Strange Expectations: A Review of Two Theories
of Judicial Review*
Joel. C. Bakan**
The author examines two theories of judicial
review under the Charter, one proposed by
D.M. Beatty in Putting the Charter to Work:
Designing a Constitutional Labour Code, and
the other by P. Monahan in Politics and the
Constitution: The Charter, Federalism and the
Supreme Court of Canada. He demonstrates
how each of these theories attempts to recon-
cile judicial review under the Charter with the
principles of democracy by portraying it (judi-
cial review) as a means for realizing these
principles. He then argues that both efforts are
ultimately unsuccessful and, indeed, only
compound the problems they identify and set
out to redress.
L’auteur 6tudie deux thories de contrble judi-
ciaire sous la Charte, rune proposde par D.M.
Beatty dans Putting the Charter to Work:
Designing a Constitutional Labour Code, et
l’autre par P. Monahan dans Politics and the
Constitution: The Charter, Federalism and the
Supreme Court of Canada. I1 ddmontre com-
ment chacune de ces theories cherche t r~con-
cilier le contrble judiciaire sous la Charte avec
les principes de la d~mocratie en caractdrisant
le dit contrble comme dtant le moyen par
lequel on puisse concrtiser ces principes. II
affirme ensuite qu’il faut constater l’6chec de
ces deux theories, qui, en fin de compte, ne
font qu’aggraver les probl~mes qu’elles
tentent d’identifier et rdsoudre.
‘A note on D.M. Beatty, Putting the Charter to Work: Designing a Constitutional Labour Code
(Kingston and Montreal: McGill-Queen’s University Press, 1987) and P. Monahan, Politics and the
Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell/
Methuen, 1987).
**Assistant Professor, Osgoode Hall Law School, Visiting Assistant Professor, Faculty of Law,
University of British Columbia (1989-90). I would like to thank the following people for their sub-
stantial comments and assistance on earlier drafts of this paper Didi Herman, Marlee Kline,
Patrick Macklem, Andrew Petter and Paula Rochman.
McGill Law Journal 1990
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 35
There is an old Yiddish aphorism that translates like this: “If my grand-
mother had wheels, she would have been a trolley car.” It serves as a wistful
rejoinder to proposed actions, and regretted inactions, that are plausible in the
abstract, but lack attachment to reality. Patrick Monahan and David Beatty, in
their respective ‘theories of judicial review’, have constructed trolley cars out
of grandmothers with wheels. Each has sought a cure for the ills of democracy
in late capitalist society in the demonstrably undemocratic and elitist institution
of judicial review. They have presumed a potential in the judiciary, and the rest
of the legal elite who participate in constitutional argument, to direct their
efforts and powers against the increasingly anti-democratic impulses of our
society and to foster more participation, better community and truer self-
government. In this note I will attempt to demonstrate the incoherence of this
presumption and the theories based upon it. I will argue that, while Beatty and
Monahan’s concern about the malaise of democracy is well founded, their the-
ories of judicial review only compound the problems they identify.
Beatty and Monahan are concerned that democratic values are not well
reflected in the outcomes and procedures of democratic institutions. For Beatty,
the formal democratic trappings of Canadian governmental institutions obscure
the undemocratic operation of these institutions. Participation in self-
government, the central idea in democratic theory, is impoverished and unequal.
“The larger lesson of history is surely a confirmation of how susceptible the leg-
islative and executive branches of government are to the influence of what today
we call pressure group politics.”‘ Those who are weak cannot exert the pressure
necessary to have their interests taken into account and, accordingly, “receive
the least concern and respect from the state.”2 More powerful and organized
groups, on the other hand, are able to exert considerable influence over the leg-
islature and secure benefits for themselves at the expense of the disempowered
groups. Altogether, according to Beatty, “political procedures [are] arrayed
against [the disempowered].” 3 His argument concentrates on the plight of work-
ing people in this regard, particularly those working people, like domestics and
agricultural workers, who have been treated less favourably than others: “The
pragmatic and often unprincipled method of our legislative and executive
branches of government has frequently meant that the vital concerns of those
workers did not always receive the concern and respect they deserved.”4
Monahan paints a similarly skeptical picture of contemporary democratic
practice. According to him, “[t]he current practice of democracy gives rather
‘D.M. Beatty, Putting the Charter to Work: Designing a Constitutional Labour Code (Kingston:
McGill-Queen’s University Press, 1987) at 50.
21bid. at 51.
31bid. at 53.
%1bid. at 8.
1990]
NOTES
limited expression to …[the] participatory ideal.”5 The goal of social revision
and reform is “to enhance the opportunities for popular debate, argument and
accountability.”6 Like Beatty, Monahan is aware of the intersection between lev-
els of participation, social and economic power, and legislative sensitivity to the
needs and interests of particular groups. He cites evidence indicating that “lev-
els of political participation decline with social and economic status” and notes
that “rates of political participation vary considerably based on factors such as
ethnicity, social status, age and gender”.8 According to Monahan, “Despite
guarantees of formal access, certain groups may nevertheless come to enjoy a
de facto monopoly over state power, leading to the exclusion of certain minor-
ities from effective participation in the system”.9 Moreover, these “differential
rates of participation constitute a systemic bias in the process, making it polit-
ically irrational for elected representatives to weigh competing interests in an
even-handed matter.”‘”
The shared concern of Beatty and Monahan about the current state of
Canadian democracy is, perhaps, best reflected in both authors’ adoption of J.S.
Mill’s hypothesis that “in the absence of its natural defenders, the interest of the
excluded is always in danger of being overlooked; and when looked at, is seen
with very different eyes from those of the person who it directly concerns.””
Indeed, both authors advance, in support of the veracity of this statement, the
legislative gains working people have been able to secure as a result of partic-
ipation in the political process, and the losses suffered when excluded from that
process.’2 For Monahan, political participation is valuable not only as a way to
secure protection of the social and economic interests of the citizenry, but also
“for its role in producing better informed and tolerant citizens.”‘ 3
Monahan and Beatty’s concerns about the impoverished state of democ-
racy in Canada are well founded. As they point out, participation in self-
government is an ideal only partially realised in practice.’4 Commitment to ide-
als of social and economic equality, an essential condition for genuine
5p. Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of
Canada (Toronto: Carswell, 1987) at 120.
61bid. at 123.
71bid. at 126.
8lbid. at 129.
