CONSTITUTIONAL CONVERSATIONS: ON THE NATURE OF DIALOGUE

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1 CONSTITUTIONAL CONVERSATIONS: ON THE NATURE OF DIALOGUE MARGIT COHN * PAPER PREPARED FOR PRESENTATION AT THE IPSA WORLD CONGRESS, MADRID, SPAIN, 8-11 JULY 2012 The concept constitutional dialogue has become central to the debate over the legitimacy of constitutionalism, often as part of a normative attempt to alleviate concerns about the supremacy of the judiciary in constitutionalist structures. Dialogue theory is an attempt to replace the idea of hierarchic sovereignty with a duopolistic, or bipolar one. Yet the term dialogue itself is vague, and has rarely been considered analytically. This paper, a contribution to analytical exploration, opens with a distinction between several forms of dialogue, classified under two dichotomies: formal/implied and legal/political. Analytically, override clauses and limitation clauses, both presented as dialogue mechanisms, are in fact different forms of dialogue, and both are removed from dialogues that are not directly based on an explicit constitutional provision. This distinction, which draws on the literature from Canada and the US, is employed in an analysis of the British and Israeli dialogue mechanisms. My second aim is to explore the concept of political modes of dialogue. I draw on the dialogue theory that has emerged in the US, which celebrates the political nature and the complexity of the constitutional decision-making sphere. This requires a move from two-player games to networks. Thus, dialogue becomes conversation, and the search for ultimate sovereign is replaced by the recognition that domestic sovereignty is complex, multiparticipatory and ever-evolving. Introduction Much of the debate over the relative power of the judiciary links with the study of the nature of sovereignty, in itself often a search for the ultimate decision-maker, be it Parliament, the judiciary or the executive as the ultimate wielder of power. This type of search is based on a hierarchical vision of the public sphere: there must always be a bearer of the last word. Hence the debate over the transfer of sovereignty from * Senior Lecturer, Faculty of Law and Federmann School of Public Policy and Government, Hebrew University of Jerusalem. mcohn@mscc.huji.ac.il. Formerly, presented at the W.G. Hart Legal Workshop 2011, Institute of Advanced Legal Studies, London. Forthcoming in Richard Rawlings, Peter Leyland and Alison Young eds), Sovereignty in Question (OUP 2013). Comments welcome.

2 2 Parliament to the judiciary, held in systems that grant the judiciary powers to decide on the constitutionality of statutes. These analyses are sometimes linked with theories of dialogue, often as part of a normative attempt to alleviate concerns about the supremacy of the judiciary in constitutionalist structures. Dialogue theory is an attempt to replace the idea of hierarchic sovereignty with a duopolistic, or bipolar one. 1 While the theory is presented as one that offers a better-fitting explanation of reality, the term dialogue itself, as many have noted, is vague; however, these meanings have rarely been presented analytically. 2 This paper, a contribution to analytical exploration, opens with a distinction between three forms of dialogue, classified under two dichotomies: formal/implied and legal/extra-legal. I argue that analytically, override clauses and limitation clauses, both presented as dialogue mechanisms, are in fact different forms of dialogue, and both are removed from dialogues that are not directly based on an explicit constitutional provision. This distinction, which draws to a great extent on the literature from Canada and the United States, is employed in an analysis of the British Human Rights Act s dialogue mechanisms. My second aim is to further explore the concept of political modes of dialogue. Here, I draw on the dialogue theory that has emerged in the United States, which celebrates the political nature and the complexity of the constitutional decision-making sphere. This requires a move from bipolarity and two-player games to networks. While analyses of formal dialogical structures are useful, excessive emphasis on the purely legal aspects of dialogue deflects attention from the complexity of the decision-making process in the constitutional sphere. The constitutional framework is more accurately depicted as a multi-actor network, enabling a joint and ongoing process of decisionmaking shared by a variety of actors. Not only parliaments and courts, government ministries, individuals, interest groups, the media and other members of society continuously interact to produce evolving social solutions under constantly changing tensions and coalitions of interest. Thus, judicial decisions and statutes alike should be 1 2 For analyses of bipolar sovereignty see Sir Stephen Sedley, Human Rights: A Twenty-First Century Agenda [1995] PL 386, 389; CJS Knight, Bi-Polar Sovereignty Restated (2009) 68 CLJ 361. For the link with dialogue discourse see below. For an example of a distinction between several models of dialogue see Jeremy Waldron, Some Models of Dialogue between Judges and Legislators (2004) 23 Supreme Court LR (2d) 7,

