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

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