Re: "The Elected and the Appointed: Part Two," by Philip Slayton (May 2010).

Baker, Dennis

It is a testament to Philip Slayton's acerbic style that his review of my book, Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation, made me smile even when it stung. Given that I do indeed "revel" in being a "cantankerous outsider," it should comes as no surprise that I have a few quibbles with his review.

Slayton suggests that "coordinate constitutional interpretation" is "born on the right wing," is overly normative and "does not seem to explain ... the world as we know it." As I detail in Not Quite Supreme, the coordinate theory has long roots in Anglo-American jurisprudence and its proponents have come from both the left and the right. Indeed, the theory's recent resurgence in the United States has come from American legal scholars dissatisfied with decisions of the Rehnquist and Roberts courts.

In Canada, as Slayton notes, "everyone behaves as if the Supreme Court does have the last constitutional word." On that point, I am in full agreement. It is such an orthodox view that when the Supreme Court of Canada merely flirted with coordinate interpretation in two notable Charter criminal rights decisions, the negative reaction was such that the court retreated back to its more comfortable position of judicial supremacy. If nothing else, my book is intended to address this failure of popular constitutional imagination and to suggest a conception of our constitution that is something more than what the Court says it is. This is obviously a normative argument, but one that must be made before we can expect political actors other than judges to behave as if they too have a role in determining what the constitution means.

Finally, on the issue of the appropriate audience for the book, I concede that Not Quite Supreme is not quite as accessible as Slayton's wonderfully lurid Lawyers Gone Bad: Money, Sex and Madness in Canada's Legal Profession, but I expect that readers of the LRC who are interested in legal issues will find it quite manageable and--I dare say--enjoyable.

Dennis Baker

University of Guelph