3 3 assessed not only on their date of birth. They are both subject to the dynamics of subsequent implementation or rejection by other members of the network. Under such a framework, dialogue becomes conversation, and the search for the ultimate sovereign is replaced by the recognition that domestic sovereignty is complex, multiparticipatory and ever-evolving. Sovereignty and Dialogue The concept of sovereignty is extensively treated in this conference. My interest lies in domestic sovereignty, that is, in the question of which body, if any, should be considered the sovereign, rather than with transnational sovereignty, which is concerned with the attributes a body politic should be endowed with in order to be recognized as a fullfledged member in the transnational sphere. Just a few words in this context would suffice. Discussions of domestic sovereignty, which are usually searches for the identity of the ultimate power-wielding body in the political sphere, follow two main guidelights. Sovereignty is either considered as the ability to wield absolute, unfettered power, often linked with immunity from interference, 3 or as the ability to have the final say in the normal course of affairs or, in another version, in exceptional cases. 4 While the second model of sovereignty allows for interaction and the first seems to be unconcerned with the workings of the public sphere, there is much overlap between these two models. For my purpose, any definition of sovereignty that connotes final power in the decision-making process would do. The term dialogue has become a fashionable keyword in analyses of constitutional structures, often paired with the adjective constitutional or democratic. It carries different meanings, as we shall see below. The usages of the term I am interested in are based on a shared assumption: the term is used to express distinct ways of decision-making in constitutional matters that involve the participation of more than one actor. 5 Analysis has spread across continents, and can be found inter Such is Dicey s account of Parliamentary supremacy. For a recent analysis see Alison Young, Parliamentary Sovereignty and the Human Rights Act (Hart 2009). Drawing on Carl Schmitt s famous statement, that [s]overeign is he who decides on the exception ; Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 5 (George Schwab tr, MIT Press 1988), and further developed inter alia in this book. I am thus not interested in the usage of terms such as constitutional dialogue or dialogue in passing, or without the intent of defining a distinct mode of decision-making.

