by Christopher Manfredi and Mark Rush. Toronto: University of Toronto Press, 2008. 152pp. Paperback. CDN and US $24.95. ISBN 9781551117027.
Reviewed by Jamie Cameron, Osgoode Hall Law School, York University, Canada; jcameron [at] osgoode.yorku.ca.
JUDGING DEMOCRACY’s comparison of Canadian and American constitutional jurisprudence squeezes answers to big questions into a small package. The book’s central purpose is to provide a correction to the fervent belief – held at large by Canadian academics and jurists – that the Charter of Rights and Freedoms, enacted in 1982, is a unique and masterful document, not least because it propelled a style of review that differs, in fundamental ways, from the American prototype.
In little more than 130 pages Christopher Manfredi and Mark Rush dislodge this article of faith, declaring instead that the careful and self-conscious distinctions of early Charter interpretation have all but “withered away” (p.11). Today, those distinctions have been replaced by a “remarkable convergence in thinking” between the Canadian and American Supreme Courts (ibid.). JUDGING DEMOCRACY finds compelling evidence of this convergence in the jurisprudence on voting rights and democratic participation.
The book engages broader issues of review along the way. Manfredi and Rush also trace an emergent style of decision-making in both courts that is pragmatic and incremental, rather than theoretical, in nature. This “dialogic” approach is grounded in respect for legislative deliberation and espouses a sparing conception of review in which courts intervene to protect the democratic process, and not otherwise. The authors explain, following the discussion of democratic rights, by taking Canada’s court to task for its muscular decisions on gay rights and access to health care. In this, the court compares negatively to the US Supreme Court, which earns praise for being more “Canadian and dialogic” than the Canadians. Meanwhile, northern judges receive a scold for their “impatience with the deliberative legislative process” (p.133).
Parenthetically, one wonders what the authors would say about the US Supreme Court decision in DISTRICT OF COLUMBIA v. HELLER (2008), which constitutionalized the right to bear arms. Not only is such a result foreign to Canadians, the American court flexed more judicial muscle than its counterpart had in any of the Charter decisions the authors single out for disapproval. Yet JUDICIAL DEMOCRACY’s message is that Canada’s constitutional vanity is misplaced – such is the narcissism of small differences – and that the court should do more to emulate its American counterpart.
In comparing the jurisprudence on democratic rights, Manfredi and Rush find convergence in the face of [*47] conflicting decisions. For instance, years after RICHARDSON v. RAMIREZ held, in 1974, that US prisoners are not constitutionally entitled to vote, the Supreme Court of Canada found, in 2002, that, under the Charter, they are (SAUVÉ v. CANADA). Undaunted, the authors contend that the two courts “really have converged” because they engaged in “essentially the same debates” about prisoners and the vote (p.62). That debate on both sides of the border bears resemblance hardly seems striking, much less compelling. More to the point, a side-by-side review reveals that the two decisions are not that alike after all: whereas RICHARDSON focuses on the text and history of §2 of the fourteenth amendment, which addresses the franchise passingly in setting a formula for representation, SAUVÉ concentrates on the Charter’s requirement that limits on rights be demonstrably justified. In doing so the court subjects the government’s reasons for denying federal prisoners a vote to the Canadian equivalent of strict scrutiny.
The authors turn from criminal disfranchisement to voting rights, which pits three generations of US jurisprudence – rooted in the disfranchisement of African Americans, the prevalence of gerrymandering, and the one person, one vote rule – against a single decision by the Supreme Court of Canada (the “SASKATCHEWAN REFERENCE”). That comparison yields the insight that, while Canada rejected the one person, one vote rule in favour of a standard of effective representation, the US Supreme Court has gradually eased up on an imperative that was all but impossible to enforce. Though “the Canadian groundwork differs in important ways” (p.73) and the comparison could not avoid being lop-sided, Manfredi and Rush conclude that a “Canadianization” of American jurisprudence is taking place (p.76). The claim proves too much, but the authors make the more salient point that the courts in both countries should be, and have become, skeptical of “cartel-like behaviour” by the legislatures (p.85). The lesson is that judicial modesty is inappropriate when legislators manipulate and “lock up” the electoral process (ibid.).
