The Lawmakers: Judicial Power and the Shaping of Canadian Federalism
Published: January 2004© 2002
432 Pages, 5.99 x 8.99 x 1.33 in
The Canadian Constitution of 1867 as written should have provided the authoritative guide to the law governing the division of powers between the national and provincial governments of Canada, but by the 1940s the federal constitution was a very different document to that composed originally by John A. Macdonald and his colleagues. In this engaging and exhaustive examination of the critical role of the courts - the Judicial Committee of the Privy Council and the Supreme Court of Canada - in shaping Canadian federalism, John Saywell argues that the courts always have and still do 'make law' - law that can be largely subjective and often bears little relationship to the text or purposes of the Constitution.
Saywell begins his analysis by offering new evidence and insights on the structure of the 1867 constitution. Relying heavily on the voices of the actors themselves, his analysis moves beyond a simple examination of previously published reports and examines oral arguments before the Judicial Committee, largely from manuscripts, to determine how the Committee interacted with counsel, developed their arguments, and came to their conclusions. Critical of the jurisprudence of the Judicial Committee, which he argues virtually eliminated some of the critical legislative powers of the federal government and destroyed its capacity to act on the economic and social problems of the twentieth century, Saywell credits the Supreme Court with restoring the balance in the federation and strengthening the national government. Comprehensive, ambitious, and detailed, The Lawmakers will be the definitive work on the evolution of the law of Canadian federalism.
'A work of staggering scholarship, enormous breadth, and far-reaching significance ... Saywell has tackled a subject that has daunted many before him, and in bringing the frequently dismissed tools of the historian to a major question posed by the political science and legal communities, has demonstrated the utility of going back to the sources. This is a book that will appeal to students of all three disciplines and may indeed demonstrate to many more that a fait accomplis can, in fact, still be debated.'Penny Bryden, History, Mount Allison University
'This is a fine work of legal historical scholarship. It is by far the most comprehensive, most thoroughly researched, and the best balanced account of the judicial interpretation of Canada's federal constitution.'Peter Russell, Department of Political Science, University of Toronto
'A brilliant journey through the history of constitutional decision-making in Canada. This is an indispensable source for understanding the judicial role and its evolutionary development. It's fascinating to see both how much has changed and how much is endemic to the constitutional landscape.'The Honourable Justice Rosalie Abella, Court of Appeal for Ontario
- Dafoe Book Prize, JW Dafoe Foundation
- Shaughnessy Cohen Prize for Political Writing, Writers' Trust of Canada