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Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation.

Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation By DENNIS BAKER. Montreal and Kingston: McGill-Queen's University Press, 2010. Pp. x, 219, notes, bibliographical references, index.

This book is a valuable study of judicial review in Canada. Author Dennis Baker explains that different views of judicial review are possible and plausible and that the most plausible of them can and must be rooted in an understanding of the Constitution as a whole. He argues very cogently against the mainstream of the relevant literature in Canada that the Supreme Court should not be considered absolutely supreme, in the sense of having the last word, when it comes to interpreting the Constitution. From the point of view of public administration, Baker could be said to be reminding us that public servants must function in a world where both formal sources of authority, more or less transparent, and informal ones, which are less transparent, are very important.

Baker opposes the doctrine of "judicial interpretative supremacy," which holds the view that "the constitution is what the judges say it is." Baker argues that this doctrine--the view that a supreme court has "an unanswerable power to interpret the constitution"--is much newer than judicial review and probably dates back only to the Warren Court in the U.S. (1953-69). If judicial supremacy is at one end of a continuum, at the other end is an approach that will "permit courts a wide scope for intervention but.., deny finality or supremacy to their pronouncements." There are "at least two major variants," of which Baker defends "coordinate interpretation" rather than "dialogue theory" (pp. 3-6). The coordinate view holds that Parliament and the executive are free to offer--and act on--interpretations of the Constitution, even on the largest matters of individual rights and governmental powers addressed by the courts. The dialogue view allows, as one would expect, for dialogue, but only on secondary matters.

According to the dialogue theory, the Supreme Court of Canada, exercising its supremacy, has identified certain areas where legislatures remain free to set out rules provided they do not question the judicially defined limits themselves. Legislatures "can use section 33 of the Charter, in a specific case, to make an exception to rights as judicially construed ["notwithstanding" these judicially determined rights] or impose 'reasonable limits' [language from Section 1] on those rights within judicially determined boundaries" (p. 6, emphasis in the original). Legislatures cannot challenge any principle set down by the Supreme Court, other than by initiating the process of constitutional amendment; one is tempted to say legislatures can legislate on secondary matters, leaving more fundamental ones to the Court. The "coordinate interpretation" approach advocated by Baker suggests that legislatures have at least some ability to take on actual Court-decided doctrine.

For Baker, the main point of disagreement with his opponents has to do with the separation of powers in a liberal democracy and the checks and balances between various parts of government. As he says, "there is a long tradition in liberal-democratic constitutionalism that expects 'the mild voice of reason' to emerge within the legislative process itself because of the salutary influence of checks and balances within that process" (p. 50). The U.S. somehow continues to uphold both judicial supremacy and checks and balances between legislative branches, and between the legislature and the executive. (To a large extent, questions as to how the balance should be struck are left out of the Supreme Court's purview on the ground that they are "political questions.") In Canada, however, there is a widespread view that we no longer have checks and balances--if indeed we ever did--and this is a powerful reason to rely on judicial supremacy: in this view, "the only effective checks and balances in the Canadian system are those provided by the courts" (p. 52).

The author spends three chapters clarifying how Canada, even with a strong executive commanding a majority in the legislature, exemplifies a defensible system of separation of powers and checks and balances. He discusses some of the foundational thinking behind liberal democracy, relying heavily on Montesquieu to argue that there is no support for a "pure" separation of powers in British, Canadian or "even" American constitutional thinking; some "mixing" of functions is necessary to achieve healthy checks and balances; the division of powers "is made stable by the constitutional requirement that no institution may wholly subsume the power of another"; what is required is a combination of independence and interdependence; and, in Madison's language, it is permissible for one "department" of government to have "partial agency," or even a degree of control, over another.

Baker's point, then, is that Canada's Constitution Act of 1867 exemplifies these principles; even in light of recent developments, the executive and legislative powers in Canada cannot properly be described as "fused." Instead, there is enough "ambivalence" in their relationship that they can still be said to exercise checks and balances on each other. Even if uprisings against a powerful prime minister are rare, the fact that they happen at all is a reminder of formal powers that are always present. There is also evidence that prime ministers and cabinets are capable of realizing the potential for trouble and limiting their own actions before others might do so; thirty per cent of the government bills in three successive parliaments were never granted Royal Assent. The Senate, formally strong but most often apparently very weak, is capable of asserting itself--as it did in the Mulroney years.

