(2001). The Rights Revolution. Pacifica Review: Peace, Security & Global Change: Vol. 13, No. 2, pp. 197-200.

The Rights Revolution

The Politics of Constitutional Review in Germany. By Georg Vanberg. Cambridge: Cambridge University Press, 2005. 208p. $70.00. The judicial power to review the constitutionality of laws was a unique feature of American constitutionalism well into the twentieth century. The perceived success of this experiment in limited democracy prompted several nations, among them West Germany, to create courts of constitutional review in the aftermath of World War II. Now several decades later, as the author of this book writes, constitutional review “has emerged as an almost universal feature of western-style democracy” (p. 1). In most of the world's advanced liberal democracies, the power to review the constitutionality of laws has been lodged in specialized courts of constitutional review, meaning that only these courts are empowered to nullify laws on constitutional grounds. Germany's Federal Constitutional Court (FCC) is one of the most notable and powerful of these specialized tribunals. It is notable for the frequency with which it has invalidated national and local laws and also for the extensive reach of its jurisdiction. Owing to the German court's rejection of any political question doctrine, together with its authority to decide with finality abstract questions of constitutional law—that is, questions raised by legislators outside the normal framework of an actual law suit—its powers of review actually exceed those of the Supreme Court. Indeed, the FCC has begun to challenge the Supreme Court as the leading model of constitutional review around the world.

The Politics of Constitutional Review in Germany

This dissertation examines the changing patterns of intergovernmental relations among political elites toward sensitive constitutional issues implicated in the Quebec sovereignty movement, in particular after the 1995 referendum on Quebec sovereignty-association. It extends David Thomas’ concept of constitutional “abeyances” to suggest that areas of constitutional ambiguity over which there are strong enough disagreements to lead to a national breakup can be successfully managed given enough political will. This depends on their being enough political actors who otherwise share a common interest in national unity willing to keep abeyances from escalating into a crisis. The exposure and politicization of such abeyances in the middle of the 20 century raised the salience of constitutional disagreements in Canada nearly to the point of national disintegration. The decline in the salience of these abeyances and the waning of support for sovereignty in Quebec since the last referendum has reduced this possibility substantially. Using a mixed method approach within an historical institutionalist framework, this dissertation argues that, along with other social forces, this is partially explicable in light of the fact actors such as the courts, federalist political leaders, and their parties have been willing to avoid discussing sensitive constitutional abeyances and leave them unresolved in the interests of avoiding a constitutional crisis. This has certainly not resulted in end of the sovereignty movement in Quebec, which remains very much alive. However, along with other political and iii social forces the willingness to keep deep constitutional disagreements camouflaged has permitted Canadian federalism to regain a measure of stability.

Canadian Federalism, Abeyances, and Quebec Sovereignty

Social and Political Foundations of Constitutions: The Strategic Foundations of Constitutions

This article examines the impact of federalism on reproductive and sexuality rights in Canada. It highlights an important problem in rights implementation triggered by the particular division of jurisdiction in these policy areas. Despite favorable Supreme Court rulings recognizing the essential validity of these actions (namely access to abortion and contraception, and marriage between same-sex partners), cooperation by another level of government is necessary in order to implement access. Huge variation exists in the extent to which provincial and territorial governments have implemented access in law and policy. The article points to an important research agenda on rights implementation that moves beyond analysis of formal responses postjudicial review to consider the impact of divided jurisdiction.

Federalism and Equality Rights Implementation in Canada

. While the last few decades have witnessed increased political significance of the Canadian Supreme Court, the Court has also managed to safeguard its institutional legitimacy as evident in the high degree of support it enjoys among the Canadian public. Indeed, how do the Supreme Court of Canada, and high courts everywhere, ensure the attainment and retention of institutional legitimacy? The paper develops an answer to this question by presenting a strategic theory of legitimacy cultivation. The theory is applied and tested in the context of the 1998Secession Reference case. The paper sheds a new light on the case, shows that patterns of judicial strategic behaviour can provide important insights into how the Supreme Court acquires institutional legitimacy and points out the significance of extending the strategic approach to the study of the Canadian Supreme Court.Resume. L'importance politique de la Cour supreme du Canada s'est accrue de maniere notable au cours des dernieres decennies. Malgre tout, la Cour a reussi a maintenir sa legitimite institutionnelle, comme en fait foi le niveau de soutien eleve pour la Cour que manifeste la population canadienne. Mais comment la Cour supreme du Canada, ainsi que les cours supremes ailleurs dans le monde, s'assurent-elles de developper et de maintenir leur legitimite institutionnelle? Cet article propose une reponse a cette question en presentant une theorie strategique du developpement de la legitimite. La theorie est appliquee et testee dans le contexte du Renvoi relatif a la secession duQuebec de 1998. Cet article jette un regard different sur cette decision en demontrant que certaines tendances dans le comportement judiciaire strategique peuvent fournir des indices importants quant a l'acquisition de la legitimite institutionnelle. L'article souligne aussi l'importance d'etendre l'utilisation de l'approche strategique a l'etude de la Cour supreme du Canada.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0008423910000764

Vuk Radmilovic

Papers

Strategic Legitimacy Cultivation at the Supreme Court of Canada: Quebec Secession Reference and Beyond