What is the constitutional role of legislatures in a liberal democratic state? Authors in this volume provide a range of answers. Some depict legislatures as objects of constitutional decision making; for them, the primary role of legislatures is to be directed by constitutional norms. Others represent legislatures as instruments of constitutional decision making; for them, legislatures play a significant role in fulfilling constitutional norms. Still others characterize legislatures as sources of constitutional decision making; for them, legislatures play a key role in the generation of constitutional norms.

Canadian adherents of “dialogue theory” go further. They portray legislatures as playing a crucial role in legitimizing constitutional norms, including norms articulated through judicial decision making. Advanced by leading constitutional scholars and embraced by the Supreme Court of Canada, this theory holds that the purpose of judicial review under the Canadian Charter of Rights and Freedoms is to augment democratic decision making. Dialogue theorists maintain that judicial decisions under the Charter are not conclusive but form part of a dialogue with legislatures in which the latter retain the final say. It is this capacity of legislatures to decide the outcome of Charter issues that, in the eyes of dialogue theorists, bestows democratic legitimacy on Charter decision making.

The notion that the legitimacy of constitutional decision making rests on the ability of legislatures to trump judicial decisions is replete with contradictions and ironies, and raises questions that have both promising and troubling dimensions.