Reviews/Critiques d’ouvrages Not Quite Supreme: The Courts and
Coordinate Constitutional Interpretation
by Dennis Baker. Montreal and Kingston: McGillQueen’s University Press, 2010, 219 pp.
While Canadians have expressed interest in an
enlivened legislative branch in Canadian politics,
they continue to display a consistent, almost fawning
deference to the courts as authoritative interpreters
of constitutional writ. Assisted by media, legal,
and academic elites, they accept as orthodoxy not
simply that courts have a primary and natural role in
applying the text of the Constitution, but that courts
have an exclusive authority to do so.
Dennis Baker’s thoughtful and tightly argued
book offers a way to understand this paradox. Part
of the answer, Baker argues, rests in our understanding of the nature of the Canadian Constitution. Most
people coming of age in the Trudeau era identify the
Constitution with the Charter. The Charter is about
rights, and rights are the claims that persons make
against state power they consider illegitimate. Courts
are considered the obvious forums for the vindication
of these rights. After all, the state is often a party
to legal disputes, and the courts are an independent
branch of government structured to challenge the
overreaching of the others. And indeed the other
branches cannot be counted on to resist one another
because in the Canadian parliamentary scheme, the
executive and legislature are fused. Executive domination is the watchword. The courts are our only
hope for the vindication of rights. What follows from
the fusion of powers is judicial supremacy.
Baker finds judicial supremacy both wrong and
dangerous. His book is a trenchant argument for a
coordinate Canadian constitutionalism according
to which all branches of government are equal in
constitutional status and possess “partial agency”
(that is, a share in the power principally allocated
to other branches) to challenge the decisions of
other branches (pp. 4-5). The paradigmatic example
is found in sections 53 and 54 of the Constitution
Act, 1867, concerning money bills. The legislature
401
cannot introduce legislation concerning the raising
or spending of money; only the executive can do
this. But each branch has determining power over the
budget. The executive may often dominate the House
of Commons and Senate, but it still must secure their
approval and on occasion is denied it. Canada does
have a true separation of powers, Baker insists. The
problem is a lazy behaviouralism that formalizes as
constitutional reality observations about informal
practice. On the contrary, Baker argues (here relying
upon Harvey Mansfield’s work on political executives), it is the interaction of informal and formal
power that is the stuff of modern constitutionalism
(Chapter 4). Institutions and their forms matter;
they are what informal practice pushes against but
never occludes.
If Canada has a true separation of powers, then
judicial supremacy is illegitimate. In its place Baker
inserts coordinate constitutional interpretation. There
ought to be no interpretive monopolies in Canada.
Baker cites R. v. O’Connor (1995) in which a 5-4
majority of the Supreme Court ruled that a priest accused of sexual assault had a Charter right to access
the complainant’s confidential counselling records so
he could make a full and fair defence to the charge.
Parliament then passed a new law based on the dissenting judges’ view, giving the privacy rights of victims
a wider berth. When the Court eventually heard a
constitutional challenge to the new law in R. v. Mills
(1999), it had to decide essentially between its own
1995 precedent and the view of the dissenters in 1995,
now backed by the will of Parliament. It chose the latter, illustrating for Baker the operation of coordinate
constitutional interpretation in a Canadian separation
of powers framework. The O’Connor-Mills sequence
is heresy for the judicial supremacists who populate the
bench and law schools; but for Baker it is the essence
of constitutional government.
Coordinate interpretation also means that when
exercising judicial review, a court shall disregard
the effect of the law in the case at hand only. Judicial supremacists hold that if a court invalidates a
law, it shall apply to no one else, unless and until an
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402 Reviews/Critiques d’ouvrages
ultimate appeal restores it. For support, Baker refers
to Abraham Lincoln’s reaction to Dred Scott (1857).
Lincoln did not challenge what the Supreme Court
decided in that case; he quarrelled with the extension
of that decision to any other case (pp. 108-9). Court
decisions bind parties, not branches. Other branches
may legitimately disagree with the court’s interpretation of a right. They should be able to engage in a
sort of tug-of-war over the interpretation of a right,
and eventually a winning interpretation will emerge.