9Ibid.
‘”Ibid. at 130-31.
“Beatty, supra, note I at 5, 7, 30, 45, 50; Monahan, supra, note 5 at 130.
‘2Beatty, ibid. at 7; Monahan, ibid. at 130. Both authors emphasize that, historically, protection
of workers’ interests has been put in place through the legislative process. They appear to have in
mind the legislative creation of collective bargaining rights, occupational health and safety
regimes, unemployment insurance and social legislation in general.
13Monahan, ibid. at 123.
‘”See: C.B. MacPherson, The Life and Times of Liberal Democracy (Oxford: Oxford University
Press, 1977); P. Resnick, Parliament vs. People (Vancouver: New Star, 1984).
REVUE DE DROIT DE McGILL
[Vol. 35
participation, as pointed out by both authors, is increasingly on the wane, and
attacks on existing progressive legislation by governments, industry leaders and
academics are more and more commonplace. 5 Indeed, the ideal of participation
itself has been the target of recent writing on politics and public policy, with
respected scholars arguing that political participation should be curbed to allow
for more efficient governability. 6 The political processes leading to the Meech
Lake Accord and the Mulroney Trade Deal, along with the potential constitu-
tional entrenchment of executive federalism, further exemplify the gap between
democratic ideals and the functioning of “democratic” political institutions. 7
Add to this the substantial influence business enjoys over political institutions,
the selective coverage of important events and decisions by a press establish-
ment operating primarily for profit, and the impossibility of genuine participa-
tion without access to major financial resources, and one cannot help but con-
clude that these are depressing times for those committed to democratic ideals. 8
Despair and delusion are often the symptoms of depression. We feel pow-
erless and lose hope in the face of what appear to be overwhelming obstacles
to the achievement of cherished goals. To avoid the widening and deepening
gulf of this despair, we often delude ourselves into believing there is an easy
way out of the difficulties that are the subject of despair. The result is a solution
the plausibility of which depends upon a disregard of the institutional con-
straints affecting our endeavours. This psychodynamic may provide some
explanation of why many progressive scholars and lawyers have embraced judi-
cial review under the Charter. Writers like Monahan and Beatty, who evidence
a commitment to progressive social change and equal participation in self-
government, end up in the ironic position of defending and legitimating either
explicitly (Beatty) or implicitly (Monahan) the power and authority of undemo-
cratic institutions –
the judicial and legal elites – which have, throughout his-
15Privatization, cut-backs in social spending and emphasis on deficit reduction are examples in
Canada. See: G. Riches, Food Banks and the Welfare Crisis (Ottawa: Canadian Council on Social
Development, 1986); J. Patterson, “Winding Down Social Spending: Social Spending Restraint in
Ontario in the 1970s” in A. Moscovitch & J. Albert, eds, The “Benevolent” State: the Growth of
Welfare in Canada (Toronto: Garamond Press, 1987).
16See, for example: M. Crozier, S. Huntington & J. Watanuki, The Crisis of Democracy: Report
on the Governability of Democracies to the Trilateral Commission (New York: New York
University Press, 1975); H. Sklar, ed., Trilateralism: the Trilateral Commission and Elite Planning
for World Management (Montreal: Black Rose Books, 1980); G. Kateb, “On the ‘Legitimation
Crisis’
in W. Connolly, ed., Legitimacy and the State (New York: New York University Press,
1984).
7See J. Bakan, “The Crisis in Canadian Democracy”, Tie Globe and Mail (19 August 1988)
A7; and J. Bakan and D. Pinard, “Getting to the Bottom of Meech Lake” (forthcoming, Ottawa
L.R.).
18See J. Bakan, “Constitutional Arguments: Interpretation and Legitimacy in Canadian
Constitutional Thought” (1989) 27 Osgoode L.J. 123 at 184-85. For discussion of the relationship
between democracy and the media, see N. Chomsky, Necessary Illusions: Thought Control in
Democratic Societies (Toronto: CBC Enterprises, 1989) at 1-21.
1990]
NOTES
tory, expressed little sensitivity or responsiveness to the needs of disempowered
people and their demands for social power and participation in genuine
self-government.
In the following sections I will outline and criticize the arguments made by
Beatty and Monahan about the function of judicial review under the Charter in
promoting democracy. My analysis will focus on drawing out the contradiction
in each argument between the theory of judicial review prescribed by the author,
and the institutional realities of judicial review he acknowledges. Beatty’s argu-
ment that, with the Charter in place, the courts will provide a forum for disem-
powered groups and individuals, like working people, to pursue their claims and
interests on equal terms with their adversaries, will be contrasted with the his-
torical antipathy of the courts towards employees’ interests and concerns (which
Beatty acknowledges). Monahan’s argument that the judiciary can be mobilized
to democratize existing political institutions will be analyzed in light of the
undemocratic and elitist nature of the judiciary (which Monahan acknowl-
edges). By analyzing Beatty and Monahan’s theories in these ways I hope to
make some general claims about the relationship between judicial review and
democracy.
A useful starting point is to ask why people bother to construct theories of
judicial review. The practice of constitutional theory is one of the mainstays of
American legal scholarship and is a growing industry in Canada. 9 As an intel-
lectual exercise it may be enjoyable and stimulating. However, it is important
to understand that these theories function in a particular way. Constitutional the-
ories, like those constructed by Beatty, Monahan and many others, are aimed at
uncovering the principles that supposedly underlie a particular constitutional
document. The purpose of the exercise is to place limits on the potentially infi-
nite range of meanings that might be attributed to provisions expressed in vague
and indeterminate language. In the absence of such limits, judges would have
no criteria for choosing between competing plausible interpretations of consti-
tutional provisions. They would, in other words, have to make choices and, in
the absence of constraints, these choices would inevitably reflect their personal
and collectively held world views. Thus, constitutional theories attempt to com-
pensate for the open-textured nature of the legal materials by establishing prin-
ciples and standards that judges can rely upon in interpreting and applying the
constitution. In this way, they define the boundaries of legitimate judicial action
(and inaction) under the constitution and are, accordingly, theories about the
19For general discussions of constitutional theory in Canada and the U.S., see Bakan, ibid.; M.
Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law (Cambridge, Mass.:
Harvard University Press, 1988); S.M. Griffin, “What is Constitutional Theory? The Newer
Theory and the Decline of the Learned Tradition” (1989) 62 S. Cal. L. Rev. 493.
