Legislative Versus Judicial Checks and Balances: Comparing Rights Policies Across Regimes

Abstract

There is a longstanding debate in liberal constitutionalism over which method of rights protection – legislative or judicial – best achieves the moderate policy outcomes envisioned by democratic theorists. This article examines this question by comparing two Commonwealth countries, Canada and Australia, which explicitly placed themselves on opposite sides of the debate. After outlining the historical debate, a case study design compares the policy process and outcome in the two countries on the issues of prisoner voting and same-sex marriage. The data suggest that bicameral legislatures best serve their moderating functions when the government is not in control of the upper chamber, whereas rights-based judicial involvement in policy making tends to promote extreme policy outcomes. The evidence is mixed, however, and the existence of counter-examples points the way to further research.

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