This sounds chaotic and unseemly. And it seems
to insert into constitutional government a crude
majoritarianism. But Baker aptly reminds us that
high courts also decide by majoritarian means: at
the end of deliberations and after the circulation of
drafts of opinions, it all comes to a vote. In a 5-4 or
6-3 decision, can we truly distinguish the decision of
a coalition of personalities from the pronouncement
of the Supreme Court as an institution? The political
to and fro of coordinate interpretation helps us to
make that distinction.
The reader is given a succinct critique of Charter dialogue theory, which had a good run among
academics and jurists in the 1990s and was used as
a way to assuage critics concerned about a judicial
imperium. But dialogue theory still preserves for
the courts a monopoly on the interpretation of the
Charter. This is no dialogue.
Does not the s. 33 notwithstanding clause stand
ready to do the work of coordinate interpretation?
Baker considers it a dead letter because it is associated with legislative responses to judicial
finding of a rights violation, when in fact for
coordinate theory whether a law is contrary to
a right is the critical question. It is too blunt an
instrument for the extended politics of coordinate
interpretation, he suggests. I am less sure. Section 33 concerns laws operating notwithstanding
other constitutional provisions, not rights. All
kinds of rights are protected by the common law,
not written constitutional text. And s. 33 is part
of the Constitution. How can it be illegitimate?
This book invites questions about the larger
political framework. For example, what is the
relationship between judicial supremacy and judicial appointment? I would say that it promotes the
politicization of appointments. Would coordinate interpretation de-politicize appointments? And while
Baker concentrates on coordinate interpretation’s
effects on rights jurisprudence, how does it work in
connection to the division of powers? Is this where
coordinate interpretation is a well-accepted practice,
as I think it is? If so, is Baker’s main concern the
hegemony of rights talk and not the role of courts?
These questions arise because the book is short. I
look forward to further examinations of the concept
of coordinate constitutional interpretation, by Dennis Baker and others.
Thomas M.J. Bateman, Political Science, St. Thomas
University
Canadian Public Policy – Analyse de politiques, vol. xxxvi, no. 3 2010
Reviews/Critiques d’ouvrages Confronting the Shadow Education System:
What Government Policies for What Private
Tutoring?
by Mark Bray. IIEP Policy Forum. UNESCO Publishing, 2009, 132 pp.
In his latest book, Confronting the Shadow Education System, Mark Bray examines how the sheer
size of the tutoring sector and its role in shaping
schooling systems, the rhythms of family life, and
the contours of social, economic, and educational
inequality have been grossly underestimated by
policy-makers. The term shadow education is
meaningful. The term connotes not only how
supplementary education follows the formal school
system, but also how this largely unregulated sector has grown at a staggering rate with little notice
from governments, policy-makers, and researchers.
In this well-documented book, Mark Bray examines the scale, nature, and implications of the private
tutoring sector in a number of countries. Marshalling an impressive array of research, he informs us
that in many countries this sector is a multi-billion
dollar industry that absorbs a substantial amount
of household resources. In several countries an upwards of 50 to 90 percent of school-aged children
attend some form of tutoring. The sector includes
one-on-one tutoring, as well as supplementary education offered by off-duty teachers, mom and pop
operations, and large multinational, Internet, and
correspondence corporations.
Beyond describing its sheer size and many forms,
Bray describes the economic and social impact of the
private tutoring sector. On a positive note, private
tutoring may boost the performance of struggling
and high-achieving students. Tutoring may also
provide students with a constructive after-school
activity, and tutors with supplemental income. It
is conceivable that this sector contributes to economic growth by potentially enhancing language
and numeracy skills.
403
Bray also outlines the darker side of the supplementary education sector. In countries with high
tutoring rates, the social pressure to pay for supplementary education is enormous. Given the lower
wages in some countries, tutoring is a crippling if
not prohibited expense. Not surprisingly, national
figures show that tutoring participation varies by
social class; in some countries tutoring enrolment
data also reveal huge rural and urban, gender, and
racial and ethnic disparities. If these services give
students a competitive advantage, supplementary
education may widen social and economic inequalities. Equally problematic are tutoring systems that
are married to the formal school system. In some
countries teachers who use tutoring to supplement
their pay have been known to purposefully withhold critical parts of lessons during the school day
to encourage families to pay for their services after
school hours. In other countries, initiatives such as
No Child Left Behind provide monies for eligible
parents to purchase private tutoring. These initiatives have been introduced with little accountability
to monitor the efficacy of providers. Bray also notes
that funds that are directed at private enterprises
divert funds that might be used more efficiently by
mainstream public schools.