McGILL LAW JOURNAL
[Vol. 35
legitimacy of judicial review.2″ They assume legitimacy is possible and provide
the means for realizing that possibility.
Beatty and Monahan’s theories follow quite closely the usual dimensions
of constitutional theory. Each is an interpretation of the Charter –
an analysis
of what principles constitute the structure of the Charter and inform particular
provisions. By articulating these principles, the authors hope to provide mean-
ingful guidelines for judicial interpretation of the otherwise open-ended provi-
sions of the text. It should be noted, however, that both Monahan and Beatty
endeavour to construct a particular kind of constitutional theory, one that har-
nesses judicial power to the requirements of democracy itself. Their theories do
not merely establish constraints on judicial power, thereby meeting the problem
of judicial discretion and choice. Rather, they establish the principles of democ-
racy as the constraints on judicial power. Thus, at least in theory, they portray
judicial review as facilitating democracy, not just being consistent with it.2
For Beatty, realization of the democratic ideal of participation can be
achieved through Charter review if judges adopt as their guide to decision-
making under the Charter the general principle of equal participation in self-
government,2 and the more specific principles derived from it: first, that legis-
lation will be constitutionally valid only if its purpose is to promote the equal
freedom of those who are least advantaged in the community;23 and second, that
the legislative means chosen to achieve that purpose are the least restrictive pos-
sible of individual rights and freedoms.24 According to Beatty, judicial review
which follows these principles is more likely to promote equal participation
than legislative politics because it provides a “forum of principle” (the Courts)
where disputes will be decided “much more as a matter of reason and right than
on the possession of material and political influence”.’ Accordingly, those who
have been disadvantaged in the political process by their lack of political and
economic power will be offered under the Charter “…[a] new opportunity to
participate in the processes of government ‘
in a “much fairer and more neutral
forum for citizen participation”’27 than the legislature. In the courts one can
expect impartial and principled deliberation, as compared to the “pleas of pas-
sion and panderings to prejudice by those [i.e. legislators] whose understand-
20lbid.
21Neither author suggests there is a necessary antipathy between individual rights and democ-
racy. Implicit in each theory is an understanding of individual rights as serving the aspirations
encoded in democratic ideals.
22Beatty, supra, note 1 at 53, 59.
23bid. at 63-64.
24Ibid. at 63-65.
25Ibid. at 53.
261bid.
27Ibid. at 181.
1990]
NOTES
ings of the issues may be marginal at best.”2 Throughout his book Beatty sug-
gests that, if judges adopt his principles of judicial review, they will be directed
to conclusions advantageous to workers, especially those workers most disad-
vantaged by the labour relations scheme.
Beatty provides several examples of the consequences of applying the
Charter, mediated by his principles of judicial review, to labour relations law.
He argues that minimum wage and other employment standards laws interfere
with freedom of association (s. 2(d) of the Charter) because they constrict free-
dom of contract, but are protected by section 129 The exclusion of farm workers
and domestic workers from collective bargaining regimes is also a violation of
freedom of association, (as well as section 15 of the Charter), but is not justified
by section 1.” Similarly, union security rules –
like compulsory union mem-
bership, compulsory union dues and exclusive bargaining units –
all violate
freedom of association and are not saved by section 1″‘ (except where compul-
sory union dues are used only to support collective bargaining). 2 In the area of
equality rights, Beatty argues that anti-discrimination laws are constitutionally
permissible;33 mandatory retirement is unconstitutional;’ 4 differential employ-
ment standards for men and women concerning exposure to toxins in the work-
21bid.
29This type of legislation is saved by section 1 in Beatty’s view because it impairs freedom of
association as little as possible by not requiring or compelling association; it merely sets bottom-
line conditions governing an already existing relationship. Such measures are essential, in Beatty’s
view, to create the conditions whereby workers can exercise their participatory rights in the con-
tractual process of labour regulation. Ibid. at 81-83.
30According to Beatty, these exclusions constitute “discrimination of the most blatant and expli-
cit kind”. Ibid. at 90. However, he does suggest that the exclusion of agricultural workers may be
justified when the relationship involves “a unique social institution like the family farm”. Ibid. at
91. His reliance here on the special, private nature of personal family relationships seems at odds
with his blanket inclusion of domestic workers in the legislative schemes. Ibid. at 92-93.
31According to Beatty, freedom not to associate is a fundamental value in a liberal democratic
state that must be impaired as little as possible. With respect to section 1 he argues that while the
purpose of these measures is valid, the means chosen are not proportional to the ends. They violate
his second principle of judicial review. Ibid. at 121-24.
32This approach was endorsed by the Ontario High Court but rejected by the Court of Appeal.
See Re Lavigne and Ontario Public Service Employees Union (1989), 67 O.R. (2d) 536, 56 D.L.R.
(4th) 474 (C.A.).
33According to Beatty, anti-discrimination laws interfere with an individual’s freedom to not
associate with people but this limit on s. 2(d) is reasonable under s. 1 because it is as unobtrusive
as possible and the objective of such laws is one “which no one who claims his freedom is limited
can consistently deny.” Beatty, supra, note 1 at 78.
34Beatty suggests that in order for a mandatory retirement scheme to meet the requirements of
his principles of judicial review it would have to be based on years of work rather than life. This
would ensure that decisions to re-allocate work opportunities were not made on arbitrary grounds
like age. Further, the state would have to ensure that the employment opportunities created through
such schemes did not disappear but were in fact given to others. Ibid. at 103-04.
REVUE DE DROIT DE McGILL
[Vol. 35
place are likely unconstitutional;35 and affirmative action programs are likely
justifiable when they provide a “reasonable” means for assisting historically
disadvantaged individuals.36
Monahan, like Beatty, sees a potential role for judicial review in promoting
democratic participation. He proposes a theory of judicial review which, like
Beatty’s, portrays judges as responsible for implementing democratic values
and promoting political participation. According to Monahan, “the best inter-
pretation of the Charter –
the interpretation which makes sense of the docu-
ment as a whole –
is an interpretation which gives primacy to values of democ-
racy and community.”’37 These are the “values that should guide Canadian
judges as they give meaning to its [the Charter’s] open-ended provisions”;”8
“judicial review should be conducted in the name of democracy”.39 More spe-
cifically two principles of judicial review should be adopted. First, the judiciary
should be guided by the “right of equal access to and participation in the polit-
ical process” and the knowledge that “formal access does not guarantee equal
access”.’ And, second, “judicial review should always attempt to maximize
openness and the possibility of revision in social life”: the judiciary should
“ensure that all social arrangements are subject to meaningful debate and trans-
formation through the political process”.4′ Thus, Monahan views judicial review
under the Charter as a means for democratizing legislatures and other political
institutions. Unlike Beatty, however, Monahan insists judges should not inter-
fere with the substance of policies embodied in legislation.
