Saturday, February 4, 2023
No Result
View All Result
  • Media
Support Us
Macdonald-Laurier Institute
  • Home
  • About
    • Who We Are
    • Who Makes MLI Work
    • Tenth Anniversary
    • Jobs
  • Experts
    • Experts Directory
    • In Memoriam
  • Issues
    • Domestic Policy Program
      • Agriculture and Agri-Food
      • Canada’s Political Tradition
      • Economic policy
      • Energy
      • Health Care
      • Innovation
      • Justice
      • Social issues
      • Telecoms
    • Foreign Policy Program
      • Foreign Affairs
      • National Defence
      • National Security
    • Indigenous Affairs Program
  • Projects
    • COVID and after: A mandate for recovery
    • COVID Misery Index
      • Beyond Lockdown
    • Provincial COVID Misery Index
    • Centre for Advancing Canada’s Interests Abroad
      • Dragon at the Door
      • The Eavesdropping Dragon: Huawei
    • An Intellectual Property Strategy for Canada
    • Speak for Ourselves
    • Canada and the Indo-Pacific Initiative
    • DisInfoWatch.org
    • The Transatlantic Program
    • Indigenous Prosperity at a Crossroads
      • Aboriginal Canada and Natural Resources
    • Talkin’ in the Free World with Mariam Memarsadeghi
    • Past Projects
      • Justice Report Card
      • Munk Senior Fellows
      • A Mandate for Canada
      • Confederation Series
      • Fiscal Reform
      • The Canadian Century project
      • Fixing Canadian health care
      • Internal trade
      • From a mandate for change
      • Size of government in Canada
  • Events
    • Upcoming Events
    • Past Events
      • MLI Dinners
      • Great Canadian Debates
  • Latest News
  • Libraries
    • Inside Policy Magazine
      • Inside Policy Back Issues
      • Inside Policy Blog
    • Papers
    • Columns
    • Books
    • Commentary
    • Straight Talk
    • Video
    • Multimedia
    • Podcasts
    • Leading Economic Indicator
    • Labour Market Report
    • MLI in the Media
  • Home
  • About
    • Who We Are
    • Who Makes MLI Work
    • Tenth Anniversary
    • Jobs
  • Experts
    • Experts Directory
    • In Memoriam
  • Issues
    • Domestic Policy Program
      • Agriculture and Agri-Food
      • Canada’s Political Tradition
      • Economic policy
      • Energy
      • Health Care
      • Innovation
      • Justice
      • Social issues
      • Telecoms
    • Foreign Policy Program
      • Foreign Affairs
      • National Defence
      • National Security
    • Indigenous Affairs Program
  • Projects
    • COVID and after: A mandate for recovery
    • COVID Misery Index
      • Beyond Lockdown
    • Provincial COVID Misery Index
    • Centre for Advancing Canada’s Interests Abroad
      • Dragon at the Door
      • The Eavesdropping Dragon: Huawei
    • An Intellectual Property Strategy for Canada
    • Speak for Ourselves
    • Canada and the Indo-Pacific Initiative
    • DisInfoWatch.org
    • The Transatlantic Program
    • Indigenous Prosperity at a Crossroads
      • Aboriginal Canada and Natural Resources
    • Talkin’ in the Free World with Mariam Memarsadeghi
    • Past Projects
      • Justice Report Card
      • Munk Senior Fellows
      • A Mandate for Canada
      • Confederation Series
      • Fiscal Reform
      • The Canadian Century project
      • Fixing Canadian health care
      • Internal trade
      • From a mandate for change
      • Size of government in Canada
  • Events
    • Upcoming Events
    • Past Events
      • MLI Dinners
      • Great Canadian Debates
  • Latest News
  • Libraries
    • Inside Policy Magazine
      • Inside Policy Back Issues
      • Inside Policy Blog
    • Papers
    • Columns
    • Books
    • Commentary
    • Straight Talk
    • Video
    • Multimedia
    • Podcasts
    • Leading Economic Indicator
    • Labour Market Report
    • MLI in the Media
No Result
View All Result
Macdonald-Laurier Institute

Dennis Baker’s Argument

March 1, 2010
in Columns, Domestic Policy Program, In the Media, Latest News, Political Tradition
Reading Time: 3 mins read
A A

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.

