Not Quite Supreme

Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation

DENNIS BAKER
Copyright Date: 2010
Pages: 230
https://www.jstor.org/stable/j.ctt804qr
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  • Book Info
    Not Quite Supreme
    Book Description:

    Baker argues that coordinate interpretation – a model which requires both elected and appointed officials to interpret the Charter – allows for the creation of a more robust democracy, alleviating some of the tension between constitutionalism and democracy while limiting judicial activism. Drawing on literature from Montesquieu to recent court decisions, Not Quite Supreme gives an extensive critique of both Canadian and American judicial models and explores the tensions between the separation of powers in both countries. Not Quite Supreme is a fresh and substantial contribution to the debate, advancing a new argument in support of a more diverse tradition of legal decision making in Canada that makes the constitution, rather than individual decisions of the Court, its cornerstone.

    eISBN: 978-0-7735-8070-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. INTRODUCTION: Sharing Interpretive Power
    (pp. 3-16)

    Defenders of judicial power and constitutionally entrenched rights inevitably wrestle with what Alexander Bickel famously described as the “counter-majoritarian difficulty,” namely, the awkward fact that judicial power involves unelected judges overturning the decisions of elected officials.¹ One approach to overcoming this difficulty has been to minimize the scope and reach of judicial power by exhorting courts to intervene only to protect the procedural requirements of democracy itself² or to exercise restraining “passive virtues” more generally.³ A second approach – the focus of this study – is to permit courts a wide scope for intervention but to deny finality or supremacy to their...

  5. 1 Judicial Supremacy, Dialogue Theory, and Coordinate Interpretation
    (pp. 17-38)

    The appropriate relationship between the judiciary and the other branches of government with respect to the interpretation of the constitution has long been a matter of controversy. The three main alternatives fall along a continuum from “judicial interpretive supremacy” (where the constitution is what the courts say it is) to “coordinate interpretation” (where courts, legislatures, and executives are partners or competitors in constitutional interpretation). In Canada, an attempt to bridge these poles has produced a middleground position, referred to as “dialogue theory,” which grants legislatures a degree of freedom in tailoring the policy outcomes required by judicial interpretations of Charter...

  6. 2 Explaining the Hostility to Coordinate Interpretation
    (pp. 39-52)

    How do we explain the pronounced hostility to even the most modest and intuitively compelling examples of coordinate interpretation? The obvious answer is that such coordinacy conflicts with the generally accepted view that the judiciary is assigned the exclusive power to interpret the constitution. As Grant Huscroft notes, “judicial exclusivity in interpreting theCharteris not only well established as a constitutional norm, but … it has become an important consideration in the political process.”¹ This chapter subjects the reasons for this increasingly widespread norm to critical analysis with the aim of evaluating the basis for opposition to the minority...

  7. 3 The Separation of Powers in Canada: “Partial Agency” or “Watertight Compartments”?
    (pp. 53-63)

    The hostility to coordinate interpretation, we have seen, rests most fundamentally on the view that judicial power is needed to supply the lack of adequate checks and balances within and among the more overtly political branches of government in our system of parliamentary responsible government. The orthodoxy holds that, with no real separation of powers between our executive and legislative branches, we cannot expect meaningful checks and balances on that front. If this orthodoxy is correct, the claims of coordinate interpretation are correspondingly weakened. My defence of coordinate interpretation must thus question this orthodoxy. This chapter and the next will...

  8. 4 The Separation of Powers in Canada: “Fusion” or “Ambivalence”?
    (pp. 64-82)

    Even if it is quite true that aformalseparation of powers (of the mainstream “partial agency” rather than “watertight compartments” variety) exists in the BNA Act, the orthodoxy can fall back on a deeper claim: that there are underlying and more fundamental realities than the superficial forms of the constitution. The “reality” is that the conventions of responsible government have the effect of centralizing power almost completely in the hands of the executive. In an age of party discipline and bureaucratic centralization, the separation of powers might be thought of, as one British administrative law scholar put it, “that...

  9. 5 The Ambivalent Judicial Role in the Separation of Powers
    (pp. 83-101)

    Contrary to the accepted opinions of some of Canada’s foremost constitutional thinkers, the separation of powers continues to play a vital in Canada’s constitutional design. Even though the exaggerated claim of executive-legislative fusion has done much to obscure it, the subtle interplay of formal and informal power maintains and animates an effective institutional separation between the legislature and the executive. Viewed through this lens, the fundamental rule of the separation of powers (the power of no branch may be wholly exercised by another) can be easily discerned. Thus far the discussion has focused on the executive-legislative separation in order to...

  10. 6 Legal Pluralism after the Supreme Court Decides
    (pp. 102-122)

    The differences between coordinate and supremacist interpretive approaches come into starkest relief once the Supreme Court rules. Even those interpretive supremacists who accept interpretive participation by the executive and legislature as the case climbs the judicial hierarchy now insist that a ruling of the Supreme Court settles any interpretive ambiguity and ends all inter-institutional dialogue over the meaning of the constitution short of the formal overrides provided by section 33 and constitutional amendment.¹ From this perspective, the finality of the Supreme Court becomes the logical lodestar: interpretive disputes require a definitive resolution, and, if neither section 33 nor constitutional amendment...

  11. 7 Judicial Remedies and the Separation of Power
    (pp. 123-144)

    While partial agency permits – and even encourages – substantialinformalinvolvement of one branch in matters formally allocated to another, it requires any such inter-branch interference to remain partial in the sense that the exercise of informal powers may ultimately be overruled by the formal authority. Parliaments, we have seen, may be executive-dominated to a considerable extent, but there is no fusion of executive and legislative powers as long as the “trained seals” on the backbenches retain the formal power to reject the government’s proposals. The minority and textual retorts follow this pattern by incorporating legislative participation into the interpretive process...

  12. CONCLUSION: Some Final Words about the “Final Say”
    (pp. 145-152)

    When controversies over rights erupt, there is a temptation to reduce political disagreement to a simple matter of “trumps.”¹ This tendency is epitomized by what I refer to as the “final say” question of judicial politics. One recent poll, commissioned by the Institute for Research on Public Policy (IRPC), asked: “In your opinion should the courts or Parliament have the final decision related to rights issues?”² This stark framing suggests only two viable options: either Parliament trumps the courts or the courts trump Parliament. While a majority (54 per cent) of respondents favoured the courts, a significant minority (31.2 per...

  13. Notes
    (pp. 153-196)
  14. Bibliography
    (pp. 197-212)
  15. Index
    (pp. 213-219)