How should judges interpret Monahan’s principles of judicial review?
According to him: “The starting point of the analysis would be the current prac-
tice and understanding of democracy, rather than some utopian, classical dem-
ocratic community. Thus the analysis would accept the proposition that profes-
sional politicians and bureaucrats will continue to be responsible for the day to
day management of public policy.”42 In other words, the emphasis should be on
conserving rather than challenging current structures of democracy, though
widespread citizen apathy would be “lamented rather than praised”, and the
“overriding goal would be to enhance the opportunities for popular debate,
35Beatty argues that differential standards deny women equality in the workplace. With respect
to section 1 he argues that protecting the life of the fetus is a reasonable legislative objective but
that setting more stringent standards for female employees concerning exposure to toxins in the
workplace is not the least drastic means for achieving this objective. Ibid. at 107-09.
361bid. at 115. There is no elaboration of what is or is not “reasonable”.
37Monahan, supra, note 5 at 102.
3 Ibid. at 97.
391bid. at 99.
40Ibid. at 124-25.
4’Ibid.
42 Ibid. at 123.
1990]
NOTES
argument and accountability.”43 Monahan illustrates the “practical ‘bite”‘ of his
principles by providing examples of the conclusions he would draw from their
application to particular issues: welfare rights would not be protected under the
Charter;” only the “manner in which political outcomes are produced” and not
“the substantive equality of the outcomes themselves” would be scrutinized
under sections 7 and 15; 45 legislative campaign financing restrictions would be
upheld despite the Charter’s guarantee of freedom of expression;” and, under
section 1, a “proportionality test”, like that established in Oakes,47 would have
“compelling attractions” for applying section 1.”
As can be seen from this brief summary of Monahan and Beatty’s theories,
the authors employ a similar structure in putting their schemes together. First,
a general political principle is posited as rationalizing and underlying the menu
of rights and freedoms explicated in the Charter. Monahan identifies the prin-
ciples of democracy and community; Beatty that of equal participation in self-
government. Next, more particular principles are portrayed as following from
the general principles. And, finally, these latter principles are applied to inter-
pret provisions of the Charter and yield particular results. Thus, an interpretive
chain is established in moving from the Charter to judicial outcomes:
Charter i-
review
–
general political principle(s) — principles of judicial
interpretation of particular provision -> result
Prima facie this scheme suggests the end result is determined by the
Charter. This is not, however, the position either Beatty or Monahan wants to
defend.
4 3
1bid.
“Monahan argues that it is undemocratic for judges to read welfare rights into the Constitution:
“Constitutionalizing such rights would vastly limit the scope for democratic debate and dialogue
rather than expand it.” This is because 1) the judiciary would have to determine welfare entitle-
ments, and 2) “It has always been legislatures rather than courts which have taken the initiative
in improving equal political access.” Legislatures have put in place “the basic elements of the mod-
em welfare state.” Ibid. at 126. It is difficult to reconcile this latter point with Monahan’s prescrip-
tion that judges use the Charter to enhance democracy. See Bakan, supra, note 18 at 185 and see
infra, at 451-52.
45Monahan, supra, note 5 at 127.
46According to Monahan, such restrictions enhance overall freedom by ensuring that “no one
political perspective is permitted to drown out the competing messages in the electoral market-
place”. Ibid. at 134.
47R. V. Oakes, [1986] 1 S.C.R. 103, 50 C.R. (3d) 1.
48He contends that the proportionality approach is empirical, pragmatic, and flexible. Further,
in attempting to pass this test the legislature is forced to be “self-critical”. Ibid. at 135-36. This
endorsement is rather curious given Monahan’s earlier condemnation of the “rationality” test, the
first stage of the proportionality test established in Oakes, supra, note 5 at 62-71. It is difficult to
see how any form of proportionality test would escape Monahan’s critique. Monahan recognizes
the tension and then moves on. Ibid. at 135. I would have liked to see at least an attempted expla-
nation of the inconsistency.’
McGILL LAW JOURNAL
[Vol. 35
The authors each acknowledge two important facts about their constitu-
tional theories: first, that the political principles and principles of judicial review
they prescribe are not “determined” by the constitution –
they are only inter-
pretations of it; and, second, that their theories are open-textured and cannot
determine uniquely correct outcomes to particular disputes.49 Thus, they con-
cede that normative and political considerations must enter into the process of
constitutional interpretation at the point of defining the principles and standards
supposedly embodied in the constitution and at the point of applying the stand-
ards and principles so defined to solve concrete disputes. To put it another way,
each theory is controversial, in that it is only one of several or many plausible
readings of the constitution; and neither theory yields uncontroversial conclu-
sions because each is capable of a multiplicity of plausible meanings when
applied in particular contexts. The former point raises the question of why either
theory should be considered authoritative, while the latter challenges the view
that either theory can significantly constrain judicial power.
For the moment, I will concentrate on the latter problem: the open-textured
nature of each theory and, correspondingly, the inability of the theories to con-
strain significantly judicial choice. (The former problem will be discussed
towards the end of the paper). A curious difficulty with both authors’ arguments
is the contradiction between each author’s stated purpose of designing a theory
that will constrain judicial power, and his explicit acknowledgement that his
theory is open-textured and thus unable to constrain, in any substantial way,
judicial choice. Beatty, for example, points out that constitutional interpretation
necessarily “has some creative aspect to it”.5″ It involves “interpreting and bet-
ter understanding the political theory and ethical principles that underlie our
new constitutional order.”‘” He acknowledges that his own prescribed principle
of “equality of liberty” cannot, “by itself…provide a blueprint of how courts
should rule” in constitutional cases concerning labour.5 2 As well, he notes that
application of section 1 of the Chat-ter necessarily involves judges in an “avow-
edly creative function” and requires them “to develop general principles of judi-
cial review consistent with the particular political theory which, in their view,
best explains our constitutional order of government. 53
Monahan also understands constitutional interpretation as a necessarily
normative process, one that involves choices between competing values. It is,
49Though in a subsequent article, Beatty develops an approach to constitutional interpretation
that presumes and defends the possibility of determinate “right answers”; see Beatty and S.
