Comparative Analysis of Federal High Court: A Political...

___________________________ André Bzdera, Department of Political Science, University of Montreal, P.O. Box 6128, Station A, Montreal, Quebec H3C 3J7 Canadian Journal of Political Science / Revue canadienne de science politique, XXVI:1 (March/mars 1993). Printed in Canada / Imprimé au Canada

Comparative Analysis of Federal High Courts: A Political Theory of Judicial Review

ANDRÉ BZDERA University of Montreal Most modern theories of judicial review of federalism disputes attempt to reconcile judicial review of legislation with democratic ideals.1 The federal high court is considered to be the necessary neutral arbiter of jurisdictional conflicts that periodically arise between the democratically elected central and regional parliaments, as well as between national majorities and regional minorities.2 The high court judges are thus the guardians of the proper application of general principles of the federal constitution that divide state power between the two levels of government. However, such normative theories of judicial review rarely take into account the history of judicial review of federalism disputes in the older federations, such as the United States or Canada, nor are they compatible with the comparative political study of federal high courts. Their links to empirical reality are tenuous at best. Consider for instance the case of Canadian theories of judicial review of federalism disputes. It is commonly asserted in Canadian political science that the Supreme Court demonstrates neither federalist nor provincialist bias in cases concerning the division of powers 1 The most recent Canadian example of this literature is Katherine E. Swinton,

The Supreme Court and Canadian Federalism (Toronto: Carswell, 1990), 8. Most general theories of judicial review are not without serious problems. See Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge: Harvard University Press, 1988); or Joel Bakan, "Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought," Osgoode Hall Law Journal 27 (1989), 123-93.

2 Kenneth C. Wheare, Federal Government (4th ed.; New York: Oxford University Press, 1964), 60-1. He writes that federal high courts "have exhibited a considerable impartiality in the exercise of their function as interpreters of the division of powers." See also Ivo D. Duchacek, Comparative Federalism (New York: Holt, Rinehart and Winston, 1970), 258.

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established by the British North America Act of 1867. Forcefully put forward in 1979 by Peter Hogg,3 this thesis is often employed by other well-known constitutionalists and political scientists studying the Canadian federal system, most notably by Garth Stevenson in his two textbooks Federalism in Canada and Unfulfilled Union.4 Understood in its broadest sense, this theory characterizes judicial influence on Canadian federalism as a pendulum that sometimes favours the central government, and at other times reinforces provincial legislative jurisdiction. The proponents of this theory distinguish several periods in the history of judicial review of federalism disputes in Canada and they conclude that the modern Supreme Court has generally acted as a neutral federal arbiter.5 This representation of the political role of the Canadian Supreme Court is, however, both erroneous and misleading.6 Above all else, it does 3 Peter W. Hogg, "Is the Supreme Court of Canada Biased in Constitutional

Cases?," Canadian Bar Review 57 (1979), 721-739. 4 Garth Stevenson ed., Federalism in Canada (Toronto: McClelland and

Stewart, 1989), 16; and Garth Stevenson, Unfulfilled Union (Toronto: Gage, 1989), 66. The 1979 article by Peter Hogg ("Is the Supreme Court of Canada Biased") is reprinted in Stevenson's Federalism in Canada.

5 This theory of judicial review is also found in most general works on Canadian politics that consider federalism and the Supreme Court. Swinton, The Supreme Court, 2 and 15; Stephen Brooks, Public Policy in Canada (Toronto: McClelland and Stewart, 1989), 157; Peter H. Russell et al., Federalism and the Charter (Ottawa: Carleton University Press, 1989), 9; Peter H. Russell, The Judiciary in Canada (Toronto: McGraw-Hill Ryerson, 1987), 355; Roger Gibbons, Conflict and Unity (Toronto: Methuen, 1985), 239; Peter W. Hogg, Constitutional Law of Canada (2nd ed.; Toronto: Carswell, 1985), 171; Peter H. Russell, "The Supreme Court and Federal-Provincial Relations," Canadian Public Policy 11 (1985), 162-3; A. Wayne Mackay and Richard W. Bauman, "The Supreme Court of Canada," in C.F. Beckton and A.W. Mackay ed., The Courts and the Charter (Toronto: UTP, 1985) 76-77; James G. Snell and Frederick Vaughan, The Supreme Court of Canada (Toronto: UTP, 1985), 247; and André Bernard, La politique au Canada et au Québec (2nd ed.; Montréal: PUQ, 1980), 381. Most works refer to Hogg, "Is the Supreme Court of Canada Biased" and Gilbert L'Écuyer, La Cour suprême du Canada et le partage des compétences 1949-1978 (Québec: Gouvernement du Québec, 1978). This reference to L'Écuyer's study is however spurious, since his conclusions are far more ambivalent than Hogg, Russell, Stevenson and others would lead us to believe. Indeed, he argues that the Supreme Court is centralist when compared to the previous jurisprudence of the Privy Council, but that this new development is justified by what L'Écuyer considers to be the centralist nature of the British North America Act itself. Thus, from a political scientific stand-point, L'Écuyer's study actually supports the centralist theory of the Supreme Court's impact on Canadian federalism. See also Roger Chaput, "La Cour suprême et le partage des pouvoirs," Revue générale de droit 12 (1981), 35-82.

6 This question is more fully discussed in André Bzdera, "L'analyse politique de la Cour suprême du Canada," Canadian Journal of Law and Society, (forthcoming). Peter Hogg's 1979 article ("Is the Supreme Court of Canada Biased") is described as "une démonstration selon laquelle l'interprétation

Federal High Courts : A Political Theory of Judicial Review 5

Abstract. Constitutionalists and political scientists often claim that federal high courts are neutral and impartial arbiters of federalism disputes. However, analysis of the political impact of nine federal high courts on the division of powers clearly indicates that such courts are best characterized as centralist and nationalist. This is largely the result of the strong institutional factors that link the federal high court to the political institutions of the central government, notably the process by which federal judges are appointed. The political theory of federalism must thus be modified to take into account the centralist function of judicial review in the modern federal state. Résumé. Des juristes et politologues prétendent souvent que la haute cour fédérale est une institution d'arbitrage neutre et équitable des «conflits fédéraux». Or l'analyse de l'effet politique de neuf hautes cours fédérales sur la division des pouvoirs législatifs indique clairement que celles-ci manifestent toutes un parti pris centripète et nationaliste. Ce biais découle des facteurs institutionnels liant la haute cour aux institutions politiques du gouvernement central, notamment le processus de sélection des juges fédéraux. La théorie politique du fédéralisme doit par conséquence être modifiée afin de tenir compte de la fonction centripète du contrôle judiciaire de constitutionnalité.

not distinguish between the political impact of the Judicial Committee of the Privy Council, as Canada's final court of appeal from 1867 to 1949, and the impact of the Supreme Court since the latter date. The Privy Council was a unique judicial institution quite distinct from any other federal high court, either historic or contemporary, for it existed entirely outside and above the Canadian federal system. It was both an imperial court hearing appeals from the distant reaches of the colonial Empire and a disinterested third party far removed from the passing political and economic crises of Canadian society.7 As for the Supreme Court, although it was admittedly slow in dissociating itself from the long revered jurisprudence of the Privy Council, it nevertheless has demonstrated a consistent centralist stance over the past 25 years (as we shall see below). Far from being merely a corrective swing of the judicial pendulum, recent judicial decisions would appear to represent a culmination of the Supreme Court's steady evolution towards a centralist and nationalist jurisprudence. The proponents of the pendulum theory of judicial review also seem to ignore several tenets of elementary socio-political analysis.8 They

retenue par la Cour suprême est, sinon la meilleure, alors plausible dans les limites de la science juridique normative. Puisque toute interprétation peut se justifier d'une manière ou d'une autre, poser la question ainsi, c'est y répondre."

7 See the sources cited in Frederick Vaughan, "Critics of the Judicial Committee of the Privy Council: The New Orthodoxy and an Alternative Explanation," Canadian Journal of Political Science 19 (1986), 495-520; and in Alan C. Cairns, "The Judicial Committee and its Critics," Canadian Journal of Political Science 4 (1971), 301-45. See also Bzdera, "L'analyse politique de la Cour suprême du Canada" where I discuss the distinct nature of British imperial judicial review of Canadian federalism.

8 Alternatively, it can be argued that such 'theories' are merely ideological constructs and that their authors have never intended that their writings be considered scientific. Furthermore, such theories are often presented without any substantive discussion of alternative theoretical frameworks.

