Power, not justice, may well decide the fate of liberty in the new Canada.
Should the state be deciding who can or cannot be “disfellowshipped” or expelled from the Jehovah’s Witnesses? Or should this be up to the Jehovah’s Witnesses? Americans might be inclined to think of this as an interpretive question of how the First Amendment protects religious freedom, and of course that’s true in the context of American constitutional judicial review. But when we step back from the American context, it is also a procedural question of which state institutions should decide how entangled the state should be in the private decisions of religious groups. Courts or legislatures?
Traditionally, those who defend the ability of courts to invalidate laws for violating constitutional rights have emphasized the importance of limiting the state’s interference in the lives of citizens. It might surprise those who hold this view that after Canada introduced a constitutional bill of rights, the Canadian Charter of Rights and Freedoms, in 1982, the question of whether the state should be involved in deciding private social decisions about who gets to be a member of which church has become a potential matter for rights litigation. To be sure, in some cases, judicial review can help protect the freedoms of citizens from the state (though we disagree about which cases fall into this category), but it’s also possible that subjecting the state to new judicially supervised legal limits may in some ways expand the state’s power to control the private lives of citizens.
Mark Harding starts off his new book Judicializing Everything with a discussion of the Canadian case of Highwood Congregation of Jehovah’s Witnesses v. Wall. In that case, the Supreme Court of Canada rightly quashed a lower court decision holding that a congregation of Jehovah’s Witnesses in Calgary, Alberta could have their decision to expel one of their members supervised and reversed by courts. Justice Malcolm Rowe wrote that “issues of theology are not justiciable” and that “private persons cannot seek judicial review to solve disputes that may arise between them; their claims must be founded on a valid cause of action.” That conclusion will sound right and just to most readers. But what is amazing is that this kind of private question even became a matter for an apex Commonwealth court to resolve. In his book, Harding shows how the introduction of bills of rights in Commonwealth countries like Canada, the U.K., and New Zealand has contributed to the judicialization not only of politics, but also the potential politicization of private social life.
Harding’s title implies a complete revolution where courts have “judicialized everything” in public and private law. In truth, Harding’s title is more of a thoughtful provocation than a description. He shows that bills of rights have only mildly injected rights politics into the private law of Canada, the U.K., and New Zealand. He also successfully shows how the judicialization of public law issues has become red-hot in Canada, medium in the U.K., and mild in New Zealand. His work illustrates the threat that bills of rights pose to the institutional balance between judicial and legislative power over matters of public and private life. This poses a challenge for holding democratic representatives responsible for the protection of rights.
Legal Versus Political Constitutionalism
Harding situates his comparative theory of judicial review in the context of the Commonwealth debate between “legal” versus “political constitutionalism”: the former standing for an increased role for courts in reviewing and policing the rights consistency of democratically enacted laws; the latter standing for leaving rights disputes to the democratic process and the unwritten conventions of the Westminster constitution. Harding is clearly on the side of political constitutionalism, although his concern is not only to advocate for this framework but to explain how both frameworks have shaped rights politics in these constitutions. American readers will be familiar with the basic positions of this debate, particularly after recent controversial decisions by the U.S Supreme Court, but it may prove edifying to read about the effects of increasing judicial power in Westminster constitutions that traditionally prize legislative supremacy in settling rights disputes. In the Commonwealth, institutional debates about judicial review and bills of rights are live questions of institutional design and reform.
Harding explains how Canada has moved the closest towards legal constitutionalism since the introduction of the Charter, while the U.K. has seen a significant expansion of judicial power since introducing the Human Rights Act, 1998, and New Zealand has proven less prone to judicialization, partly due to legal measures taken to restrain judicial power in the New Zealand Bill of Rights Act, 1990.
The primary institutional lessons about these bills of rights help reinforce some of the conclusions drawn by Stephen Gardbaum in his book The New Commonwealth Model of Constitutionalism. Harding distinguishes his theory from Gardbaum’s by arguing that the new Commonwealth bills of rights are less of a new “third option” than a “blend between legal and political constitutionalism.” And he adds much to the story by showing how the legal and political constitutionalist frameworks have influenced the “strength” of judicial power in these contexts by informing the interpretive reasoning of political and judicial decision-makers. In other words, Harding’s analysis shows how legal and political constitutionalism’s normative claims have had important effects on the very phenomena they are used to describe.
