Hostname: page-component-745bb68f8f-b6zl4 Total loading time: 0 Render date: 2025-02-04T22:01:12.618Z Has data issue: false hasContentIssue false
  • English
  • Français

Rights, 'Dialogue' and Democratic Objections to Judicial Review

Published online by Cambridge University Press:  24 January 2025

Leighton McDonald
Leighton McDonald*
Affiliation:
Faculty of Law, The Australian National University
Get access Rights & Permissions [Opens in a new window]

Extract

Since its inception the Canadian Charter of Rights and Freedoms has been criticised as undemocratic. It gave a small coterie of politically unaccountable judges the power to override the policy preferences of the people’s representatives. What’s more, the justification for this rested on the vagaries of rights, about which even the converted cannot reach agreement. Granted: parliamentary politics are not perfect. But, as John Ely famously argued, ‘we may grant until we're blue in the face that legislatures aren't wholly democratic, but that isn't going to make courts more democratic than legislatures.’

Peter Hogg and Allison Bushell have recently responded that this majoritarian objection to judicial review has been exaggerated – at least in the context of Canadian democracy. They claim that an empirical study of Charter cases and their legislative sequels falsifies the belief that the Supreme Court inevitably has the last word on rights. Judicial review is not a veto over politics but the beginning of a ‘dialogue’ about rights between courts and legislatures.

Type
Research Article
Information
Federal Law Review , Volume 32 , Issue 1 , March 2004 , pp. 1 - 28
Copyright
Copyright © 2004 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

An earlier version of this article was delivered in the Bill of Rights Seminar Series, Centre for International and Public Law, ANU, on 27 November 2002. Thanks to Peter Cane, John Gava, Jeffrey Goldsworthy, Sarah Harding, Rosemary Owens, Adrienne Stone, John Williams, David Wiseman, and Leslie Zines for helpful discussions and comments, and to John Howell and Tanya Spisbah for their excellent research assistance.

References

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11 ('Charter').

2 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980) 67Google Scholar.

3 Peter Hogg and Allison Bushell, 'The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing After All)' (1997) 35 Osgoode Hall Law Journal 75.

4 Ibid 105.

5 In Vriend v Alberta [1998] 1 SCR 493, 565-6 Cory and Iacobucci JJ referred to Hogg and Bushell's metaphor of 'dialogue' as 'aptly' describing the interaction between legislatures and courts, and argued that it enhanced the democratic process. For a sampling of the growing academic literature, see Kent Roach, 'Constitutional and Common Law Dialogues Between the Supreme Court and Canadian Legislatures' (2001) 80 Canadian Bar Review 481; Kent Roach, 'Remedial Consensus and Dialogue Under the Charter: General Declarations and Delayed Declarations of Invalidity' (2002) 35 University of British Columbia Law Review 211; Patrick Monahan, 'The Supreme Court of Canada in the 21st Century' (2001) 80 Canadian Bar Review 374; Christopher Manfredi and James Kelly, 'Six Degrees of Dialogue: A Response to Hogg and Bushell' (1999) 37 Osgoode Hall Law Journal 513; Jamie Cameron, 'Dialogue and Hierarchy in Charter Interpretation: A Comment on R v Mills' (2001) 38 Alberta Law Review 1051; F L Morton, 'Dialogue or Monologue?' (April 1999) Policy Options 23, available from the Institute for Research on Public Policy, <http://www.irpp.org/po/index.htm> at 25 March 2004.

6 For the purposes of this article, 'rights-based judicial review' refers to the invalidation of legislation on the basis that it is inconsistent with guarantees of rights contained in a constitution. Martin Shapiro, Cf, 'The European Court of Justice' in Craig, Paul and de Búrca, Gráinne (eds), The Evolution of EU Law (1999) 321Google Scholar.

7 Hogg and Bushell, above n 3, 105. See below n 124.

8 Ibid 79.

9 Ibid 79-80.

10 Ibid 80.

11 Ibid 81.

12 Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 33. Section 33 of the Charter applies only to the 'fundamental freedoms' (s 2), 'legal rights' (ss 7-14), and 'equality rights' (s 15). The 'democratic rights' (ss 3-5), 'mobility rights' (s 6), and 'language rights' (ss 16-23) are excluded from its operation.

13 Hogg and Bushell, above n 3, 83.

14 Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 1.

