Constitutionalism from the Top Down

Osgoode Hall Law Journal, Vol. 45, No. 91, 2007

15 Pages Posted: 3 Mar 2008

See all articles by Grant Huscroft

Grant Huscroft

University of Western Ontario - Faculty of Law

Abstract

In their original article on dialogue theory in 1997, Peter Hogg and Allison Bushell concluded that decisions of the Supreme Court of Canada striking down legislation under the Canadian Charter of Rights and Freedoms usually leave room for a legislative response, and usually receive one. The Charter, they concluded, establishes a weak form of judicial review compared to the US Bill of Rights, and resolves the countermajoritarian difficulty.

Dialogue theory has been very influential in Canada, but the core of the theory - the existence of legislative sequels - is much less significant than has been supposed. Dialogue theory pays inadequate attention to the substance of legislative responses, and ignores the extent to which those responses are influenced, if not dictated, by the Court's decisions.

This is no concern to dialogue theorists, because as Hogg, Thornton, and Wright make clear in their 2007 article updating the original dialogue article, dialogue theory assumes that the judiciary is the authoritative interpreter of the Charter. In other words, the theory is based on the premise that disagreement with judicial interpretation of the Charter is illegitimate.

With this premise in place, however, meaningful dialogue between courts and legislatures is impossible. The main role of dialogue theory is to downplay judicial power, and in this way rationalize a form of top-down constitutionalism.

Keywords: Judicial Review, Canadian Charter of Rights and Freedoms, Constitutional Law, Dialogue Theory

JEL Classification: K10

Suggested Citation

Huscroft, Grant, Constitutionalism from the Top Down. Osgoode Hall Law Journal, Vol. 45, No. 91, 2007, Available at SSRN: https://ssrn.com/abstract=1099535

Grant Huscroft (Contact Author)

University of Western Ontario - Faculty of Law ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada
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519-661-3790 (Fax)

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