Constitutional Law in Theory and Practice

David Boyd Morley is a lawyer with the firm Milligan-Whyte & Smith in
Hamilton, Bermuda.

The central thesis of this book is that constitutional law, both in
Canada and elsewhere, can be reduced to two basic principles or tests:
rationality and proportionality. The author uses this framework to
explain the decisions of the Supreme Court of Canada, particularly in
the decade following the passage of the Charter of Rights and Freedoms.
In doing so, he refutes the argument that judges, in deciding hard
cases, rely on their own intuition and subjective views about whether a
law should be validated or struck down.

It is an ambitious exercise to reduce the con-stitutional experience of
any country to two fundamental principles. In the final analysis,
Beatty’s twofold test fails to convince. It was, after all, deductive
reasoning that led the Supreme Court, in 1928, to conclude in Edwards v.
A.G. Canada that women were not “persons” qualified to sit in the
Senate. Beatty’s second criterion merely recognizes that ever since
the Charter came into force, it has been the Court’s task not only to
interpret and apply legislation but also to determine when that
legislation may be invalid because it infringes on a fundamental right.
Nevertheless, Beatty’s book provides valuable insights into the
Supreme Court’s constitutional decisions, as well as an interesting
discussion of decisions made by the constitutional courts of last resort
in Japan, India, and a number of Western states. Although of obvious
interest to those with a specialized interest in constitutional law,
this book is accessible to the general reader.