worst of all,
if Manfredi wants legislatures to have the final say on matters of constitutional inter-
pretation, he has to explain what contribution courts make to safeguarding constitu-
tional supremacy. Manfredi does face this issue toward the end of his book in a single
sentence, when he states that “constitutional review under the Charter serves a useful
384 BOOK REVIEWS
21 McKinney v. University of Guelph, [1990] 3 S.C.R. 229.
22 Re Bill 30, An Act to Amend the Education Act (ONT.), [1987] 1 S.C.R. 1148.
23 See R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, para. 156 (LeBel J). However, this
may be changing in light of the Court’s dramatic decision in Dunmore v. Ontario (Attorney-General),
[2001] S.C.C. 94, where the omission of agricultural workers from a statutory regime of private
sector collective bargaining was found to be unconstitutional.
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purpose by forcing legislators to give coherent reasons for their policy choices and to
consider whether the identical goal might be achieved as effectively through other
means” (pp. 190–91, emphasis in original).
Alas, it is not clear what Manfredi is getting at. Perhaps he is claiming that by clari-
fying the conflict between constitutional rights and important social interests, judicial
review enriches the quality of democratic discourse. This would explain the amend-
ments he proposes to the override, to limit its use to after a judicial finding of unconsti-
tutionality. But this is just the beginning of an argument that Manfredi should have
fully developed (as Kent Roach recently has).24 For example, it would have been helpful
for him to revisit his extensive discussion of Charter jurisprudence to evaluate the
extent to which the reasoning employed by the Court has served this function, and if it
has not, why not.
3. The delegitimization of the override?
The legislative override is the distinctive Canadian contribution to the countermajori-
tarian dilemma, and it is not surprising that Manfredi discusses it in detail. In brief, the
override allows provincial legislatures and the federal Parliament to enact laws that
would otherwise be unconstitutional because they unjustifiably limit certain (but not
all) Charter rights—the fundamental freedoms, legal rights, and equality rights. Once
invoked, the override expires at the end of five years. The override was meant to safe-
guard against the possibility of judicial error, or in other words, to save liberal constitu-
tionalism from itself. In a work in progress, I argue that the addition of the override to
the Charter can be viewed as a device designed to protect the Canadian constitutional
system from a crisis brought about by prolonged and deep conflict between the courts
and legislatures, like the one experienced by the United States during the Lochner era.25
The override is of considerable comparative interest, because it offers an alternative
set of institutional arrangements to Marbury-esque judicial supremacy that strikes a
different balance between judicial review and liberal democracy. It is therefore quite
startling that it has been used very infrequently in Canada. As Tsvi Kahana has recently
demonstrated, the override has been used only by the legislatures of Alberta,
Saskatchewan, the Yukon, and Quebec—the first three invoking it once each, the latter
on fourteen occasions (although once in an omnibus fashion).26 Only eight uses of the
override are currently in force. Students of comparative constitutionalism would want
to probe the reasons for the disuse of the override, to determine the extent to which
these factors might be present in other jurisdictions, and what those factors say about
the efficacy and viability of the override as a feature of a constitutional system.
Manfredi’s simple answer to this question is that the override has failed because it
has been delegitimized through its use in one highly publicized episode—the decision
by the Quebec government on December 18, 1988, to immunize from Charter scrutiny
BOOK REVIEWS 385
24 KENT ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE (Irwin Law
2001).
25 Sujit Choudhry, The Lochner Era and Comparative Constitutionalism, at http://papers.ssm.
com/so13/papers. cfm?abstract_id=363220.
26 Tsvi Kahana, The Notwithstanding Mechanisms and Public Discussion: Lessons from the Ignored
Practice of Section 33 of the Charter, 44 CAN. PUB. ADMIN. 255 (2001).
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the provisions of Bill 178, a law requiring that exterior commercial signs be displayed
only in French.27 This use of the override was very poorly received in English Canada,
in large part because it vividly exemplified how the override could be used to abridge
constitutional rights, in this case the rights of Quebec’s English-speaking minority. But
Manfredi goes further and argues that the delegitimization of the override has funda-
mentally altered the institutional balance between legislatures and courts by removing
an external check on judicial review. Manfredi proceeds from the assumption that
courts are strategic actors which have policy objectives the attainment of which is
dependent on the responses of other institutions (executive, legislature), and which
frame their judgments in light of the anticipated responses of those institutions in order
to maximize the possibility that they will attain their objectives. For Manfredi, the
threat of the override leads to judicial caution, to not provoke a legislative overruling of
court decisions, and thus the delegitimization of the override has meant that courts act
more aggressively.
