Myth of the Sacred : The Charter, the Courts and the Politics of the Constitution in Canada

by James, Patrick

• ISBN13: 9780773524347
• ISBN10: 0773524347
• Format: Hardcover
• Copyright: 2002-11-01
• Publisher: McGill Queens Univ Pr

Summary

In this collection the authors challenge the "myth of the sacred" - that certain aspects of the constitutional process - judicial political behaviour, interest group politics, and centralization of power - are untouchable politically. They suggest that certain actors and institutions have contributed to a myth about the normative basis of Canadian constitutional politics, a myth perpetuated through the popular media as well as much of the scholarly literature. Such actors often disguise their overtly political behavior with a cloak of impartiality, presenting their actions as furthering the public good and therefore immune to challenge. The Myth of the Sacred seeks to challenge this ideal. At its core this myth embodies the Trudeauian ideal of Canadian society - one that features a constitution that empowers impartial judges at the expense of politically motivated legislators; one that allows each individual to enjoy a uniform range of rights, freedoms, and means of belonging to the larger Canadian society; and one that seeks to ensure the primacy of the national government rather than the provincial. Trudeau called his vision the Just Society. But justice is an illusive and amorphous concept. Defining it, much less institutionalizing it, is fraught with risk. In modern liberal democracies, justice is typically understood as the product of some mix of liberty and equality, process and substance, with the amount of each component varying according to taste. It is not unusual for political actors to seek to institutionalize their own formulas for justice, but it is also not reasonable to expect these formulas to go unchallenged. Such a challenge represents the dominant theme of this volume. Contributors include Donald E. Abelson, Tom Flanagan (University of Calgary), Patrick James, James B. Kelly (Brock University), Michael Lusztig, Christopher P. Manfredi (McGill University), Hudson Meadwell (McGill University), Anthony A. Peacock (Utah State University), Mark Rush (Washington and Lee University), and Shannon I. Smithey (Kent State University).

Table of Contents

Acknowledgments	p. ix
Contributors	p. xi
Introduction: The Myth of the Sacred in the Canadian Constitutional Order	p. 3
Judicial Review and Group Status
Judicial Rationalism and the Therapeutic Constitution: The Supreme Court's Reconstruction of Equality and Democratic Process under the Charter of Rights and Freedoms	p. 17
Judicial Supervision of the Political Process: Canadian and American Responses to Homosexual Rights Challenges	p. 67
The Supreme Court of Canada and the Complexity of Judicial Activism	p. 97
The Constitution and Rational Choice Theory
Canada's Three Constitutions: Protecting, Overturning, and Reversing the Status Quo	p. 125
Strategic Behaviour and the Canadian Charter of Rights and Freedoms	p. 147
Non-Governmental Players in the Constitutional Arena
Think Tanks, Public Policy, and Constitutional Politics in Canada	p. 171
Cooperation and Conflict: Group Activity in R. v. Keegstra	p. 189
The Culture of Constitution-Making in Canada
Deeper and Deeper: Deep Diversity, Federalism, and Redistributive Politics in Canada	p. 207
Is a "True" Multination Federation the Cure for Our Ills?	p. 219
Bibliography	p. 239
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