Kennett, “Striking Back: Fighting Words, Social Protest and Political Participation in Free and
Democratic Societies” (1988) 67 Can. Bar Rev. 573.
50Beatty, supra, note 1 at 54-55.
5’Ibid. at 4.
521bid. at 63-64.
531bid. at 65.
1990]
NOTES
for him, “inherently and thoroughly political.”54 He emphasizes that, in deciding
constitutional cases, the courts act politically, and “can never escape the task of
evaluating the policies chosen by the legislature”.” This is because the provi-
sions of the Charter are indeterminate: they “resemble blank slates on which the
judiciary can scrawl the imagery of their choice.” 6 Accordingly, the courts must
make political decisions under the Charter, especially when applying section 1,
which necessarily involves judicial “interest balancing”.57 And, because the
words of section 1 “are themselves indeterminate and fundamentally contested
…they merely invite the court to devise its own theory of freedom and of demo-
cracy”. Like Beatty, Monahan emphasizes that constitutional interpretation “is
a normative exercise, as well as a descriptive one”.59 Moreover, like Beatty,
Monahan applies these insights to his own prescribed principles of judicial
review. He acknowledges that “the idea of democracy seems so vague and inde-
it
terminate that it appears rather unhelpful as a basis for judicial review”;’
describes a constellation of principles that “may seem overly abstract to be of
any value in adjudication.”‘” After these acknowledgements, however, he
asserts his earlier claim that determinacy is not a necessary requirement of a the-
ory of judicial review:
The theory of judicial review which I am defending is not intended to serve as
some comprehensive hombook which will enable lawyers to ‘look up’ the answers
to Charter problems. This is not the purpose or function of general theory. The
more modest ambition is to provide a larger backdrop which will lend structure
and intelligibility to legal analysis under the Charter….[The theory] offers a mea-
suring rod for choosing between various competing and plausible definitions of a
right protected by the Charter. It offers weights and measures to assist in ‘balan-
cing’ rights against larger considerations of social utility.62
Thus, Monahan acknowledges that, while his theory provides a structure for
constitutional argument, it does not ameliorate the political nature of judicial
review: judges will still be required to make choices, normative judgements and
exercise discretion in deciding cases under the Charter.
The acknowledged indeterminacy of Monahan and Beatty’s principles of judi-
cial review comes into conflict with the ideal of democracy central to both the-
ories once the actual context in which the principles are to operate is considered.
In practice, the principles of judicial review are intended to be relied upon to
54Ibid. at 102-03.
55Monahan, supra, note 5 at 68.
56Ibid. at 53.
571bid.
58lbid. at 56.
591bid. at 12.
6Ibid. at 120.
6’Ibid. at 125.
62Jbid. at 125-26.
REVUE DE DROIT DE McGILL
[Vol. 35
justify applications of judicial power in constitutional cases. Yet, as we have
seen, they are too generally expressed to compel any particular set of results. In
a word, they must be interpreted; and each interpreter will necessarily import
into the principles the perspectives, beliefs, and ideologies of her or his “inter-
pretive community”.’ As noted, Monahan and Beatty are aware of this. Neither
author acknowledges, however, the severe difficulties this insight poses for his
project. In short, the open-endedness of the principles of judicial review pre-
scribed by each author ensures that the judicial world-view will be imprinted on
interpretations of these principles. For Beatty this is problematic because of the
historic “tilt” of judge-made law against labour and in favour of owners of pro-
ductive property,’ a tilt he is well aware of and acknowledges.’ For Monahan,
there is a strange contradiction in providing principles that will function to legit-
imate the value judgements of the judicial elite while, at the same time empha-
sizing the anti-democratic nature of judicial power. As we shall see, in both
works there is a real tension between the aspirations of the theory developed and
the nature of the institutional context –
in which the theory is
meant to operate. I will draw out this tension in each theory in turn.
the courts –
Beatty is aware of and acknowledges some important facts about the values and
predilections of the judiciary. In particular, he points to the historical “tilt” of
judge made law against the interests and concerns of workers.’ He notes that
“trusting to the processes of law and the institution of the court will not, given
the treatment workers and unions have received from the judiciary in the past,
be something that will come easily or naturally to the working class and its rep-
resentatives.”’67 Beatty provides compelling reasons for distrust of the judiciary
by workers in a recent paper:
The historical record of the courts’ performance in developing all the traditional
torts, such as criminal and civil conspiracy, inducing breach of contract, intimida-
tion, secondary picketing, nuisance, trespass, etc., unambiguously reveals a per-
sistent pattern of favouring the interests of business and commerce…[i]n the past
quarter century the great majority of the court’s decisions regulating industrial
conflict have come out just like Dolphin Delivery. …[T]his succession of cases in
which the court judged that the commercial interests of making profits should take
precedence over the workers’ freedom to associate and express themselves in
63Bakan, supra, note 18 at 173-75, 188-91.
64See W. Holt, “Tilt” (1984) 52 Geo. Wash. L. Rev. 280; J.A.G. Griffith, The Politics of the
Judiciary (London: Fontana Press, 1981); J. Fudge, “Labour, The New Constitution and Old Style
Liberalism” in Labour Law Under the Charter (Kingston: Queen’s Law Journal and Industrial
Relations Centre, 1988) at 61.
65Beatty, supra, note 1 at 11-12; Beatty, “Constitutional Conceits: The Coercive Authority of
Courts” (1987) 37 U.T.L.J. 183 at 191, n. 7.
encies of the courts against the claims of disempowered groups.
66See Monahan, supra, note 5 at 126-27, for a similar acknowledgement of the historical tend-
67Beatty, supra, note 1 at 11.