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often assume that there exists historical certainty concerning the meaning of constitutional documents and the real intentions of the “Fathers of Confederation” and their contemporaries.9 Little or no effort is made to distinguish between a court's impact on public policy and the normative study of its jurisprudence, and students of the judicial process are thus led to underestimate the political importance of the judicial selection process on the policy output of the high court. Finally, as with most attempts to propose partial theories in the social sciences, the absence of international comparisons is usually fatal to such propositions.10 This article proposes an alternative analysis of judicial review based on the comparative political study of several federal high courts of democratic federations (United States, Switzerland, Canada, Australia, Germany, Austria, Belgium) and of the high courts of two governmental structures similar in nature to those of the classical federations (European Community, Italy). All nine federal and quasi-federal political systems are characterized by democratic institutions and political cultures, a real division of legislative powers between two levels of government and widespread respect for judicial review of legislation among political elites and the general population. The United States, Canada and the Economic Community are of particular importance since these federal systems are (or were) characterized by considerable socio-economic diversity, a high degree of political pluralism and a relatively long history of judicial review of federalism disputes. The first half of this article presents a general overview of the political impact of federal high courts on the division of powers. We then consider several institutional aspects of federal high courts that are often neglected by modern analysis but which shed considerable light on the functioning of these courts and on their political role in the evolution of federalism. The empirical similarities of these courts' political impact and institutional workings allow us to put forward several propositions that, when taken together with a critical theory of modern federalism, constitute the basis for a new political model of judicial review in the federal state.

9 Consider the Canadian debate on this issue: Clifford Ian Kyer, "Has History a

Role to Play in Constitutional Adjudication: Some Preliminary Considerations," Law Society of Upper Canada Gazette 14 (1981), 135-57; Robert C. Vipond, "1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered," Canadian Journal of Political Science 22 (1989), 3-25; and Frederick Vaughan, "The Use of History in Canadian Constitutional Adjudication," Dalhousie Law Journal 12 (1989), 59-84.

10 Mattei Dogan and Dominique Pelassy, How to Compare Nations: Strategies in Comparative Politics (2nd ed.; Chatham, N.J.: Chatham House, 1990), 8.


The Political Impact of Federal High Courts The view that federal high courts are impartial arbiters of federalism disputes is often and persistently put forward by constitutionalists in most modern federal and quasi-federal states, as we have seen with the Canadian example. Usually, this view follows from the legal assumption that the judicial branch of government is neutral and remains unaffected by political pressures that otherwise infiltrate all aspects of government (legislative, executive, administrative). This positivist vision of the judicial function is furthermore accepted by most students of federal high courts who, more often than not, are lawyers well versed in the doctrines of legal interpretation.11 But are federal high courts impartial arbiters of the federal division of power or, as Martin Shapiro suggests, are they, like all final appellate courts, “devices of centralized policy-making”?12 To answer this question, we have chosen the most significant federal high courts and analyzed a selection of important decisions that have affected the division of powers between the two levels of government.13 Special attention is paid to the political and legal environment which determines the margin of decisional freedom available to the high court at a particular moment, or in other words, the degree to which an alternative decision of the court could be reasonably expected to 11 Several notable comparative judicial studies of federal high courts have been

undertaken, but they are of limited use for political analysis. Recent studies include: Koenraad Lenaerts, Le juge et la constitution aux États-Unis d'Amérique et dans l'ordre juridique européen (Brussels: Bruylant, 1988); Edward McWhinney, Supreme Courts and Judicial Law-Making (Dordrecht: Martinus Nijhoff, 1986); Chester J. Antieau, States' Rights Under Federal Constitutions (New York: Oceana Publications, 1984); Pierre Bellet and André Tunc eds., La Cour judiciaire suprême, une enquête comparative (Paris: Economica, 1978); Michael Bothe, Die Kompetenzstruktur des modernen Bundesstaates in rechtsvergleichender Sicht (Berlin: Springer, 1977); and E. McWhinney and P. Pescatore eds., Federalism and Supreme Courts and the Integration of Legal Systems (Heule: UGA, 1973).

12 Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981), p. 20. A similar insight was furthermore put forward over 60 years ago by Mouskhelichvili: "[la cour suprême fédérale] tâche de renforcer le pouvoir central et d'augmenter sa compétence." M. Mouskhelichvili, La théorie juridique de l'État fédéral (Paris: Pedone, 1931), 137.

13 For a discussion of methodology and political perspectives useful for the study of federal high courts, see notably Dwight W. Jessup, Reaction and Accommodation: The United States Supreme Court and Political Conflict 1809-1835 (New York: Garland, 1987); Roger A. Hanson and Joy A. Chapper, A Framework for Studying the Controversy Concerning The Federal Courts and Federalism (Washington: USPO, 1986); Frank H. Easterbrook, "Ways of Criticizing the Court," Harvard Law Review 95 (1982), 802-32; Shapiro, Courts; and Stephen L. Wasby, The Impact of the United States Supreme Court (Homewood, Illinois: Dorsey, 1970). See also Edmond Orban ed., Fédéralisme et cours suprêmes / Federalism and Supreme Courts (Brussels: Bruylant, 1991), introduction, for an interesting attempt to apply elements of both legal and political analysis of federal high courts.

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gain comparable acceptance within the interpretive community of lawyers, governments and the general public. For example, to appreciate judicial decisions taken in times of war or economic crisis, we must consider the court’s immediate environnement in order to appreciate fully the rather limited alternatives that are usually available to the judges under such circumstances. We also rely on a critical survey of the legal and social scientific commentary on the high court’s jurisprudence, particularly with respect to the Australian, Austrian, Italian and German federal or quasi-federal systems. The United States Supreme Court In the United States, judicial review of State legislation by the federal Supreme Court has generally existed since the early years of the nineteenth century, but federal legislation was not subjected to any effective judicial review until after the Civil War.14 Since that date, judicial review by the Supreme Court has resulted in growing Congressional intervention in major policy areas traditionally held to be outside the powers of Congress. Monetary policy, the banking system, emergency powers, commercial regulation and the necessary powers for a centralized welfare state were gradually accepted by the Supreme Court to be within federal jurisdiction.15 In almost all decisions concerning these powers, the Court was presented with viable alternative solutions that could have constrained federal legislative expansion--although perhaps hindering some economic integration. Even in the Legal Tender Cases16 of 1871 that upheld a federal law creating a new paper currency with legal tender (monetary power), the Supreme Court could easily have invalidated this law since the economy had already assimilated an earlier decision of 1870 that had voided the use of “greenbacks” for payment of debts existing prior to their creation in 1862, and since most businessmen had anticipated that the Court would also invalidate their use for private contracts made after that date. Monetary policy, or the inflationary power to create legal tender not made from precious metals, would thus have remained beyond the power of either level of government. Curiously, this new federal power was 14 Before the (post-Civil War) Reconstruction period, the Supreme Court had

never invalidated an important federal law, but the Court had claimed the right to do so as early as 1803 in Marbury v. Madison 1 Cranch 137 (1803) and had attempted to do so in Dred Scott v. Sandford 19 How. 393 (1857). Stanley I. Kutler, Judicial Power and Reconstruction Politics (Chicago: University of Chicago Press, 1968).

15 Harry N. Scheiber, "Federalism and Legal Process: Historical and Contemporary Analysis of the American System," Law and Society Review 14 (1980), 663-722; Harry N. Scheiber, "American Federalism and the Diffusion of Power: Historical and Contemporary Perspectives," Toledo Law Review 9 (1978), 619-680.

