Collateral Thoughts on Dialogue's Legacy as Metaphor and Theory: A Favourite from Canada

15 Pages Posted: 13 Aug 2016

See all articles by Jamie Cameron

Jamie Cameron

York University - Osgoode Hall Law School

Date Written: August 10, 2016

Abstract

“Collateral Thoughts” is part of a special issue edited by Professor James Allan, who invited and challenged a group of scholars to select and discuss a favourite law review article. I chose “The Charter Dialogue Between Courts and Legislatures” because it is the most influential article to date in the Charter of Rights and Freedom’s relatively short history (since 1982). I call this reflection “Collateral Thoughts” because my interest is less in the merits of dialogue theory than in its remarkable impact, at home in Canada as well as abroad, in the broader reaches of comparative constitutionalism and constitutional theory. In the main, this reflection asks how and why “dialogue” became a runaway concept, and considers what that tells us about the nature and formation of constitutional theory. It shows that Dialogue was fundamentally connected to Canada’s catharsis of rights, in 1982 and in the early years of Charter interpretation. That is why its claim that the legitimacy battles which define American judicial review are irrelevant – because Canada’s system of rights protection is based on “dialogue” – was so explosive. Not only did this article command attention in Canada, the concept of dialogue would be “reified”, castigated and deeply analyzed by scholars and Commonwealth jurisdictions who wondered whether weaker or weak-form judicial review was institutionally possible. Much like other theories in the US constitutional tradition, Dialogue responded to controversy by theorizing and attempting to legitimize review. Despite failing in its objective to eliminate legitimacy concerns about review, Dialogue catalyzed a national and international movement in constitutional thought.

Keywords: Charter dialogue – dialogue and the legitimacy of review – dialogue’s legacy as metaphor and theory – how and why dialogue became a runaway concept – theories of review and their roots in controversy about constitutional rights and interpretation

Suggested Citation

Cameron, Jamie, Collateral Thoughts on Dialogue's Legacy as Metaphor and Theory: A Favourite from Canada (August 10, 2016). Osgoode Legal Studies Research Paper No. 66/2016. Available at SSRN: https://ssrn.com/abstract=2821129 or http://dx.doi.org/10.2139/ssrn.2821129

Jamie Cameron (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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