1990]
NOTES
ways they felt were necessary to protect their interests clearly illustrates the pre-
dominant value system of the court.68
At the same time, Beatty notes that working people have achieved some
success through legislative politics:
Over time, the focus of labour law has gradually expanded, both in terms of the
persons that are caught within its field of vision and in the interests it is intended
to protect. As members of the working class have been able to participate more
effectively in the legislative and executive branches of government, the law has,
haltingly and sporadically, come to recognize principles and rules to reconcile
relations at work which promote the autonomy of those they govern.69
There is, then, a rather ill fit between the respective histories of judicial and leg-
islative activity with respect to working people and Beatty’s prescriptions for
the judiciary. He “resolves” the apparent conflict by being ahistorical: he pre-
scribes that judges, when applying the Charter should, in effect, abandon the
principles and rules they have developed over the years and, rely instead on
principles found in the “legislative past”.7″ In short, they must ignore their own
history and develop and expand the principles underlying initiatives taken by
legislatures. This sounds fine in the abstract, but it is not at all clear that judges
would or could do this.
Nonetheless, Beatty offers three reasons why workers should “overcome a long-
standing antipathy to judicial law-making” and “be optimistic”,7 each of which
is ultimately unconvincing. First, there is “the nature of the interpretative proc-
ess through which courts develop the law.”7” In particular, unlike the legislature,
where the “power of one’s resources” determines the ability to participate, in the
courts “[workers’] relative lack of resources should not count as heavily against
them.”’73 The difficulty with this first reason is that it is simply not clear that the
“power of one’s resources” in Charter litigation is any less important a factor
than it is in legislative politics. Charter litigation is very expensive, as unions
have discovered in recent cases they have fought (and lost). It often involves
elaborate submissions to assist the court with its “balancing” under section 1,
as well as multiple appeals. It allows a considerable advantage to those who
have legal resources at their disposal (the state and big business) over those with
more limited resources (labour, especially when not organized).74 In many cases,
workers will feel they have little choice but to engage in Charter litigation as
68Beatty, “Constitutional Conceits, The Coercive Authority of Courts”, supra, note 65 at 191,
n. 7.
69Beatty, supra, note 1 at 7.
70Ibid. at 10.
711bid. at 11.
72Jbid.
73Ibid. at 11-12.
74See A. Petter, “The Politics of the Charter” (1986) 8 Sup. Ct. L. Rev. 473, for discussion of
the costs of Charter litigation.
McGILL LAW JOURNAL
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they will be defending attempts by business interests to avoid, or have declared
invalid, pro-labour legislation.’ Some bonus! In any event, even if Charter lit-
igation was less expensive than other forms of political action, it would still be
a lousy deal for labour if the odds of winning were not at least even. And this
brings us back to the question of why workers should be optimistic about an
institution that is historically tilted against their interests.
In his second argument for worker optimism about the Charter, Beatty attempts
to meet this concern more directly. He acknowledges that “the rulings courts
have handed down in the past have been hostile to the interests of workers as
a group”, but points out that “[t]here have also been important instances in
which courts have developed common law principles which have protected and
benefited the interests of the working class.”’76 The difficulty with this response
is that, while it may be true there are examples of judicial protection of workers’
interests, these are exceptions to the tendency of labour decisions to reflect the
“predominant value system of the court” which, as Beatty has told us, is stacked
against labour. It seems odd to rely on such exceptions as a basis for general
optimism.
Beatty’s third reason is even less convincing. He says of the courts that “the
method and criteria of their constitutional adjudication will conform closely to
the traditional roles they have performed in the past”:77
On the theory of the Charter I will work with, our courts would endeavour to
effect a balance between the competing interests in the workplace and a set of val-
ues which is similar to those they have conventionally turned to when they devel-
oped and applied the common law.78
Working people and their representatives would likely find little solace in
this last reason for “optimism for judicial review”.79 Traditional methods and
criteria, and the conventional values of the common law constitute, after all, the
same predominately anti-worker approach that reflects the “predominant value
system of the court”. Indeed, the foundational values of the common law –
property and contract, are exactly the values in whose names most anti-labour
judicial initiatives have been taken. They are, as well, the values which may
help explain the consistent losses sustained by labour under the Charter.’ In the
end Beatty’s arguments for optimism by labour about judicial review under the
Charter are unconvincing. As the cases have demonstrated to this point, when
D.L.R. (4th) 209.
75See, for example, Re Lavigne, supra, note 31; Re Arlington Crane Service Ltd (1988), 56
76Beatty, supra, note 1 at 12.
771bid.
78lbid.
79nbid.
8Fudge, supra, note 64.
1990)
NOTES
workers attempt to use the Charter to advance their interests, they end up wind-
milling at tilt.”‘
Monahan accepts along with Beatty that the courts have not, as a general
rule, been sympathetic to the interests of people without power. While Beatty
manages to feel optimistic about the Charter despite this fact, Monahan’s atti-
tude to judicial review and the Charter is skeptical. He believes empowering the
judiciary to challenge the substantive decisions of elected representatives is
undemocratic and detrimental to the interests of disempowered groups. His the-
ory is based on a distrust of judges.82 It is designed to limit judicial power under
the Charter to perfecting and protecting the democratic process, while leaving
the outcomes of that process in place. Monahan agrees with Ely that, accepting
“indeterminacy in moral theory, the invitation to judges to act as moral philo-
sophers is a covert invitation for them to impose their own values on the demo-
cracy,” and that this is “flagrantly elitist and undemocratic”.”
Monahan purports to avoid this problem by confining judicial activity to
advancing democratic and communitarian values through scrutiny of the polit-
ical process. This move does not, however, enable him to escape his own argu-
ment that asking judges to interpret and apply indeterminate moral theory is
undemocratic and flagrantly elitist. Monahan’s theory provides judges with the
concepts of “democracy” and “community”, as well as the distinction between
“process” and “substance”. “Democracy” and “community” are hardly determi-
nate concepts. Surely, the provision of such vagaries to guide judicial behaviour
is “a covert invitation for [judges] to impose their own values on the democ-
racy”. In the hands of judges, interpretations of the central concepts of his the-
ory would engender reflections of judges’ values. And the problem is not
avoided by confining judicial review to matters concerning the democratic
“process” and placing the “substance” of government policy out of bounds. As
Monahan himself notes, any question about access to the political process “still
requires the judiciary to make substantive judgements of political morality.”‘
In a more general sense, the distinction between process and substance is
challenged by the inseparability of political and social/economic equality.8 5
811 am paraphrasing Holt, supra, note 64 at 286. See Fudge, ibid., for a discussion of case law.
82Monahan, supra, note 5 at 53, 54, 87.
3Ibid. at 87.
84Ibid. at 131.