Manfredi’s argument is novel and provocative, for three reasons. First, it runs
counter to the dominant narrative in Canadian legal circles, according to which the
Supreme Court initially adopted an aggressive approach to Charter review, and since
about the time of the enactment of Bill 178 has become not more activist, but more
deferential through the development and use of a variety of substantive and remedial
doctrines that have both reduced the number of circumstances in which laws can be
found unconstitutional and minimized the disruptive impact of rulings on govern-
ments. Thus, the Court now asserts that when faced with conflicting social science evi-
dence and the balancing of competing interests, courts should defer to legislatures.28
As well, the Court routinely suspends declarations of invalidity to allow legislatures to
respond to and preempt findings of unconstitutionality.29 Second, the idea that a court
acts strategically with respect to other institutions, although well established among
political scientists, has not taken hold in legal circles, at least in Canada. Third, schol-
ars such as Kent Roach30 have argued that the override counsels more aggressive
judicial review, rather than judicial caution, because it provides a safety net for courts.
If the override produces the opposite effect, then there is a fundamental flaw in the
design of the Charter that should not be replicated in other bills of rights.
Manfredi’s thesis raises a number of issues. First, there is the question of the
definition of judicial aggressiveness or activism. Unfortunately, Manfredi never defines
activism, let alone offers a defense of that definition. This makes it difficult to assess the
accuracy of his claim. It is all the more unfortunate because activism is a notoriously
slippery term that variously means the departure from well-established precedent,
adjudication based on judicial preferences, and/or the judicial reallocation of institu-
tional roles between the courts and other branches of government. It seems that
Manfredi thinks that judges are activist when they second-guess democratically made
decisions, and that the more they do so, the more activist they are. The problem with
this definition, though, is that since activism cannot be understood without reference
386 BOOK REVIEWS
27 An Act to Amend the Charter of the French Language, S.Q. ch. 54, § 10 (1988).
28 Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927.
29 Schachter v. Canada, [1992] 2 S.C.R. 679.
30 See ROACH, supra note 24.
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to some baseline of judicial behavior, to define activism simply as the second-guessing
of democratically made decisions means that courts act normally when they do not
find laws to be unconstitutional. But this raises the same problem we encountered
earlier: if Manfredi were a parliamentary supremacist, he could adopt this definition,
but since he is a constitutional supremacist, he cannot. Perhaps Manfredi has some
more conceptual work to do here.
Even if we work with Manfredi’s implicit definition of activism, the next question is
whether we witness a post–Bill 178 rise in activism in response to the delegitimization
of the override. To answer this question, Claire Hunter and I have gone through our
data set and eliminated from it those cases in which challenges were made on the basis
of nonoverridable rights, because in those cases the Court could not have been subject
to the external check of the override. Our assumption was that the remaining cases
would allow us to assess the effect, if any, of the delegitimization of the override on judi-
cial behavior. Our preliminary results were quite surprising. Between 1982 and 2001,
the government win rate for these cases was over 65 percent. In order to examine the
effects of Bill 178, we divided this data into two different time periods, 1984 to 1988
(pre-Bill 178) and 1989 to mid-2001 (post-Bill 178). For the first time period, the
government win rate was approximately 65 percent; during the second time period, the
government win rate was approximately the same, if not slightly higher, suggesting at
best no real rise in judicial activism, at least on this crude measure. Moving the cutoff
point one year later to 1989 did not change this picture much.
Thus, our preliminary results do not support Manfredi’s story and are consistent
with a number of different hypotheses. Perhaps the override was never delegitimized.
In this connection, it is worth noting that the override was used relatively recently, in
March 2000, by the Alberta legislature in an attempt to shield the heterosexual defini-
tion of marriage from constitutional challenge.31 Perhaps the override was and
remains irrelevant to the adjudication of constitutional cases. Or perhaps the override
has been delegitimized, but has been replaced by other institutional constraints in the
Canadian constitutional system to which the Court is responding strategically. Indeed,
the same May 2002 poll shows that 54 percent of Canadians are opposed to the very
idea of the override,32 suggesting that the latter scenario may hold true. Which of these
stories is correct is of pressing importance, particularly for constitutional drafters look-
ing to the override as a model for other jurisdictions, and is deserving of close attention
by political scientists. Unfortunately, Manfredi’s book does not equip its readers to
answer this important question.