16 Knox v. Lee [The Legal Tender Cases] 79 U.S. 457 (1871).


largely forgotten until the advent of Keynesian economics in the 1930s.17 In areas of social and economic legislation, several States of the Northeast demonstrated their administrative capacity to regulate conditions of work, yet this area was at first denied to both levels of government by the Supreme Court (economic laissez-faire doctrine),18 and later recognized to be within federal jurisdiction. Since 1937, when the Supreme Court finally accepted President Roosevelt's New Deal,19 the Court has abandoned any effective judicial review of federal legislation.20 Various legal arguments were put forward by the Supreme Court, including extraordinarily generous interpretations of federal “commerce power”21 and the gradual development of extra-constitutional definitions of implicit federal powers that eventually resulted in the judicial abandonment of Tenth Amendment protection for the States. The Court has also refused to review federal conditional “grants-in-aid” to the States in areas of exclusive State jurisdiction such as education, environmental protection, or local government.22 Also, we observe extensive reference to decisions of the early Supreme Court headed by John Marshall (1801-1835) in order to support further contemporary expansion of Congressional power.23 John Marshall's interpretation of the US 17 See Kenneth Dam, "The Legal Tender Cases," The Supreme Court Review

(1981), 367-412. After two new judicial nominations by President Grant, Hepburn v. Griswold of 1870 was reversed by The Legal Tender Cases of 1871. The power to create legal tender paper currency was generally believed to have been withheld from both levels of government by the Constitution, and this understanding notably dominated early 19th century America. The use of 'gold clauses' in private contracts from 1871 until forbidden by a more powerful federal government in 1933 (see Norman v. Baltimore & O. R. R. Co. 294 U.S. 240 [1935]) underscores this historical interpretation of monetary power in the United States.

18 For example, Lochner v. New York 198 U.S. 45 (1905) or Hammer v. Dagenhart 247 U.S. 251 (1918).

19 United States v. Darby 312 U.S. 100 (1941) and Wickard v. Filburn 317 U.S. 111 (1942). See Edward S. Corwin, "The Passing of Dual Federalism," Virginia Law Review 36 (1950), 1-24; and David Fellman, "Federalism: Ten Years of the Supreme Court, 1937-1947," American Political Science Review 41 (1947), 1142-60.

20 The only exception to this rule, National League of Cities v. Usery 426 U.S. 833 (1976), was subsequently ignored by the Court and finally overruled in Garcia v. San Antonio Metropolitan Transit Authority 469 U.S. 528 (1985).

21 P. R. Benson, The Supreme Court and the Commerce Clause 1937-1970 (Cambridge: Dunellen, 1970).

22 See Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979), 847-897. Such a doctrine implies that the people of a State refusing federal grants would in effect finance governmental services in the other States, with no financial or material compensation.

23 Herman Pritchett succinctly sums up this modern use of Marshall's opinions, especially his opinion in McCulloch v. Maryland of 1819. "The battle of strict construction was fought and lost in McCulloch v. Maryland, 1819." (The American Constitution [New York: McGraw-Hill, 1977], 536). See also Raoul Berger, Government by Judiciary (Cambridge: Harvard University

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constitution was, however, a most partisan and centralist vision, as his contemporaries Thomas Jefferson and Spencer Roane pointed out.24 In more recent times, interpretation by the Supreme Court of the Bill of Rights (the first nine amendments to the American Constitution) has led to greater nationalization of social values.25 In particular, the judicial extension of the Bill of Rights in the post-war era to areas of State competence was a most significant invasion of local State autonomy, since these rights are interpreted and applied by an institution of the federal government.26 But generally, most analysis of the Supreme Court since 1937 no longer centres on the question of the division of powers, and indeed many prominent American jurists can not even conceive of structural (federalism) constraints on Congressional power.27 All in all, in federalism cases the US Supreme Court has recognized the economic and social necessity of federal legislation to further the development of the US economy and nation. At times it was politically forced to follow the lead of Congress and the Presidency and validate Congressional incursions into new areas of jurisdiction (especially the New Deal). At other times, it actively supported and encouraged Congressional expansion into new legislative areas in the face of considerable State political opposition, acting much like a political agency of an expansionist federal government (for example, during the Marshall Court era). At present, judicial review on federalism grounds is a dormant power of the United States Supreme Court that is unlikely to ever be used in any meaningful fashion.28 The Supreme Court of Canada The Canadian Supreme Court was until 1949, when final appeals to the Judicial Committee of the Privy Council29 of London were abolished by

Press, 1977), 373-379. 24 Gerald Gunther ed., John Marshall's Defense of McCulloch v. Maryland

(Stanford: Stanford University Press, 1969). 25 Edmond Orban, "Droits de la personne et processus de centralisation: rôle de

la Cour suprême des États-Unis," Canadian Journal of Political Science 20 (1987), 711-29.

26 On the incorporation of the Bill of Rights in the 14th Amendment, see Berger, Government by Judiciary, 143-56.

27 As Martin Shapiro aptly points out, "almost all the scholarly treatments of the modern Supreme Court have been produced either by active proponents of and participants in the New Deal or by its intellectual and political allies and successors." Martin Shapiro, "The Constitution and Economic Rights," in M. Judd Harmon ed., Essays on the Constitution of the United States (New York: Kennikat, 1978), 74.

28 See, for example, Advisory Commission on Intergovernmental Relations, Reflections on Garcia and its Implications for Federalism (Washington: USPO, 1986). The judges of the minority in Garcia case have, however, vowed to overrule this decision at the first opportunity.

29. It should perhaps be noted that the Privy Council's Canadian jurisprudence is largely congruent with the centralist hypothesis of courts of final appeal (in


the federal government, an intermediary court of appeal.30 Yet even after this date the old habit strict conformity to British precedent was understandably continued for many years.31 In many respects, the Supreme Court's primary constitutional task until 1949, and for many years thereafter, was to interpret and apply Privy Council interpretations of the British North America Act. The judges of the Canadian Court of 1949 thus found themselves in the particular position where they were burdened by a considerable and detailed body of judicial precedent that could not be rapidly jettisoned without undermining the foundations of Canadian law. Any analysis of the Supreme Court's impact on the division of competences must thus be limited to the period subsequent to 1949, and perhaps subsequent to about 1965 when stare decisis began to be openly questioned in Canada.32 The foremost cases dealing with the fundamental nature of Canadian constitutionalism during this period of about 25 years are those concerning offshore mineral resources and the patriation of the British North America Act. In the offshore cases of 1967 and 1984,33 the Court granted exclusive jurisdiction to the federal government over offshore mineral resources and generally equated the central government with that of the sovereign nation of “Canada,” much as if Canada were a unitary

this case, of an Imperial Court), since the Privy Council's jurisprudence generally favoured the maintenance of the Empire (a weak Canadian federal government and the conservation of colonial appellate jurisdiction). See, for instance, Douglas V. Verney, Three Civilizations, Two Cultures, One State (Durham: Duke University Press, 1986), 149-71, 278-92.

30 For comments on the federal decision to abolish appeals to London, see Peter Russell, "The Political Role of the Supreme Court of Canada in its First Century," Canadian Bar Review 53 (1975), 586-7; and Jacques-Yvan Morin, "Le Québec et l'arbitrage constitutionnel: de Charybde en Scylla," Canadian Bar Review 45 (1967), 614. On the history of the Supreme Court of Canada, see Snell and Vaughan, The Supreme Court of Canada.

31 Mark R. MacGuigan, "Precedent and Policy in the Supreme Court," Canadian Bar Review 45 (1967), 627-65. Only well after the British House of Lords announced in 1966 its willingness to overrule precedents did the Supreme Court of Canada clearly overrule a Privy Council precedent (in 1978).

32 Earlier periods of Supreme Court history are not however devoid of interest (nor of centralist tendencies). From 1875 to about 1890, the Supreme Court decided a few cases before the Privy Council had begun to develop its interpretation of Canadian constitutional law. The 1949-1965 period is also of interest. Consider the following centralist/nationalist decisions: Severn v. The Queen [1878] 2 S.C.R. 70; Johannesson [1952] 1 S.C.R. 292; or Saumur v. Québec [1953] 2 S.C.R. 299.

33 Reference re Ownership of Off-Shore Mineral Rights [1967] S.C.R. 792 and Reference re Continental Shelf Offshore Newfoundland [1984] 1 S.C.R. 86. Jacques Brossard ed., Le territoire québécois (Montréal: PUM, 1970); Ivan L. Head, "The Canadian Offshore Minerals Reference," University of Toronto Law Journal 18 (1968), 131-57; Guy Tremblay, "The Supreme Court of Canada: Final Arbiter of Political Disputes," in A. Lajoie and I. Bernier eds., The Supreme Court of Canada as an Instrument of Change (Toronto: UTP, 1986), 179-209; and Edward McWhinney, Québec and the Constitution 1960-1978 (Toronto: UTP, 1979), 20, 43.