851t is a common theme in liberal political theory that the “public” world of politics can be sep-
arated from the “private” world of social and economic relations. Liberal democracy is based on
the notion that all individuals are political equals, because they each have a vote, despite the very
unequal distribution of social and economic power. Monahan appears to be accepting this assump-
tion. For critiques of the public/private distinction in general, see: A. Hutchinson & A. Petter,
“Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38 U.T.L.J. 278; J. Fudge,
“The Public/Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation
to Further Feminist Struggles” (1987) 25 Osgoode Hall L.J. 485.
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(Vol. 35
Policies on and affecting education, health, welfare, labour, etc. are all very
much related to the ability of individuals and groups to participate effectively
in the democratic process. Indeed, Monahan cites statistics which demonstrate
a correlation between social/economic status and levels of political participa-
tion.86 He argues nonetheless that review of substance “would vastly limit the
scope for democratic debate and dialogue rather than expand it” even if such
review had the effect of promoting social and economic equality.87 This
response presumes the scope of “democratic debate and dialogue” is independ-
ent of social and economic status, and is thus difficult to reconcile with those
parts of Monahan’s argument where he suggests a strong relationship between
the two. Nonetheless, Monahan must maintain this separation, for without it, the
process/substance distinction –
a crucial constraint on judicial choice in his
theory – would be unintelligible. He cannot acknowledge the dependence of
political participation on social and economic status without accepting that
arguments for more participation in the political process could just as plausibly
be cast in terms of the need for particular “substantive” (social/economic) pol-
icies. And to accept this would deny the process/substance distinction any bite.
In short, the process/substance distinction cannot be relied on to constrain judi-
cial choice without accepting the presumption, which Monahan appears to want
to reject, that questions about democratic process (participation) can be severed
from ones about social and economic equality.
In parts of his book, Monahan attempts to deal with the problem of “judi-
cial elitism” by portraying it more as a problem with judges than with elitism.
For example, he argues that while the indeterminacy of the Charter renders hol-
low the pretensions of the judiciary to be engaged in “value free” adjudication
under the Charter, this does not mean constitutional interpretation is an inappro-
priate or undesirable form of politics per se: “… the mere fact that an issue can-
not be resolved in some neutral or mechanical fashion does not mean that it
must be relegated to the category of mere whim or caprice. It is possible to
acknowledge the contingent and value laden character of an enterprise and yet
make rational and meaningful arguments about that enterprise.”88 Indeed,
Monahan notes, this is exactly what he is doing in his construction of a theory
of judicial review. This comes through in his discussion of section 1. That con-
cepts like “freedom” and “democracy” are “contested” –
that there is “a rich
and sophisticated debate continuing within political theory over their content
and application”89 –
does not appear to bother Monahan. What bothers him is
that judges are engaged in interpreting these concepts. They are, in Monahan’s
86Monahan, supra, note 5 at 122.
87Ibid. at 126. I am not suggesting the courts are likely to read “welfare rights” into the Charter.
Indeed, as a predictive matter I do not think they will do so in any significant way.
88Jbid. at 59.
t9Ibid. at 54.
19901
NOTES
view, inept at political theory and not up to the challenges presented by the
Charter.
The thesis Monahan appears to advance here is that only those who are
sophisticated and expert political theorists are appropriate candidates for the
calling of constitutional interpretation, and judges do not make the grade. This
explains how he can criticize the courts’ efforts at constitutional interpretation
on the ground they are political and value-laden and, at the same time, offer his
own admittedly political and value-laden interpretation of the Charter. That
constitutional interpretation is a political exercise is not the problem. Indeed,
Monahan’s prescription is for broader, more openly political and normative
interpretation of the Charter. He criticizes the courts and traditional scholars for
being too technical and legalistic and celebrates his own intention to embrace
the “larger jurisprudential considerations which have so preoccupied American
courtwatchers”, to “step back from the trees…[and] sketch the shape and struc-
ture of the forest.”90 The incompetence of judges and the inappropriateness of
granting them a monopoly on constitutional meaning do not, for Monahan, lead
to a rejection of constitutional interpretation as a political practice. Rather, these
factors appear to lead to the conclusion that the appropriate group for interpret-
ing the constitution is the elite of constitutional “experts” –
an elite which
includes academics and, potentially, government bureaucrats –
people like
Monahan himself.9′
The difficulty with this conclusion is that it merely shifts the monopoly on
constitutional meaning from one elite group, judges, to another, constitutional
theorists and philosophers. There is little in democratic theory that suggests a
preference for academic oligarchies over judicial oligarchies. Indeed, the ideal
of democracy as articulated by Monahan is radically inconsistent with govern-
ment by an elite cadr6 of judges or legal and political philosphers. Monahan
points out that democracy represents:
A choice … for politics and pluralism over universal truth. The particularity of a
community’s experiences ‘are valued by the people over the philosophers’ gifts
because they belong to the people and the gifts do not…’ 92
The prescriptions of constitutional theorists and philosophers about what
are the correct interpretations of the admittedly open-textured provisions of the
constitution are the epitome of “philosophers’ gifts”. It is perplexing that
Monahan so readily endorses the practice of constitutional interpretation by an
90Ibid. at 4.
91This point is made as well in B. Slattery, “Are Constitutional Cases Political?” (forthcoming
921bid. at 106.