In the last part of the book, Bray identifies possible government responses, and makes important
policy recommendations that are sensitive to a range
of economic and social conditions. Bray argues that
policy-makers need to take into account the SES
profiles of students, cultural contexts, and any other
important factors. The context of tutoring in the
United States, Canada, and Australia for example
(countries that tend to encourage tutoring for low
achievers) is very different from that of Korea and
Japan (where tutoring is more likely to be used by
high achievers). In order to assess the types of tutoring that should be encouraged or discouraged, Bray
suggests that policy-makers need to consider the nature of the sector and whether tutoring rates vary by
income group, gender, ethnicity or race, and location.
In the concluding chapter, Bray begins this dialogue
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404 Reviews/Critiques d’ouvrages
by outlining several key monitoring and evaluation
“feedback loops” at the individual school level,
district level, and national and international levels.
to researchers in the fields of education, social and
economic change, international trends, comparative
research, and inequality.
Overall, this book provides an accessible and
balanced examination of this burgeoning sector. Beyond policy-makers, this book should be of interest
Janice Aurini, Department of Sociology, University
of Waterloo
Canadian Public Policy – Analyse de politiques, vol. xxxvi, no. 3 2010
Reviews/Critiques d’ouvrages Successful Societies: How Institutions and
Culture Affect Health
edited by Peter A. Hall and Michèle Lamont. New
York: Cambridge University Press, 2009.
This book is the product of the “successful societies”
program at the Canadian Institute for Advanced Research (CIFAR), which comprises a diverse group
of social scientists (sociology, political science,
history, epidemiology, and psychology) brought
together by CIFAR to “think about what defines
successful societies and the social conditions that
sustain them.” This same organization (formerly
known by the acronym CIAR) produced Why Are
Some People Healthy and Others Not (Evans, Barer,
and Marmor 1994), which was foundational to the
population health movement in Canada and internationally. Though the two books are grounded in
some of the same empirical observations (e.g., the
social gradient in health), Successful Societies effectively builds on the earlier work by incorporating
different but complementary disciplinary perspectives and emphases.
The stated cross-cutting theme of Successful
Societies is to explore the role of institutions and
culture in producing (or detracting from) population
health. “Institutions and culture” include a range of
societal attributes such as administrative structures,
social and economic models and programs, and
cultural imaginaries (norms), which powerfully influence social relationships/resources and therefore
health. Building on Sen’s capabilities theory, health
(which is a function of the “wear and tear of daily
life”) is viewed as dependent on one’s capacity to
effectively negotiate life challenges. This capacity
reflects not just material resources but also social resources (e.g., the ability to secure cooperation from
others). These resources are not perfectly coupled,
as suggested by the increasing number of outliers
on the health-wealth graph (i.e., countries for which
population health is better/worse than would be
expected based on economic circumstances alone;
see Evans, Chapter 4).
405
Although the idea that population health is more
than economic circumstances is not new (e.g., see
Wilkinson and Pickett 2009; World Health Organization 2008), the book effectively exploits diverse
“case examples” to explore the role of institutions
and culture in explaining such exceptions. For example, Swidler (Chapter 5) contrasts AIDS-related
initiatives in Botswana where, despite wealth and
capable government, efforts have largely failed;
and Uganda, where success in prevention and
treatment was achieved despite seemingly unfavourable economic and administrative conditions.
