by Andrew Petter. Toronto: The University of Toronto Press, 2010. 256pp. Cloth $65.00. ISBN: 9780802098986. Paper $29.95. ISBN: 9780802095992.
Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: RushM [at] wlu.edu.
THE POLITICS OF THE CHARTER is a great read and an important book. It is an autobiographical journey through Andrew Petter’s thinking about Canada’s Charter of Rights and Freedoms and its impact on judicial behavior, the interpretation of rights, and the relationship between the people and the state. For anyone interested in judicial politics, the tension between judicial review and democracy, the nature of rights or democratic theory, and how these issues have played out in the 25 years since Canada patriated its constitution, Petter’s book is a must read.
Petter is a participant in an important debate about democratic politics and judicial review that has taken place in two broad phases in Canada and which embodies lessons for all students of democracy. Petter’s book divides between these two phases. The first runs from 1985 to 1997. During this time, scholars debated the impact of a bill of rights on Canadian politics and how its existence would alter the relationship between democratic majorities and the judiciary. The second phase runs from 1997 to the present. It is characterized by the appearance of Hogg and Bushell’s seminal 1997 article “The Charter Dialogue between Courts and Legislatures (or, ‘Perhaps the Charter of Rights isn’t Such a Bad Thing After All’)” and the debates to which it gave rise. Scholars debated whether judicial review threatened to give rise to an era of judicial dominance in the first era. In the wake of Hogg and Bushell’s article, they turned to debate whether the courts had any lasting power at all (and what the implications of this were for individual rights).
Insofar as it is a collection of articles spanning some 24 years of Canadian history, THE POLITICS OF THE CHARTER is at times repetitive as Petter pauses to restate arguments made in prior publications. This is not to be taken as a criticism. Scholarly journeys frequently embody changes of mind and contradictions that need time to be resolved. Petter openly acknowledges his shifts in outlook. In this respect, the collection is refreshing because it demonstrates how a thoughtful scholar of Canadian politics and constitutional politics in general continues to refine his thoughts over time. It is an intriguing, thoughtful and disarmingly honest presentation of the concerns Petter has with the establishment of the Charter and the evolution of and contradictions in his thought.
If there is one consistent theme in Petter’s work it is that he is and remains critical of the impact of the Charter of Rights and Freedoms. His criticisms of [*584] the Charter and its impact on politics are manifold. At rock bottom, however, Petter believes that the Charter was sold to the Canadian people, essentially, as a bill of goods.
First, it was cast in terms of protecting the people’s interests. Yet, it established a regime of rights-based litigation that catered to those who could afford to engage in extended litigation. So, it hardly favored the interests of the average Canadian (p.22). Second, insofar as litigation and rights are tools for the dissenting few to use against laws passed by representatives of the popular majority, he again contends that the Charter undermines the capacity of the people to rule in favor of the capacity of the dissenters to check the popular will. Third, he argues that even if litigation were not expensive, “there are few public institutions in this country whose composition more poorly reflects, and whose members have less direct exposure to, the interests of the economically and socially disadvantaged” than the judiciary and the bar (p.27).
Accordingly, early in his writings, Petter’s principal complaint with the Charter was that its celebration of individual rights came at the expense of the people’s capacity to govern themselves. Furthermore, the celebration of individual rights promoted what Petter believes was a wrong vision of social justice.
Petter’s vision is informed by several key assumptions or observations. First, he argues that rights and litigation should exist to bring about social justice, not to perpetuate or exacerbate existing political inequalities. But, he argues that the “rights culture” embodied by the Charter is designed to ensure that political and economic inequalities endure.
This is due to 1) the flaws in or paradox of legal liberalism and 2) the correspondingly strange vision of the relationship between the state and society that the theory of legal liberalism embodies. Petter deconstructs legal liberalism in chapter 3, “Private Rights/Public Wrongs: The Liberal Lie of the Charter." He asserts that insofar as Charter rights are framed as negative protections against government actions, they ignore the impact of private actions and wealth disparity on the society and they ignore the fact that the state does, indeed, have a determinative impact on private power structures.
