Week Six: Forms of Constitutional Review (ACT Television v. Australia 1992…
Week Six: Forms of Constitutional Review
Hogg and Bushell
a system "where a judicial decision is open to legislative reversal, modification or avoidance"
in this context, "the judicial decision causes a public debate in which Charter values play a prominent role"
The legislative body is in a position to devise a response that is properly respectful of the Charter values"
"those cases in which a judicial decision striking down a law on Charter grounds is followed by some action by the competent legislative body. In all of those cases, there must have been consideration of the judicial decision by government, and a decision must have been made as to how to react to it"
how dialogue works
reduces concern about the countermajoritarian difficulty
places constraints on the democratic process: "but the final decision is a demoratic one"
empirically, in the 65 cases where legislation was invalidated for a breach of the Charter, the legislature amended the legislation in 44 cases. in most cases it required only minor amendments and could achieve the same policy objectives
features of constitutional design that facilitate dialogue
proportionality assessment - in the process of conducting this assessment, the court will usually suggest an alternative that can be enacted
in ss 7-9, 11
under 15(1), which can be satisfied through a range of remedial measures including "levelling up"
barriers to dialogue
where sections 1 or 33 don't apply
when the court declares the
of the legislation to be unconstitutional under the first step of the
test - see e.g. R v. Big M Drug Mart Ltd, re Sunday trading laws
where political forces make it impossible to fashion a response - this happen in
Note that this led to a dialogue where, in
, the Court found that the same law could be justified with a secular purpose
in 80% of cases, there has been a legislative response - "however, there may be room for debate about exactly what counts as dialogue" (e.g. where the response is to simply repeal legislation)
legislatures are engaging in "Cahrter-speak"
Manfredi and Kelly
in 46% of Charter claims, judicial nullification becomes the effective remedy - "if legislatures are unable to respond effectively to decisions outside the narrow category of judicial nullification, this undermines the dialogue metaphor"
not every legislative sequel is evidence of dialogue, and not every sequel involves only minor amendment
true "dialogue" would require legislatures to amend, rather than repeal statutes - where "elected officials reflect on the implications of judicial decisions, and revise statutes to advance legislative objectives in a manner that complies with the Charter"
"The most crucial flaw in the normative argument is its assumption of a judicial monopoly on correct interpretation ... Contrary to what Hogg and Bushell assert,
legislatures are never subordinating themselves to the Charter per se, but to the Court's interpretation of the Charter language.
Legislative sequels that merely incorporate a judicial interpretation into new law do not challenge the judicial interpretive monopoly"
is "when the public and their democratically elected representatives cease to formulate and discuss constitutional norms, instead relying on the court"
this can diminish public attachment to constitutional norms
the s 33 override process has the potential to overcome this
three benefits of override
- bolsters a prior enactment by providing an more thorough investigative record
disagreement on justification
- the legislature can disagree with the court's assessment of the adequacy of the existing legislation
recognition of reasonable disagreement
, as embodied in CCRF s 1
Ford v. Quebec
a challenge to Quebec's requirement that all signs be in French - enacted following Quebec's anticipatory use of s 33 to repeal and reenact all statutes
court found that s 33 "lays down requirements of form only"
the law was substantively inconsistent with the Charter, and accordingly would cease to have effect after the expiration of the 5-year override
US and the DCC
The DCC is a rare example of where legislative override is possible - if the court finds a particular state regulation to be inconsistent with the CC, Congress can authorize that action through national legislation
Katzenbach v. Morgan
Court upheld federal regulation forbidding states from using voter literacy tests, despite finding earlier in
that the tests were permissible
the 14A enforcement clause enlarged federal power
exercise of that power does not require a prior judicial finding that the targeted practice violates the 14A
therefore, it was not for the court to determine the constitutionality of the Congressional enforcement power with recourse to its earlier finding that there was no 14th amendment violation
the power is as extensive a that prescribed by the "necessary and proper" clause in
Only need to examine whether the enforcement is "plainly adapted to taht end" of enforcing the 14A
not for the court to review "congressional resolution of these factors"
upholding enforcement here would "strike at the fundamentals of the American constitutional system
the pivotal question is what effect the added factor of congressional enactment has on the straight EP argument dealt with in
"the court has confused the issue of how much enforcement power Congress possesses under s 5 with the distinct issue of what questions are appropriate for congressional determination and what questions are essentially judicial in nature ...
it is a judicial question whether the condition with which Congress has thus sought to deal is in truth an infringement of the Constitution
City of Boerne v. Flores
retreated from an interpretation of
that would recognize a power in Congress under 14(5) to disagree with the Court about the substantive meaning of individual rights provisions as a basis for restricting state and local govt
"The design of the amendment, and the text of section 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the 14th Amendment's restrictions on the States.
Legislation which alters the FEC cannot be said to be enforcing the clause.
Congress does not enforce a constitutional right by changing what it is"
"If Congress could define its own powers by altering the 14A's meaning, no longer would the USSC be superior paramount law, unchangeable by ordinary means. It would be on a level with ordinary legislative acts."
"Our national experience teaches us that
the Constitution is preserved best when each part of govt respects both the Const. and the proper actions and determinations of the other branches.
When the Court has interpreted the const, it has acted within the province of the judicial branch, which embraces the duty to say what the law is."
ACT Television v. Australia
a constitutional challenge to Australia's campaign finance laws
those laws prohibited televised political advertising during an election period
broadcasters were instead required to make free time available
incumbents automatically got given time, while insurgents had to apply
The govt had argued that the purpose of the law was to prevent parties from having to raise large sums of money
rejected the argument that it didn't impair free speech b/c it was consistent with overseas practice
the incumbent bias, and exclusion of civil society, were concerning
the constitutional role of the court
framers believed that parliament was best-placed to protect rights
therefore, need to be careful in
the existence of fundamental rights and freedoms
but also clear that the
framers envisaged a form of representative govt
freedom of communication is an indispensable element in representative government
"the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State"
Unlike the US const, the Aus. const "does not seek to establish personal liberty by constitutional restrictions upon the exercise of govt power" - this was a deliberate choice by the framers
freedoms exist "not because they are provided for, but in the absence of any curtailment of them"
but the constitution does provide for the election of a parliament - and a choice "is not a true choice when it is made without an opportunity to gain an appreciation of the available alternatives"
representative government protects more than merely filling out a ballot form - need to be able to "ascertain and examine the performances of their elected representatives and the capabilities of all political candidates"
"only by the spread of information, opinions and arguments can electors make an effective and responsible choice, Few voters have the time or capacity to make their own examination"
"The words 'directly chosen by the people' in ss 7 and 24, interpreted against the background of the institutions of representative government and responsible government, are to be read, therefore, as referring to a process - the process which commences when an election is called and ends with teh declaration of the poll ... people have a constitutional right to participate, the right to associate and the right to communicate"
in strong-form review
In strong-form review, where a court does not strike down a statute, the court is essentially affirmatively upholding it and giving in imprimatur - see the argument of Jackson in
, also Charles Black
often the public equates constitutional
in some jurisdictions, an upheld statute is immune from further review
strong-form review may be difficult in countries with highly polarized politics - the court's decisions will be seen as endorsing one side or the other (cf Israel)
Note that any system of review is only as strong as its amendment procedures
Katzenbach can be seek as upholding a form of departmentalism