Collateral Thoughts on "Dialogue"'s Legacy as Metaphor and Theory: A Favourite from Canada

By Cameron, Jamie | University of Queensland Law Journal, June 2016 | Go to article overview

Collateral Thoughts on "Dialogue"'s Legacy as Metaphor and Theory: A Favourite from Canada


Cameron, Jamie, University of Queensland Law Journal


James Allan's challenge to select and discuss a favourite law review article was daunting at first. With constitutional law across time as the field of choice, impossibility and instinct directed a choice close to home, in the literature on Canada's 1982 Charter of Rights and Freedoms. (1) During the selection process two prospects were entertained and then set aside in favour of an obvious choice, the article that sparked a scholarship of its own: 'The Charter Dialogue Between Courts and Legislatures'. (2)

'Charter Dialogue' entered the fray in 1997, when Canadian debate about the follies of judicial activism had reached an apex. (3) In that setting, the authors advanced the calming proposition that review is not a threat after all because the judiciary does not exercise a veto on constitutional rights; hence the article's subtitle, 'Perhaps the Charter Isn't Such a Bad Thing After All'. 'Dialogue' revealed that indignant huffing on judicial activism had overlooked a vital point, namely that review simply marks the beginning of a dialogue between the courts and legislatures on how best to reconcile rights and democratic interests. (4) By reconstituting review as a process in which the courts and legislatures share authority, 'Dialogue' had magnetic appeal, not least because it addressed and claimed to eliminate profound concerns about judicial activism under the Charter.

'Charter Dialogue' began a movement in constitutional thought which, albeit with less intensity today, intrigues us still, some twenty years later. (5) Choosing it as the 'favourite' is not an endorsement but a matter of intellectual curiosity about a phenomenon that came, unexpectedly, to dominate discourse. (6) In reification as in castigation, dialogue has been persistent and resilient; it has been a force in Canada and the broader discipline of comparative constitutionalism. Explaining that phenomenon--why it attracted and polarized in Canada, but also how the article and its concept of dialogue became a 'thought leader' in constitutional law--is what interests me here. (7)

This reflection does not rehearse or choose sides between dialogue's innumerable advocates, opponents and ambivalents, or catalogue the unwieldy literature on the point. In sketching its legacy, the discussion also steers away from engaging with well-known lines of debate on whether dialogue achieved closure on legitimacy, or has salience as an explanation, concept or theory of review. In exploring the phenomenon, the discussion turns in a more tangential direction to collateral aspects of its legacy: how dialogue became a runaway concept, and what that tells us about theory and its roots in conflicts about constitutional interpretation. Quite apart from 'Dialogue"s merits these points have significance, and if this discussion is unlikely to alter views about dialogue perhaps it can enrich understanding of the concept, and how an article which claimed modest descriptive findings became a constitutional blockbuster.

I CONSTITUTIONAL PHENOMENON

Constitutional theories--and metaphors too--invariably emerge from cathartic events or shifts in the life of a constitution. If the objective of theory is in principle to foster the search for abstract, timeless truth, discourse on what a constitution means and who has the authority to interpret meaning follows the pattern. In addition, constitutional theory is notably grounded in the cycles of crisis and controversy around interpretation and review. (8) Footnote 4, neutral principles, and democracy and distrust are among the leading examples of theory that was forged in the crucible of transformative change. (9) With less drama, 'Charter Dialogue' follows a similar pattern, though with one difference: while the US scholarship counts multiple review theories, 'Dialogue' is a singular theory--or phenomenon--in the comparatively recent literature on the Charter.

'Dialogue's surprising magnetism, which would attain global proportions in constitutional law, has been attributed to the 'lure of the metaphor' and its 'seductively simple rejoinder' to the dilemma of review. …

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