Gerald Baier. Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada. Vancouver: University of British Columbia Press, 2006. 208 pp. $29.95 (paper), ISBN 978-0-7748-1236-8.
Reviewed by Alan Fenna (John Curtin Institute of Public Policy, Curtin University, Perth, Western Australia)
Published on H-Canada (January, 2006)
Taking Courts Seriously
In Courts and Federalism, Gerald Baier "seeks to revive the study of judicial review as a structural element of Canadian and comparative federalism" (p. 3). According to Baier, the study of judicial review has fallen on hard times as a consequence of two sets of developments. First, the courts are no longer considered to be a significant force in the evolution of federal systems; and second, jurisprudence is increasingly being discounted as merely a sophisticated camouflage for the expression of underlying ideological preferences.
The bulk of the book is concerned with providing an account of the design and interpretation of the three classical federal constitutions: the American, the Canadian and the Australian. The pioneering U.S. Constitution of 1789 employed the single- limiting-list approach to dividing powers, with Congress being assigned a specified number of powers while the states retained a broad residual power. Understandably phobic in the 1860s about things American, the Canadians opted instead for a dual-list approach, with unspecified powers being retained by Parliament. Looking very favorably upon the American design and directing their phobias at the British North America Act's apparent centralism a further three decades later, the Australians swung wholeheartedly back to the single-list approach.
The course of judicial interpretation is well known. The U.S. Supreme Court staked out its place in the constitutional system with Marbury v. Madison in 1803 and in the process established the very principle of judicial review. For over a century after that the Court evolved doctrines of interpretation that sought to maintain the federal balance. Pivotal to this was the need to find a way of construing the commerce clause that would allow for national economic rule-making without denying state autonomy. The compromise took the form of the "stream of commerce" doctrine. This increasingly brought the Court into conflict with changing realities of economic modernization and industrialization, a conflict that culminated in the Court's comprehensive defeat when it took on Congress and the president over President Franklin Delano Roosevelt's New Deal legislation in the 1930s. Compelled by the "court-packing" threat, the justices made an abrupt doctrinal reversal in 1937 (notably in NLRB v Jones). Since then, the U.S. Supreme Court has largely abandoned its role as guardian of the federal balance and allowed Congress to decide how expansively the commerce clause should be applied.
Operating from London, the Judicial Committee of the Privy Council (JCPC) played a distinctive role in imposing an interpretation of Canadian federalism that went strongly against apparent design intentions and the expectations of its founders (though not necessarily against social and political realities). To do this, it had to craft a doctrine that would neutralize Parliament's potentially plenary power to "make laws for the peace, order and good government" of the country (POGG). The POGG clause was relegated to the status of reserve power for national emergencies. As in the American case, this forceful jurisprudence culminated in a confrontation over extensive new national policy claims during the Great Depression. In the short term the outcome was very different and the political branches were obliged to take the alternative path of formal constitutional amendment. In the longer term, though, the outcome it was similar--with the JCPC having to cede its role altogether to its domestic counterpart, the Supreme Court of Canada. In Australia, the judiciary's attempt to hold the line against centralization lasted only two decades. In 1920 the Engineer's case introduced what Baier describes as a "meta-doctrine" of literalism, the consequence of which was to preclude any reading of the constitution that privileged its underlying federal intent.
Reviewing developments in these formative periods of the three classic federations is a reminder of how significant the courts have been. But what about recent times? Baier wants us to appreciate the ongoing, not merely the historical, significance of judicial review. In Australia, literalism underpinned ever-increasing centralization, epitomized by the sweeping use of the external affairs power to open new frontiers in Commonwealth government power over the states in the 1980s. Developments since Baier published his book (notably the High Court's November 2006 decision in the "Work Choices" case, New South Wales v. Commonwealth of Australia) have only reinforced this picture. In Canada, the transition from JCPC to Supreme Court resulted in cautious and moderate change as the justices continued to wrestle with the doctrinal conundrum of the POGG clause, developing the new "provincial inability" test. In America, federalism miraculously seemed to come back to judicial life with the Rehnquist court's 1995 decision in United States v. Lopez, having seemingly had a stake driven into its heart by the Garcia decision a decade earlier. For the first time since the New Deal, the Court asserted an authority to limit the seemingly infinite applicability of the commerce clause.
Courts and Federalism provides a first-rate summary of evolving constitutional interpretation over the history of these three federations. What it is rather less successful in providing, though, is convincing arguments to substantiate the author's two main contentions. Yes, we are persuaded that judicial decisions are based on legal reasoning and represent a dialogue of doctrine. Indeed, it is difficult to imagine anything else being the case. But to demonstrate that fact is not to demonstrate that doctrine is in itself a powerful determinant of judicial decisions. Meanwhile, the contention that the significance of judicial review is being neglected rests on the highly questionable claim that "Landmark decisions have revived federalism as a matter of debate in high courts" (p. 32). The strongest grounds for this proposition are in the Lopez decision of the U.S. Supreme Court. Lopez was dramatic, and, to federalists, long overdue. However, Lopez will only stand as a landmark rather than what geologists call an erratic if it proves to represent a genuine reversal in federal jurisprudence, with genuine effects on the relative policy roles of Congress and the states. It is by no means clear that this is the case. In Australia, the High Court has indeed had a continuing impact on relations between the Commonwealth and the states through an accelerated centralization. However, it cannot be said to have "revived federalism as a matter of debate" in the sense of reversing existing trends. Finally, in Canada, there is little evidence, as Baier notes, of the Supreme Court doing more than adjusting the "finer points" (p. 124) of the federal relationship. What seems most conspicuously missing in all this discussion is any comparative analysis as distinct from the mere description of events in three similar systems. In principle, the use of similar cases provides the potential for the testing of alternative hypotheses through observation of different combinations of causal variables. The book would have been richer had greater attempt had been made to apply the comparative method.
. Marbury v. Madison 5 U.S. 137 (1803).
. National Labor Relations Board v Jones and Laughlin Steel, 301 U.S. 1 (1937).
. Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd, 28 CLR 129 (1920).
. New South Wales v. Commonwealth of Australia; Western Australia v Commonwealth of Australia, HCA 52 (2006).
. United States v. Lopez, 514 U.S. 549 (1995); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
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Alan Fenna. Review of Baier, Gerald, Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada.
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