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Alternatives to judge voting? | 168 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Alternatives to judge voting?
Authored by: Anonymous on Friday, October 05 2012 @ 01:37 PM EDT
Canada, who adopted a constitution in living memory, is seeing more quasi-political decisions being made by courts on constitutional grounds.

It's still comparatively rare in Canada though. I think the difference as compared to what happens in the USA is due to the very different political environment. In the US, the political system is designed to be indecisive and the lines of responsibility are unclear and diffused. In Canada, a party which wins an election can generally can pass whatever legislation they want. and are considered to be completely responsible for anything which happens while they are in power. Indeed, the Americans call their system "division of powers" (or something like that), while the Canadian system is called "responsible government" (where "responsible" means the electorate holding the government responsible for whatever happens).

On those rare occasions when the courts in Canada overturn a significant law on constitutional grounds they suspend the effect of their decision for a period of time (e.g. one year) to allow the government time to enact revisions to the legislation to bring it into compliance. The courts are very reluctant to impose any actual solutions of their own. This is probably mainly due to the knowledge that the government will legislate if they actually care about the issue.

There is also in Canada a simple escape clause available called the "not withstanding clause". Basically, the government can simply pass the legislation including this clause which puts it outside of review by the courts (except for a few very limited reasons). This was insisted upon by the provinces who didn't want the patriation of the BNA Act (which was something the federal government wanted, not the provinces) to affect their traditional powers. The clause is used rarely (although Quebec will go through occasional phases of attaching it to everything). However, if the government genuinely wants certain legislation, there is really nothing the courts can do to stop it. The only real limitations to government power are the optics of how things would look in the press.

In general I would have to say that the details of the constitution matter a lot less than the working practices of the government itself. The American system is designed to allow politicians to evade responsibility, while the Canadian system is designed to pin responsibility squarely on the party in power. The result is that American politicians try to avoid making difficult decisions, while Canadian politicians cannot (although they can still make a hash of things of course).

The American political system is a typical product of 18th century "social engineering". People were fascinated by the machines in the factories of the early industrial revolution, and political philosophers imagined society as a sort of giant "machine". They thought that by designing the right sort of "social machine" they could produce the perfect society. The Canadian political system is inherited from the UK and is the result of many centuries of evolution with very little conscious design and has no pretences of being a perfectly engineered social "system". It has the great benefit though of the parts that actually matter being very simple and straight forward. I think that history has shown that simpler solutions are better.

[ Reply to This | Parent | # ]

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