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Not quite supreme: The courts and co...

University of Calgary (Canada).

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Not quite supreme: The courts and coordinate constitutional interpretation.

紀錄類型:	書目-電子資源 : Monograph/item
正題名/作者:	Not quite supreme: The courts and coordinate constitutional interpretation./
作者:	Baker, Dennis Rene.
面頁冊數:	247 p.
附註:	Source: Dissertation Abstracts International, Volume: 68-11, Section: A, page: 4844.
Contained By:	Dissertation Abstracts International68-11A.
標題:	Canadian Studies. -
電子資源:	http://pqdd.sinica.edu.tw/twdaoapp/servlet/advanced?query=NR33787
ISBN:	9780494337875

Not quite supreme: The courts and coordinate constitutional interpretation.
Baker, Dennis Rene.

Not quite supreme: The courts and coordinate constitutional interpretation. - 247 p.

Source: Dissertation Abstracts International, Volume: 68-11, Section: A, page: 4844.

Thesis (Ph.D.)--University of Calgary (Canada), 2007.

The question whether Parliament or the courts should trump in constitutional controversies forces an unsatisfactory choice between two 'supremacies,' parliamentary or judicial. This study proposes and defends a third alternative: coordinate constitutional interpretation, in which no institution enjoys 'supremacy' in such controversies. Instead, each institution exercises its own powers according to its own understanding of the constitution, but within interdependent relationships that encourage mutual accommodation over time.

ISBN: 9780494337875Subjects--Topical Terms:

1020605
Canadian Studies.

Not quite supreme: The courts and coordinate constitutional interpretation.
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520 $a The question whether Parliament or the courts should trump in constitutional controversies forces an unsatisfactory choice between two 'supremacies,' parliamentary or judicial. This study proposes and defends a third alternative: coordinate constitutional interpretation, in which no institution enjoys 'supremacy' in such controversies. Instead, each institution exercises its own powers according to its own understanding of the constitution, but within interdependent relationships that encourage mutual accommodation over time.
520 $a This view, which is deeply rooted in Anglo-American constitutionalism, is now deeply unpopular in Canada as demonstrated by the negative reaction to two Supreme Court cases which flirted with a coordinate approach. In R. v. Mills, the Court upheld a statute that replicated the dissenting opinion of an earlier case that had sharply divided the Court. In R. v. Hall, the Court substantially accepted a legislative restatement of the constitutional text in opposition to its own earlier modification of that text. Both of the legislative 'retorts' accepted by the Court show the representative branches participating in the development of constitutional rights in a manner that respects the role of the judiciary and the supremacy of the constitution. Even so, scholars have criticized the Court's alleged 'capitulation' as compromising judicial authority and jeopardizing constitutional rights and freedoms. Dialogue theorists, who might have been expected to praise such agreeable inter-institutional outcomes, have been equally critical of the Court's abdication of its interpretive supremacy.
520 $a In this study, I attempt to rehabilitate the coordinate approach by demonstrating its compatibility with a Canadian doctrine of separated powers that employs nuanced checks and balances between the legislative, executive, and judicial branches. A neo-institutionalist examination of the executive-legislative relationship reveals not the "fusion" of current orthodoxy but the 'partial agency' of classical separation-of-powers theory, based on the subtle interplay of both formal and informal constitutional powers. When this 'partial agency' model is applied to the relationships between the representative and judicial branches it suggests a strong judicial role in constitutional interpretation but one that is 'not quite supreme.'
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