In addition to explaining the “strength” of judicial power in Canada, the U.K., and New Zealand, Harding innovatively explores how bills of rights have affected the “reach” of judicialized rights politics into the common law and private lives of citizens. Part of what makes this analysis interesting is that there isn’t a straightforward causal story for why enacting a bill of rights should expand judicial power over rights questions in the common law and private law regulating interactions between individuals that don’t involve the state. Don’t courts already have power over matters of private common law?
By focusing on how bills of rights impact the conceptual frameworks for thinking about rights, as opposed to fixating on cases where rights impact the state, Harding is able to show how rights documents have helped expand and politicize judicial power in the private sphere. The overarching thesis is that this has happened because legal constitutionalist arguments in favour of judicial power have become increasingly tied to the “post-liberal constitutionalist” view that state interference in the lives of citizens, even their private lives, is necessary to secure their freedom. These arguments haven’t convinced any Canadian, U.K., or New Zealand judges to directly find “horizontal” constitutional rights between private citizens, but they have indirectly influenced judges to use rights “values” to reshape private common law.
It’s worth reviewing Harding’s claims about the judicialization of public and private law in each of these contexts.
Canada’s Red-Hot Judicialization
For Harding, Canada has seen the most success for legal constitutionalism, as rights questions are now primarily thought of in terms of whether or not courts say that legislation “infringes” rights in ways that are “proportional” and constitute “reasonable limits.” This is partly a matter of political reticence to use the Charter’s infamous “notwithstanding clause” to override judicial decisions concerning many entrenched rights (the federal Parliament has never used the notwithstanding clause). But it is also a matter of how Canadian courts have taken an aggressive approach to updating their own common law rules concerning both public and private matters.
In public common law, such as criminal procedure, the Charter has been used to change judge-made rules without any proper hearing for how the legislature might have justified them. And Harding shows how there is a high burden and low probability of success for legislatures seeking to engage in democratizing “dialogue” with such constitutionalized common law reforms. He also makes what I take to be the quite insightful point that in public common law cases, courts usually only hear the executive’s justification of how a judge-made common law rule counts as a “reasonable limit” on rights, and the legislature’s silence in this process is treated as democratic license for judicial policymaking.
In private common law, “Charter values” have been used to update rules to comply with Charter rights, but without explicitly holding that the Charter requires specific “horizontal” constitutional rights in private contexts. The case of the Jehovah’s Witnesses in Wall shows how the Supreme Court has been unwilling to directly constitutionalize private law, but Harding notes how in many areas private law is nevertheless being creatively reinterpreted to meet the “values” of the Charter. For example, in R. v. Salituro (1991) the Court overturned the old common-law rule against spouses testifying against one another, not because it violated any particular Charter right, but because the common law must be developed “in accordance with the values of the Charter.” Harding points out that this way of updating the private common law offers no assessment of how laws constitute “reasonable limits” on rights, and this emboldens the judiciary to undertake major policy reforms without explicitly engaging in constitutional reasoning and democratic deliberation. Post-liberal constitutionalism has not fully empowered the courts to directly engage in policy-making about the private lives of Canadians, but courts have indirectly used “Charter values” to expand rights politics into this realm without much accountability.
The U.K. and New Zealand: Medium-to-Mild Judicialization
What about the U.K. and New Zealand? In public law matters, the U.K. and New Zealand are both more political than legal constitutionalist. And both countries have a somewhat more moderate experience than Canada of courts using rights instruments to reform private law, although all three countries are fairly mild on this score.
The U.K. still features legislative supremacy, as the Human Rights Act does not empower courts to strike down laws for violating rights enumerated in the European Convention on Human Rights, only the interpretive mandate to declare rights violations or interpret laws as consistent with rights “so far as it is possible.” Harding joins critics of the Human Rights Act such as James Allan and Richard Ekins in showing how legal constitutionalist arguments have swayed U.K. courts to use their interpretive power to aggressively rewrite laws in ways that displace the clear intentions of Parliament. But he also notes that even in the most controversial cases of judicial reinterpretation, such as Ghaidan v. Mendoza, U.K. judges have maintained that there is some “breaking point” at which courts have overstretched their mandate. The interpretive acrobatics of U.K. courts render it medium on the public law judicialization spice index.
New Zealand is the least judicialized member of the three commonwealth constitutions surveyed in Harding’s book. This is partly an unsurprising consequence of design, as the New Zealand Bill of Rights Act’s version of interpretive mandate only instructs that where statutes “can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred.” This is much less aggressive than the “so far as possible” language of the U.K.’s rights statute, and Harding shows how New Zealand courts have been much more restrained in their use of it. One thing that could have used more discussion in this context is the controversies surrounding the use of “declarations of inconsistency” by New Zealand courts, as there is no statutory provision authorizing such declarations but judges have taken this power to be implied by the bill of rights. This is spicier stuff than Harder makes it out to be.