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state. The Court thus rejected the alternative definition of the federation by which “Canada” would signify the collectivity comprised of the central and provincial governments (implying the simultaneous extension of federal and provincial boundaries over the continental shelf). The Court furthermore suggested that external affairs were the exclusive competence of the federal government, contrary to the Privy Council's Labour Conventions decision of 1937. A similarly unitary vision of Canadian federalism also underlies the 1981 Patriation Reference34 whereby the Supreme Court allowed the federal government to legally proceed with a unilateral constitutional amendment affecting the division of powers which included a bill of rights, a controversial language policy for Quebec, mobility of labour guarantees, and a new constitutional amending formula.35 Although the Court did encourage some compromise on the part of federal authorities by providing that a degree of provincial approval would be politically commendable, the provincial negotiating position was henceforth irreparably weakened. The Court also rejected in the 1982 Québec Veto Reference36 much of the implicit Grundnorm of Canadian constitutionalism—the very reason for a federal-type government in Canada—by denying that Québec ever had a constitutional veto.37

34 Reference re Resolution to Amend the Constitution [1981] 1 S.C.R. 753. See

generally Edward McWhinney, Canada and the Constitution 1979-1982 (Toronto: UTP, 1982); Peter Russell et al., The Court and the Constitution (Kingston: Queen's University, 1982); and Keith Banting and Richard Simeon eds., And No One Cheered (Toronto: Methuen, 1983).

35 Most critical academic commentary provides support to the view that the primary political objective of federal government was not the better protection of human rights in Canada, but rather it was an expedient for imposing a language policy on Québec, and more generally for promoting national social and economic values often at odds with those of Québec. Furthermore, the Charter as finally enacted in 1982 has had a centralizing effect on Canadian federalism. As F.L. Morton writes, "The Supreme Court's Charter decisions are beginning to impose uniform national standards in policy areas that previously reflected regional diversity." "The Political Impact of the Canadian Charter of Rights and Freedoms," Canadian Journal of Political Science 20 (1987), 44. See also Rainer Knopff and F.L. Morton, "Nation-Building and the Canadian Charter of Rights and Freedoms," in A. Cairns and C. Williams eds., Constitutionalism, Citizenship and Society in Canada (Toronto: UTP, 1985), 133-82; and Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989).

36 Reference re Objection to a Resolution to Amend the Constitution [1982] 2 S.C.R. 793.

37 Gérard Bergeron writes that this decision completely ignores "une large constitutionnalité à fondement conventionnel dans la tradition même du constitutionnalisme britannique." Bergeron, Pratique de l'État au Québec (Montréal: Québec-Amérique, 1984), 247. Similar comments were made by several prominent Canadian academics.


The Patriation and Québec Veto References thus had two centralist effects. First, a charter of rights was adopted that transfers many areas of provincial jurisdiction to an institution of the federal government (the Supreme Court). Secondly, a new constitutional amending formula was included that replaced the unanimity principle that had guided previous intergovernmental negotiations. For Québec in particular, this was a significant constitutional. Other less important but nevertheless interesting decisions of the late 1970s diminished provincial control over areas of cable T.V. regulation, taxation of natural resources and macro-economic regulation in times of “crises.” Furthermore, several decisions of the late 1980s have greatly expanded federal control over environmental standards and potentially over many other areas of provincial jurisdiction, such as securities regulation and international relations.38 During the period from 1949 to 1990, however, few substantive federal legislative acts were deemed to be unconstitutional by the Supreme Court on federalism grounds.39 The doctrines used to justify these decisions are based on a unitary vision of the Canadian federation and extensive use of the judicially developed concept of “national dimensions” that, in the opinion of some lawyers, indicates that most all provincial areas of jurisdiction may only exist at the sufferance of federal political authorities.40 The Court of Justice of the European Community Although sometimes described as a traditional international tribunal, the Court of Justice of the European Community functions in much the same way as the German Federal Constitutional Court.41 The three Community 38 R. Crown Zellerbach Canada Ltd [1988] 1 S.C.R. 401 ('provincial inability

test' leads to federal competence over environmental protection); General Motors of Canada v. City National Leasing [1989] 1 S.C.R. 641 (general regulation of trade doctrine).

39 Note however that one prominent Canadian author supports the contrary view, that the Supreme Court of Canada is remarkedly balanced in its approach to federalism conflicts. Russell, "The Supreme Court and Federal-Provincial Relations." His analysis shares however the flaws of most Canadian works on the Supreme Court and federalism issues that are briefly analyzed earlier in this article. In his assessment of the Canadian Supreme Court's impact on the division of powers, Russell severely underestimates the centripetal impact of decisions concerning economic regulation and the constitutional amending procedure. Garth Stevenson also fails to make this fundamental distinction (Federalism in Canada and Unfulfilled Union).

40 Guy Tremblay, "Un fédéralisme de plus en plus centralisateur," Le Devoir, 19 December 1990; Henri Brun and Guy Tremblay, Droit constitutionnel (2nd ed.; Montréal: Yvon Blais, 1990), chapter 6; and Jacques Brossard, La Cour suprême et la constitution (Montréal: PUM, 1968), 204, 243-4.

41 'Preliminary rulings' can be requested by lower court judges (i.e. by judges of all national courts) on questions of Community law. Dominik Lasok, "The Community Legal Order and its Relation to the Legal Order of the Member

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Treaties thus constitute the equivalent of a written federal constitution that permanently divides powers between the two levels of government,42 except that the Community executive and legislative institutions do not have the same powers as their counterparts in the established federations (including powers over currency, defense and economic development). Thus, from a political standpoint, the European Community appears as a developing federal government characterized by considerable Member-State involvement in Community institutions and by a high degree of administrative decentralization (similar to the German and Swiss models of federalism). The Community legal order is the most federal aspect of the Community structure, and the Court of Justice itself has been largely responsible for the establishment of this federal-type judicial structure in Europe. In its first major decisions concerning the Economic Community (van Gend en Loos and Costa v. ENEL),43 the Court of Justice clearly came out against the principle of a judicial regime based on international law, in which Community legislative acts (“regulations,” “decisions” and “directives”) would subsequently be adopted by each of the Member-State parliaments in order to have legal effect in national law. Rather, the Court of Justice—to the surprise of most Member-States and legal commentators at the time—favoured the direct effect of Community legislation (“regulations”) within the legal orders of the Member-States and the superiority of such legislation over national law, including national laws adopted subsequent to the Community measures.44 In many ways, these decisions in favour of a federal-type judicial system in Europe can be rightly considered to be the key stones of the federal arch in the Community. The Court's contribution to the federalization (and thus centralization) of the Community should not be underestimated.

States," in D. Lasok and P. Soldatos eds., Les Communautés européennes en fonctionnement (Brussels: Bruylant, 1981); and Joseph Weiler, "The Community System: The Dual Character of Supranationalism," Yearbook of European Law 1 (1981), 273-80.

42 John Usher, European Community Law and National Law: The Irreversible Transfer? (London: Allen & Unwin, 1981).

43 Case 26/62 van Gend en Loos [1963] 2 C.M.L.R. 105 and Case 6/64 Costa v. ENEL [1964] 3 C.M.L.R. 425. See Gerhard Bebr, Development of Judicial Control of the European Communities (The Hague: Martinus Nijhoff, 1981); and Jean-Pierre Colin, Le gouvernement des juges dans les Communautés européennes (Paris: LGDJ, 1966).

44 Richard Plender, "The Interpretation of Community Acts by Reference to the Intentions of the Authors," Yearbook on European Law 2 (1982); Michel Waelbroeck, "Le rôle de la Cour de Justice dans la mise en oeuvre du traité CÉE," in Les effets des décisions de la Cour de justice des Communautés européennes dans les États membres (Brussels: UGA, 1983); and Joseph Weiler, "Community, Member States and European Integration: Is the Law Relevant?," in L. Tsoukalis ed., The European Community (Oxford: Basil Blackwell, 1983).


