New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Temple International and Comparative Law Journal (forthcoming Spring 2007)

Abstract

In recent years, theories of constitutional dialogue have become increasingly popular in the United States and Canada as a way of describing the nature of interactions between courts and non-judicial actors in the area of constitutional decision-making. Dialogue theory has been most popular in Canada, due to the unique institutional mechanisms adopted in that country to promote an interactive relationship between courts and legislatures. Despite this, use of the dialogue metaphor has become the subject of increasing criticism in Canada over time, as scholarly critics charge that the Canadian constitutional system is actually evolving into one of judicial supremacy. In contrast, although the United States is widely regarded as the paradigmatic example of a system of judicial supremacy, scholars are increasingly asserting that dialogue exists as an observable feature of strong-form constitutionalism in this country. This Article sheds light on - and ultimately resolves - this paradox in the scholarly literature on constitutional dialogue by revealing critical methodological differences that dialogue theorists in each country employ. Drawing on American approaches to dialogue, the Article also applies a novel methodology to reassess the potential for constitutional dialogue in Canada, and illustrates the explanatory power of this approach by examining recent developments in the area of gay rights and same-sex marriage in Canada. Not only does this innovative approach provide a more accurate description of how judicial review operates in Canada, but it also provides a unique framework for rethinking the possibilities of dialogue in a range of other nations.

Date of Authorship for this Version

November 2006

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