Academic

Huscroft on the Dialogue Theory of Judicial Review in Canada

By Lawrence Solum

Grant Huscroft has posted Rationalizing Judicial Power: The Mischief of Dialogue Theory (University of British Columbia Press, The Charter at 25, forthcoming) on SSRN. Here is the abstract:

The Charter of Rights and Freedoms has become the dominant feature of the Canadian Constitution, and the power of the Supreme Court of Canada has grown enormously in the twenty-five years since the Charter was entrenched. The Court is the self-styled "guardian of the constitution," and the other branches of government have acquiesced in its claim to the mantle. Few see any distinction between the Court and the Charter itself: the Charter's vaguely worded rights and freedoms are supposed to mean whatever the Court says they do.

Dialogue theory rationalizes this world of judicial interpretive supremacy by exaggerating the power of the elected branches to respond to judicial decisions striking down legislation. The `dialogue' Canadian theorists have in mind is one in which the Court is free to interpret the Charter as it will, while Canadian legislatures are required to adopt the Court's interpretation and act within such parameters as its decisions allow. But this is not a dialogue in any meaningful sense. Canada's experience with the regulation of tobacco advertising demonstrates how misleading dialogue theory can be.

Full post as published by Legal Theory Blog on January 15, 2008 (boomark / email).