Proportionality and Pretense

Book review: Proportionality: Constitutional rights and their limitations. By Aharon Barak. New York, N.Y.: Cambridge University Press. 2012. Pp. xxvi + 611. Reviewed by Grant Huscroft

Constitutionalism from the Top Down

Dialogue theory regards judicial interpretation of the Charter as authoritative, and, as a result, denies that continuing disagreement with the courts is legitimate. There is little scope, in other words, for dialogue with the courts in any meaningful sense. The Charter is best understood as establishing strong-form judicial review rather than weak, and legislatures have only as much room to respond to judicial decisions as the courts are prepared to allow

“Thank God We’re Here”: Judicial Exclusivity in Charter Interpretation and Its Consequences

The Court has claimed the role of “guardian of the constitution”, and neither Parliament nor the provincial legislatures have claimed any authority where the Charter is concerned. On the contrary, they have factored judicial exclusivity in Charter interpretation into their political deliberations. This paper considers the notion that the judiciary is the only legitimate interpreter of the Charter — how it became established, and the impact it has had on public policy and the political process in Canada. The pending reference to the Supreme Court on same-sex marriage is considered as an example of the problems judicial exclusivity can cause

“Thank God We’re Here”: Judicial Exclusivity in Charter Interpretation and Its Consequences

The Court has claimed the role of “guardian of the constitution”, and neither Parliament nor the provincial legislatures have claimed any authority where the Charter is concerned. On the contrary, they have factored judicial exclusivity in Charter interpretation into their political deliberations. This paper considers the notion that the judiciary is the only legitimate interpreter of the Charter — how it became established, and the impact it has had on public policy and the political process in Canada. The pending reference to the Supreme Court on same-sex marriage is considered as an example of the problems judicial exclusivity can cause

Proportionality and pretense

Book review: Proportionality: Constitutional rights and their limitations. By Aharon Barak. New York, N.Y.: Cambridge University Press. 2012. Pp. xxvi + 611. Reviewed by Grant Huscroft

Proportionality and Pretense

Book review: Proportionality: Constitutional rights and their limitations. By Aharon Barak. New York, N.Y.: Cambridge University Press. 2012. Pp. xxvi + 611. Reviewed by Grant Huscroft

Constitutional rights coming home to roost? Rights internationalism in American courts

There is increasing pressure for American courts to accept the decisions of foreign courts and international tribunals as relevant, if not persuasive, authority in interpreting the US Bill of Rights. American courts are accused of being old-fashioned, if not parochial, and of failing to understand and respect international human rights norms. The authors suggest that American courts should be more wary than most when it comes to the decisions of foreign courts and international tribunals. These bodies speak the same language of rights, but they have different understandings of what rights are and how particular rights are to be understood. In addition, many countries have different conceptions of the state and its role, and the role of the courts. The very basics of American constitutionalism are, in significant ways, foreign to many of the countries that have adopted bills of rights. The authors discuss human rights jurisprudence in other countries with bills of rights and under international law, highlighting the features that distinguish that jurisprudence from American law. They consider the leading arguments used to justify the practice of judicial review under bills of rights, and indicate which of those arguments are applicable when the decisions of foreign courts and international tribunals are raised or in some sense relied upon by American courts. Finally, the authors review recent case law from Canada, New Zealand, and the United Kingdom, suggesting what might lie in store if rights internationalism becomes commonplace in American courts. They argue that there is a noticeable ratcheting-up effect in the rights-based jurisprudence of these common law systems as each draws on the most expansive case law of the others