15 Hogg and Bushell, above n 3, 84-5. See R v Oakes [1986] 1 SCR 103, 138-9. See also Jeremy Kirk, 'Constitutional Guarantees, Characterisation and the Concept of Proportionality' (1997) 21 Melbourne University Law Review 1, 4.

16 Hogg and Bushell, above n 3, 85.

17 Ibid.

18 Ibid 87. A similar process of 'dialogue' is observed in the Court's interpretation of the rights contained in ss 7-9, and 12 of the Charter (where limitations of fairness and reasonableness are contained within the right as stated): see Hogg and Bushell at 87-8.

19 Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 15.

20 [1997] 3 SCR 624.

21 Ibid 691 (La Forest J).

22 Wiseman, David, 'The Charter and Poverty: Beyond Injusticiability' (2001) 51 University of Toronto Law Journal 425, 453CrossRefGoogle Scholar.

23 Hogg and Bushell, above n 3, 91.

24 Ibid 92.

25 See ibid 94. For example, although the Supreme Court of Canada held that the purpose of the Lord's Day Act, RSC 1970, c L-13, which prohibited Sunday trading, was 'to compel the observance of the Christian Sabbath' and was thus in violationof the guarantee of freedom of religion (R v Big M Drug Mart Ltd [1985] 1 SCR 295, 351), it does seem that the Court would accept a law restricting Sunday trading which spelled out a secular object: R v Edwards Books and Art Ltd [1986] 2 SCR 713.

26 Hogg and Bushell, above n 3, 95.

27 Ibid 97.

28 Ibid 98.

29 Ibid.

30 Ibid 81.

31 Ibid 98.

32 Ibid 105.

33 Bickel, Alexander, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd ed, 1986)Google Scholar.

34 See Sherry, Suzanna, 'Too Clever By Half: The Problem with Novelty in Constitutional Law'(2001) 95 Northwestern University Law Review 921, 921Google Scholar ('almost every major constitutional scholar writing [in America] today … [is] motivated by a desire to overcome the counter- majoritarian difficulty').

35 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262 (Fullagar J).

36 For example, the Australian Constitution contains limited guarantees of trial by jury (s 80) and freedom of religious exercise (s 116), and limitations on discrimination based on state residency (s 117) and acquisition of property other than on just terms (s 51(xxxi)). The extent to which s 80 should be given a rights-protective reading has recently been questioned, see James Stellios, 'Section 80 of the Constitution – “A Bulwark of Liberty"?' (Paper presented at the ANU Centre for International and Public Law Annual Public Law Weekend, Canberra, 7-9 November 2003). Stellios makes the argument that the best way to think about the purpose of s 80 is as a structural provision which facilitates the exercise of Commonwealth judicial power in a federation.

37 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 1902, 10967 (Alfred Deakin, Attorney-General).

38 (1952) 85 CLR xi, xiv (swearing in of Sir Owen Dixon as Chief Justice of the High Court).

39 See, eg, Gageler, Stephen, 'Foundations of Australian Federalism and the Role of Judicial Review' (1987) 17 Federal Law Review 162, 175-181CrossRefGoogle Scholar; Galligan, Brian, Politics of the High Court (1987)Google Scholar.

40 In the case of review based on the implied right to political communication in Australia, I use the phrase 'rights-based judicial review' as convenient shorthand. Although the High Court prefers to speak of immunities from legislative power (see, eg, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560), nothing for my purposes turns on a strict application of the Hohfeldian conception of rights relationships. See N Hohfeld, Wesley, Fundamental Legal Conceptions as Applied in Judicial Reasoning (first published 1919, 2003 ed)Google Scholar. Applying Hohfeld's nomenclature, one might say that an implied right corresponds with a legislative duty to legislate in a particular way, whereas an implied immunity corresponds with a legislative disability. In both cases the result is that the legislature is denied power to enact certain legislation such as to enliven the democratic objection. This is not to say that invoking the language of rights as opposed to immunities is of no consequence. For example, conceptualising the implied right as a right, rather than an immunity, may mean that the legislature has an obligation to legislate in particular, positive ways. That is to say that a right may correlate with a positive duty. Whereas violation of a legislative immunity will result in invalidityof a violating law (as the legislature has no power in Hohfeldian terms), the violation of a right need not lead to the invalidity of a legislative act as the relevant legislative duty (for example, if it is a positive duty) may be better enforced through remedial means which do not leadto the striking down of any legislation. See Denise Réaume, 'Language, Rights, Remedies, and the Rule of Law' (1988) 1 CanadianJournal of Law and Jurisprudence 35 for an insightful discussion of these concepts in the context of different types of constitutional rules and remedies.