4 4 alia in Canada, 6 the United Kingdom, 7 the United States, 8 Australia, 9 Israel, 10 and South Africa. 11 The leading definition in many discussions of this concept is Hogg and First was the groundbreaking work of Hogg and Bushell: Peter Hogg and Allison Bushell, The Charter Dialogue between Courts and Legislators (Or Perhaps the Charter of Rights Isn t a Bad Thing after All) (1997) 35 Osgoode Hall LR 75, 79. For mere examples of the exceptionally rich literature see Christopher Manfredi and James Kelly, Six Degrees of Dialogue (1999) 37 Osgoode Hall LR 513; Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law 2001); Kent Roach, Dialogic Judicial Review and Its Critics (2004) 23 Supreme Ct LR (2d) 49 (2004); Christopher Manfredi, The Life of a Metaphor: Dialogue in the Supreme Court , (2004) 23 Supreme Ct LR (2d) 105; Luc Tremblay, The Legitimacy of Judicial Review: The Limits of Dialogue Between Courts and Legislatures (2005) 3 I.CON 617 (2005); Kent Roach, Dialogue or Defiance: Legislative Reversals of Supreme Court Decisions in Canada and the United States (2006) 4 I.CON 347; Kent Roach, A Dialogue About Principle or Principled Dialogue: Justice Iacobucci s Substantive Approach to Dialogue (2007) 57 U Toronto LJ 449; Peter Hogg, Allison A. Bushell Thornton and Wade K. Wright, Charter Dialogue Revisited Or Much Ado About Methaphors (2007) 45 Osgoode Hall LJ 1, opening a special issue dedicated to The Charter Dialogue: Ten Years Later. For example, Trevor R.S. Allan, Constitutional Dialogue and the Justification of Judicial Review (2003) 23 OJLS 563 (not discussed in the context of the HRA. For implication see below); Richard Clayton, Judicial Deference and Democratic Dialogue : The Legitimacy of Judicial Intervention under the Human Rights Act 1998 [2004] PL 33; Tom R. Hickman, Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998 [2005] PL 306; Tom Hickman, The Courts and Politics after the Human Rights Act: A Comment [2008] PL 84; Roger Masterman, Interpretations, Declarations and Dialogue: Rights Protection under the Human Rights Act and Victorian Charter of Human Rights and Responsibilities [2009] PL 112 (comparing with the Victorian Charter); Young (2009), n 3; Philip Sales and Richard Ekins, Rights-Consistent Interpretation and the Human Rights Act 1998 (2011) 127 LQR 217. Dialogue emerged as a distinct metaphor for constitutional analysis in the late 1980s. See Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton UP 1988); Barry Friedman, A Different Dialogue: The Supreme Court, Congress and Federal Jurisdiction (1990) 85 Northwestern University LR 1; Barry Friedman, Dialogue and Judicial Review (1992) 91 Michigan LR 577. See also, for example, Charles Ronald Tiefer, The Flag-Burning Controversy of : Congress' Valid Role in Constitutional Dialogue (1992) 29 Harvard J on Legislation 357; J. Krotoszynski, Jr. Constitutional Flares: On Judges, Legislatures, and Dialogue (1998) 83 Minnesota LR 1; Joel K. Goldstein, Constitutional Dialogue and the Civil Rights Act of 1964 (2005) 49 St. Louis University LJ 1095; Christine Bateup, The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue (2006) 71 Brooklyn LR 1109; Christine Bateup, Expanding the Conversation: American and Canadian Experiences of Constitutional Dialogue in Comparative Perspective (2007) 21 Temple International and Comparative LJ 1 (2007) (for the difference between this line of argument and the Canadian see further below). For example, Leighton McDonald, New directions in the Australian Bill of Rights Debate [2004] PL 22; Ben Batross and Philippa Webb, Accountability for Torture Abroad and the Limits of the Act of State Doctrine: Comments on Habib v Commonwealth of Australia (2010) 8 J of International Criminal Justice Yoav Dotan, A Constitution for Israel? The Constitutional Dialogue after the Constitutional Revolution (1997) 28 Mishpatim 149; Gershon Gontovnik, Constitutional Law: Directions of Development After the Constitutional Revolution (1999) 22 Iyunei Mishpat 129, (both in Hebrew); Gal Dor, Constitutional Dialogues in Action: Canadian and Israeli Experiences in Comparative Perspective (2000) 11 Indiana International and Comparative LR 1; Gideon Sapir, Three Models of a Constitution (2007) 37 Mishpatim 349 in Hebrew(; Aharon Barak, The Judge in a Democracy (Princeton UP 2006), See, for example, Rosalind Dixon, Creating Dialogue About Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited (2007) 5 I.CON 391.

5 5 Bushell s. Writing in the late 1990s in the context of the Canadian Charter, they importantly argued that it would be meaningful to regard the relationship between the Court and the competent legislative body as a dialogue when a judicial decision is open to legislative reversal, modification, or avoidance. 12 In such a situation, the legislative body is in a position to devise a response, one that is respectful to the values recognized by the court but also accomplishes the social or economic objectives that the judicial decision has impeded. 13 When the constitutional structure offers such venues for legislative responses, the problem of democratic legitimacy, or, in our words, the seeming threat to the sovereignty of Parliament, is resolved, or at least alleviated. Two elements are central to this definition. First, aptly named, the dialogue occurs between two actors, the judiciary and the legislature. The second is the original focus on single events of dialogue or response, which is less comfortable with the concept of dialogue. Hogg and Bushell s initial analysis did not discuss continuous modes of interaction between the state actors; rather, dialogue presented an option for a single response. This was amended later, to allow a second judicial consideration of a statute amended after the first event of judicial review. 14 Yet the term was not designed to connote prolonged, multi-even processes, and as such, was limited in scope. 15 I am not concerned here with normative elements, or normative implications of the theory. Dialogue analyses were originally used as responses to the rising criticism against seemingly omnipotent courts, operating under constitutional structures that allow them some mode of interference with Parliament: hence the link to sovereignty, as such omnipotence, it was argued, challenged pre-existing sovereignty structures. Indeed, much of the literature that developed and relied on this keyword wished to advance a variety of normative arguments that supported judicial participation while showing that their contribution was always only part of the story. 16 However, bipolarity, expressed Hogg and Bushell, n 6. See also Young 2009 (n 3) 79. A few pages later, the authors are ready to accept as dialogue all cases in which some action could be found. Ibid 82. Ibid Hogg later recognized that dialogue may continue when an amended legislation is challenged in court. Peter W. Hogg, Discovering Dialogue (2004) 23 Supreme Court LR (2d) 3, 5. On this point see also Hickman 2008 (n 7), 84 note 3 of text. Note, for example, Hogg and Bushell s sub-title, ( Or Perhaps the Charter of Rights Isn t a Bad Thing after All ), above note 6. Hogg later conceded that he and his coauthor should not have claimed that we had answered the counter-majoritarian objection to judicial review as this went too far. However, the claim that the decisions of the court were not usually the last word remained. Hogg 2004 (n 14) 4.

