Ghosts and Straw Men: A Comment on Miriam Smith's ''Ghosts of the Judicial Committee of the Privy Council''

Extract

Readers of Miriam Smith's article1 who have not also read our recent book, The Charter Revolution and the Court Party, may conclude that she is critical of everything in that book. This would be a mistake, since nowhere in her article does she challenge the two central claims of the book: (1) that there has been a “Charter revolution,” and (2) that this revolution can be explained only in terms of a supporting constituency. Smith accepts these central claims, which are made also by Charles Epp in his fine book, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective, a book Smith praises (9, n. 12; 11). Smith disagrees primarily with our characterization of the Charter revolution as undemocratic. She prefers Epp's view that the rights revolution is democratic because it rests “on a support structure that has a broad base in civil society” (11; quoting Epp, Rights, 199) precisely, that is, because it is supported by what we call a Court Party and Epp calls a “support structure for legal mobilization.”