41 See Bickel, above n 33, 16.

42 See, eg, Jeffrey Goldsworthy, 'The High Court, Implied Rights and Constitutional Change' (1995) 39(3) Quadrant 46.

43 One might also examine legislative responses to legislation invalidated on federalism grounds. However, in maintaining the constitutionally mandated division of powers, the High Court has tended to rely on legal tests to ascertain the character of the challenged law – is the law one with respect to a particular subject matter? Thus, federalism cases generally make comparatively less useof legal tests which involve a structured balancing of competing interests and principles (akin to the Canadian proportionality test). For discussion of the problem of 'characterisation', see Zines, Leslie, The High Court and the Constitution (1997) 17-36Google Scholar. Though this contrast between approaches is not always clear cut, one might expect there to be less scope for 'dialogue' in relation to federalism cases than cases concerning constitutional rights. Similarly, Roach, 'Constitutional and Common Law Dialogues', above n 5, 504.

44 Express constitutional rights have been read very narrowly. For an account, see, eg, Williams, George, Human Rights under the Australian Constitution (1999)Google Scholar.

45 See, eg, Leeth v Commonwealth (1992) 174 CLR 455 (upholding legislation which allowed divergent parole expectations to depend upon the State in which a prisoner had been convicted, despite a majority of the court giving various levels of support for animplied constitutional guarantee concerning equality); Polyukhovich v Commonwealth (1991) 172 CLR 501 (holding that bills of attainder would be an invalid usurpation of the judicial power, but that the War Crimes Amendment Act 1988 (Cth), was not such legislation).

46 See, eg, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (legislation which gave the SupremeCourt of NSW the function of deciding whether one named person be detained on the basis of whether he would, on the balance of probabilities, commit a serious crime, was invalidated as incompatible with state courts' continuing role in the exercise of the judicial power of the Commonwealth). See generally George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights', in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994); Fiona Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia' (1997) 23 Monash University Law Review 248.

47 Although the High Court has admitted 'elements of history and policy' are difficult to expunge from definitions of judicial power, it maintains that such considerations 'cannot be conclusive', see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 267.

48 Here I assume that not every argument which leads to conclusions supportive of individual interests is appropriately characterised as a rights-based argument. See wDworkin, zRonald, Taking Rights Seriously (1977) 90-100Google Scholar (distinguishing 'rights'-based and 'goals'- based arguments).

49 See, eg: (1)Re Loubie [1986] 1 Qd R 272 (invalidating legislation which made applications for bail more onerous for out of state residents, pursuant to s 117 of the Australian Constitution). The offending provision, Bail Act 1980 s 16(3)(b) (Qld), was deleted by Bail Act and Other Acts Amendment Act 1988 s 12C (Qld).

(2)R v Smithers; Ex parte Benson (1912) 16 CLR 99 (invalidating legislation offending s 92 and, for one justice, an implied constitutional freedom of movement). The offending Influx of Criminals Prevention Act 1903 (NSW) was repealed by the Statute Law Revision Act 1937 (NSW). However, as the repeal did not come for 34 years and was part of a general clean up of the statute books, this case may not qualify as 'dialogue' even if one includes, within that notion, parliamentary capitulation!

50 See, eg, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 ('ACTV') (see below Part 3C).

51 It is not unknown for the legislature to make amendments in line with constitutional objections raised in a dissenting opinion. See Langer v Commonwealth (1996) 186 CLR 302 (Dawson J, dissenting); Electoral and Referendum Amendment Act 1998 (Cth) sch 1 amending s 240 and repealing ss 270(2), 329(3) and 329A of the Electoral Act 1918 (Cth).

52 (1992) 177 CLR 1 ('Nationwide News').

53 Industrial Relations Act 1988 (Cth) s 299(1)(d)(ii).

54 Industrial Relations Legislation Amendment Act [No 2] 1992 (Cth) inserting a new s 299(1)(d) into the Industrial Relations Act 1988 (Cth).