6 6 in the recognition of the constitutionality of legislative response, may support arguments for judicial deference to the legislature. The very fact that dialogue offers legislatures an option to respond may signal judges to tread carefully in the constitutional thicket. Normatively, then, the theory can be helpful to both sides of the debate over the role of the judiciary. 17 Moving away from the normative, I focus on more basic issues, which pertain to the meaning of constitutional/democratic dialogue. Participants in this discussion are actually talking about different forms of dialogue-inducing mechanisms, which range from the formal-institutional to the purely political. The recognition of these different forms opens up the discussion of the nature of constitutional deliberation which moves beyond two-player structures, and could better express the realities of decision-making in the public sphere. Two Concepts of Dialogue Formal dialogue In their seminal 1997 article, Hogg and Bushell, who studied the Canadian Charter, identified several dialogue-enabling mechanisms. First was the override clause in section 33, which opens as follows: (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. At first glance, this provision does not seem to offer much of a dialogue: the override clause enables parliament to impose its choice on the court, despite recognition that the statute flagrantly contravenes the values enshrined in the constitution. The insertion of an override clause can therefore be a preventive, rather than responsive, measure. Yet Hogg and Bushell assume that reliance on section 33 will occur after a court had struck down a statute. Under such a view, the following dialogue occurs. First, parliament enacts; then, the court strikes down; in response, parliament re-enacts, invoking the 17 See Christine Bateup s highly detailed survey of dialogue theories, which places them on a normative positive (or prescriptive descriptive) continuum. Bateup 2006 (n 8).

7 7 override clause; finally, if the conditions in the override clause are met, this seems to be the end of the matter, for the period specified in the override clause. Both this override clause and a similar one adopted in Israel s Basic Law: Freedom of Occupation, 18 create a formal structure, a legal mechanism for interaction between the judiciary and the legislature. 19 They enable the legislature to respond to a judicial decision and annul its implications to the legality of a statutory arrangement. Implied dialogue Although Hogg and Bushell s article is still considered the progenitor of dialogue theory in common law systems, the term constitutional dialogue was used earlier in the United States. Hogg and Bushell were not unaware of this parallel literature, and other participants in the Canadian debate have granted it some attention, 20 but this offering of a multi-player structure of decision-making is structured in an entirely different fashion. The differences between these two types of dialogue have not received sufficient attention: in some analyses, both types are discussed indiscriminately. Louis Fisher published his book, Constitutional Dialogues, in Fisher was not the first to recognize the ongoing multiple-member process of rulemaking, but he gave this idea a new focus. 21 Too many have too easily succumbed to the assumption that the United States Constitution, as interpreted by the Court in Marbury v. Madison Basic Law: Freedom of Occupation, Section 8: A provision of law that violates freedom of occupation shall be in effect, even though not in accordance with section 4 [the limitations clause], if it has been included in a law passed by a majority of the members of the Knesset [i.e. absolute majority], which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement unless a shorter duration has been stated herein. For a translation of the Basic Law see Young 2009 (n 3) 117. My use of the adjective formal differs from Dor s (n 10), where it connotes a multi-participant debate not led by a mutual will to find a solution, in distinction from substantive dialogue, which does. First in Hogg and Bushell (n 6) 79, note 12 in text) (although the central US dialogue literature available at the time and discussed below was not mentioned); Andrew Petter, Taking Dialogue Theory Much Too Seriously (Or Perhaps Charter Dialogue Isn t Such a Good Thing After All) (2007) Osgoode Hall LJ 147, For Alexander Bickel s reference to interplay, or a continuing colloquy between government branches see Bickel, The Least Dangerous Branch (Bobbs-Merril, 1962), 206, XXX. See also Martha Minow, Interpreting Rights: An Essay for Robert Cover (1987) 96 Yale LJ 1860, (discussing the development of a discourse over the protection of a right as a communal dialogue ).