To appreciate the impact of this liberal lie, it is important to look at Petter’s reasoning. He sums up this aspect of his thought at page 90: “The effect of limiting Charter applications to actions of the legislative and executive branches government is to exclude from Charter scrutiny the major source of inequality in our society: the maldistribution of property entitlements amongst individuals.”
The presumption underlying the public/private dichotomy is that existing distributions of wealth and power are a product of individual initiative, not state action. Conveniently overlooked is the fact that such distributions and accumulations of wealth generally depend upon a panoply of state-supported laws and institutions. (Ibid)
This criticism introduces one key tension in Petter’s thought. On the one hand, he laments the fact that the Charter [*585] essentially weakened the popular capacity to govern through elected representatives. In this light, the state is a good thing that manifests the popular will. On the other hand, he complains that the Supreme Court’s interpretation of the Charter is grounded on a vision of liberalism that ignores the threat posed by the state and its questionable role in establishing power relations in society. So, is the “state” the embodiment of the popular will that Petter would protect from elite attempts to stymie it via litigation or is it the puppet of the well to do who use it to structure social relations in a manner that perpetuates the inequalities that Petter condemns? His benevolent vision of the popular majority’s will clashes with his vision of the predatory state.
The student of American politics (at least) would find the trust of the popular will troubling or quixotic, yet the suspicion of state action would fit nicely into U.S. constitutional thought. In the U.S., dissenters seeking assistance in the courts have been racial minorities, religious minorities, and others who have been unable to use the political process to get their voice heard in the production of legislation. While there is no question that economic elites have taken advantage of constitutional rights (especially property rights) to block legislation, there is no gainsaying that the constitutional development of property rights and contract law in the United States has benefitted the common citizen as much as it has benefitted the well to do.
As well, Petter’s trust of the popular majority overlooks the fact that political or bureaucratic incumbents can and do behave in cartel-like manners to protect their positions. This is manifest in cases dealing with the administration of the political process and the erection of barriers to competition and entry into it (Manfredi and Rush).
This tension about the role of the state and the interpretation of rights is hardly unique to Petter. It is endemic to democratic theory in general and manifests itself in Petter’s analysis of the tensions between judicial review and democratic government. Petter describes himself as “a democrat who desires social equality and opposes political privilege” and he reminds the reader that “democracy is a system of government by and for the people” (p.3). In THE POLITICS OF THE CHARTER, he demonstrates that democratic government by the people may not result in government for them. And, if we want government for the people, we may need to transfer some power away from them. But, if we transfer it to the courts, we may be disappointed by their interpretation of rights and the role of the state.
Accordingly, the first part of the book manifests a tension between judicial review and democracy and Petter’s dissatisfaction with both. Neither judicial review nor democracy has, thus far, brought about his vision of the just society.
In chapters 6-10, Petter discusses how scholarly analysis of the Charter changed during his 10 year hiatus in “British Columbia’s political wilderness,” when he served in the provincial assembly. “Rip van Winkle in Charterland” (chapter 6) is a great, penetrating discussion of his discovery that the role of the judiciary and [*586] scholarly commentary on it had shifted radically. At first, he was relieved. He was pleased to see that the dominant defense of judicial review in Canada had shifted from “one based on assertions of objective reasoning and judicial autonomy from the political process to one based upon acceptance of subjective interpretation and judicial engagement with the political process” (p.138).
Thanks to the writings of Hogg and Bushell, the belief in judicial superiority and, perhaps, finality in constitutional interpretation had been challenged (if not supplanted) by their suggestion that constitutional development followed a dialogic pattern. Courts respond to litigants who respond to legislatures who respond to other political actors, including the courts. No one political actor can claim to have the last word in constitutional interpretation.