The courts, according to Baker, are not simply separate and independent of other branches of government; they are part of the checks and balances in the Constitution, such that different branches have partial agency and even control over each other. He first argues that legislatures are within their rights to continue to legislate on constitutional issues, in defiance of court decisions, as long as it is lower courts that they are challenging. He gives considerable attention to a public letter written by Sujit Choudhry and "133 (self-described) 'constitutional experts'" to Stephen Harper when he was Leader of the Opposition, arguing that even lower-court rulings cannot be overridden by a legislature, other than by the use of a "notwithstanding" declaration under Section 33; the issue at the time was same-sex marriage. It requires a different argument to show that the Supreme Court can be challenged in the same way as lower courts can. "If the necessity of using the notwithstanding clause or formal amendment was premature with respect to lower-court rulings, then it gains strength when the Supreme Court issues a definitive ruling" (p. 101).

For much of his book, Baker is concerned with defending the approach the Canadian Supreme Court took in R. v. Mills (1999) and R. v. Hall (2002), which "provided only a limited and structured form of legislative participation in the interpretative process" (p. 102). Baker also asks us to consider, however, what can and should happen if the Supreme Court makes a decision that is seen immediately, by many decent and intelligent people, as seriously wrong. Here he draws on U.S. examples--particularly Dred Scott v. Sandford, "where the Court held that slaves were not citizens but property": "Faced with the Dred Scott ruling, one of the ugliest and most vile judicial opinions ever issued, Lincoln could have simply rejected the Court's authority and engaged in public judge bashing." Instead, he "proposed a sophisticated coordinate response to the Court's opinion" (p. 107). The Court's decision must stand, and be respected, insofar as it dealt with a particular case--with Dred Scott himself. This did not mean, however, that on the principles at stake, the Court had made a final decision that had to be accepted as such. Lincoln proposed, in fact, ignoring or challenging the most general conclusions of the Dred Scott decision as much as possible, and members of his administration were encouraged to do the same. In Baker's view, supported by Lincoln along with other authorities, "[d]uring the extended period of constitutional legal pluralism after a Supreme Court ruling, it is necessary for each institution to assert its interpretation constantly, using its own institutional powers, and persist until its political will diminishes or an accommodation can be reached" (p. 112). Repeated Supreme Court decisions coming to the same conclusion can have an enormous impact--and indeed are likely to prevail--but repeated elections in which a constitutional issue was clearly in play can also be of great importance.

According to Baker, our system allows legislatures a more active, even aggressive, role than confining them to a "notwithstanding" challenge under Section 33, or an attempt at constitutional amendment. Constitutional amendment is simply too difficult to achieve, hence unlikely, hence also unlikely to influence the courts: "Although formal amendments remain technically possible, they hardly pose a threat to even the most imaginative acts of judicial interpretation" (p. 116). New legislation that refers to Section 33 assumes or accepts the correctness of a Supreme Court decision and sets out a putatively "unconstitutional" provision for a particular set of circumstances. Baker favours a challenge to what the Court has identified as constitutional. Finally, he argues that if the literal supremacy of the Supreme Court is accepted, the judiciary has assumed both legislative and executive roles- collapsing rather than maintaining a separation of powers, with checks and balances.

One reason for believing that the Supreme Court must be truly supreme, Baker states briefly, is that this is the only way to ensure the Constitution itself is supreme. This argument is reminiscent of the early and great U.S. Chief Justice, John Marshall. In response, Baker quotes another great American, Andrew Jackson: "[E]ach public officer who takes an oath to support the constitution swears that he will support it as he understands it, and not as it is understood by others" (pp. 40-41).

If Baker is correct, there is far less debate about the role of the Supreme Court in Canada than there is in the U.S. The U.S. Court might not admit, in recent times, that its decisions are less than final, but there are many efforts to overcome the Court's constitutional doctrines at the political level, supported to some degree by expert controversy. Without necessarily wishing for this country the kind of acrimonious debate the U.S. sees about abortion or the confirmation of judges, we would probably benefit from a fuller and more intelligent debate, to which Baker has made a substantial contribution.

Lloyd W. Robertson is program business adviser, Safety Policy and Education Branch, Ontario Ministry of Transportation.
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Author:Robertson, Lloyd W.
Publication:Canadian Public Administration
Article Type:Book review
Date:Dec 1, 2010
Words:1752
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