Living Dead Constitutionalism or Why Old Constitutional Worlds Are Never Lost for Good: A Comment on Rosalind Dixon’s Responsive Judicial Review

Abstract

This review essay reflects on Canadian antecedents and inspirations for Rosalind Dixon’s comparative political process theory. The first section focuses on the articulation of two theories of judicial review under the Charter by Patrick Monahan and Kent Roach that intersect at many points with Dixon’s own account of constitutional review under a written bill of rights. The second section then turns to elements of the Canadian pre-Charter experience that were missed or neglected by those theories and shows why Dixon’s theory nicely captures their internal logic, while the third section returns to the tensions and complexity of Canadian constitutional culture identified by Cairns. Neither solved nor gone, these tensions are revealing of a limitation — or at least an unstated assumption — in most normative theories of judicial review based on deliberative accounts of constitutionalism, including Dixon’s own.