A further and most interesting development occurred in the area of Community “directives” which are, strictly speaking, framework laws that require Member States to adopt legislative measures that give effect to the general principles laid out in the directive.45 Confronted with a case where a directive was never implemented by a national parliament, the Court decided, contrary to common legal understanding of the Treaties, to give direct effect to the directive at the expiration of the period for transposition of the directive into national legislation. Henceforth, Community regulations and directives would be almost identical in their legal effect!46 During the 1970s, the Court of Justice also put forward rather surprising decisions that have led to substantial expansion of Community competences in areas of individual rights and foreign affairs,47 that go far beyond the text of the Treaties. The Internationale Handelsgesellschaft decision, which established human rights protection in the Community,48 was particularly surprising since the Treaties contain no provisions for such protection within areas of Community jurisdiction (largely because it was assumed that the Community would be based on principles of international law).49 In the area of foreign relations, the relatively meagre external affairs power specifically granted to Community institutions belies the Court's contention in the ERTA decision of 1971 that the Community is wholly responsible for external relations in areas of its competence, since the authors of the Treaties would not have included specific external powers if it was understood that the entire area fell 45 Case 41/74 Van Duyn v. Home Office [1975] 1 C.M.L.R. 1. 46 See Eric Stein, "Lawyers, Judges and the Making of a Transnational

Constitution," American Journal of International Law 75 (1981), 21-2. This decision was subsequently ignored by two national high courts, the Conseil d'État in 1978 and the Bundesfinanzhof in 1981—a most dramatic development in any legal system. Guy Isaac, "Les effets de la Cour de justice en France," in Les effets des décisions de la Cour de justice.

47 Case 22/70 Commission v. Council (ERTA) [1971] 10 C.M.L.R. 335 and Case 6/76 Kramer [1976] 18 C.M.L.R. 440. Jean-Victor Louis, "Le droit communautaire comme facteur d'intégration dans les relations extérieures des Communautés européennes," Études internationales 9 (1978); and Robert Kovar, "La contribution de la Cour de justice au développement de la condition internationale de la Communauté européenne," Cahiers de droit européen 14 (1978).

48 Case 11/7 Internationale Handelsgesellschaft [1970] 9 C.M.L.R. 294. J. P. Warner, "The Relationship Between European Community Law and the National Law of Member States," Law Quarterly Review 93 (1977); G. Cohen-Jonathan, "La Cour des Communautés européennes et les droits de l'homme," Revue du marché commun 214 (1978); Joël Rideau, "Le rôle de la Cour de justice des Communautés européennes: techniques de protection," Revue internationale du droit comparé 33 (1981), 583-99; and E. R. Lanier, "Solange, Farewell: The Federal German Constitutional Court and the Recognition of the Court of Justice of the European Communities as Lawful Judge," Boston College International and Comparative Law Review 11 (1988), 1-30.

49 Weiler, "Community, Member States and European Integration", 52.

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implicitly within Community competence. The Court in effect proposed that external competences parallel those of the internal constitutional division. Recent political surveys of the Court of Justice's jurisprudence confirm that the Court has demonstrated a general and persistent centralist bias.50 In the only major study of the Court using some political scientific methods, Danish jurist Hjalte Rasmussen concludes that “the Court has successfully acted as an unequivocal and indefatigable promoter of centralism, uniformity and unification.”51 However, most European legal commentators—who as a group almost unanimously approve of this tendency52—simply remark that the decisions of the Court are highly innovative, audacious, remarkable, extensive, generous or even revolutionary. Vandersanden and Engler write that “the Court of Justice has used all the interpretive methods that the jurist's fertile mind can devise.”53 Christian Philip however cautions that the Court may have gone too far too fast. “The one thing to be regretted is that the Court too often gives its full support to the Commission and to a permanent extension of Community competences. The Court must remind the Member States of their commitments, not oblige them to accept transfers of sovereignty to which they did not expressly consent.”54 The major reason why this centralist judicial tendency has not given rise to greater concern among the Member States stems from the nature of voting procedure in the Community Council: unanimity is required in most areas of Community legislative activity. However, as majority decision-making takes hold on major issues of public policy with the Single European Act of 1986, and especially if a European Political Union is established in the near future, the centralist tendency of the Court—if it

50 See Stein, "Lawyers, Judges and the Making of a Transnational Constitution";

Christoph Sasse and Howard Yourow, "The Growth of Legislative Power of the European Communities," in T. Sandalow and E. Stein eds., Courts and Free Markets (Oxford: Clarendon Press, 1982); Mauro Cappelletti et al. eds., Integration Through Law (vol. 1; Berlin: de Gruyter, 1986); Lenaerts, Le juge et la constitution, 646; and Waelbroeck, "Le rôle de la Cour de Justice dans la mise en oeuvre du traité CÉE," 215.

51 Hjalte Rasmussen, On Law and Policy in the European Court of Justice (Dordrecht: Martinus Nijhoff, 1986), 377.

52 Joseph Weiler, "The Court of Justice on Trial," Common Market Law Review 24 (1987), 555. Weiler observes that "in virtually all books about the Court published to date, the underlying ethos is one of praise and admiration."

53 George Vandersanden and B. Engler, "Considérations juridiques relatives à l'élaboration d'une théorie de l'intégration européenne," in Lasok and Soldatos eds., Les Communautés européennes, 530 [translation is mine].

54 Christian Philip, La Cour de Justice des Communautés européennes (Paris: PUF, 1983), 125 [translation is mine]. See also Hjalte Rasmussen, 'The United States Supreme Court's Power Under Attack: A Study with European Analogies," in Les effets des décisions de la Cour de justice, 301.


continues55—may well come under more serious scrutiny by Member States and academics.56 Other Federal and Quasi-Federal High Courts Of the six other high courts of federal or quasi-federal systems, only the Swiss Federal Tribunal is by law unable to review the constitutionality of federal laws. This court only reviews legislation of the Cantons and thus participates in the centralization of the Swiss political system subject to the eventual use of the referendum procedure.57 As for Belgian jurisprudence, the Cour d'arbitrage, created n 1984, is too new for serious evaluation of its political effect on the division of powers .58 The Italian Corte Costitutionale is in some respects the functional equivalent of a federal high court since it hears disputes relative to the division of powers between Rome and the Regions (Special and Ordinary), but only the Special Regions have “exclusive” legislative powers. Although these Regions do not have complete legislative freedom and are often subject to direct control by the central government, the Court's interpretation of the division of powers nevertheless has allowed some erosion of Regional competences.59 The Court appears to grant Rome authorities considerable leeway for central intervention in areas of jurisdiction nominally given to the Regions, and generally professes a unitary vision of the Italian political system. The Austrian federation is a highly centralized federal system that leaves but relatively few areas of jurisdiction to the Länder. The Constitution also establishes that the federal government can unilaterally affect constitutional change (usually by a two-thirds vote of Parliament), and it has indeed done so about 100 times since 1945. Most of these 55 Hjalte Rasmussen, "Between Self-Restraint and Activism," European Law

Review 13 (1988), 38; and Mario Bettati, "Le 'law-making power' de la Cour," Pouvoirs 48 (1989), 58, 69-70. See also André Bzdera, "L'enjeu politique de la réforme institutionnelle de la Cour de justice de la Communauté européenne," Revue du Marché commun 356 (March 1992), 240-9.

56 Marie-Françoise Labouz, Le système communautaire europeén, (Paris: Berger-Levrault, 1986), 162-3; and Weiler, "The Court of Justice on Trial," p. 583 n. 30. According to Weiler, Danish members of the European Parliament in particular seem to be critical of the European Court of Justice.

57 See Pierre Cavin, "Le Tribunal fédéral suisse," in Bellet and Tunc eds., La Cour judiciaire suprême, 345-62; Jean Roussy, Le contrôle de la constitutionnalité des lois fédérales aux États-Unis et en Suisse (Lausanne: Thonney-Dupraz, 1969); and Fred L. Morrison, "The Swiss Federal Court," in J. B. Grossman and J. Tannenhaus eds., Frontiers of Judicial Research (New York: John Wiley, 1969), 133-62.

58 Francis Delpérée ed., La Cour d'arbitrage: Actualités et perspectives (Brussels: Bruylant, 1988).

59 Carla Rodotà, La Corte costituzionale: Come E Chi Garantisce il Piene Rispetto della Nostra Costituzione (Rome: Editori Riuniti, 1986), 89-94; and Aldo M. Sandulli, "La Cour constitutionnelle italienne et sa jurisprudence," in McWhinney and Pescatore eds., Federalism and Supreme Courts, 97.

