3 - Departmentalism and Dialogue

Summary

The chapter begins by discussing the French ancient régime, in which parlements could issue a formal remonstrance against royal edicts, thus denying their registration as laws. The king could reply with an order for registration, which could in turn be subject to a remonstrance. The king could ultimately appear personally before the parlement and read his edict into the record, thus ending the dispute. Levy draws on this example to offer some lessons, among them that Canadian and Commonwealth constitutionalism may be less dialogic than is often thought. Levy also explores departmentalism in US constitutional thought, according to which each branch of government has an independent duty to obey and uphold the Constitution. Though there is overlap between dialogue and departmentalism, they diverge when the branches reach an impasse. In the departmentalist view, settlements result from contestatory politics. In the dialogic view, they result from deliberative reason-giving. Levy argues that we should deflate our expectations for constitutional dialogue. While he does not deny deliberation a role, he argues that the departmentalism offers a clearer and more ubiquitous notion of constitutional dialogue. Sometimes resolution is not the result of persuasion or the culmination of democratic legitimacy. Sometimes it shows that politics is about not only persuasion, but also coercion.