Anthony Sangiuliano (University of Toronto – Faculty of Law; York University – Faculty of Liberal Arts & Professional Studies) has posted A Kick in the Caboose: Recovering the Judicial Horizontality of Constitutional Equality Rights on SSRN. Here is the abstract:
Comparative constitutional scholars looking to Canada have observed that role of the Canadian judiciary in giving “horizontal effect” to the value of equality Canadian Charter of Rights and Freedoms has been limited to trailing behind antidiscrimination legislation and ensuring that it does not fail to go far enough to regulate discrimination between private actors, rather than creating private antidiscrimination obligations at common law. This phenomenon has been referred to as “caboose constitutionalism.” Without disputing its descriptive accuracy, I argue that caboose constitutionalism is normatively unappealing. It engenders what equality law scholars decry as “levelling down,” it forces judges to make controversial decisions about the moral message expressed by legislation, and its characteristic approach to constitutional remedies encourages judicial speculation about legislative policy. I suggest that it faces these problems because it rests on a specific theory of the relationship between courts and legislatures that portrays judges as exercising a “supervisory” role over legislative horizontality. I therefore propose an alternative theory of the separation of powers that foregrounds a form of “collaboration” between the branches when it comes to implementing the constitutional value of equality in private relations. I explain how, besides avoiding the problems that face the supervisory theory, the collaborative theory promises to justify a duty on judges to develop the common law of horizontal relations in accordance with equality values, rather than leaving horizontal effect up to antidiscrimination statutes. I show how it helps us formulate an argument for satisfying extant doctrinal rules that control when courts can entertain common law causes of action to address wrongful private acts that are already regulated by statute. This argument turns out to rest on the key premise that it is in virtue of judicial independence that a judge-made antidiscrimination tort makes a unique and indispensable contribution to the shared interinstitutional project of promoting constitutional values in private affairs.
Recommended.