55 Commonwealth, Parliamentary Debates, Senate, 15 October 1992, 1884 (Senator Nick Bolkus).

56 Hogg and Bushell, above n 3, 81. This conclusion is, however, weakened to the extent the constitutional problem had less to do with any choices which related to the government's policy but was, as Brennan J speculated, 'the consequence of a drafting error rather than the result of deliberate legislative choice', Nationwide News (1992) 177 CLR 1, 52. For, perhaps, a better example, see John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81 which struck down ss 101A(7) and (8) and read down s 101A(9) of the Supreme Court Act 1970 (NSW), provisions which had been inserted by the Courts Legislation Amendment Act 1996 (NSW). Section 101A was then amended by the Courts Legislation Amendment Act 2000 (NSW) sch 13(2), (3). In the Second Reading speech Mr Moss (New South Wales, Parliamentary Debates, Legislative Assembly, 30 May 2000, 6107) said:

The President of the Court of Appeal has suggested that it seems anomalous that the hearing of such a question of law should occur in camera where the parties consent to a public hearing and the court thinks it proper to do so. This is particularly the case since it is the usual practice of the court to defer the hearing of contempt proceedings until the verdict has been reached in the particular trial. It is therefore proposed to remove the requirement in s 101A(7) to hear the proceedings in camera. It is further proposed that s 101A(8) be amended to provide that the identity of the contemnor may be published where he or she consents to his or her identity being disclosed.

57 ACTV (1992) 177 CLR 106, 144 (Mason CJ).

58 Ackerman, Bruce, 'Constitutional Politics/Constitutional Law' (1989) 99 Yale Law Journal 453, 464CrossRefGoogle Scholar.

59 Hogg and Bushell, above n 3, 79, 99.

60 Ibid 83.

61 (1997) 189 CLR 520.

62 Ibid 567.

63 For helpful accounts, see David Wiseman, 'Implied Political Rights and Freedoms' in Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (2001) 334–7 and Kirk, above n 15. Some members of the Court have, at times, sought guidance in the application of the implied freedom by reference to a two-tiered test applying stricter scrutiny to some categories of laws. The status of this approach remains uncertain. It is clear, however, that even when judges have suggested stricter scrutiny is appropriate, they also accept the necessity to balance the competing public interests against the interest in freedom of political communication. See AdrienneStone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' (1999) 23 Melbourne University Law Review 668.

64 (1992) 177 CLR 106.

65 Inserted by the Political Broadcasts and Political Disclosures Act 1991 (Cth).

66 There were two other exceptions to the general ban. Section 95A permitted news, current affairs items and talk-back radio to be broadcast; s 95S allowed for the broadcasting of policy launches, for up to 30 minutes, for political parties represented in the Parliament. See Broadcasting Act 1942 (Cth).

67 Gerald Rosenberg and John Williams, 'Do Not Go Gently Into That Good Right: The First Amendment in the High Court of Australia' (1997) 11 Supreme Court Review 439, 460.

68 Ibid.

69 Ibid.

70 Ibid 452.

71 ACTV (1992) 177 CLR 106, 236.

72 Ibid 149 (Brennan J).

73 Ibid 139 (Mason CJ, quoting Archibald Cox, The Court and the Constitution (1987) 212).

74 Ely, above n 2.

75 See, eg, Richard Fallon Jr, 'The Supreme Court, 1996 Term – Foreword: Implementing the Constitution' (1997) 111 Harvard Law Review 54, 89 who links it to Ely's theory.

76 Rosenberg and Williams, above n 67, 441.

77 Ibid 460. Rosenberg and Williams, at n 67, 458–9 argue that it would be erroneous to see the status quo as free from government regulation, given that regulation of political advertising is achieved by the constitutive role the government plays in creating media outlets, their corporate structures and the background market economy in which they operate. But the Court does not, on my reading, commit itself toa denial of this point.

78 See, eg, ACTV (1992) 177 CLR 106, 169 (Deane and Toohey JJ):

A law prohibiting or restricting political communications by reference to their character as such will be consistent with the prima facie scope of the implication only if, viewed in the context of the standards of our society, it is justified as being in the public interest for the reason that the prohibitions and restrictions on political communications which it imposes are either conducive to the overall availability of theeffective means of such communications or do not go beyond what is reasonably necessary for the preservation of an ordered and democratic society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society.

