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constitutional theory critique, perspectives on the charter, canadian charter of rights and freedoms


This article provides a critique of recent books by two prominent Canadian constitutional theorists - David Beatty's Constitutional Law in Theory and Practice and Allan Hutchinson's Waiting for CORAF: A Critique of Law and Rights. Devlin begins with a brief overview of the various positions that have been staked out in writing on the Canadian Charter of Rights and Freed oms during the last decade. He identifies three broad constituencies: Charter advocates who assume that rights are an "unqualified human good" and that judicial review is an important check on majoritarian zealotry; Charter critics who emphasize the undemocratic nature of judicial review and who doubt the beneficence of a rights-dominated regime; and "progressive deviationists" who are somewhat nervous of both rights discourse and judicial review but who seek to make the best of an imperfect set of constitutional institutions. According to Devlin, Beatty and Hutchinson represent the first and second of these positions, Beatty being a fervent advocate of the Charter and judicial review and Hutchinson an unapologetic critic of both. Beatty argues that a constitution can insulate basic rights from contamination by the contingencies of politics, and that the courts should use the principles of rationality and proportionality, rather than perceptions of legislative intent, in scrutinizing government action for compliance with the constitution. Hutchinson, in contrast, argues for what he calls a dialogic model, maintaining that because political decision-making is rooted in electoral democracy, it is more legitimate than judicial decision-making. Devlin places himself closer to Hutchinson than to Beatty, but he questions the ability of Hutchinson's dialogic model to provide a sufficient means to move from rights talk and social inequality to democratic and social equality.