8 8 and accepted since, grants the court the final word. 22 Fisher argued that, in reality, supremacy is mitigated by dialogue. Indeed, it would be trite to claim that judicial decisions delivered in the United States have no post-decision life. Clearly, any decision delivered by the courts of the United States generates a range of possible responses. In this way, dialogue is part of the life of the constitutional sphere of the United States just as it is elsewhere. This dialogue is generated by the very structure of the Constitution and its allocation of powers between government branches, which grants the legislature to make laws, sometimes following an interpretation of the Constitution rendered by the judiciary, rather than from any specifically created mechanism. Barry Friedman s work on dialogue is leads to a similar insight. In a series of articles that addressed the nature of judicial review through the concept of dialogue, he challenged the faulty premises of the counter-majoritarian difficulty. Friedman emphasized that it would be wrong to assume that all judicial decisions are in fact final and are never thwarted by political forces. 23 In 1990, Friedman was concerned with Congressional power over the determination of the scope of jurisdiction of Federal courts. Positing two competing visions, the first granting Congress full power of determination, the second allowing for some judiciary discretion, Friedman argued that since the Constitution provided no clearly defined rules on the matter, the issue is subject of an ongoing dialogue between those two branches. 24 In 1992, a similar argument was made in the context of the decades-long debate over the legitimacy of judicial review (in US parlance, the invalidation of statutes by courts for nonconstitutionality), expressed inter alia, under the title the counter-majoritarian difficulty. To answer the constitutional difficulty inhering in the grant of power to strike down legislature to independent, unelected judges, Friedman redefined the judicial contribution as one that is significantly more interdependent and interactive than generally described This reading of the United States Constitution is common enough also in the UK. See, for example, Clayton (n 7) 41. Friedman 1992 (n 8) The other fallacy is found in simplistic accounts of the nature of majoritarian legitimacy, an aspect I do not need to deal with. Friedman (1990) (n 8) 10. Friedman (1992) (n 8) 653.

9 9 Another important feature of the United States literature is its emphasis on ongoing processes. A decision may not be the end of a matter, but rather a new beginning, or better put, one stage in an lengthy process of multi-participant decisionmaking. Any response to a decision may elicit further response from other actors in the public sphere, which can generate subsequent responses in a possibly endless process, or, as others see it, until an equilibrium is reached. What, then, have we here? This type of dialogue analysis is clearly different from the one embedded in the override clause. It emerged in the context of a constitution that offers no formal mechanism for the overriding of judicial decisions, except, of course, the amendment of the Constitution, which, understandably, no longer receives substantive attention. 26 But dialogue it is, as the input of the judiciary is recognized as amenable to reshaping. This, then, is a second type of dialogue, which it is not rooted in a provision that expressly offers the legislature a path for reaction; rather, it derives from the separation of powers constitutional structure. What is missing here is the absence of a distinct, formal legal mechanism for response, some novel or exceptional feature of the constitution that enables this dialogue, apart from the general, system-wide powers of the judiciary. It is labelled implied at this stage (for want of a better title), as it draws on the political division between government branches, as set in the Constitution. Limitation Clauses as Inducers of Implied Dialogue One could adduce that two separate dialogue discourses exist, the United States implied dialogue and the Canadian-rooted one, which simply more limited in scope. Yet, consider Hogg and Bushell s other examples of Charter dialogue. Several Charter clauses are presented as essentially allowing interference with protected rights under defined conditions, the most famous and popularly used being Section 1, under which The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society On this point see, for example, Friedman 1992, ibid The others are the qualified rights in Sections 7, 8, 9 and 12, and the guarantee of equality rights in Section 15(1). All set standards that, when met, can allow an interference with a right. Hogg and Bushell (n 6) 82.