79 Rosenberg and Williams, above n 67, 453 write, 'Mason held that in balancing the competing public interests in banning certain political speech, 'paramount weight' must be given to protection of that speech', implying that Mason CJ was accepting something akin to what Fallon, above n 75, 67-8, calls a 'forbidden-content test'– a test which identifies a particular sort of statute orpolicy as absolutely unconstitutional and where no real assessment of the government's interest in enacting the statute is necessary. WhatMason CJ wrote in full was this: 'even in these cases [that is, those for which compelling justification must be found], it will be necessarytoweigh the competing public interests, though ordinarily paramount weight would be given to the public interest in freedom ofcommunication': ACTV (1992) 177 CLR 106, 143 (emphasis added). In the end, the content-means distinction did not reallymatter as Mason CJ held that the government had failed to establish a reasonable justification, let alone a compelling one, that the law was a proportionate to the achievement of its ends. See at 147.

80 Cf Rosenberg and Williams, above n 67, 444 (noting that the entities who could apply for time available under the free time provisions 'included interest groups'). However, unless you were a candidate or a political party which had endorsed at least one candidate there was no entitlement to apply for free time: ACTV (1992) 177 CLR 106, 172 (Deane and Toohey JJ) (referring to ss 95L(1)(a), 95M(1) and 95M(2) of the Broadcasting Act 1942 (Cth)). See also at 237 (McHugh J). Interest groups could thus only apply for free time if they were registered as a political party and running a candidate in the election.

81 ACTV (1992) 177 CLR 106, 221. Some judgments emphasised that this was particularly problematic as those excluded from advertising may be unable to respond to damaging material broadcast on advertisements or news and current affairs programs. See, eg, at 146 (Mason CJ).

82 Ibid 146.

83 Ibid 145-6.

84 Ibid 146; see also 172 (Deane and Toohey JJ), 237 (McHugh J). Justice Gaudron expressly declined to commit on this point, stating 'it may be possible … to view [the operation of Pt IIID] with respect to candidates and political parties as reasonable and appropriate regulation', at 220.

85 Ibid 132 (Mason CJ).

86 Ibid 174 (Deane and Toohey JJ).

87 Ibid 147. Mason CJ was of the view that the first two reasons alone were sufficient to invalidate the legislation: at 146.

88 Adams, Phillip, 'Bad Ads Blitz For Followers' The Weekend Australian (Sydney), 26 September 1998Google Scholar.

89 ACTV (1992) 177 CLR 106, 238.

90 Ibid 239.

91 On the history of campaign regulation in Australia see Deborah Cass and Sonia Burrows,Commonwealth Regulation of Campaign Finance – Public Funding, Disclosure and Expenditure Limits' (2000) 22 Sydney Law Review 477. See also Slabach, Frederick (ed), The Constitution and Campaign Finance Reform: An Anthology (1998Google Scholar).

92 For a valuable discussion in the context of statutory interpretation, see Janet McLean,Legislative Invalidation, Human RightsProtection and s 4 of the New Zealand Bill of Rights Act' (2001) 4 New Zealand Law Review 421, 431-3.

93 See Joint Standing Committee on Electoral Matters, Parliament of the Commonwealth of Australia, Who Pays the Piper Calls the Tune – Minimising the Risks of Funding Political Campaigns (1989) 92 which rejected a complete ban, seemingly on the basis that 'it would have an adverse effect on freedom of speech and in particular would disadvantage citizens and groups who wished to bring issues before the electorate. The beneficiaries of a complete ban would be the existing major parties'. It is difficult, however, to see how the final legislative scheme adequately responded to the problem of bias in favour of the major parties.

94 See above n 81.

95 ACTV (1992) 177 CLR 106, 146 (Mason CJ).

96 Ibid.

97 For example, one might consider criteria analogous to those thought appropriate for litigants to establish 'representative standing' in public interest litigation. It is not immediately clear why such criteria would, in principle, be less justifiable than willingness and capacity to pay for political advertising.

98 In introducing new legislation, the Commonwealth Parliament could attempt to make it clear that the High Court had misunderstood the nature or significance of its objectives and make an effort to justify the particular means chosen. Cf Roach, 'Constitutional and Common Law Dialogues', above n 5, 506. A more directive or explanatory use of preambles may be one mechanism for achieving this. See Kent Roach, 'The Uses and Audiences of Preambles in Legislation' (2001) 47 McGill Law Journal 129 for an analysis of the Canadian experience.

99 Monahan, above n 5, 388. In describing and endorsing the Hogg and Bushell thesis, Monahan states that such alternatives will 'nearly always' be available: at 388. While I do not think this article has justified a similarly strong claim in the context of the limited rights-based review in Australia, the nascent proportionality analysis adopted in relation to the implied freedom of political communication will, at the very least, often allow legislative room for manoeuvre.