Campaign finance shows more promise, as the BUCKLEY line of decisions finds an echo in the Charter jurisprudence. On these issues Canadian commentators and jurists have been quick to dismiss first amendment doctrine which, to northern sensibilities, validates and constitutionalizes the tainting role of money in politics. Instead, Canada proudly embraces an egalitarian approach which endorses third party spending limits, because doing so equalizes voices and promotes fairness in democratic politics.
Here, too, the authors attack the façade of constitutional difference. Not only is Canada less unlike the States than it claims, the US is closer to Canada on questions of election law than many suppose. In this they point to MCCONNELL v. FEDERAL ELECTION COMMISSION, which upheld provisions of the Bipartisan Campaign Reform Act, and HARPER v. CANADA, which approved strict limits on third party spending. The authors are intrigued by a counterpoint in both courts which urges strict scrutiny of regulations which serve to entrench and consolidate the powers of those in office. [*48] They conclude that “it is no longer accurate to say that [the campaign spending cases] lie at opposite extremes of a libertarian-egalitarian spectrum” (p.117).
To their credit, Manfredi and Rush address two decisions which were released after JUDGING DEMOCRACY went to press. R. v. BRYAN, upholding a federal prohibition on the transmission of election results while polls remain open, did little to disturb their account of Canadian election law. But FEDERAL ELECTION COMMISSION v. WRTL, which came within a hair of overruling MCCONNELL, was more difficult to reconcile with the book’s themes of convergence and dialogue. Just the same, the authors contend that neither court is wedded to a theoretical position and that both are “developing their jurisprudence incrementally” (p.123). They admit that the lack of a “coherent judicial vision of democracy” creates uncertainty, but do not consider that problematic. It is part of a “dialogic approach to constitutional interpretation” which reinforces democratic self-government – “so long as the judiciary approach election law questions modestly” (p.123).
It is trite that what you find in comparative analysis depends on what you are looking for. Canadian scholars and jurists readily sideline points of similarity in the thrust to validate and institutionalize an ongoing narrative of Canada-US difference. In that, JUDGING DEMOCRACY provides a welcome correction to the blinders Canadians don in commenting on American constitutionalism and its relevance to the Charter. At the same time, there is a danger of over-correction: similarities can just as easily be overstated as differences. The claim that Canada-US distinctions have withered away is based on comparisons which are drawn at a broad level of generality and either gloss or overlook the presence of significant, embedded differences. Balancing the differences which distinguish with the similarities which bind is the stuff of comparative analysis. JUDGING DEMOCRACY has merit in re-balancing the Canadian account, but not in overstating the case for convergence.
Not to be forgotten are the authors’ prescription for review and suggestion that both courts embrace a dialogic model which would honor the deliberative process through the practice of judicial modesty. Their idea of modesty in review is subject to the proviso that regulation of the democratic process calls for different treatment. There, heightened scrutiny is necessary to prevent legislatures from enacting regulations which entrench incumbent interests. And that, rather than the withering of distinctions between the Canadian and American Supreme Courts, is JUDGING DEMOCRACY‘s more telling point of convergence.
BUCKLEY v. VALEO, 424 U.S. 1 (1976).
DISTRICT OF COLUMBIA v. HELLER, 554 U.S. ___ (2008).
FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT TO LIFE, 551 U.S. ___ (2007). [*49]
HARPER v. CANADA,  1 S.C.R. 827.
MCCONNELL v. FEDERAL ELECTION COMMISSION, 540 U.S. 93 (2003).
REFERENCE RE PROVINCIAL ELECTORAL BOUNDARIES (SASK.),  2 S.C.R. 158.
R. v. BRYAN,  1 S.C.R. 527.
RICHARDSON v. RAMIREZ, 418 U.S. 24 (1974)
SAUVÉ v. CANADA,  2 S.C.R. 438.
© Copyright 2009 by the author, Jamie Cameron.