10 10 For Hogg and Bushell, this provision offers a dialogical process. Assuming that a statute is found lacking under the requirements of the section, the reviewing court will explain why the section 1 standard was not met, which will involve explaining the less restrictive alternative law that would have satisfied the section 1 standard. That alternative law is available to the enacting body and will generally be upheld. 28 This, it is explained, is similar in nature to the dialogue generated by Section 33. The process is as follows: a law is found to impair a Charter right; when found unconstitutional for choosing an overly restrictive measure, the invalidity of the law could be corrected by the enactment of a new law that is more respectful to the Charter, which is, shall we say, instructed by the terms of the judicial decision. 29 Similar analyses are offered with regard to the other qualified rights provisions. Section 8, for example, prohibits only unreasonable search and seizure; when a court rules on the reasonableness of a process introduced in a statute, this can be followed by a new law that satisfies the Court s standard. 30 But is this process really similar to the one created by Section 33? Clearly, responses to a judicial decision are part of the dynamics that are the outcome of any decision in the constitutional sphere. A rights-protecting constitutional provision, once interpreted and applied, will always offer possibilities for post-decision response. It would seem, then, that if we wish to follow the definition laid out in the Canadian literature, it would mean that all constitutional (and, in fact, statutory) provisions create a dialogue, as long as they are open and subject to judicial interpretation and application. Under this reading, only provisions such as Section 33 offer a significantly new form of dialogue, by creating a formal path of dialogue that operates beyond the mere interpretative. The limitation clauses and other interpretable constitutional provisions, once interpreted and applied, may lead to legislative reaction, but in a fashion not different from other cases of post-decision dynamics. This type of dialogue, then, is closer in nature to the dialogue generated by any interpretative judiciary exercise, as discussed in the United States Ibid 85. Ibid 87. See also Roach 2004 (n 6) 57. Hogg and Bushell, ibid 88. For a similar analysis on equality rights see ibid

11 11 The British Dialogue Mechanisms Examined This leads us to the Human Right Act, discussed by many as the source of two dialogue mechanisms. How do they fit the above distinction? Section 3, which grants the judiciary power to interpret legislation against its original grain and, to a certain extent, contrary to its wording, is rightfully recognized as a dialogue-generating device. But the dialogue it offers is similar to the dialogue generated by limitation clauses. Like them, Section 3 expands the role of the judge and offers new grounds for decision-making, but response relies on the traditional interaction between the court and other players in the constitutional sphere. Section 4 authorizes the court to issue a declaration of incompatibility when a statute is found in breach of the provisions of the ECHR which were incorporated into domestic law through the Act. This sets in motion several alternative paths: parliamentary inaction, in which case, the legislation emerges unscathed; a remedial ministerial order; or the amendment of the branded statute by Parliament. 31 Here, too, competences are formally allocated, and dialogue, in its one-step form defined by Hogg and Bushell, seems a well-fitting metaphor; no wonder that British commentators have joined the dialogue discourse. 32 But only the second option is explicitly found in the Act, in Section 10. As such, it creates a novel, formal dialogue mechanism, in fact one that turns away from the classical two-player analysis offered by Hogg and Bushell, an aspect I turn to later. Inaction, the first option available to the legislature, is implicit in Section 4(6), which stipulates that a declaration does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given. Amendment by Parliament is available as a matter of course under the pre-existing constitutional structure. As such, one could argue that amendment by Parliament and Parliamentary inaction are two examples of a political dialogue, similar to Section 3, while only the remedial ministerial order should qualify as a novel formal mechanism that resembles the override clause Human Rights Act 1998, Sections 4, 10. A Section 10 remedial order may be made only for compelling reasons, and can also be the result of a finding of the ECtHR. See sources cited at n 7. For a comparison between Section 3 and 4, leading in a different direction but encompassing a similar argument, see Hickman 2005 (n 7) See also Hickman 2008 (n 7)