100 Hogg and Bushell, above n 3, 105. See below n 124.

101 Some of which preserve a diminished role for the courts, while at the same time seeking to develop a theory of judicial review to keep the courts within a democratically legitimate zone of operation. See, eg, Ely, above n 2.

102 Christopher Eisgruber, 'Constitutional Self-Government and Judicial Review: A Reply to Five Critics' (2002) 37 University of San Francisco Law Review 115, 189. See, in particular, the influential work of Jeremy Waldron, Law and Disagreement (1999) (arguing that judicial review is not consistent with the primacy of the right to equal participation in the determination of public policy) and Mark Tushnet, Taking the Constitution Away From the Courts (1999) (arguing for a form of popular constitutional law and the repatriation of the Constitution to the people).

103 Waldron, Jeremy, 'A Right-Based Critique of Constitutional Rights' (1993) 13 Oxford Journal of LegalStudies 18, 45CrossRefGoogle Scholar. This point essentially echoes Ely as quoted in my introduction.

104 Bickel, above n 33, 18.

105 Jeremy Waldron, 'Eisgruber's House of Lords' (2002) 37 University of San Francisco Law Review 89, 108. See also Waldron, above n 102, 26.

106 Waldron, 'Eisgruber's House of Lords', above n 105, 108. As Eisgruber, above n 102, 127, notes, once Waldron characterises the argument this way, it is hard to see why he does not inevitably prefer direct, rather than representative, democracy. He cannot, presumably, claim that the quality of reasoning in elected assemblies is likely to improve the quality of deliberation, as that is precisely the sort of claim his characterisation of judicial review as a majoritarian decision-maker is designed to deny.

107 Komesar, Neil, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (1994) 266-7Google Scholar. Komesar continues (at 267):

To use the standard legitimacy formulation, why should senators, under the original Constitution elected by the state legislatures, make public policy? Why should a president, elected by an electoral college, make public policy? As it turns out, neither of these deviations from directpopular election now make any difference…In turn, why should representation ever be other than proportional to population? Why should publicofficials elected only every six or four or even two years make public policy? Why should public officials, that is representatives, make decisions at all? Why not a perpetual town meeting? Why have a remote national government rather than more immediately accessible local decision-making?

108 Edward Rubin, 'Getting Past Democracy' (2001) 149 University of Pennsylvania Law Review 711, 711. For an argument that bureaucratic decision-making cannot be characterised in majoritarian terms, see Matthew Adler, 'Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty' (1997) 145 University of Pennsylvania Law Review 759. Adler also notes that 'statutory invalidation … comprises only a minority of judicial review cases even at the Supreme Court level'; most cases involve the decisions of bureaucrats: at 810 n 132.

109 McLean, above n 92, 435 ('[I]t is erroneous to suggest that an act of statutory interpretation is always less aggressive than an act of judicial invalidation.'). See also Schauer, Frederick, 'Ashwander Revisited' (1995) Supreme Court Review 71, 97CrossRefGoogle Scholar; Jerry Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997) 101-5.

110 See, eg, Robert Dahl, 'Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker' (1957) 6 Journal of Public Law 279; Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (1988) 197-200. See also Barry Friedman, 'Dialogue and Judicial Review' (1993) 91 Michigan Law Review 577, 671-80 (discussing the nature of the constraints on judges generated by political pressures and appointments).

111 Feeley, Malcolm and Rubin, Edward, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (1999) 226-41Google Scholar.

112 To borrow from a famous title: Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977)Google Scholar.

113 More particularly, some theorists, the exemplar being Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (1996), argue that a richer conception of democracy includes the protection of substantive individual rights. If human rights are, as Jürgen Habermas puts it, internally related to (or co-original with) popular sovereignty, then there is more to democracy than majoritarianism. See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans, 1996) 455 [trans of: Faktizität und Geltung] ('private and public autonomy reciprocally presuppose one another in such a way that neither one may claim primacy over the other').

114 Though it remains the case that in some legal and political contexts, oppressed persons may have more chance of participating in decisions of importance to them by taking their claims to courts. See, eg, the various innovations which have opened the doors of the Supreme Court of India to petitions on behalf of the poor: see Jamie Cassels, 'Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?' (1989) 37 American Journal of Comparative Law 495.