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formal constitutional changes diminished Länder competences (the first exception was in 1974). In federalism disputes, the Austrian Constitutional Court’s jurisprudence has generally favoured the central government, particularly through use of expansive interpretive techniques.60 However, both the Italian and Austrian Constitutional Courts generally play only a minor role in the evolution of the division of powers since the Regions and Länder conserve such limited exclusive legislative powers. The two remaining federations, Australia and Germany, are rather homogeneous societies which have known judicial review of federalism disputes since the formation of each federation from several pre-existing states (British colonies and Länder). Both systems are, today, relatively centralized federations where most economic and fiscal policy is controlled by the central government. The Australian High Court has been the final arbiter of federalism disputes since the foundation of the Australian federal system in 1901. Starting in the early years of the new federation, the Court came out in favour of a generous interpretation of federal legislative power, especially in the Engineer's Case61 of 1920. Since that time, the High Court has often rendered decisions that have further restrained the States' legislative jurisdiction and severely limited their fiscal autonomy.62 In 1983, the High Court notably validated federal intervention in an area traditionally within State competence (environmental protection and land use) but which involves “World Heritage Sites” that are authorized by a treaty signed by the federal government (Tasmanian Dam case).63 So extensive was this interpretation of the federal treaty power, that some consideration was given by the Canberra government to adopting a charter of rights by way of ratification of international conventions on individual rights, but this was later abandoned in favour of more modest constitutional amendments which were later rejected by referenda. In Germany, the Federal Constitutional Court has only rarely had a direct influence on the division of powers between the two levels of government, since most legislative powers belong to the federal 60 Claude-Sophie Douin, Le fédéralisme autrichien (Paris: LGDJ, 1977), 46-52;

and Louis Favoreu, Les cours constitutionnelles (Paris: PUF, 1986), 33-51. 61 Amalgamated Society of Engineers v. Adelaide Steamship (1920), 28 C.L.R.

129. 62 For instance, the Uniform Tax Case (1942), 65 C.L.R. 373. For an overview

of constitutional development of federalism in Australia, see Brian Galligan, Politics of the High Court (St. Lucia: University of Queensland Press, 1987); Michael Coper, Encounters with the Australian Constitution (North Ryde: CCH Australia, 1987); and Geoffrey Sawer, Australian Federalism in the Courts (Melbourne: Melbourne University Press, 1967).

63 Commonwealth v. Tasmania (1983), 57 A.L.J.R. 450. See particularly Michael Coper ed., The Franklin Dam Case (Sydney: Butterworths, 1983); and M. Sornarajah ed., The South West Dam Dispute: The Legal and Political Issues (Hobart: University of Tasmania, 1983).


government and because the German Constitution is frequently amended. However, two early decisions notably reaffirmed Land control over two key areas of regional exclusive competence: television broadcasting and education.64 The Reichskonkordat decision of 1957 was most interesting since the Court declared that no international treaties touching upon Land competences (in this case, education) could be implemented by federal authorities without the express consent of the former—the functional equivalent of the Canadian Labour Conventions decision of 1937. This decision was overturned the following year by political agreement between all federal and Land governments (Lindauer Abkommen). Since these early years during which the federal government was being established, the German Court has only infrequently heard federalism disputes. A few decisions do, however, constrict regional jurisdiction, particularly those concerning individual rights and the fiscal powers of the Länder.65 The jurisprudence now appears to favour the central authorities. Political Centralization and Dormant Judicial Review From this overview of federations with substantial socio-economic regional diversities (United States, Canada, European Community) and other more homogeneous federal and quasi-federal systems, it appears that federal high courts have generally favoured the extension of central legislative power in the important cases concerning the division of powers. The nature of Swiss judicial review is also congruent with this tendency. We thus conclude that the main political function of a federal high court is to favour and legitimize the gradual expansion of central legislative jurisdiction. This centralist judicial function would also include the generalization of “national” social norms contained in the federal charters of rights, since the interpretation and application of such social and political norms directly involves the federal high court. Interestingly, in Canada, the United States and the European Community, each federal high court has itself been instrumental in the process by which federal charters of rights are adopted and/or extended into provincial areas of jurisdiction.66 64 Fernseh [1961] 12 BVerfGE 205 and Reichskonkordat [1957] 6 BVerfGE

309. 65 Financial Subsidies Case [1975] 39 BVerfGE 96. See Gunter Kisker, "The

West German Federal Constitutional Court as Guardian of the Federal System," Publius 19 (1989), 35-52; Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham: Duke University Press, 1989), chapter 3; Edmond Orban, "La Cour constitutionnelle fédérale et l'autonomie des Länder en République fédérale d'Allemagne," Revue juridique Thémis 22 (1988), 37-60; Philip M. Blair, Federalism and Judicial Review in West Germany (Oxford: Clarendon Press, 1981).

66 In Canada, the Patriation Reference of 1981 allowed the federal government

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Although federal high courts are not primarily responsible for the general tendency of modern federalism towards greater political centralization (and administrative decentralization),67 these courts do not hinder the centralist legislative initiatives of the central government and at times they actively encourage and invite such federal initiatives. 'Centralist' judicial decisions are all more frequent in areas of economic policy-making, such as domestic commercial policy and foreign relations, and in areas of “rights” that have economic consequences, especially those rights influencing mobility of labour (segregation, geographic criteria, language legislation). We also discover that the centralist tendency of federal high courts logically leads them to abandon effective judicial review of federal legislation while at the same time they continue to review and often invalidate legislation of the member states. Through generous interpretation of federal constitutional competences (with such concepts as national dimensions, commerce power, external relations and national sovereignty) and particularly by refusing to review federal spending in areas of member-state jurisdiction,68 federal high courts are able to validate virtually all federal legislative acts. The United States Supreme Court has clearly stated that it will not scrutinize federal laws on federalism grounds, the European Court of Justice has never invalidated Community legislation, and the Canadian Supreme Court did not invalidate a single federal law from 1949 until 1978. The Australian, German and Austrian high courts also rarely scrutinize federal legislation for compatibility with the division of legislative powers and generally find, when considering contested federal laws, that all such legislation is constitutional. So prevalent is this tendency that one is rapidly led to the conclusion that the Swiss model, where the Federal Tribunal is forbidden by law to review federal legislation, represents the ultimate stage of judicial review in the modern federal state.

to legally adopt a constitutional charter of rights applicable to the provinces without obtaining their consent; in the United States, judicial 'incorporation' of the Bill of Rights into the 14th amendment applied the federal Bill to the States; and in the European Community, the Internationale Handelsgesellschaft case of 1970 announced the Court's intention to protect rights (in areas of Community competence) with reference to several international conventions and to the common judicial traditions of the Member States.

67 Edmond Orban, La dynamique de la centralisation dans l'État fédéral: un processus irréversible? (Montréal: Québec-Amérique, 1984).

68 See, for example, Andrew Petter, "Federalism and the Myth of the Federal Spending Power," Canadian Bar Review 68 (1989), 448-79; Kaden, "Politics, Money, and State Sovereignty"; or Terrance Sandalow, "The Expansion of Federal Legislative Authority," in Sandalow and Stein eds., Courts and Free Markets, 78-84.


Indeed, prominent jurists in the United States, Canada and Australia suggest that judicial review of federal legislation should be formally abandoned in favour of the Swiss model.69 However, at least one American constitutionalist correctly recognizes the advantage of preserving a dormant judicial review of federal legislation, rather than abolishing it once and for all: “it may still be valuable to the federal system for the Court to lend its stamp of legitimacy to federal legislation that is challenged by State and local government.”70 From this perspective, the federal high court clearly appears as an auxiliary agency of the central government. Judicial Selection, Opinions and Independence Beyond considerations of the centralist impact of federal high courts on the division of powers, we discover that there exist several other congruencies among the federal high courts discussed here.71 One congruency concerns the political and institutional factors linking the federal high court to both levels of government, the second concerns the frequent judicial use of the “single anonymous opinion” technique in federalism disputes and the third denotes the recurrent invocation of the myth of “judicial independence” by the high courts and legal communities of each federal system. It is through study of such institutional and decision-making factors that a viable sociological explanation of the centralist/nationalist role of federal high courts is to be found. Specifically, the empirical evidence that federal high courts have a centralist impact on the federal division of powers, and a nationalist influence on the definition of social values, can thus be fully explained through rather ordinary socio-political analysis. Furthermore, our model of judicial review in the federal state is found to mesh quite well with a critical understanding of federalism (supported notably by the analysis of Carl Friedrich, Edmond Orban, Jacques-Yvan Morin and many others72), according to which federal systems tend towards the centralization of 69 Jesse H. Choper, Judicial Review and the National Political Process

(Chicago: University of Chicago Press, 1980); Patrick J. Monahan, "At Doctrine's Twilight: The Structure of Canadian Federalism," University of Toronto Law Journal 34 (1984), 47; Michael Coper, "The Role of the Courts in the Preservation of Federalism," Australian Law Journal 63 (1989), 473.

