Vol. 35, No. 01 (March 2025) pp. 11-13
JUDICALIZING EVERYTHING? THE CLASH OF CONSTITUTIONALISMS IN CANADA, NEW ZEALAND, AND THE UNITED KINGDOM, by Mark S. Harding. Toronto: University of Toronto Press, 2022. 181 pp. Cloth $39.95. ISBN 9781487528485. Ebook $42.95. ISBN: 9781487528508.
Reviewed by Christopher Manfredi. Department of Political Science. McGill University. Email: christopher.manfredi@mcgill.ca.
Mark Harding has written a short and readable book that applies a comparative lens to two separate debates within the literature on judicial politics and constitutionalism. The first debate, which occupies most of Harding’s analysis, is that between political and legal constitutionalism. The central question of this debate is whether rights are better protected by political institutions (political constitutionalism) or through development and application by the judiciary (legal constitutionalism). The second debate is between liberal and post-liberal constitutionalism, with the former conceptualizing constitutional rules as largely protecting individuals from government overreach, and the latter understanding constitutions as imposing positive obligations on government to regulate the private sphere to achieve a broader conception of liberty. Harding’s book examines how these debates have played out within the final appellate courts of Canada, New Zealand, and the United Kingdom.
In the interest of full disclosure, I should recognize my own biases at the outset of this review. My scholarship places me squarely in the camp of political constitutionalists who support liberal constitutionalism. However, in the context of the Westminster parliamentary systems that are the subject of Harding’s book, this positioning should not be misunderstood as nostalgia for a bygone era of parliamentary supremacy. Canada’s 1982 constitution clearly replaced parliamentary supremacy with constitutional supremacy. In my view, the debate between political and legal constitutionalism in Canada is not about preserving parliamentary supremacy (as it might be in New Zealand or the United Kingdom), it is about identifying the appropriate institutional locus for constitutional interpretation. Legal constitutionalism places this locus clearly in the courts to the extent that the judiciary enjoys a monopoly on constitutional interpretation, especially with respect to rights. A post-1982 Canadian political constitutionalist recognizes a new critical role for judicial review but also recognizes a coordinate role for political institutions in constructing constitutional meaning.
It should also be noted that, although legal constitutionalism has become the dominant perspective among post-liberal constitutionalists in Canada, this was not always the case. Indeed, many of the early critics of entrenching rights in the Canadian constitution—like Andrew Petter, Allan Hutchinson, and Michael Mandel—were post-liberal constitutionalists highly sceptical of legal constitutionalism (Hutchinson and Petter 1988, Mandel 1989). They saw political institutions as the principal source of progressive social and economic policies, and courts as the principal obstacle to those policies. Their position was grounded in the U.S. experience, where the U.S. Supreme Court’s progressive record was relatively short, spanning a 20-year period from Brown v. Bd. of Ed. (1954) to Roe v. Wade (1973). It also found support in early Canadian Charter of Rights cases, especially involving organized labour. Whether the post-liberal orientation of Canadian legal constitutionalism is now permanent is an open question.
Harding’s book explores these issues by examining three different areas: (1) the strength of constitutional review, in the sense of the degree to which courts’ constitutional decisions constrain other political actors; (2) the reach of constitutional review in the sense that such decisions can control private relationships, and (3) the scope of constitutional review in the sense of its application to common law rules. In his comparative analysis, Canada emerges as having developed the strongest form of legal constitutionalism oriented toward post-liberalism, with New Zealand at the other end of the spectrum and the United Kingdom somewhere in between. However, the degree to which New Zealand and the United Kingdom experience pressure to move towards legal constitutionalism, despite explicit constitutional provisions to prevent it, demonstrates the power of what Ran Hirschl called “new constitutionalism” and its push “towards juristocracy” (Hirschl 2004).
Indeed, an interesting element of Harding’s book is his exploration of the various textual devices inserted into each country’s rights document designed to ensure a balance between political and legal constitutionalism. Neither New Zealand nor the UK adopted a regime of constitutional supremacy as did Canada in 1982; in fact, their courts are explicitly prohibited from invalidating legislation. At best, they can declare legislation incompatible with protected rights and passively wait for legislatures to make necessary changes. However, despite this limitation, Harding documents the phenomenon of “strained interpretation,” in which courts effectively change the meaning of a statute to make it compatible with the judicial understanding of an entrenched right. Judges in New Zealand and the UK have disagreed about the appropriateness of this mechanism, but when it happens, it places legislatures on the defensive by forcing them to respond with corrective legislation to change or reverse the judicial decision.
Although it places legislatures in NZ and the UK on the defensive, such responses to strained interpretations are far less politically fraught than the use of the Notwithstanding Clause (NWC) in Canada. Canada’s constitutional design never intended a strong form of legal constitutionalism, and the inclusion of a clause allowing legislative declarations that laws may operate “notwithstanding” incompatibility with certain rights and freedoms is the textual manifestation of that design. The NWC never benefited from a sophisticated theoretical justification during the process that led to the adoption of the 1982 constitution, and its first high-profile use by Quebec generated significant political criticism, including from the federal government of the day. Since then, the political costs for any government to invoke it have become so high that it no longer serves as an effective check on strong form legal constitutionalism. It is no longer a mechanism for establishing a “dialogue” between courts and legislatures on the meaning and application of rights, if it ever was.
Overall, Harding’s book is an important contribution to the literature on the political role of final courts of appeal in liberal democratic regimes. In many ways, the book confirms the view that such courts are political institutions that make policy not as an accidental byproduct of performing legal functions, but because a majority of the judges on those courts at any particular moment believe that certain legal rules will be socially beneficial. As such an institution, these courts have an incentive to make their scope of decision making as broadly encompassing as possible, and Harding’s book adroitly analyzes how courts in Canada, the UK, and New Zealand have pursued this objective within the constraints of the constitutional texts with which they work. Their ability to do so has been enhanced by the monopoly over constitutional interpretation that each court has gradually been able to develop.
In this sense, Harding’s book provides an interesting perspective on what I have elsewhere called the “paradox of liberal constitutionalism” (Manfredi 2001). The paradox lies in this: If judicial review evolves such that political power in its judicial form is limited only by a constitution whose meaning courts alone define, then judicial power is itself no longer constrained by constitutional limits. Mark Harding has written a book that helps us better understand this dynamic through a careful comparative analysis of three final courts of appeal with similar origins in the common law and Westminster parliamentary democracy.
CASES:
Brown v. Bd. of Ed., 347 U.S. 483 (1954).
Roe v. Wade, 410 U.S. 113 (1973).
REFERENCES:
Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press.
Hutchinson, Allan C. and Andrew Petter. 1988. “Private Rights/Public Wrongs: The Liberal Lie of the Charter,” University of Toronto Law Journal (38): 278-97.
Mandel, Michael. 1989. The Charter of Rights and the Legalization of Politics in Canada. Toronto: Wall & Thompson.
Manfredi, Christopher P. 2001. Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2d ed. Toronto: Oxford University Press.
© Copyright 2025 by author, Christopher Manfredi.