The unexpected outcomes are seen as reflecting
differences in the match or fit (strong in Uganda;
weak in Botswana) between the prevention/treatment initiative—especially the way in which it
was implemented—and the existing cultural norms
and institutional frameworks. A related theme emphasized throughout the book is the importance of
historical/comparative approaches for understanding the determinants of population health, which
may be “macro” and “slow-moving” (Hertzman and
Siddiqi, Chapter 1); for example, the cultural and institutional attributes of wealthy countries with steep
versus shallow social gradients in health, over time
periods (eras) bounded by definable events (e.g., the
Quiet Revolution in Quebec, discussed by Bouchard
in Chapter 7; World War II; or the fall of communism in Europe). This approach has clear research
implications: the need for appropriate (long-term,
comparable) data and analytic/interpretive tools
from a range of disciplines.
Certain chapters stand out. The book’s introductory chapter by Hall and Lamont is especially
rich, which in some cases undermines subsequent
chapters because the main point or best example
from the chapter is provided in the introduction.
Jenson (Chapter 8) tackles the important question
of why—even in the face of scientific consensus—
policy change does not always occur. Using as a
case example the sanitary reforms in Victorian
England, Jenson illustrates how the citizenship
regime and its constituent elements (e.g., beliefs
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406 Reviews/Critiques d’ouvrages
about the responsibilities of state, market, families;
definitions, both formal and informal, of citizenship) shed light on the implementation and impact
of health initiatives. During this era, despite relative
scientific consensus about the need to ensure clean
water, clean streets, and adequate housing, full
implementation of these standards was impossible
due to a citizenship regime dominated by a belief
in the prominent role of the market for provision
of services. There was no incentive, however, for
private companies to provide for those who could
not pay. Further complicating the matter was the fact
that, despite the libertarian flavour of the citizenship regime generally, authoritarian action (e.g.,
mandatory vaccination) was seen as acceptable
for “non-citizens”: that is, for the non-propertyowning poor.
Sewell (Chapter 10) provides a balanced, nuanced
description of the institutional and cultural changes
that accompanied the shift from a state-centric to a
neoliberal capitalist paradigm. One of the interesting
cultural transformations highlighted is the experience of marginalization among white men with the
rise of multiculturalism and the women’s movement,
which led many working-class white men in the
United States to vote for Reagan, thus facilitating
the rise of neoliberalism—a political orientation
that in many ways worked against the interests of
this demographic group. Although the political and
economic circumstances of the neoliberal era engendered many potentially health-damaging processes
including anxiety-producing economic volatility,
rising income inequality, and decreasing public
service provision, Sewell nonetheless concludes that
neoliberalism has not directly caused poor population health so much as it has “depress[ed] the extent
of improvement” otherwise expected.
At its outset the book emphasizes the importance
of local circumstances and the fact that there is no
single path to success. That said, two general policy
implications are evident. First, policies can (often
unintentionally) erode social resources. For example,
a policy that encourages recipients of unemployment
benefits to gather at manpower centres facilitates
“precisely the wrong sort of [social] ties,” whereas
policies that provide work or training facilitate ties
that may lead to employment. Thus, policies should
be designed “with an eye to their network dimensions” (Hall and Taylor, Chapter 3). A second policy
implication is the need, when designing policy content and implementation, to work within the existing
cultural/institutional circumstance to maximize the
policy-context fit. The cases presented in the book
provide guidance in this regard. Because of the
inherent complexity of cultural/institutional circumstances, it is essential to be attuned to the potential
unintended consequences of social and economic
policy and to incorporate built-in evaluation.
References
Evans, R.G., M.L. Barer, and T.R. Marmor. 1994. Why
Are Some People Healthy and Others Not? The Determinants of Health Populations. New York: Walter
de Gruyter.
Wilkinson, R. and K. Pickett. 2009. The Spirit Level:
Why Equality Is Better for Everyone. London: Penguin Books.
World Health Organization. 2008. Closing the Gap in
a Generation: Health Equity through Action on the
Social Determinants of Health. Final Report of the
Commission on the Social Determinants of Health.
Geneva: World Health Organization.
L indsay M c L aren , Department of Community
Health Sciences, University of Calgary
Canadian Public Policy – Analyse de politiques, vol. xxxvi, no. 3 2010
Reviews/Critiques d’ouvrages I Do Solemnly Swear: The Moral Obligations
of Legal Officials
by Stephen Sheppard. New York: Cambridge University Press, 2009.
