Canada, who adopted a constitution in living memory, is seeing more
quasi-political decisions being made by courts on constitutional
It's still comparatively rare in Canada though. I
think the difference as compared to what happens in the USA is due to the very
different political environment. In the US, the political system is designed to
be indecisive and the lines of responsibility are unclear and diffused. In
Canada, a party which wins an election can generally can pass whatever
legislation they want. and are considered to be completely responsible for
anything which happens while they are in power. Indeed, the Americans call their
system "division of powers" (or something like that), while the Canadian system
is called "responsible government" (where "responsible" means the electorate
holding the government responsible for whatever happens).
rare occasions when the courts in Canada overturn a significant law on
constitutional grounds they suspend the effect of their decision for a period of
time (e.g. one year) to allow the government time to enact revisions to the
legislation to bring it into compliance. The courts are very reluctant to impose
any actual solutions of their own. This is probably mainly due to the knowledge
that the government will legislate if they actually care about the issue.
There is also in Canada a simple escape clause available called the
"not withstanding clause". Basically, the government can simply pass the
legislation including this clause which puts it outside of review by the courts
(except for a few very limited reasons). This was insisted upon by the provinces
who didn't want the patriation of the BNA Act (which was something the federal
government wanted, not the provinces) to affect their traditional powers. The
clause is used rarely (although Quebec will go through occasional phases of
attaching it to everything). However, if the government genuinely wants certain
legislation, there is really nothing the courts can do to stop it. The only real
limitations to government power are the optics of how things would look in the
In general I would have to say that the details of the
constitution matter a lot less than the working practices of the government
itself. The American system is designed to allow politicians to evade
responsibility, while the Canadian system is designed to pin responsibility
squarely on the party in power. The result is that American politicians try to
avoid making difficult decisions, while Canadian politicians cannot (although
they can still make a hash of things of course).
political system is a typical product of 18th century "social engineering".
People were fascinated by the machines in the factories of the early industrial
revolution, and political philosophers imagined society as a sort of giant
"machine". They thought that by designing the right sort of "social machine"
they could produce the perfect society. The Canadian political system is
inherited from the UK and is the result of many centuries of evolution with very
little conscious design and has no pretences of being a perfectly engineered
social "system". It has the great benefit though of the parts that actually
matter being very simple and straight forward. I think that history has shown
that simpler solutions are better.
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