About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

18 U. Mich. J.L. Reform 51 (1984-1985)
Rights and Judges in a Democracy: A New Canadian Version

handle is hein.journals/umijlr18 and id is 63 raw text is: RIGHTS AND JUDGES IN A DEMOCRACY: A NEW CANADIAN VERSIONt Paul C. Weiler* On both sides of the Canadian-American border, the last dec- ade has been an exciting time for those interested in the peren- nial problem of what should be the role of courts in protecting fundamental rights in a democracy. The United States has wit- nessed a remarkable flourishing of constitutional theory reflect- ing on the appropriate scope and method of its long-established institution of judicial review.1 In Canada, public life has been absorbed in a debate over the even more basic issue of whether Canadian judges should have any such constitutional role at all. Canadians sought a constitutionally entrenched Charter of Rights not just for its own sake, but also as part of a larger effort at constitutional renewal. The hope was that such a Charter would preserve a united Canada in the face of the serious threat posed by French Canadian nationalism within a potentially in- dependent Quebec.2 In this Article, I comment on those features t Thomas M. Cooley Lecture delivered at the University of Michigan Law School on Oct. 31, 1983. * Professor of Law, Harvard Law School; former MacKenzie King Professor of Cana- dian Studies, Harvard University. 1. Within the voluminous literature of the last few years, there exist some notable book-length treatments of this subject. See R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); C. BLACK, DECISION ACCORD- ING TO LAW (1981); P. BOBRITr, CONSTITUTIONAL FATE (1982); J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); R. DWORKIN, TAKING RIGHTS SERIOUSLY (1977); J. ELY, DEMOCRACY AND DISTRUST (1980); M. PERRY, THE CONSTITUTION, THE COURTS AND HUMAN RIGHTS (1982). 2. The Charter of Rights and Freedoms is Part I (§§ 1-34) of the Constitution Act, 1982. At the request of the Canadian Parliament, the United Kingdom Parliament, by means of the Canada Act, 1982, formally enacted this law in order to incorporate the existing Canadian constitutional documents (in particular, the British North America Act of 1867, as amended since then) in the new Constitution Act, 1982, and to create a new domestic procedure for amending the Canadian Constitution in the future (§§ 38- 49). The Canada Act, 1982, thereupon terminated the future authority of the United Kingdom Parliament over Canada. The best succinct analysis of the legal background to, and potential meaning of, each of the provisions of the new constitution, including the Charter, is P. HOGG, THE CANADA ACT, 1982 ANNOTATED (1982). The best scholarly account of the historical, political and legal aspects of the constitutional struggle is AND No ONE CHEERED: FEDERALISM, DEMOC- RACY, AND THE CONSTITUTION ACT (K. Banting & R. Simeon ed. 1983) [hereinafter cited

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most