70 John E. Nowak, "Judicial Review and the National Political Process," California Law Review 8 (1980), 1231.

71 Most general comments in this section refer to the American, Canadian and European examples, unless otherwise stated.

72 Carl J. Friedrich, Trends of Federalism in Theory and Practice (New York: Praeger, 1968); Orban, La dynamique de la centralisation; or Jacques-Yvan Morin, Le fédéralisme: théorie et critique (Montréal: Université de Montréal, 1965).

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powers, and with political theory on the role of final appellate courts (Martin Shapiro73). Links between Federal High Courts and Political Institutions The first and most obvious institutional link is the federal government's power to establish the federal high court through enabling legislation. Although the existence of a high court is normally mentioned in the federal constitution, its creation, staffing, internal administration and budget are usually controlled by central political authorities, and in extreme cases such as in Canada, the federal government retains the power to abolish the court at any time. Federal influence thus ranges from the construction of majestic court buildings in Washington and Ottawa in the 1930s, and more recently in Canberra during the late 1970s, to the granting of substantial research budgets.74 Such decisions allow federal high courts to expand their decision-making capacity while increasing their prestige and political legitimacy. Generally, federal high courts are in a structurally fragile position with respect to the political branches of the central government, although with time central governments grant the courts some administrative and financial autonomy, often at their request. Federal enabling legislation generally prescribes either a constitutional specialization of the high court (Germany, Belgium, Italy, Austria) or simply allows the high court judges to concentrate their efforts on “important” issues of public law (United States, Canada, Australia). Since less than 5 per cent of cases submitted are actually heard by some courts, and since others decide thousands of cases annually, all courts have frequent opportunities to decide cases in virtually all areas of constitutional law. This having been said, the central and crucial link between the high court and the political branches of the two levels of government is the method of judicial selection. Two aspects of judicial selection are of political interest: the degree to which the nomination procedure can effectively be used to appoint “politically correct” judges, and the identification of the political institution, or institutions, that select high court judges. In modern times, virtually all federal high court judges have one of three career profiles: law professor, legal adviser to the government responsible for judicial appointments, or appellate court judge. In the case of the first two profiles, the political and judicial philosophy of such 73 Shapiro, Courts. 74 On the United States Supreme Court's place within society, see John Brigham,

The Cult of the Court (Philadelphia: Temple University Press, 1987); and Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1987).


individuals is well-known to the nominating authority, which is usually an institution of the central government. However, promotion from appellate courts to the federal high court is the most extensively and successfully used method of judicial appointment, and this is particularly the case in the United States and Canada. A judicial profile also allows for a relatively accurate evaluation of the candidate's philosophy as well as providing an indication whether the appointee is professionally qualified and suited for the position of federal high court judge. Furthermore, judicial selection by promotion from the lower courts encourages appellate court judges to defend the interests of the government that controls their eventual promotion to the federal high court (and their access to the greater material and social benefits that such a position entails). In cases where the same institutions control both lower appellate court nominations and those of the federal high court (particularly in Canada, the United States and Germany), these governments can in effect “test” future candidates for the high court by first appointing them to the lower appellate courts. Although some appointments may lead to surprising results in particular cases, the attitude of judges on the high court closely follows their previous writings and invariably mirrors the political interests of the government, institution or political party that appoints them. The common myth that high court judges are unpredictable once appointed, either with life tenure or for a fixed period of several years, belies a fundamental misunderstanding of the objective of judicial selection for all high courts: identifying persons with the “appropriate” political philosophy on questions of current and future political interest. In the case of appointments by federal institutions (prime ministers, presidents, or parliament), this process is highly professionalized (new appointments are made about every two years) and successful in selecting persons with a sympathetic view of federal legislative authority.75 The partial exception to this rule is the case of the quasi-federal European Community. Although each Member State appoints one judge every 6 to 12 years on average—Community institutions thus play no role whatsoever in this process—the jurisprudence of the Court of Justice has proven to be centralist. Three factors are necessary to fully appreciate the particulars of this case: the widespread belief in Europe in the 1950s and 1960s that the Court of Justice was merely an administrative court, and the resulting small degree of political attention that was paid to the selection of its judges; the relative incoherent and ad hoc nature of judicial selection by 12 Member States; and the limited nature of Community 75 See Richard Y. Funston, "The Supreme Court and Critical Elections,"

American Political Science Review 69 (1975), 795-811; and Robert A. Dahl, "Decision Making in a Democracy: The Supreme Court as a National Policy-Maker," Journal of Public Law 6 (1957), 279-95.

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legislative powers in a Europe where all Member States had veto powers in the Council (until the Single European Act of 1986). Furthermore, there have recently been attempts by some Member States to choose judges committed to the defense of the Member State competences, and in 1980 the French government proposed to other member governments that they stack the Court with several additional judges.76 As the Member States exert their power of judicial appointment, we may well see a more balanced (or even decentralist) jurisprudence develop in the European Community. In other federations, however, member states have generally had only a minor role in the selection of high court judges, ranging from the nomination of half of the federal high court judges by the German Bundesrat, to the exclusively federal executive nomination procedure of Canada and Australia. The role of the member states is often noticeable in the early years of federations and in times of considerable political conflict of a federal nature. In the first decade of the German federation, most nominations by the Bundesrat were partially made on federalism grounds, but since the early 1960s most judges have been appointed on purely partisan grounds that now dominate all proceedings of the Bundesrat (each party appoints judges proportional to its share of the popular vote). In the United States as well, senators (who confirm judicial nominations made by the President) were elected by the State legislatures until 1913. It was precisely during the first century and a half of the United States that federalism disputes were most prevalent, and, only 24 years after the adoption of popular elections for senators, judicial protection of the division of powers came to an abrupt end. This congruence between member-state participation and periods characterized by federalism concerns in the United States, Germany and the European Community, and recent attempts in Australia and Canada to provide for some regional participation in the judicial selection process, suggest that a degree of provincial participation is necessary for the “proper” functioning of judicial review in the federal state (in other words, gradual judicial centralization of legislative powers).77 For example, if the Canadian provinces had participated in the selection of Supreme Court judges over the past 20 years, the government of Quebec would have had considerable difficulty in the early 1980s in denying the legitimacy of the Patriation and Québec Veto references.

76 Rasmussen, On Law and Policy, 355-6. France wished to add two new judges

for each of the big Member States (France, Britain, Germany and Italy). Presently, judges representing Member States with only 16 percent of Community population can gain majority control of the Court.

77 André Bzdera, "L'Accord du lac Meech et le nouveau mode de sélection des juges de la Cour suprême du Canada, une réforme chimérique?" Canadian Journal of Law and Society 4 (1989), 1-37.


The Single Anonymous Opinion A second congruence among federal high courts is in the area of opinion writing, namely the tendency of such courts to use the “single anonymous opinion” technique in the early years of each federation and thereafter in times of social, economic or political conflict. As authors in most legal systems point out, single anonymous opinions augment the “authority” of the court's decision in constitutional cases since no dissident opinion is published and since it gives the decision a distinctly institutional flavour.78 The Supreme Court of Canada, for instance, has the tendency of signing political decisions simply as “The Court.” Yet, as is well known, decisions in all federal high courts are taken by a simply majority of votes cast. In the United States, there was a concerted effort during the Marshall Court years (1801-1835) to replace the traditional (British) seriatum opinion style with the majority opinion, and dissenting opinions were at the same time discouraged by the Court's majority.79 Since that time, majority decisions have been the rule in all important cases, although a modern tendency is for unanimous (and sometimes anonymous) opinions in the areas of race or presidential powers.80 Before the new judiciary act of 1970, the German Constitutional Court was required by law to divulge only the opinion of the majority. Since that time, dissident opinions (Sondervotum) are allowed and judges are limited to a single term of office in order to avoid blatant conflicts of interest.81 However, the German Court rarely publishes dissident opinions (less than 10 percent of all cases heard), and some dissenting opinions are only circulated among the judges. In Canadian cases of the British Privy Council (1867-1949), all decisions were announced by a single opinion signed by the rapporteur. The Canadian Supreme Court has gradually evolved from seriatum style opinion-making of pre-1949 jurisprudence to majority opinions since the 1960s,82 and over the last 25 years the Court has frequently presented single anonymous opinions in cases concerning federalism disputes and 78 For example, Russell, The Judiciary in Canada, 351. 79 John R. Schmidhauser, The Supreme Court (New York: Holt, Rinehart and

Winston, 1960), 108-14; and Samuel Krislov, The Supreme Court in the Political Process (New York: Macmillan, 1965), 55-6.