The central thesis of this book is that “legal officials
ought to carry out their offices according to moral
obligations, not just narrowly defined legal rules”
(p. xv). In general terms, this is hardly problematic,
at least as concerns matters in which the law leaves
room for discretion. But the devil is in the details, and
I don’t think the author gives the devil quite his due.
To be sure, at the outset the author acknowledges that talk about legal officials having moral
obligations arouses worry and suspicion across
the spectrum of political views and ideologies.
However, he does not engage the reasons for these
concerns at any length or develop and qualify his
thesis to address them. Readers who are worried
about legal officials using their office to advance
an extralegal vision of justice (i.e., their private
or personal vision) will not be comforted by the
author’s association of morality and justice and his
advocacy of the view that officials ought to “pursue
good and noble ends through the power of the law”
(p. 189). The author is surely right that “there is
no legal protection against tyranny, because laws
may always be changed by law” (p. xxiv). However, it may be unreasonable, and perhaps even
dangerous, to expect that morality can afford such
protection. There are competing moral views that
can be brought to bear on just about any given issue: Which among competing views is the official
promoting, and by what right? A form of tyranny
can also arise when self-righteous legal officials are
tempted to subordinate the law to their conception
of the just and good.
The book covers a daunting number of sources
in moral, political, and legal philosophy and a wide
variety of cases and examples, from the Salem witch
trials to the torture memos. And its thesis encompasses all categories of legal officials, from jailors
407
to judges. Its broad sweep is both a strength and a
weakness. In some measure encyclopedic coverage
comes at the expense of lack of sustained rigour and
depth in the analysis of specific issues, such as ones
that divide proponents of legal positivism, realism,
natural law, and other legal theories. Similarly,
extending the thesis to cover the generic moral obligations of all legal officials means that important
differences between categories of officials get short
shrift. The question of how moral obligations ought
to figure in deliberation has importantly different
nuances applied to a judge deciding a case than it
does applied to a police officer deciding whether to
issue a ticket to someone caught speeding.
Given the wide range of literatures covered in the
text, it is puzzling that the author gives so little attention to the extensive literature on professional ethics,
particularly since this literature deals squarely with his
subject matter. Moreover, in its matriculated branches
it does so for just about every category of legal official
and with reference to traditions, professional bodies,
and codes of ethics and conduct specific to each.
However, this omission appears to be quite deliberate.
In the preface the author laments how “ethical duties
have been cabined into special notions in philosophy
or limited by professional codes” (p. xvii) and notes
with disapproval that “lawyers prefer the safer idea of
professional ethics” to “broad and public connotations
of duty” (p. xvi). He says little to elaborate these value
judgments, but for my part I think there is something
reassuring about “limiting” the ethical duties of legal
officials to professional codes, which have the merit
of being publicly agreed upon, proclaimed, and challengeable (by contrast, “broad and public connotations
of duty” hardly seem public at all!). And I don’t think
it a bad thing to play it safe when it comes to the
latitude we allow legal officials to shape their offices
with reference to what they individually hold to be
moral obligations in excess of what the law requires
or enjoins.
At any rate, professional codes and policy statements, and the unions, professional associations, and
Canadian Public Policy – Analyse de politiques, vol. xxxvi, no. 3 2010
408 Reviews/Critiques d’ouvrages
licensing authorities that proclaim and in some cases
police them, play an important part in regulating
the moral behaviour of legal officials. The author
does discuss oaths of office (with surprising brevity
given the title of the book), but the various professional infrastructures that govern legal officials
are hardly mentioned. The author’s treatment of
his subject is seriously incomplete for not building
these codes into his analysis, or at least taking them
into account, and more so even than for omitting
to discuss the academic literature in professional
ethics at any length.
Overall, this book makes for a very interesting
and engaging read. I expect that many readers will
find themselves in disagreement with the author
on this or that point, or at least wishing that he had
said more about it, but that is to be expected for a
book that covers as much ground as this one. Indeed,
probably its chief virtue is to have brought together
and synthesized such a wide range of literatures,
issues, and cases.
Michael Yeo, Department of Philosophy, Laurentian
University
Canadian Public Policy – Analyse de politiques, vol. xxxvi, no. 3 2010