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John Hart Ely’s process theory of judicial review has had an influence on constitutions across the globe. This article explores and evaluates Ely’s influence on the drafting and development of the 1982 Canadian Charter of Rights and Freedoms. The article first outlines the rudimentary elements of Ely’s theory of judicial review, then how Ely’s explicit influence on the development of the Charter has mostly been limited to the context of Section 15 equality rights. But Ely’s influence has been more extensive in the way scholars have sought to understand the Charter. The third section of this article shows how Ely has had an impact on Patrick Monahan’s theory of judicial review under the Charter, and in Rosalind Dixon’s process theory of dialogue. The article concludes by arguing that although Ely’s concerns remain relevant in the Canadian context, there are two reasons to be skeptical of using Ely’s theory to understand Charter rights: the first reason is that the Charter features substantive rights that do not seem to be reducible to protections for participation in the political process; the second reason is that process-based dialogue theory appears to be insufficiently distrusting of courts.

Rainer Knopff's scholarship on Canadian constitutionalism has offered some of the most trenchant criticism of the exercise of judicial review under the Charter, yet his theory has largely been misunderstood (as has that of his frequent co-author F. L. Morton). This article exposes two prominent critiques of Knopff's constitutional writings as straw man arguments and provides a republican account of his constitutional theory. The first straw man argument is that Knopff supports a majoritarian or populist conception of direct democracy. This claim is belied by Knopff's embrace of representative democracy and institutions structured to encourage reflexive deliberation. The second straw man argument is that Knopff is a moral rights skeptic. Knopff's rights skepticism is a legal skepticism about the determinacy of many rights that is merely a function of his inclusive legal positivism. The article concludes by reflecting on the republican lessons that Knopff's constitutional scholarship continues to offer, including how holding legislatures responsible for settling reasonable disagreements about legally indeterminate Charter rights might help counteract the twin threats of populism and juristocracy.

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