[From The Idea File]

Previous Post

On Blogging

Next Post

Peter Nicholson in the Globe and Mail

Related Posts

Stronger enforcement of the Competition Act is better than a dramatic overhaul
Commentary

Stronger enforcement of the Competition Act is better than a dramatic overhaul

February 2, 2023
Most Canadians think prisons should continue to house male and female prisoners separately
Releases

Most Canadians think prisons should continue to house male and female prisoners separately

February 2, 2023
Defending democracies from disinformation: A new imperative for Canada-Japan strategic cooperation
Past Events

Webinar panel video: Defending democracies from disinformation – A new imperative for Canada-Japan strategic cooperation

February 2, 2023
Next Post

Peter Nicholson in the Globe and Mail

Macdonald-Laurier Institute

323 Chapel Street, Suite #300
Ottawa, Ontario
K1N 7Z2 Canada

613.482.8327

info@macdonaldlaurier.ca
MLI directory

Follow us on

Newsletter Signup

First Name
Last Name
Email Address

Support Us

Support the Macdonald-Laurier Institute to help ensure that Canada is one of the best governed countries in the world. Click below to learn more or become a sponsor.

Support Us

Inside Policy Magazine

  • Current Issue
  • Back Issues
  • Advertising
  • Inside Policy Blog
  • Privacy Policy

© 2021 Macdonald-Laurier Institute. All Rights reserved.

No Result
View All Result
  • Home
  • About
    • Who We Are
    • Who Makes MLI Work
    • Tenth Anniversary
    • Jobs
  • Experts
    • Experts Directory
    • In Memoriam
  • Issues
    • Domestic Policy Program
      • Agriculture and Agri-Food
      • Canada’s Political Tradition
      • Economic policy
      • Energy
      • Health Care
      • Innovation
      • Justice
      • Social issues
      • Telecoms
    • Foreign Policy Program
      • Foreign Affairs
      • National Defence
      • National Security
    • Indigenous Affairs Program
  • Projects
    • COVID and after: A mandate for recovery
    • COVID Misery Index
      • Beyond Lockdown
    • Provincial COVID Misery Index
    • Centre for Advancing Canada’s Interests Abroad
      • Dragon at the Door
      • The Eavesdropping Dragon: Huawei
    • An Intellectual Property Strategy for Canada
    • Speak for Ourselves
    • Canada and the Indo-Pacific Initiative
    • DisInfoWatch.org
    • The Transatlantic Program
    • Indigenous Prosperity at a Crossroads
      • Aboriginal Canada and Natural Resources
    • Talkin’ in the Free World with Mariam Memarsadeghi
    • Past Projects
      • Justice Report Card
      • Munk Senior Fellows
      • A Mandate for Canada
      • Confederation Series
      • Fiscal Reform
      • The Canadian Century project
      • Fixing Canadian health care
      • Internal trade
      • From a mandate for change
      • Size of government in Canada
  • Events
    • Upcoming Events
    • Past Events
      • MLI Dinners
      • Great Canadian Debates
  • Latest News
  • Libraries
    • Inside Policy Magazine
      • Inside Policy Back Issues
      • Inside Policy Blog
    • Papers
    • Columns
    • Books
    • Commentary
    • Straight Talk
    • Video
    • Multimedia
    • Podcasts
    • Leading Economic Indicator
    • Labour Market Report
    • MLI in the Media

© 2021 Macdonald-Laurier Institute. All Rights reserved.

IDEAS CHANGE THE WORLD!Have the latest Canadian thought leadership delivered straight to your inbox.
First Name
Last Name
Email address

No thanks, I’m not interested.