Antigone in Hamilton

The confrontation between New Zealand legal system and a family trying to bury a dead husband/father is eerily like Sophocles’ tragedy

It’s the story of wanting to mourn and bury a family member, and being prevented from doing so by law, perhaps not an unreasonable law. It’s the story of breaking the law to do what one thinks is right, and of not only being punished for it but being scolded by a man self-righteously posing as the voice of his people. It’s an old story. It’s one of the oldest stories. It’s a story that’s 2500 years old.

No, wait. It’s a new story. It just happened in Hamilton. (The New Zealand Hamilton, that is.) Stuff reports that a mother and her children “had flown over from Brisbane after the children’s father suffered a stroke and died on July 20. … She said the children had watched their father take his last breaths on a video call”. On arrival in New Zealand, they were put in quarantine. They applied for a compassionate exemption to attend the funeral, but their application was denied on the basis that “their ‘circumstances were not exceptional'”. So they escaped. The mother and three children were quickly captured, but a 17-year-old boy made it from Hamilton to Auckland, and “was able to spend between three and four hours with his father’s body before he negotiated with police and was detained”. And hence the grandstanding in Hamilton Youth Court: 

All appeared in front of Judge Noel Cocurullo, who said that New Zealanders were “sick and tired” of quarantine breaches. “The New Zealand public would be gutted at your behaviour,” he told the family. “You know the rules required of you coming into the country. It’s most important you comply with the rules.”

The mother, though, is not impressed with this. She “told Stuff ‘[she] was doing what any other mother would have done for their children'”.

I’m not sure about “any”, but as Sophocles knew, she certainly has a point. He tells of Creon, the king of Thebes, prohibiting anyone on pain of death from giving the funeral rites to Polyneikes, who tried to bring an invading foreign army to the city. Polyneikes’ sister Antigone defied Creon’s edict and tried to bury her brother.

The resulting conversions, although fortunately not the ultimate outcome (spoiler alert: it’s a tragedy, so everybody dies) foreshadow the recent events quite uncannily. Creon, like Justice Cocurullo appeals to the public authority of the laws, and Antigone, like the mother here, trumps it with that of natural, pre-political obligation:

Creon: Knew’st thou the edicts which forbade these things?

Antigone: I knew them. Could I fail? Full clear were they.

Creon: And thou did’st dare to disobey these laws?

Antigone: Yes, for it was not Zeus who gave them forth,⁠
Nor Justice, dwelling with the Gods below,
Who traced these laws for all the sons of men;
Nor did I deem thy edicts strong enough,
That thou, a mortal man, should’st over-pass
The unwritten laws of God that know not change.
They are not of to-day nor yesterday,
But live for ever, nor can man assign
When first they sprang to being. Not through fear
Of any man’s resolve was I prepared
Before the Gods to bear the penalty
Of sinning against these.

And Creon, like Justice Cocurullo, insists that the people are with him, not with the one who defies him. She, though, begs to differ:

Creon: Of all the race of Cadmos thou alone
Look’st thus upon the deed.

Antigone: ⁠They see it too
As I do, but their tongue is tied for thee.

Creon: Art not ashamed against their thoughts to think?⁠

Antig: There is nought base in honouring our own blood.

And, is it turns out, it is probably Antigone who is right about the state of public opinion. Creon’s son and Antigone’s fiancé, Haemon, challenges his father:

Haemon: ‘Tis my lot to watch
What each man says or does, or blames in thee,
For dread thy face to one of low estate,⁠
Who speaks what thou wilt not rejoice to hear.
But I can hear the things in darkness said,
Ηοw the whole city wails this maiden’s fate,

I won’t pretend to know where the state of public opinion in New Zealand lies on this story. And, wherever it lies, this should not matter for Justice Cocurullo’s verdict. We have the advantage of separation of powers over the Thebans, and this means that our judges must apply the law as it is ― and it is, then, for the Crown and its responsible advisors to exercise the prerogative of mercy in the appropriate cases. I won’t even pretend to say whether this is such a case.

But what I think I can say is that Justice Cocurullo, and other judges ― not just in New Zealand ― should not be so quick to saddle their moral high horse. Another, more recent work of literature comes to mind ― Patrick O’Brian’s Desolation Island (one of the novels in the Master and Commander series), of all things, where Dr Maturin, I believe, has this to say:

judges … not only are … subjected to the evil influence of authority but also to that of righteous indignation, which is even more deleterious. Those who judge and sentence criminals address them with an unbridled, vindictive righteousness that would be excessive in an archangel and that is indecent to the highest degree in one sinner speaking to another, and he defenceless. Righteous indignation every day, and publicly applauded!

And if there is one thing worse still than righteous indignation on own’s behalf, it is that on behalf of others ― who, as often as not, will not actually share in it. That is as true now as it was 2500 years ago.

