“If the will of the Queen in Parliament is already being constrained by a group of European lawyers sitting in Strasbourg, . . . then Parliamentary sovereignty is a waning idea.” – Tom Ginsburg

 I felt I might begin my tenure as a regular contributor to the Cocklebur blog with an exposition of the connections between Mississippi Delta Bluesman Terry “Harmonica” Bean and regional inequalities. But, then (as I did that time I felt I should attend law school) I lay down until the feeling went away.

 Instead, I think I will start with a description of something presently on my research agenda – comparative constitutionalism. This week I attended the annual meeting of the Western Political Science Association in San Antonio, Texas where, along with my friend and co-author William Blake, I presented a paper on the Canadian experience with judicial review. It was my first foray into the field, and we met with some success.The contrast between the American and Canadian experiences is interesting because the Canadian system includes some unique features including the “Notwithstanding Clause”. Passed along with the Canadian Charter of Human Rights in 1982, the Clause allows the national and provincial governments to enact legislation notwithstanding the Canadian Supreme Court’s (CSC) determination that it violates the Canadian Charter of Human Rights. Previously, any review of decisions of the Canadian legislature occurred off shore in the Judicial Committee of the Privy Council of England. The Canadian experiment with judicial supremacy began in part because of the Privy Council’s remoteness, and its invalidation of legislative enactments in response to the Great Depression. One would think that the CSC would be hesitant to strike down an act of a legislature given the long history and tradition of legislative rule and the threat that a legislature would invoke the Notwithstanding Clause. This was not the case.

 The CSC got right to work. In its first three terms under Charter-based review, the CSC invalidated 16 laws. The CSC’s use of its new review power contrasts starkly with that of the Supreme Court of the United States’ (SCOTUS). SCOTUS used the power of judicial review in the term following its Marbury decision to consider the Jeffersonian dominated Congress’ repeal of the Judiciary Act of 1801 (Stuart v. Laird). The repeal eliminated many federal courts populated by Federalists. The Marshall Court could find no politically viable, Marbury-style solution that would preserve its precarious position vis-à-vis the other two co-equal branches of government, and it upheld the repeal. SCOTUS did not employ the review power again until 1857 when it decided the Dred Scott case. The decision was vilified, but by then no one was questioning the use of the power to decide such issues.

 Of course, Canadian governments could invoke the Notwithstanding Clause following these initial defeats to effectively overturn the CSC’s decisions (the Canadian governments’ track record included a string of 15 consecutive losses defending against Charter challenges to legislative acts).  And yet, they did not. Only Quebec has invoked the clause, and done so only once. But, even more surprising is the almost complete rejection of parliamentary sovereignty by the Canadians. The country turned on a dime to reject parliamentary sovereignty and endorse the judicialization of politics in the form of a constitutionally limited democratic regime. For example, conservative politicians endorsed the inclusion of the Notwithstanding Clause in the Charter of Human Rights as a means to turn back the clock should the experiment with judicial supremacy fail. But, when the Quebec provincial legislature invoked the clause following the CSC’s decision in Ford v. Quebec,

[1988] 2 S.C.R. 712, the conservatives roundly criticized the Quebec provincial government for undermining the court’s legitimacy. The citizens of Quebec, however, approved its use, and returned the ruling provincial party to power in the next election. Despite the popular approval of Quebec citizens for the provincial legislature’s use of the clause, no province has invoked it since. Perhaps this is so because even the citizens of Quebec approve using judicial review over legislative determinations that some act does or does not violate the Charter.

 There are clearly difficulties in making the comparison between the American and Canadian experience with judicial review. Below, I detail a few of them.

  • The American experience began in 1803. The Canadian experience began in 1983 (with the ratification of the Charter). It’s a different world.
  •  The American experience with judicial review does not end in 1803 with the decision in Marbury. The use of the power, its scope, and the place of the Supreme Court within our federal system has undergone radical changes through amendment (e.g., the Reconstruction amendments) and structural revisions (the New Deal). Perhaps a closer comparison would be to the American experience of the judicialization of politics beginning in the early 20th century and culminating with Carolene Products footnote 4. That case heralds the emergence of judicial doctrines not simply weighing fundamental rights against state power (e.g., those invoking “ordered liberty” or historically protected rights), but setting aside a sphere of fundamental rights apart from ordinary political processes. That story is perhaps closer to the Canadian experience.
  • Finally, the Canadian experience with judicial review is more closely aligned with that of other former Commonwealth colonies. We plan to consider the massive and recent expansion of the judicial review power world-wide in light of globalization, democratization, a distrust of parliamentary sovereignty, and a movement for centralized judicial protection of fundamental rights. The experience of former British colonies with democracy (as some times a tool of totalitarianism) is different from the American and Canadian experiences. Many have moved to centralized national review, or even supra-national (as in the Caribbean experience, and even the British experience in the European Union).
  •  In the end, however, the American experience is helpful in exploring the emergence of judicial review as an integral part of a constitutionally limited democratic regime. Scholars have not neglected the strategic realities shaping its use. As Tom Ginsburg notes “Just as American courts are concerned about securing compliance with their decisions, so courts in new [and I would add ‘other’] democracies face the same fundamental political problem: how to convince the losing party to abide with their decisions.”

This area of study is complex, incorporating a whole range of complicated and countervailing variables, histories, national identities and experiences. As Terry “Harmonica” Bean would say “Dis music is hard and tricky. Ders a whole lot gone on in my head.”