Rainer Knopff

Populism and the Politics of Rights: The Dual Attack on Representative Democracy

In Canada as elsewhere, representative democracy is under attack by both populists and rights advocates. The populist challenge comes mainly from Preston Mannings wing of the Reform party. The rights-based challenge is grounded on the Canadian Charter of Rights and Freedoms. These two challenges are different in obvious ways, but from the point of view of representative government—and ultimately of liberal democratic constitutionalism—what they have in common outweighs their differences. What they have in common is the appeal to a mystical being or icon beyond ordinary politics. In effect, the People or Rights become what God was to pre-liberal theocratic politics: a transpolitical trump on ordinary political division, a way of placing opponents “beyond the pale,” a demand for unattainable purity in public life and policy. While bills of rights and populism appear to flow, respectively, from the liberalism and the democracy of liberal democracy, they are, in fact, vehicles for precisely the kind of politics liberal democracy was designed to overcome. Representative government, not populism or entrenched rights, was at the heart of the “new science of politics” designed to make liberal democracy possible. Representative institutions, properly arranged in a system of checks and balances, were a way of blending liberalism with democracy, giving each its due, but indirectly, so that neither would be taken to self-destructive extremes. Populism and the judicialized politics of rights threaten to dissolve this salutary blend, at the cost of liberal democratic constitutionalism.

Assisted Reproduction Policy in Federal States: What Canada Should Learn from Australia

Rapid advances in assisted reproductive technologies (ARTs) confront policymakers worldwide with dilemmas that touch on the fundamentals of human existence — life, death, and sexuality. Canada, following the lead of non-federal Britain, spent 15 years developing the comprehensive, national Assisted Human Reproduction Act (2004), only to have the Supreme Court strike much of it down in 2010 for invading provincial jurisdiction. As Canadians return to square one on many ART issues, they should seek inspiration from Australia, where the lead role of the states in this policy area has not prevented significant coordination on matters of broad consensus. Like their federal cousins down under, Canadians who wish to harmonize ART policy in a constitutionally acceptable manner must now rely more heavily on legislative modeling among provinces, intergovernmental agreements, and non-statutory (even nongovernmental) guidelines.

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

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.

Charter Checks and Parliamentary Balances

According to its most enthusiastic support- ers, the Canadian Charter of Rights and Free- doms 1 fulfills two major functions in Canada’s democratic regime: 1) it shields minorities from the excesses of majoritarian decision-making, in effect guarding against the famous “tyranny of the majority”; and 2) it shields the majority from the excesses of power concentrated in the Canadian executive (“executive dictatorship”). While these two claims are in considerable ten- sion with each other, there is an even more im- portant conflict between each of them and the widely-accepted notion that most Charter cases arise from reasonable disagreements over cor- rect policy. It is difficult to work through these overlapping tensions without questioning the orthodoxy that judicial power under the Char- ter compensates for the lack of moderating checks and balances within our parliamentary system of government. To question that ortho- doxy is in turn to rediscover the merits of an older view, dating back to the founders, that did not consider the idea of parliamentary checks and balances to be an oxymoron. The rediscov- ery of parliamentary checks and balances does not imply the undesirability of additional judi- cial checks, but it does require a more nuanced understanding of those checks than the ortho- doxy provides.