in 11 Sup. Ct. L. Rev. 34)
McGILL LAW JOURNAL
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elite group of “experts”, after acknowledging that constitutional interpretation
is political and condemning elitism in the name of democracy. 93
Monahan cannot, of course, avoid the difficulty that constitutional interpre-
tation is an inherently elitist form of politics: some group must be identified as
having the final say on what a particular provision means. And that group will
thus be licensed to impose its vision and perspective on everybody else.’ This
is apparent when we look at judicial decisions and ask why an elite group of
lawyers should be able to establish the terms for allocating political, social and
economic power on the basis of their understanding of “equality”, “liberty” or
what is “reasonable” and “demonstrably justified in a free and democratic soci-
9 3The elitism inherent in Monahan’s theory of judicial review has been noted by Slattery, supra,
note 91: …despite the populist language, and the appeal to the ideals of democracy and community,
Monahan arguably espouses views with strong elitist overtones. But, while he distrusts the judicial
elite, and has ambiguous feelings about members of legislatures, he seems to have a strong under-
lying faith in academia and the governmental bureaucracy. Not everyone who has experienced aca-
demic life or dealt with bureaucrats would share this faith. Slattery is, of course, correct in pointing
out this contradiction in Monahan’s work. It is, however, important to note that Slattery avoids this
tension in his own work only by accepting judicial elitism. He is less concerned with Monahan’s
embracement of elitism than with his choice of academic and bureaucratic elites over judicial
elites. In short, while Slattery defends judicial elitism, Monahan defends bureaucratic and aca-
demic elitism. Both accept elitism, and this similarity is more significant than any difference
between them. Monahan and Slatterys’ respective understandings of constitutional interpretation
are not all that different. As we have seen, Monahan accepts that constitutional interpretation is
neither “objective”, in the sense of deductive logic, nor “subjective”, in the sense of unconstrained
whim or caprice. Similarly, Slattery rejects the view that judges must be able to deduce “specific
propositions about concrete cases with a high degree of certainty, on a quasi-geometrical model”
for their decisions to be legitimate. Ibid. at 16. We should, rather, understand constitutional
decision-making as a “practical art” Ibid.. Good constitutional decisions are made “by tapping
one’s tacit knowledge of the practical workings of the constitutional system and its implicit values
and principles.” Ibid. at 18. And if an interpreter is working with the maxims of the practice, his
decisions are not arbitrary nor unconstrained, despite the indeterminacy of the constitutional text.
Ibid. The important difference between Monahan and Slattery, as noted above, is that Monahan
believes academic experts –
are the appropriate cadres of constitu-
tional interpretation and has little faith in judges, while Slattery sees it the other way around. Thus,
a crucial part of Slattery’s argument is to portray judges as potentially appropriate constitutional
authorities. According to him, good judges are “people with specialized skills, … wisdom and good
practical sense, grounded in broad experience.” Ibid. at 6. They are not mere technicians but, rather,
decide cases by identifying “the general principles and values informing previous decisions.” Ibid.
at 7. They do not engage in “high-flown social and political theory”, but nor do they simply bal-
ance competing interests in accordance with their will. Ibid. at 8. Those who are best at the art will
be those who have been at it long enough to allow their understanding of its maxims to deepen:
“it is the practice of the acknowledged master which ultimately exemplifies the meaning of the
art’s basic maxims.” Ibid. at 17. And, ultimately, according to Slattery, judges are such masters.
94Some authors argue for the democratization of constitutional interpretation. They see the con-
stitution as establishing public values that should be applied through a process of public debate and
discussion and/or by democratic bodies. See, e.g., S. Levinson, Constitutional Faith (Princeton:
Princeton University Press, 1988); P. Brest, “Constitutional Citizenship” (1985) 34 Clev. S. L. Rev.
175; B. Slattery, “A Theory of the Charter” (1987) 25 Osgoode Hall L.J. at 701.
theorists and philosophers –
1990]
NOTES
ety”. And it is no less apparent when we look at the role of academics in con-
structing and interpreting constitutional theory. Why should the political princi-
ples, principles of judicial review and particular outcomes that constitute some
law professor’s interpretation of the Charter –
admittedly informed by his or
her morals and politics – be accepted as authoritative? Why should the inter-
pretation of a particular constitutional scholar be relied upon as a guide to the
allocation of political power? The Herculean efforts Beatty and Monahan make
to demonstrate the relationship between their respective theories and the text of
the Charter demonstrate only that they are able to construct plausible interpre-
tations of the Charter. No stronger basis of authority for the authors’ views is
offered.95
Implied in Beatty and Monahan’s theories and, indeed, in any constitu-
tional theory, is the message that it is quite appropriate for law professors or
other members of the intellectual elite to draw up blueprints for constructing the
Canadian polity. We have already seen this position expressed in Monahan’s
book. Beatty makes the point as well. He celebrates the fact that, with the
Charter in place, constitutional scholars can “bequeath a principled theory of
the Canadian political/constitutional order which will organize our own and
future societies for generations to come.” ’96 The idea of law professors
bequeathing any such thing should be rather scary for those committed to the
ideal of democracy. As noted earlier, academic elitism fits just as poorly with
the ideals of democracy as does judicial elitism.
To summarize my arguments, the constitutional theories constructed by
Beatty and Monahan each fall into the same trap, though in slightly different
ways: the principles established in each are contradicted by the institutional and
political character of the judiciary charged with interpreting and applying them.
Beatty asks a judiciary historically committed to the interests of employers to
be a forum for worker participation in self-government. Monahan asks an elitist
and unrepresentative judiciary to protect and promote democratic principles in
political institutions. The authors’ attempts to avoid the trap are unconvincing.
In each case, the principles prescribed are too vague and open-textured to com-
pel judges to “do the right thing”. In the final analysis, Beatty suggests we
should be “optimistic” but provides no basis for such optimism. And Monahan
moves from judicial elitism to academic/bureaucratic elitism, a move that
makes little difference if the concern is to avoid elitism, as Monahan’s appears
to be in other parts of his argument.
9 5Both Beatty and Monahan attempt to establish that their respective political principles and
principles of judicial review are authoritative by showing how they form the basis for their partic-
ular provisions of the Charter’s text, as well as Canada’s political culture. See Monahan, supra,
note 5 at 100-26. Beatty, supra, note 1 at 56-72.
9 6Beatty, supra, note 1 at 55.
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[Vol. 35
The difficulties and contradictions encountered in Monahan and Beatty’s
theories of judicial review are, I believe, inherent in the project of constructing
interpretations of the constitution with a view to promoting the interests and
concerns of disempowered groups in society and furthering their participation
in self-government. The indeterminacy and openness of constitutional law –
the seeming potential for creative and innovative interpretation contrasts sharply
with the closed and rigid institutional structure through which authoritative
interpretations of the constitution are generated. Anybody can write to the
Department of Justice, get a copy of the constitution, and develop a theory about
its meaning from her or his particular perspective. The open-texture of the
Charter’s provisions would allow for a wide range of plausible renditions. But
only one group in society has the institutional authority to have its interpreta-
tions implemented: the judiciary. Beatty tells us the judiciary has, historically,
been unresponsive to the needs and demands of workers. Monahan has told us
the judiciary is an elite and undemocratic institution. Both are right. So why do
they, and many other constitutional theorists and interpreters, continue to envi-
sion a central role for the judiciary in helping the disempowered and advancing
democracy? Maybe they are assuming a judiciary different from the one we
actually have. Well, if my grandmother had wheels she would have been a trol-
ley car.