In both the U.K. and New Zealand, Harding shows that courts have taken a somewhat “middle-ground approach” to using their rights instruments to update the common law. In public common law, the Human Rights Act and New Zealand Bill of Rights Act are both directly applied to update common laws in compliance with their interpretive mandates. In private law, U.K. and New Zealand courts follow the Canadian example of taking rights “values” to indirectly develop the law without directly reforming it. Because both of these bills of rights are ordinary statutes, they are arguably less upsetting to the traditional balance between judicial and legislative power where judges update judge-made law to match statutory rights codes. Of course, it’s sometimes hard for political science to keep up with politics. Since the publication of Judicializing Everything, there have been significant events concerning rights protection in the U.K. and New Zealand.
The U.K. has arguably taken a step back towards its political constitutionalist tradition. The government has recently tabled a new bill of rights that appears to eliminate the “so far as possible” language of the interpretive mandate of the Human Rights Act, in addition to other measures intended to rebalance judicial and legislative power. Those interested in how political constitutionalism motivates this reaction, and what the results might be, will find much to learn from Harding’s book.
By contrast, New Zealand appears to have taken further steps closer in the direction of legal constitutionalism. For example, Parliament has responded to judicial declarations (lacking any invalidating effect) that blanket prisoner disenfranchisement law violated the statutory right to vote. The Arden government sponsored a bill that bowed to judicial pressure by extending the right to vote to criminals sentenced to imprisonment for three years or less. The government has also proposed amendments to the bill of rights to make Ministers report to Parliament on laws declared inconsistent with statutory rights. None of this refutes Harding’s analysis, but it indicates how judicial review can go from weaker to stronger with support from political actors.
One of the great strengths of Harding’s analysis is the careful attention he pays to law. Indeed, his political constitutionalist commitments probably encourage him to keep a close eye on how jurisprudence has developed to invade politics. But this may have distracted him somewhat from the myriad ways in which political actors have helped to foster and construct judicial power. For example, in the discussion of how Canadian courts have used Charter “values” to update the common law, Harding notes that Parliament has actually responded to decisions like Salituro by codifying past judicial adventures in policymaking. But this phenomenon is left somewhat unexplained and disconnected from the wider theory. What is going on where legislatures respond to judicial decisions updating common law or striking down laws by not contesting or actively complying with judicial decisions?
Harding’s argument fits with the thesis that in many cases, legislatures actively comply with judicial decisions because it serves their interests to have courts take responsibility for certain hot-button political issues. In the U.S. context, this is Keith Whittington’s argument for explaining the political construction of judicial supremacy, while the Canadian version of this argument has been made by Harding’s teachers at the University of Calgary, Rainer Knopff and Ted Morton. And in the Commonwealth contexts, the political construction of judicial supremacy connects with the political dominance of the executive in Westminster legislatures. As Harding keenly points out, in both public and private rights cases, the executive appointed Attorney/Solicitor General is making arguments in defence of legislative enactments, but nowhere does the legislature have its own advocate.
It’s not hard to imagine how, at least in some circumstances, it will suit the Prime Minister and/or a faction of Her Majesty’s Government very well to have a law declared in violation of rights or a common law rule updated by executive appointed judges. If executive political actors agree with the judicial decision, they need not spend political capital trying to get legislators to agree to the decision, or they can spend less political capital by making the case for codifying the judicial changes in legislation as a means of supporting the rule of law, judicial independence, etc. Even if political actors disagree with a particular rights decision, they may refrain from contesting it because they expect courts to advance their interests on other issues. Harding at times draws on excellent work exploring some of these dynamics as they relate to public law questions by James Kelly and Janet Hiebert, but he could connect this political logic more directly to his own argument. This logic could help clarify why it is that legislatures don’t seem especially keen to contest the expansion of judicial power in public or private common law issues. Judicial policymaking in these areas may serve the policy agenda of the Prime Minister’s Office, perhaps especially when it runs up against political opposition in the legislature.
But this is less a criticism than an addition to a well-constructed book on the expansion of judicial power in the Commonwealth. If political constitutionalism offers both legal and political explanations for the rise of judicial power, that’s simply a feather in its cap. And it takes nothing away from the normative part of the political constitutionalist argument: courts are a part of the state, so expanding their power isn’t necessarily a recipe for restraining state power. On the contrary, judicialization has the potential to expand the reach of that power while shielding it from the reach of the people.