Manfredi might respond that these data hide other ways in which activism is on the
rise. For example, he appears to claim that the Court is now more likely to hand down
“broad” decisions, in Cass Sunstein’s sense of that term.33 The two cases that he com-
pares are Morgentaler34 and Vriend. Both count as government losses. However, in the
BOOK REVIEWS 387
31 Marriage Amendment Act, S.A., ch. 3, § 5 (2000). The statute will probably not have this effect
because it is unconstitutional on federalism grounds.
32 See supra note 12.
33 CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (Harvard Univ.
Press 1999).
34 R. v. Morgentaler, [1988] 1 S.C.R. 30.
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former case, the Court struck down Canada’s abortion law on narrow procedural
grounds, leaving Parliament an opening to reregulate abortion; in the latter case, the
Court found unconstitutional the omission of sexual orientation as a prohibited ground
of discrimination in a provincial human rights code, and at the remedial stage read this
ground into the statute. The only possible government response was to repeal the
human rights code in its entirety, or to invoke the override. This is a powerful compari-
son, and viewed in isolation, may lend weight to Manfredi’s hypothesis.
However, Manfredi is being very selective. The Court handed down decisions before
the supposed delegitimization of the override that are broad and has handed down deci-
sions since then that are narrow. For example, a broad pre-Bill 178 case is the B.C.
Motor Vehicle Reference,35 which constitutionalized minimum standards for mens rea on
the basis of a rather robust theory of criminal responsibility. A narrow post-Bill 178
case is Godbout v. Longueuil,36 in which six members of the Court declined to deal with
a constitutional challenge to a residency requirement for municipal employees under
the Charter’s due process clause, resolving the issue on the basis of a statutory bill of
rights. The question to which Manfredi should have addressed himself is whether there
are any systematic trends that support his theory.
Even if we focus on remedial activism specifically, it is not clear that activism is on
the rise. Consider the remedy of reading-in, the addition of words to legislative texts by
courts. At first glance, reading-in appears to be a very aggressive remedy, because it
allows the Court to enter into the domain of legislative drafting. By contrast, the lead-
ing alternative, a declaration of invalidity (i.e., striking down), leaves the design of con-
stitutionally compliant laws to legislatures. And even though legislatures are free to
depart from the Court’s remedy, critics of reading-in argue that the judicially amended
law enjoys the burden of legislative inertia, significantly increasing the likelihood that
it will survive attempts at modification.
The fact that the three occasions on which the Court has read-in all took place
post-Bill 178 supports Manfredi’s thesis. But a close examination of the context sur-
rounding these cases reveals that reading-in does not always reflect judicial aggressive-
ness. Consider two cases in which it has been used, Vriend and Sharpe.37 In Vriend (which
found unconstitutional the omission of sexual orientation as a prohibited ground of
discrimination in a provincial human rights code), the three possible outcomes were
(a) a human rights code enumerating sexual orientation as a prohibited ground of dis-
crimination, (b) no code, and (c) a code omitting sexual orientation, protected by the
override. If we assume that the Court’s desired outcome was (a), Manfredi would argue
with some justification that the Court acted strategically by reading-in, on the basis of a
calculation that the likelihood of achieving (a) was greatest when (a) was the status
quo, because of the burden of legislative inertia (as compared with (b) and (c)), the need
for some kind of human rights code (as compared with (b)), and the delegitimization of
the override (as compared with (c)).
In Sharpe, the Court read-in defenses to a law prohibiting the possession of child
pornography, which it found to be unconstitutional because of overbreadth. Again,
there were three possible outcomes: (a) a criminal prohibition with defenses to guard
388 BOOK REVIEWS
35 [1985] 2 S.C.R. 486.
36 [1997] 3 S.C.R. 844.
37 R. v. Sharpe, [2001] 1 S.C.R. 45.
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against overbreadth that would survive Charter scrutiny, (b) no criminal prohibition
at all, and (c) an overbroad criminal prohibition, protected by the override. Manfredi
would likely argue that Sharpe is on all fours with Vriend, because (a) was the Court’s
desired option. But the analogy does not hold. The use of the override was actively dis-
cussed throughout the litigation culminating in the Sharpe decision, and the federal
government was under a great deal of pressure to invoke it had the Court adopted the
“deferential” remedy of striking down the law in its entirety. Ironically, it was probably
the fear of the override that prompted the Court to turn to the superficially aggressive
remedy of reading-in, on the grounds that it allowed Parliament to save face by claim-
ing that the prohibition had been left largely intact and would not provoke a legislative
overruling of the Court’s decision.
