Friday, February 23, 2007

Reviewed: Baier on Courts and Federalism in the U.S., Australia and Canada

Alan Fenna, Curtin University, Perth, Western Australia, reviews Gerald Baier, Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada (University of British Columbia Press, 2006), on H-Canada. Fenna begins:
In Courts and Federalism, Gerald Baier "seeks to revive the study of judicial review as a structural element of Canadian and comparative federalism" (p. 3)....The bulk of the book is concerned with providing an account of the design and interpretation of the three classical federal constitutions:the American, the Canadian and the Australian. The pioneering U.S.Constitution of 1789 employed the single- limiting-list approach to dividing powers, with Congress being assigned a specified number of powers while the states retained a broad residual power. Understandably phobic in the 1860s about things American, the Canadians opted instead for a dual-list approach, with unspecified powers being retained by Parliament. Looking very favorably upon the American design and directing their phobias at the British North America Act's apparent centralism a further three decades later, the Australians swung wholeheartedly back to the single-list approach.

The course of judicial interpretation is well known....Operating from London, the Judicial Committee of the Privy Council(JCPC) played a distinctive role in imposing an interpretation of Canadian federalism that went strongly against apparent design intentions and the expectations of its founders (though not necessarily against social and political realities). To do this, it had to craft a doctrine that would neutralize Parliament's potentially plenary power to"make laws for the peace, order and good government" of the country(POGG). The POGG clause was relegated to the status of reserve power for national emergencies. As in the American case, this forceful jurisprudence culminated in a confrontation over extensive new national policy claims during the Great Depression. In the short term the outcome was very different and the political branches were obliged to take the alternative path of formal constitutional amendment. In the longer term,though, the outcome it was similar--with the JCPC having to cede its role altogether to its domestic counterpart, the Supreme Court of Canada. In Australia, the judiciary's attempt to hold the line against centralization lasted only two decades. In 1920 the Engineer's case introduced what Baier describes as a "meta-doctrine" of literalism, the consequence of which was to preclude any reading of the constitution that privileged its underlying federal intent.

For the rest, click here.