Sherif Girgis on Constitutional Law and Culture After Dobbs

Last week Calvin University hosted Prof. Sherif Girgis, who teaches at the Law School at my alma mater, the University of Notre Dame. His lecture on Constitutional Law and Culture After Dobbs can be found immediately below:

One of Girgis' more persuasive points is that, in today's United States, there is a predominant notion that the courts—and the courts alone—are the arbiters of what is constitutional and what is not. But it has not always been thus. In the early history of the US, presidents and Congress alike saw themselves as guarantors of the constitution, alongside the courts. The introduction of judicial review in 1803 was not meant to negate the responsibilities of the other branches of government to uphold the constitution. Two centuries later, however, something like judicial supremacy has become a poor substitute for constitutional supremacy, as provided for in Article VI, paragraph 2, of the Constitution of the United States.

What's wrong with judicial supremacy? Its net effect is to discourage the other branches of government from taking responsibility for ensuring that their own actions conform to the Constitution, thereby making them unhealthily dependent on the courts to do this for them.

Since 1982, Canada has taken a similar turn, with the patriation of our constitution and the adoption of a Charter of Rights and Freedoms. Under section 3(1) of the Canadian Bill of Rights of 1960, the Minister of Justice was given responsibility for ensuring that a proposed government policy conformed to the Bill prior to their being introduced into the Commons. This would ensure that no bill would be introduced that failed to conform to the protections guaranteed therein. To be sure, the Bill of Rights is not an entrenched part of our constitution, but it is constitutional in the sense that its subject matter is of constitutional significance. It might be seen as one of the statutory components of our constitution in its more comprehensive sense.

However, the Charter has effected something close to judicial supremacy. The presence of the courts and their powers under our two Constitution Acts have made it easier for our governments to shirk responsibility in certain policy fields by deferring to the courts. It allows them to avoid making controversial decisions that might alienate a substantial portion of their support base. This obviously stands in tension with our central constitutional principle of responsible government, whereby the government of the day must retain the confidence of the people's representatives in the House of Commons.

Do listen to Girgis' address and to the question and answers following the address, as they have relevance to both the US and Canada.