This comparison of Vriend and Sharpe raises the final difficulty with Manfredi’s
strategic account of judicial behavior—it is a provocative theory in search of evidence.
To be fair, there is a lot to it. I strongly suspect that strategic behavior explains two of
the most important decisions of the last twenty years, the Patriation Reference38 and the
Quebec Secession Reference,39 in which the Court adjudicated upon the issue of national
unity. However, as with any empirical theory, the strategic account needs to be sub-
stantiated. Compare Epstein and Knight’s The Choices Justices Make,40 a well-known
American account of strategic behavior by the U.S. Supreme Court, which Manfredi
cites. Epstein and Knight consult a wide range of materials, including internal court
memoranda and draft judgments. Moreover, theirs is a systematic approach that exam-
ines a broad collection of cases because it is not enough to point to isolated cases in
order to conclude that a court acts routinely in a strategic fashion. Manfredi, as a polit-
ical scientist, should have delved into the methodological issues raised by the strategic
account. Without this, and without some more evidence, the strategic account is at
most a promising research agenda, not a fully worked-out theory.
4. Conclusion
Notwithstanding its limitations, Judicial Power and the Charter is worth reading, if only
to bridge the chasm between political scientists and legal scholars who write about law
and adjudication. As political scientist Gerald Rosenberg has recently lamented,
“[a]lthough there is a large empirical literature on law and courts written by political
scientists, it is virtually unknown to legal academics.”41 Rosenberg is right. In
September 2000, the Supreme Court of Canada held a national conference to com-
memorate its 125th anniversary. The list of presenters was a who’s who of Canadian
legal academia. But that list did not contain a single political scientist, or for that
matter, any academic from outside a law school. Legal academics should take the lead
in redressing this regrettable state of affairs. To some extent, this has already begun in
the area of constitutional law, with Canadian legal scholars and political scientists
BOOK REVIEWS 389
38 Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753.
39 Re Secession of Quebec, [1998] 2 S.C.R. 217.
40 LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (CQ Press 1997).
41 Gerald N. Rosenberg, Across the Great Divide (Between Law and Political Science), 3 GREEN BAG 2D
267, 268 (1999–2000).
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engaging in a vigorous debate over whether the relationship between courts and legis-
latures under the Charter can best be characterized as a dialogue between partners of
comparable status, or a monologue in which courts dictate public policy to elected
legislatures.42 Judicial Power and the Charter provides a good basis for continuing that
interdisciplinary conversation.
390 BOOK REVIEWS
42 JANET L. HIEBERT, CHARTER CONFLICTS: WHAT IS PARLIAMENTSROLE? (McGill–Queen’s Univ. Press
2002); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures,
35 OSGOODE HALL L.J. 75 (1997); Christopher P. Manfredi & James B. Kelly, Six Degrees of Dialogue:
A Reponse to Hogg and Bushell, 37 OSGOODE HALL L.J. 513 (1999); ROACH , supra note 24. See also the
contributions of Peter Hogg and Allison Thornton (formerly Bushell), Rainer Knopff, Frederick L.
Morton, Sábastien Lebel-Grenier, and Lorraine E. Weinrib to the April 1999 issue of Policy Options,
a leading public policy journal in Canada.
Constitutions in a nonconstitutional world: Arab basic laws and the prospects
for accountable government, Nathan J. Brown, Albany: SUNY Press, 2002.
xv, 244 pp.
Reviewed by Noah Feldman*
1.
There is a tendency, especially prevalent in the developed West, to think of the rule of
law and constitutional governance in binary terms: either you have them or you don’t.
If due process applies except when it does not, or if constitutional strictures bind gov-
ernment actors except when they do not feel like following them, then it often may be
empty or even deceptive to speak of the presence of the rule of law or of a meaningful
constitution.
One can imagine good reasons to think of these important phenomena in such
absolute terms. For one thing, an almost inescapably normative tone accompanies most
of our discussions of the rule of law and of constitutionalism. So if we speak of a par-
tial rule of law or of an incomplete constitutional form of government, we run the risk
of appearing to legitimate what may be convenient façades—Potemkin constitutions
erected to convey a false sense of regularity and fairness where neither exists. For
another, it is philosophically defensible to say that the rule of law in its deepest sense
cannot exist so long as the possibility of arbitrary or discriminatory deviation from the
law exists. To the extent that a written constitution aspires to embody rule-of-law prin-
ciples by reducing norms of governance to a form recognizable as positive law, enforce-
able by and against government actors, it, too, would seem to be fundamentally
defective if the law can be ignored by those it is intended to constrain. But of course
* Assistant Professor of Law, New York University School of Law.