12 12 Formal or Implied: Why Distinguish? To the best of my knowledge, the distinction between formal constitutional mechanisms that offer distinct venues of response and other existing mechanisms that have always been part of the public sphere has received no attention in the dialogue literature. But is it at all important? Beyond the benefit garnered from the joy of hairsplitting, does it offer constitutional theorists an insight into constitutional workings that would be of value? I submit that it does. This distinction has several implications for the study of constitutional decision-making. First, it offers a basis for analysis of constitutional drafting options, directing attention to embedded dialogue processes as distinct from dedicated institutional structures. Secondly, it highlights the limitations of dialogue theory which is based solely on formal institutional structures, since it offers a glimpse into the values of analysis that is based on political structres. In its formal legal sense, dialogue is limited only to the bodies or branches granted an explicit role, and their role is limited and set by the constitutional script, be they the legislature, or, in the case of Section 10 of the HRA, government ministers. Such an analysis is quite sufficient when one seeks to explore the formal structure of a constitution. Reliance on such a theory has enabled discussants to substantiate their normative vision, either one that wished to justify constitutional judicial review (or at least to contain and minimize the dreaded counter-majoritarian problem), or one that calls for judicial deference as the proper outcome of the grant of venues for legislative response. But at the same time, this type of analysis deflects attention from the complex workings of the constitutional sphere, expressed in parallel discussions of multiparticipant, open-ended and ever-revolving offer decision-making processes. No judicial decision in the public sphere involves only the court and the government. Perhaps first in importance is the applicant: the initiator of the judicial process, the person or body whose rights or interests were allegedly interfered with. Further, a case brought before court can be but one expression of a hotly debated social issue. In short, the debate over formal dialogue makes much sense when placed in the purely legal sphere. Moving to the socio-politico-legal, more is required.

13 13 Hierarchies, Dialogue and Networks: The Full-Fledged Political Version of Dialogue Dialogue theory has broken down previous hierarchical conceptions, under which constitutional structures necessarily grant the power of the last word to one body. In this part I explore the value of moving from mere dialogue analysis to the study of multilayered, multi-member, political ongoing processes of decision-making. As mentioned above, Hogg and Bushell were not unaware of the variety of interbranch political interaction; they were simply less interested in this variety and preferred to focus on the structures offered in the Charter. Indeed, as stated in one of Kent Roach s important contributions, dialogic review focuses on issues of constitutional design and the constitutional rejection of both judicial and legislative supremacy. It does not capture all the dialogue that actually occurs. 33 Roach offers Bruce Ackerman s theory of constitutional moments as a prime example of an excluded dialogue, and he moves to address other sophisticated sub-constitutional devices used in the United States to encourage dialogues between courts and legislators. 34 The distinctive nature of (Canadian?) dialogic judicial review is that it combines constitutional decisions of courts with legislative revision or rejection of these decisions by means of ordinary legislation. Other participants in the debate that is based on Hogg and Bushell would not disagree with the above statement. The link of public law to politics, well recognized by many, 35 offers another aspect of dialogue. The issue here is not only the focus on the limited number of participants. 36 Much more can be garnered from Louis Fisher and other participants in the debate as it evolved in the United States. In Constitutional Dialogues, Fisher pointed at the political, rather than structural, elements of the constitutional sphere in general and of dialogical processes in particular. Starting from the argument that the assumption that the court has been given the final word is thus wrong, he submitted that the constitution undergoes constant interpretation and reinterpretation. The political nature of dialogue derives not only from the absence Roach 2004 (n 6) 55. Ibid 56. See, for example, Martin Loughlin, The Idea of Public Law (OUP 2003). For such critique see Stuart Lakin, How to Make Sense of the HRA 1998: The Ises and Oughts of the British Constitution (2010) 30 OJLS 399, 415.

