Judicial Hegemony: Dworkin’s Freedom’s Law and the Spectrum of Constitutional Democracies

Ronald Dworkin’s Freedom’s Law offers a solution to a thorny problem in American constitutional law. He argues that the authority of the American Supreme Court to make the final determination on constitutional questions is consistent with democratic principles. In this paper, I try to show that his solution is unsatisfactory because it permits the possibility of a judicial usurpation of authority that is inconsistent with his characterization of democratic principles. Freedom’s Law is also a bold attempt to offer prescriptions for constitutional democracies generally. By drawing a distinction between two concepts of authority, I object to this effort. I argue that Dworkin’s analysis assumes the operation of a conception of authority that I label the pyramid model. I also introduce a bipolar model of authority and try to show its application to the Canadian constitutional scheme. On this basis, I conclude that his prescriptions are relevant only for a portion of the spectrum of constitutional democracies.