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... 29 One of us has critiqued this more sophisticated version of Manfredi's argument in a book review cited by Manfredi and Kelly. 30 Unfortunately, since they do not describe this review in their response, we are forced to repeat and elaborate upon this critique so that readers can draw their own conclusions as to the cogency of Manfredi's argument. As he and Kelly present it here, Manfredi's argument is about the rise of remedial activism on the Court, focusing on reading-in, the remedy employed by the Court in Vriend. ...
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In this reply, the authors assert that Professors Manfredi and Kelly's response to their original article either misses the point or is simply mistaken. The authors clarify the limited purpose of their original study, which was to assess the extent to which the Supreme Court is counter-majoritarian under the Charter. Manfredi and Kelly's interpretation of the available data either relies on inappropriate quantitative measures or draws overly fine distinctions between highly variable data sets. The burden of proof is on those who allege that the Court is engaged in judicial activism, and Manfredi and Kelly have not succeeded in demonstrating that the null hypothesis has been disproved.
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While the last few decades have witnessed increased political significance of the Canadian Supreme Court, the Court has also managed to safeguard its institutional legitimacy as evident in the high degree of support it enjoys among the Canadian public. Indeed, how do the Supreme Court of Canada, and high courts everywhere, ensure the attainment and retention of institutional legitimacy? The paper develops an answer to this question by presenting a strategic theory of legitimacy cultivation. The theory is applied and tested in the context of the 1998 Secession Reference case. The paper sheds a new light on the case, shows that patterns of judicial strategic behaviour can provide important insights into how the Supreme Court acquires institutional legitimacy and points out the significance of extending the strategic approach to the study of the Canadian Supreme Court. Résumé. L'importance politique de la Cour suprême du Canada s'est accrue de manière notable au cours des dernières décennies. Malgré tout, la Cour a réussi à maintenir sa légitimité institutionnelle, comme en fait foi le niveau de soutien élevé pour la Cour que manifeste la population canadienne. Mais comment la Cour suprême du Canada, ainsi que les cours suprêmes ailleurs dans le monde, s'assurent-elles de développer et de maintenir leur légitimité institutionnelle? Cet article propose une réponse à cette question en présentant une théorie stratégique du développement de la légitimité. La théorie est appliquée et testée dans le contexte du Renvoi relatif à la sécession du Québec de 1998. Cet article jette un regard différent sur cette décision en démontrant que certaines tendances dans le comportement judiciaire stratégique peuvent fournir des indices importants quant à l'acquisition de la légitimité institutionnelle. L'article souligne aussi l'importance d'étendre l'utilisation de l'approche stratégique à l'étude de la Cour suprême du Canada.
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Political science often overlooks legal remedies as a site of inquiry—an unfortunate development since remedies constitute a crucial nexus between law and politics. Using both a historically-informed institutionalist perspective and a legal perspective to explore this nexus, I examine current developments in the judicial use public law remedies and, in particular, the delayed declaration of invalidity, a remedy which shares the sobriquet of the 'workhorse' of the Canadian public law order with the general declaration of invalidity. Remedies in the Canadian system are generally attentive to the institutional role and capacity of the courts and respectful of other governing institutions' roles and capacities. Delayed declarations of invalidity typify institutional dialogue because they rely on institutional practices of good faith consultation and collaboration. This type of remedy shows that the relationship between courts and legislatures can be complementary and functionally dynamic. Despite these positive aspects, increased use raises troubling questions. This remedy tolerates a temporary extension of constitutionally invalid laws and one can ask how a rule of law society can allow such a condition to become both normal and ordinary. The potential for legislative non-compliance and the toleration of minimal justification given by governments introduces doubts about the viability of the trust relationship between courts, parliaments, and executives and therefore implicates the consequent legitimacy of the remedial process. There also exists an unresolved remedial problem about judicial interference in government budgeting. Despite the benefits of remedial flexibility, I argue that the coordinate status of courts in relation to legislatures must be emphasized—meaning that courts should rarely give unquestioning deference to governments and should ensure that the justificatory onus is met. Greater use of delayed declarations indicates that Canada currently faces the risk that constitutional norms may be under-enforced or ignored.