80 Brown v. Board of Education 347 U.S. 483 (1954) and 349 U.S. 294 (1955); and United States v. Nixon 418 U.S. 683 (1974).

81 Jérôme Sohier, "'Vote secret' ou 'vote dissident,' (La pratique de la publication des opinions dissidentes au Tribunal constitutionnel fédéral allemand)," in Mélanges offerts à Raymond Vander Elst (Brussels: Éditions Nemesis, 1986), 755-68.

82 Russell, The Judiciary in Canada, 351.

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language issues. Since the creation of the European Court of Justice, only a single opinion is published. The new Belgian Cour d'arbitrage is also required to publish only a single opinion in order to protect the Court from controversy. Exceptionally, the judges themselves may vote by secret ballot. There appears, then, to be a general tendency to use the single anonymous opinion technique better to dissimulate the political decision-making of federal high courts in the area of federalism disputes. The Judicial Independence Myth Although the evidence presented here clearly indicates that federal high courts demonstrate over the long term a centralist bias, all federal high courts and legal systems try by a variety of means to promote the idea that the high court is an independent and neutral arbiter of federalism disputes. Owing to the diversity of socio-political contexts that influence the practice of judicial review in each federal system, the myth of judicial independence takes different forms. Most US Supreme Court judges and academics generally accept the proposition that the US Supreme Court plays an active policy-making role, but they also insist that this role be limited (with the exception of separation of power cases) to the defence of individual rights and freedoms guarantied by the Constitution.83 Modern American jurisprudence and legal theory posit that the proper federal arbiter of Congressional legislative power is the Senate, not the Supreme Court.84 In Canada, while the Supreme Court adjudicates many federalism disputes and recognizes their inherent political nature, most Canadian judges and members of the legal community—who are strongly influenced by American conceptions of judicial policy-making—simply claim that the Supreme Court's jurisprudence neither unduly favours the federal government nor the provinces. The judges of the European Court of Justice and specialists on Community law and institutions, on the other hand, still cling to a more positivist image of their final court from which it follows that the Court of Justice does not play a political role: the European Court is thus by definition a neutral and independent federal arbiter. 83 Laurence Tribe, "Unraveling National League of Cities: The New Federalism

and Affirmative Rights to Essential Government Services," Harvard Law Review 90 (1977), 1065-104.

84 Herbert Wechsler, "Political Safeguards of Federalism," Columbia Law Review 54 (1954), 543-78; and Choper, Judicial Review, chapter 4. This theory is now officially part of the Supreme Court's jurisprudence. Garcia v. San Antonio Metropolitan Transit Authority 469 U.S. 528 (1985). Yet, as is well known, the modern American Senate is today at best a central legislative body where disproportionate political influence is granted to electors of regions of the United States that are politically organized into small States. They no longer represent the 'States' as political entities.


The Legal Tower of Pisa: Towards A Political Theory of Judicial Review in the Federal State The political impact of the federal high court thus appears to be centralist in the area of federalism disputes (division of powers between the two levels of government) and nationalist in the area of social and political values (charter of rights, general legal principles). This judicial centralization is most evident in the areas of strategic economic powers and of individual rights associated with the mobility of labour. At times, federal high courts encourage federal legislative initiatives in new areas of member-state jurisdiction, but more often than not the high court simply does not constrain centralist and nationalist legislative initiatives of the central government. This net centralist/nationalist bias of federal high courts is largely explained by the strong institutional factors linking such courts to the political organs of the central government. This government is generally responsible for the existence of the court, its administration, its budget, its internal procedures, and most notably for the selection of its judges. Even the degree of judicial independence claimed by the high court is itself a function of the political self-interest of the government that grants such independence (usually the central government). The eventual acquiescence of the member states to this centralist jurisprudence is ensured by the perceived political legitimacy of the federal high court, first by its proclaimed neutrality, and second by a minimal degree of member-state participation in the selection of high court judges. Ideally, federal high courts are not even perceived to be political institutions, as was the case until very recently in the Australian and Canadian legal communities and as is still largely the case within European academic circles. To further the generally good reception of judicial policy-making by the various political institutions of the member states and by the population at large, federal high courts use the single anonymous opinion technique in order to give their decision a more authoritative character. And although the general tendency towards dormant judicial review of federal legislation characterizes most federal high courts, they nonetheless conserve the theoretical power to annul federal statutes. The high court can thus give a judicial stamp of approval to impugned legislative initiatives of the federal government. A final dilemma for judicial review in federal states is the fundamentally undemocratic nature of the internal structures of most federal high courts (secret deliberations, simple majority voting, and censorship of the dissenting high court judges). This is all the more important in multinational federations since majority voting in the federal high court puts into question the principles of local democracy, political pluralism and consensual politics that are generally protected by a formal constitutional amending procedure that requires substantial majorities of

28 ANDRÉ BZDERA

both governments and electors. At stake is the very possibility of limited sovereignties in an increasingly interdependent world and the capacity of the citizens of member states to preserve, if they so desire, regional legislative autonomy. The failure of modern judicial review in the federal state is reflected by political attitudes and events in several federations. Québec criticism of the Canadian Supreme Court is growing and probably irreversible under present conditions,85 especially since the 1981 Patriation Reference. Danish legislators seem particularly hostile to the European Court of Justice, and the French government has proposed an important reform of the Court. In Belgium, which will provide additional material on the role and influence of federal high courts in the coming years, exceptional care was given to the internal workings of the Cour d'arbitrage in order to protect, through secret voting, its legitimacy even in cases where the Walloon and Flemish judges divide on linguistic grounds. Finally, it should also be noted that the Richmond Congress of the American Confederacy did not put into effect the constitutional dispositions authorizing the creation of a federal high court for fear of its centralist potential.86 This is not to say that a judicial, quasi-judicial or even political arbiter of federalism disputes is impossible or undesirable, but rather that no federal state has created such an institution with the firm intention of preserving the federal division of powers—and thus preserving formal constitutional amendments as the only democratic means for bringing about substantial constitutional change.87 As we have seen, the federal high court acts as an alternative method by which federally appointed persons can, through use of majority decision-making, become a de facto unitary constituent assembly (or a gouvernement des juges88) that challenges the very foundation of the federal principle. We conclude that federal high courts participate in the exercise of centralized political control over member states. In this, we should not be 85 Particularly note-worthy are the writings of two constitutionalists, Henri Brun

and Guy Tremblay. The recent Supreme Court of Canada decisions General Motors and Crown Zellerbach are totally unacceptable to Brun and Tremblay, and indeed to most Québécois. Brun and Tremblay, Droit constitutionnel .

86 Curtis A. Amlund, The Theory and Practice of Federalism in the Governmental Organization of the Confederate States of America (Ph.D. Thesis, University of Minnesota, 1959), 264-9. This centralist vision of judicial power is also found in the Anti-Federalist papers (letter of Brutus, 31 January 1788). Herbert Storing, The Complete Anti-Federalist (Chicago, University of Chicago Press, 1981).

87 For a discussion of possible reforms, see André Bzdera, "La réforme de la Cour suprême du Canada", submission to the Commission sur l'avenir politique et constitutionnel du Québec (Commission Bélanger-Campeau), October 1990, partially reprinted in Le Devoir, 23 January 1991, p. B-8.

88 This expression comes from the title of a 1921 French study on the United States Supreme Court: Édouard Lambert, Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis (Paris: Giard, 1921).


surprised since the only major comparative political study of high courts, that of Martin Shapiro, also suggests that all final courts of appeal exist in order to exert central control over the various parts of the realm, country, federation or empire. There are apparently no exceptions to the centralist theory of the judicial function. Each political regime succeeds in integrating their appellate courts into the dominant elite or coalition, either through the appointment process or through direct control of the courts themselves.89 Comparative analysis of federal high courts clearly indicates that federations are also governed by this centralist theory of the judicial function.

89 Robert Vandycke, "Les droits de l'homme et leurs modes d'emploi: à propos

de la charte constitutionnelle de 1982," Sociologie et sociétés 18 (1986), 148-9.

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