Legislative Versus Judicial Checks and Balances: Comparing Rights Policies Across Regimes

Abstract There is a longstanding debate in liberal constitutionalism over which method of rights protection – legislative or judicial – best achieves the moderate policy outcomes envisioned by democratic theorists. This article examines this question by comparing two Commonwealth countries, Canada and Australia, which explicitly placed themselves on opposite sides of the debate. After outlining the historical debate, a case study design compares the policy process and outcome in the two countries on the issues of prisoner voting and same-sex marriage. The data suggest that bicameral legislatures best serve their moderating functions when the government is not in control of the upper chamber, whereas rights-based judicial involvement in policy making tends to promote extreme policy outcomes. The evidence is mixed, however, and the existence of counter-examples points the way to further research. Notes 1See, for example, Roncarelli v. Duplessis 1959, a landmark Canadian constitutional decision in which the Supreme Court of Canada held that the Premier of Quebec, Maurice Duplessis, overstepped his authority by revoking Roncarelli's restaurant liquor licence simply because he was a Jehovah's Witness. In an oft-cited decision, Justice Rand relied on the rule of law to conclude that there was no such thing as 'untrammelled' executive discretion. 2The Australian constitution outlines three rights guarantees: section 80 guarantees jury trial for indictable offences under Commonwealth law; section 116 guarantees freedom of religion; and section 117 prohibits discrimination against those from another State. In addition, there is a requirement of 'just terms' in the Commonwealth's acquisition power under section 51(xxxi). In Canada section 93 of the Constitution Act 1867 protects the rights of denominational schools, and section 133 lays out a right to use either English or French in the courts and legislatures of Quebec and the federal government. 3The power of the legislative override is not available with respect to the rights guaranteed under ss. 3–6 (voting and mobility), 16–23 (language), and 28 (sexual equality). 4With Britain adopting its Human Rights Act in 2000, Australia remains the only Westminster parliamentary tradition without some form of a bill of rights. 5When the Conservative government of Stephen Harper came to power in 2006, it was committed to holding a free vote on the question of whether to enact a civil union compromise, but the issue had been so polarized by then that the vote failed. (For background, see Knopff and Banfield 2009). Additional informationNotes on contributorsAndrew C. Banfield Andrew C. Banfield is a PhD candidate in the Department of Political Science, and Graduate Fellow at the Institute for Advanced Policy Research, at the University of Calgary. Rainer Knopff Rainer Knopff, a Professor of Political Science at the University of Calgary, has written widely on constitutional and judicial politics. His books include Charter Politics (1992) and The Charter Revolution and the Court Party (2000), both co-authored with F.L. Morton.

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