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The conventional view is that the American model of judicial review largely conquered the world's democracies after the Second World War. This Essay questions that view by examining the following question: why do social movements contest constitutional meaning by fighting over judicial appointments in the United States and why would such a strategy make little sense in democracies that constitutionalized rights in the late twentieth century? The short answer is that the United States has been both a model and an anti-model in the spread of judicial review around the globe. When the hope of Marbury (constitutionalized rights) traveled abroad in the second half of the twentieth century, it was joined with the fear of Lochner (courts run amok). As a consequence, polities abroad adopted stronger mechanisms of judicial accountability that make it difficult for social movements to wrangle over appointments as a means of resolving disputes over constitutional meaning. The political court model of judicial review, adopted in Germany and the democracies it influenced, relies on ex ante mechanisms of accountability. When supermajority appointment provisions are used to select members of a national high court, factions are forced to negotiate over appointments. The politicized rights model of judicial review, on the other hand, adopted in Canada and the democracies it influenced, relies on post facto mechanisms of accountability. When courts have the first but not the final word in interpreting the constitution, citizens will choose to overrule courts directly rather than fight over appointments. In short, popular constitutionalism, which originated in the United States, or the notion that citizens should play a role in construing their constitution has thrived abroad better than at home.Battles over appointments have decisively shaped the United States Supreme Court and inadvertently resolved a long-standing scholarly debate between law professors and political scientists. Law professors believe that the Court is a countermajoritarian institution whose discretion is checked by law whereas political scientists believe that it is an anomalous majoritarian institution whose discretion is ultimately checked by appointments. It turns out that the law professors were right but for the reasons given by political scientists. For the first time in our nation's history, factions have succeeded in fashioning a countermajoritarian Court but they have done so through the politics of appointments.
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Most Canadians believe that the notwithstanding clause, namely section 33 of the Charter of Rights and Freedoms, has been used only a few times in the past and that currently no legislations invoking section 33 is in force. This article reveals that the "notwithstanding mechanism" was actually used in sixteen different pieces of legislation (in addition to its omnibus use by Quebec) and that seven acts invoking the mechanism are still in force. The article then argues that two main reasons for the lack of public response to these invocations of section 33 were that these uses were both invisible and inaccessible. They were invisible because they dealt with matters that were not on the public agenda and they were inaccessible because they dealt with complicated policy questions. The article concludes by contending that the notwithstanding mechanism should only be used in response to a Supreme Court decision and not prior to it. It is likely that a Supreme Court decision would have made these ignored uses of section 33 both more visible and more accessible and hence more noticeable.
  • S C R Epstein
  • Jack
  • The Knight
  • Choices
  • Make
Re Secession of Quebec, [1998] 2 S.C.R. 217. 40 LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (CQ Press 1997).
Across the Great Divide (Between Law and Political Science), 3 GREEN BAG 2D
  • Gerald N Rosenberg
Gerald N. Rosenberg, Across the Great Divide (Between Law and Political Science), 3 GREEN BAG 2D 267, 268 (1999-2000).
Public Opinion and the Courts
  • F Joseph
  • Paul Fletcher
  • Howe
Joseph F. Fletcher & Paul Howe, Public Opinion and the Courts, 6(3) CHOICES 1 (2000), also available at http://www.irpp.org/choices/archive/vol6no3.pdf (last visited Jan. 3, 2003).
  • R V Keegstra
16 R. v. Keegstra, [1990] 3 S.C.R. 697.
  • The Supreme
  • On
  • Trial
ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE (Irwin Law 2001).
  • Jack Knight
38 Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753. 39 Re Secession of Quebec, [1998] 2 S.C.R. 217. 40 LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (CQ Press 1997).
WHAT IS PARLIAMENT'S ROLE?
  • Janet L Hiebert
  • Charter Conflicts
JANET L. HIEBERT, CHARTER CONFLICTS: WHAT IS PARLIAMENT'S ROLE? (McGill-Queen's Univ. Press 2002);
Six Degrees of Dialogue: A Reponse to Hogg and Bushell, 37 OSGOODE HALL L
  • P Christopher
  • Manfredi
  • B James
  • Kelly
Christopher P. Manfredi & James B. Kelly, Six Degrees of Dialogue: A Reponse to Hogg and Bushell, 37 OSGOODE HALL L.J. 513 (1999);