115 Gallie's idea of essentially contested concepts was not simply the thesis that some concepts are contestable to the extent they are value-laden. He also insisted that, for concepts to be essentially contested in his sense, the disputes about their meaning must turn on historical traditions of usage and that the continuation of such disputes is itself of value. See W B Gallie, 'Essentially Contested Concepts' in Philosophy and the Historical Understanding (1964) 157-91. See also Leslie Green, 'The Political Content of Legal Theory' (1987) 17 Philosophy of the Social Sciences 1, 18 ('essentially contested concepts are therefore not merely concepts whose essences are contested, but rather concepts the contest about which is part of their essence. If the argumentabout such a concept were to cease, we would thus have better reason to think that we had lost the concept than that we had resolved the dispute').

116 Dan Kahan, Cf, 'Democracy Schmemocracy' (1999) 20 Cardozo Law Review 795Google Scholar (making a similar claim in the context of the constitutionality and desirability of delegating legislative power to administrative agencies).

117 For elaboration, see Leighton McDonald, 'Regrouping in Defence of Minority Rights: Kymlicka's Multicultural Citizenship' (1996) 34 Osgoode Hall Law Journal 291, 314-16.

118 See Manfredi and Kelly, above n 5. For Hogg and Thornton's response, see Peter Hogg and Allison Thornton, 'Reply to “Six Degrees of Dialogue"' (1999) 37 Osgoode Hall Law Journal 529.

119 Jeffrey Goldsworthy, 'Judicial Review, Legislative Override, and Democracy' in Tom Campbell, Jeffrey Goldsworthy andAdrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (2003) 263.

120 It is also a claim that I doubt Waldron would be tempted to make. See Waldron, above n 102, 306 (mechanisms which merely slow down the legislative process need not 'be regarded as an affront to democracy').

121 Hogg and Thornton, above n 118, 534.

122 Morton, above n 5, 24.

123 For an excellent discussion, see Wojciech Sadurski, 'Judicial Review and the Protection ofConstitutional Rights' (2002) 22 Oxford Journal of Legal Studies 275.

124 How strongly they wish to make such a claim is not entirely clear. In their original article they claim that the democratic objections to the Charter 'cannot be sustained', even though much of the language they use throughout their article is more circumspect, see Hogg and Bushell, above n 3. Hogg and Thornton, above n 118, 534, concede that that original conclusion was probably too strongly stated – though those who might persist in making democratic objections are said to take an 'extreme position' and the authors reassert the proposition that no major democratic objectives have been defeated by reason of Charter review. What followsseeks to explain why their original conclusion needs to be substantially softened.

125 Russell, Peter, 'Political Purposes of the Canadian Charter of Rights and Freedoms' (1983) 61 Canadian Bar Review 30, 52Google Scholar.

126 For elaboration, see Goldsworthy, above n 119.

127 Vermeule, Adrian, 'Judicial Review and Institutional Choice' (2002) 43 William and Mary Law Review 1557, 1558Google Scholar.

128 See ibid 1564; Goldsworthy, above n 119.

129 Cane, Peter, 'Understanding Judicial Review and its Impact' in Hertogh, Marc Halliday, Simon (eds), Judicial Review and Bureaucratic Impact (2004) (forthcoming)CrossRefGoogle Scholar.

130 One response to those, like Waldron and Ely, who say that judicial review will always score lower than decision-making by legislatures is to insist upon a different comparison, namely, that between legislatures acting alone and legislatures acting in combination with judicial review. See Leslie Green, 'Law's Rule' (1986) 24 Osgoode Hall Law Journal 1023, 1040.

131 See Goldsworthy, above n 119.

132 Thanks to David Wiseman for raising this issue with me. See also Roach, 'Constitutional and Common Law Dialogues', above n 5, 521.

133 See also Hogg, Peter, Constitutional Law of Canada (3rd ed, 1992) 240-2. Interestingly, 'none of the [Canadian] provinces now has an upper house': at 240 n 36Google Scholar.

134 This point would not be relevant in Australian jurisdictions, such as the Australian Capital Territory ('ACT'), which have a unicameral legislature. The ACT Legislative Assembly has recently enacted a statutory bill of rights, the Human Rights Act 2004 (ACT). See generally ACT Bill of Rights Committee, Towards An ACT Human Rights Act (May 2003). However, in a jurisdiction as small as the ACT one might have other concerns about whether any positive 'dialogue' over rights would flourish, see McDonald, Leighton, 'New Directions in the Australian Bill of Rights Debate' [2004] Public Law 22Google Scholar.