Constitutional Biorhythms

Constitutional Biorhythms Harold M.Hymanand William M. Wiecek.£qua/JusticeUnder Law: Constitutional Development 1835-1875. New York:Harper and Row, 1982.571+ xv pp. William R.McKercher, ed. The U.S. Bill of Rights and the Canadian Charter of Rights and Freedoms. Toronto: OntarioEconomic Council, 1983.270pp. Arthur SelwynMiller. Toward Increased Judicial Activism:The Political Role of the Supreme Court. Westport,Conn.: Greenwood Press, 1982. 355 +xiipp. Dale Gibson Speakingabout the Canadian Charter of Rights and Freedoms to an audience oflawyers in Edmonton early in 1985, Chief Justice Brian Dickson of the SupremeCourt of Canada commented on the usefulness of American judicial decisionsto courts faced with the task of interpreting the Canadian Charter. Counselshould not hesitate to refer to American material, he said, but courts mustuse the material cautiously and selectively. "[W ]ecan learn," he pointed out,"not only the positive points, but also from the errors which have been made .... [W]e must be alert, in selecting from that jurisprudence, to the many fundamentaldifferences between the American Constitution and American values,and our own Constitution and our values." 1 Toa considerable extent, the Constitution of Canada was consciously modeledon aspects of the American prototype. Canadians chose a federal form ofgovernment well aware of both the advantages and difficulties that the Americanexperiment with federalism had demonstrated. The American Civil Warwas still raging as British North American politicians sat down to plan thestructure of the new northern nation. Moreover, when Canadians began, morethan a century later, to talk seriously about adopting a constitutional guarantee of fundamental rights, the U.S. Bill of Rights and its judicial interpretations provided an obvious starting point. Onthe other hand, there were also deliberate efforts made by the planners oftheCanadian Constitution to avoid certain features of the American system. CanadianReview of American Studies, Volume 17, Number 3, Fall 1986, 375-380 376 Dale Gibson British-style Parliamentary government was preferred to the Congressional/ Presidential form, for instance. Responsibility for criminal law and formarriage and divorce was vested in the Parliament of Canada in order to avoidperceived problems with the American scheme of entrusting these matters to state legislatures. Inthe case of the Charter of Rights, the language of the American "due process" protection was replaced by a guarantee of "fundamental justice'' (Sect. 7) in order not to replicate American experience (and Canadian experience under the Canadian Bill of Rights, which employs the American terminology). When designing a provision for the exclusion from court proceedings of unconstitutionally-obtained evidence, the drafters of the Charter used novel language (Sect. 24[2]) with a view to establishing a procedure midway between the previous Canadian rule of total admissibilitv and the American rule of total exclusion. · Even in those areas where the intentions of the drafters seem to havebeen similar, American judicial experience cannot be regarded as automatically transferable to the Canadian scene. In some matters, American courts have developed solutions or approaches that do not conform well to modern Canadian social values. Some of them seem unsuccessful even in the American context. The books under review will assist Canadian courts to examine and make discriminating use of American constitutional experience. Harold M. Hyman and William M. Wiecek, in describing constitutional developments in the U.S. between 1835and 1875, have provided a revealing windowon the situation in the U.S. to which Canadian politicians were reacting when they shaped the British North America Act between 1864 and 1867. The book, by two distinguished American constitutionalists, is the thirdofa planned five-volume series on American constitutional history. Althoughit has been criticized for the unevenness of its writing style and for minor inaccuracies, it has also been described as the "best single source'' of information about that crucial period. 2 The era which Hyman and Wiecek have chronicled was one marked by minimal "judicial activism" in support of individual rights. Arthur Selwyn Miller's book was written at the apparent conclusion of a half-century orso of judicial activity in the interest of individual rights. He laments the recent movement away from that trend, and calls for a new activism. He opens with a quotation approving John Rawls's contention that it is futile to seek justice purely through institutional or procedural...