14 14 of a formal dialogical mechanism, an aspect discussed above; dialogue is essentially conducted between many actors, rather then two. Fisher points at the legislature as partner to the dialogue with the court, but also at the executive and beyond. In fact, his dialogue collapses into pure politics: Each decision by a court is subject to scrutiny and rejection by private citizens and public officials. What is final at one stage of our political development may be reopened at some later date, leading to revisions, fresh interpretations, and reversals of Court doctrines. 37 Barry Friedman s dialogue is similarly redefined: The Constitution is not interpreted by aloof judges imposing their will on the people. Rather, constitutional interpretation is an elaborate discussion between judges and the body politic. The American body politic consists of numerous constituencies clamoring to be heard the court mediates the views of various people. The process is interactive Simply put, our process of constitutional interpretation is a dialogue. 38 But there is more to dialogue than that. Studying the responses to judicial decisions, Friedman recognized that some of them are to be found on a continuum of nonenforcement. 39 Some types of response do remain within the constitutional structure, for example, when Congress reenacts a statute that conforms, at least in its key elements, to the decision. But Friedman recognized, as others have done, different ways in which decisions may be unimplemented. This is an important point, as it challenges the argument that in the United States, the judiciary reigns supreme; it shows that strong form review is not politically omnipotent. For Friedman, nonenforcement includes downright failure to comply, as in Lincoln s reaction to Ex parte Merryman, footdragging, as in the school segregation cases, and, most telling in the context of dialogue theory, lengthy processes of testing the finality of judicial lawmaking, as in the aftermath of Roe v. Wade. 40 Similar studies of U.S. post-decision dynamics have shown that constitutional realities are messy, and include cases of partial accommodation, evasion, and sometimes downright defiance. 41 Such post-decision Fisher (n 8) 275. Friedman 1992 (n 8) Ibid 645. Ibid See, for example, William N. Eskridge, Overriding Supreme Court Statutory Interpretation Decisions (1991) 101 Yale LJ 331; Michael E. Solomine, James L. Walker, The Next Word:

15 15 interaction only loosely derive from from constitutional scripture. They also feed on political and social forces; despite the seemingly weaker pedigree of such forces, their vitality may be just as strong, if not stronger, in comparison to legal and constitutionalbased forces. Recognition of the political multilayered nature of the decision-making process is not absent in the UK either. For example, Nick Barber argues that it is best to consider the constitutional structure of the UK (and elsewhere) as one that balances multiple unranked sources of power, 42 which draws on the political. Indeed, the constitutional framework is more accurately depicted as a multi-actor network that enables a joint and ongoing process of decision-making and consensus formation. Government branches, individuals, interest groups, the media and other members of society continuously interact to produce a social solution under constantly changing tensions and coalitions of interest. 43 This is more of a conversation than a dialogue, in that government branches, interest groups, political parties, individuals in short, any locus of power can potentially participate and influence the (possibly temporary) settlement of a debate. Conclusion Constitutional/democratic dialogue is a well-worked metaphor. This paper wished to explore its different meanings. The initial distinction between a legal and a political meaning of dialogue, expressed in its purest form in the override clause on the one hand and in the response to judicial decisions under existing constitutional structures, was applied to the dialogue discourse, which has too often discussed both meanings indiscriminately. The reintroduction of this distinction led to my return to networked, Congressional Response to Supreme Court Statutory Decision (1992) 65 Temple LR 425; J. Mitchell Pickering, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (Duke UP 2004); Keith E. Whittington, James Madison Has Left the Building (2005) 72 Chicago LR For similar arguments beyond the US see below. This is not the only version of dialogue analyzed in the literature, although it can be viewed as central. For another type of dialogue, embodied in techniques used by courts to effectively remand the decision back to the decision-maker, essentially by considering processes rather than content, see Dan Coenen, A Constitution of Collaboration: Protecting Fundamental Values With Second-Look Rules of Interbranch Dialogue (2001) William and Mary LR NW Barber, Sovereignty Re-Examined: The Courts, Parliament, and Statutes (2000) 20 OJLS 131. Margit Cohn, Judicial Activism in the House of Lords: A Composite Constitutionalist Approach [2007] PL 95, 106 (argued in the context of analysis of judicial activism).

16 16 purely political decision-making, an aspect that is well-studied in many contexts, and deserves our full attention, in tandem with our recognition of the ways constitutional structures can reshape it. Analysis of this distinction would benefit from its application in empirical studies of the aftermath of judicial decisions. Responses to any formal dialogue-generating provision may differ in nature, but not only in the context of the legislative reaction. Tales of post-decision dynamics may show how other actors, operating in different methods and ways, made their mark in the constitutional sphere, and how formal dialogue feeds on these dynamics. This task is relegated to further research.