5 - Past, Present, and Justice in the Exercise of Judicial Responsibility

Summary

The chapter begins with the example of the French ancient régime, under which parlements had the authority to issue remonstrances against royal edicts, thus denying their registration as laws. The king could reply with an order for registration, which could in turn be subject to a remonstrance. The king could end the dispute by appearing personally before the parlement and reading his edict into the record. Levy draws on this to offer lessons, including that Canadian and Commonwealth constitutionalism may be less dialogic than is often thought. He also explores departmentalism in US constitutional thought, according to which each branch of government has an independent duty to obey and uphold the Constitution. Though there is overlap between dialogue and departmentalism, they diverge when the branches reach an impasse. In the departmentalist view, settlements result from contestatory politics. In the dialogic view, settlements result from deliberative reason-giving. Levy argues that we should deflate our expectations for constitutional dialogue. He argues that the departmentalist emphasis on disagreement and contestation offers a clearer and more ubiquitous notion of constitutional dialogue. Sometimes resolution will not result from persuasion or the culmination of democratic legitimacy. Sometimes it will show that politics is about not only persuasion, but also coercion.