Dennis Baker’s Argument

Dennis Baker’s Not Quite Supreme, the Courts and Coordinate Constitutional Interpretation (McGill-Queen’s University Press, 2010) is formidably well grounded in British legal history. It says as much about parliamentary systems as about the judiciary. It draws on and develops arguments I have broached, as I am very happy to report, adding to the mix an impressive mastery of the current legal literature. The style is engaging. There is no other Canadian book like it.

It argues for the cooperation of the legislative and judicial branches in the development of public policy and in this one respect reflects the currently fashionable idea that the Supreme Court and Parliament should engage in “dialogue” about contested decisions. But whereas dialogue theorists typically maintain that after more or less polite tooing and froing on a matter of law, the court must have the final say because it is the “supreme” branch of government, Baker, with his long view of modern constitutionalism, argues that no branch is of and by itself “supreme.”

He argues, indeed, that the three constitutional branches – as Montesquieu understood them, the executive, the legislative, and the judicial – each participate in executive, legislative, and interpretative functions.

The idea is not difficult; we are all of us familiar with it; or we once were. The executive branch (Cabinet) legislates insofar as it draws up the country’s taxing and spending agenda but is powerless to put it into effect without the approval of the Commons and Senate. But then, supposing the necessary approval has been given, the legislative houses in turn must step aside; enforcement of the law belongs to the executive branch and to the courts. Add to the picture the idea that, as we all know, enforcement of law has legislative effect.

In carrying out its constitutionally mandated functions each branch willy nilly participates in the interpretation of law and the constitution. To repeat: interpretation of the constitution is not the Court’s prerogative alone. Following Montesquieu, Baker describes our constitution as a system of “checks and balances.” The Westminster system encompasses “the separation of governing powers.” As a student of the nineteenth century I can attest that this language – “checks and balances,” and “separation of powers” was once the coin of our realm.

We have lost our confidence in this amazingly elegant and effective mechanism for protecting our rights and freedoms. It remains the law of the constitution; Canada is still a free country. But our understanding is imperfect and to the extent that it is imperfect, our freedoms are less secure.

Who today speaks of speaks of the “separation of powers”? The political scientist in the classroom describes the Westminster parliament as an institution that fuses the legislative and executive branches. “Fusion” is said to be the defining characteristic of parliamentary government. But no reading of our constitutional history justifies this notion. It is false to say that in parliamentary systems there is no separation of political powers. I am at a loss to know why the idea of “fusion” persists. And yet it remains standard. Textbooks insist that in parliamentary systems executive dominance of the legislative process is not only current practice, but the norm required by parliamentary tradition, the legitimate norm.

Baker convincingly shows that it is this conviction about the inevitability of executive dominance that allows judicial supremacists to claim for the courts the task of reigning in the oligarchs. “The supremacist vision of Parliament – whose final say is exercised de facto by the dominant executive – begets the only realist check and balance to what is understood as a fused parliamentary power. A strong Charter-empowered judiciary, in other words, is [regarded as] the only means of counter-balancing an executive that would otherwise be unchecked” (page 148). But, as he continues, “the executive is not as all-powerful as the proponents of a strong judicial check suppose and therefore not in need of an unchecked judiciary.”

Not Quite Supreme supplies a wealth of evidence for this assertion, including succinct and eminently readable analyses of old and new judicial decisions in Canada and the United States. I will only add that students of America law will enjoy this book as much as Canadian readers.

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