This was vitally important for Petter because, in his view, there was nothing profound or fundamental about the judicial interpretation of a Charter right. Disputes did not involve conflicts between correct and incorrect interpretations of rights. Instead, they involved disputes between rival visions of rights (pp.55-56). Accordingly, he rejected assertions that the judiciary somehow embodied or propounded an objective vision of rights and the conflicts surrounding them. Instead, he contends, courts choose which vision of rights, the role of the state, and substantive justice to employ when resolving disputes. To the extent that the dialogic approach to constitutional interpretation advanced by Peter Hogg and Allison Bushell promoted this, Petter was relieved to see that judicial review was no longer cast in terms of objectivity and political aloofness.
Nonetheless, he remained dismayed because the dialogue undermined the legitimacy and importance of judicial review. Insofar as dialogue theory regarded judicial decisions as mere opinions (not “right” answers to constitutional questions) offered by one institution concerning the actions of another, Petter argued that the dialogic approach to constitutional development undermined judicial credibility and authority. The dialogue thus called into question “why courts should be allowed to make such decisions in the first place.” (p.141)
At this point, one might pause and ask whether any constitutional scenario would please Petter. In the early years of the Charter, he criticized the judicial process for being elitist, expensive and counterdemocratic. After returning from his “hiatus,” he lamented that the dialogic vision of judicial review weakens its power. So, it is unclear what role he would have the judiciary play. Similarly, while he does not like liberalism’s vision of rights as negative claims against a state’s power, he is not comfortable with dialogue theory’s casting them as essentially bargainable commodities in political debates.
In chapter 7, “Look Who’s Talking Now”, Petter develops his criticism and analysis of the dialogic approach to constitutionalism. He appreciates dialogue theory’s demystification of judicial review (p.149). Insofar as he lamented the threat to democracy posed by judicial review in his early writings, one would expect him to be pleased with this. But, at this point in the book/his [*587] career, he expresses reservations about whether the legislature is capable of fulfilling the democratic charge that dialogue theory has for it (p.150). The “democratic shortcomings of the Canadian state” undermine his hopes for legislative responsibility. In Canada, he says, women are underrepresented, the first-past-the-post electoral system is unfair, regional political parties are too powerful, and the executive dominates the parliament (p.156).
Again, the reader can become impatient with Petter. He says that the courts are elitist. Yet, the legislature is democratically flawed. What’s left? To a point one can appreciate that Petter’s criticisms are driven by one important and laudable belief: that the Charter ought to be interpreted in a way that brings about a more just, equitable Canadian society. Unfortunately, the actors who are most effective in the courts and the legislature tend not to be as beholden to Petter’s vision of equality and justice as he would like. That is not meant to be a flippant or disrespectful remark. Petter’s desire for a more just society is laudable. The complexities of democratic politics, however, make it difficult to ensure that any vision of social justice can be attained easily. In a democracy full of self-interested individuals, a particular vision of the good society is unlikely to manifest itself unless we are willing to make the government less democratically accountable.
In the end, it is clear that Petter has not yet resolved the complexities and tensions in democratic politics. He does a better job of offering thoughtful criticisms and analyses of the problems surrounding judicial review, individual rights, and the costs of political and legal action, in a democracy than he does to offer a resolution to the tensions and issues he discusses. This criticism is hardly unique. No one has resolved the tensions in democracy.
But, this is all ok. While Petter may not yet have developed all of his into a coherent thesis, THE POLITICS OF THE CHARTER nicely demonstrates that the issues that inhere in discussions about constitutional democracy are complex and dynamic. It is an engaging read that courageously and honestly demonstrates a thoughtful scholar’s struggles with complex questions about democracy and judicial review.
Ely, John H. 1980. DEMOCRACY AND DISTRUST. Cambridge: Harvard University Press.
Hogg, Peter and Allison Bushell. 1997. “The Charter Dialogue between Courts and Legislatures (or, ‘Perhaps the Charter of Rights isn’t Such a Bad Thing After All’)”. OSGOODE HALL LAW JOURNAL 35: 75.
Manfredi, Christopher and Mark Rush. 2008. JUDGING DEMOCRACY. Toronto: University of Toronto Press.
© Copyright 2010 by the author, Mark Rush.