A Citizen’s Guide to the Rule of Law

Introducing a chapter on the nature and importance of the Rule of Law

Last year, Peter Biro of Section1 asked me to contribute a chapter on the Rule of Law for the book he was putting together. The book, Constitutional Democracy under Stress: A Time for Heroic Citizenship, is going to be available in the second week of August, but, with Mr. Biro’s kind permission, you can read my contribution, “A Citizen’s Guide to the Rule of Law“, now ― and for free. It’s meant to be a relatively concise and accessible introduction to the concept of the Rule of Law and to the main strands of scholarship about it, as well as an examination of whether Canadian law actually lives up to the Rule of Law’s requirements. Here is an abstract:

This chapter sets out, for both a generalist and a legally trained readership, the basic contours of the Rule of Law as a legal and political ideal, with a special focus on the ways in which ideal is understood and implemented in the Canadian legal system. It begins by explaining why law is necessary, and why it must bind both government and individuals. A review of three key themes around which the understanding of the Rule of Law is often organized in scholarship follows. The first of these themes is the form that the law, especially legislation, takes. The second is the process by which law is made and enforced by legislatures, the courts, and the administrative state. The third is the possibility that the Rule of Law may impose constraints on the substance of the laws, especially in order to protect fundamental individual rights. The chapter concludes by arguing that adherence to the Rule of Law is the only way in which the exercise of power can be contained and the arbitrariness inherent in it in the absence of law can be counteracted.

The reason for writing this chapter (other than that Mr. Biro asked me to do it) is that too many people ― up to and including at least a couple of Supreme Court judges ― don’t seem to understand what the Rule of Law is and why it matters. I write in the introduction, the Rule of Law is paired with “the supremacy of God” in the preamble to the Canadian Charter of Rights and Freedoms and

there is indeed something theological about the reverence with which some lawyers speak of the Rule of Law, and … it too is an elusive and mysterious idea—and one, moreover, that induces as much impatience in those not converted to it as any religious dogma. (104)

The reason for this impatience is that, however dimly they understand it, the Rule of Law’s detractors ― from absolutist kings to populist politicians to the judges who would abet the ones or the others ― realize that it is a break on the exercise of political power. As I explain in the conclusion of the chapter,

It is precisely the constraint that law represents that so infuriated James I … and that infuriates his spiritual descendants, as impatient as he of limits on their ability to do what they are convinced is right and necessary or just. Be they administrators on a mission to rationalize and organize society, do-gooders on a quest for equality, or patriots in pursuit of national greatness, they resent their inability to act without prior authorization; they chafe at the need to give those unwilling to be organized or equalized opportunities to challenge their commands; they would disregard ancient rights in the pursuit of the greater good. They wish they could do what they believe is necessary, right, and just. (120)

Yet power, as I have explained here, here, here, here, and here, corrupts. It must be kept in check. The Rule of Law is necessary for us to be able to do so. It is, in a real sense, a victim of its own success: people in Western democracies have forgotten what life without the Rule of Law is like, so they speculate about its being dispensable. But no one among those engaged in such speculation would want to live without the Rule of Law. If it sometimes gets in the way of their, and our, good intentions, this is a price well worth paying. I hope you read my chapter to understand, or better yet to simply remind yourselves, why this is.

On Canadian Statutory Interpretation and Recent Trends

I have had the pleasure of reading (for the first time front-to-back) the legal interpretation classic, Reading Law by Justice Scalia and Bryan Garner. For Canadian courts struggling with how to source and use purpose when interpreting statutes, Reading Law provides valuable assistance. It does so by outlining two schools of thought on how to source purpose, schools of thought that are prevalent in Canadian debates and recent decisions over statutory interpretation. On the one hand is purposivism; on the other hand is textualism. While these schools do not actually differ about whether purpose should form part of the interpretive exercise, they do differ about how to actually determine what purpose governs. Canada’s recent statutory interpretation cases point to the textualist direction.

The first school of thought, broadly known as purposivism, is apparently Canada’s leading approach to statutory interpretation.  Purposivism “acknowledges that the meaning of language is imprecise and measures words against contextual, schematic, and purposive considerations” (see Hutchison, here, at 8). Aharon Barak claims that:

[a]ccording to purposive interpretation, the purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text. The author of the text created the text. The purpose of the text is not part of the text itself. The judge formulates the purpose based on information about the intention of the text’s author (subjective purpose) and the “intention” of the legal system (objective purpose) (Barak, Purposive Interpretation, at 110).

The motivation behind purposivism is a sort of legal realism that queries whether text can ever truly be clear enough to be a dominant force in legal interpretation (see, for a characteristic example of this line of thinking, the opinion of Breyer J in FCC v NextWave Personal Communications Inc, 537 U.S. 293, 311). Purpose is thus a way to deal with latent ambiguities that may naturally arise in text. And importantly, purpose is focused on the “ends” a statute is designed to achieve, perhaps at a high level of abstraction or generality. On a radical purposive account, the goal of interpretation is to effectuate whatever the court determines the purpose(s) to be; text is merely a means to the end of purpose. Put differently, text is derived from purpose under the purposive account.

On the other hand is “textualism.” Textualism receives a bad rap in Canada, but that is probably more due to caricature than a real appraisal of the merits and demerits of the textualist method. Here Scalia & Garner have much to say. While the central feature of textualism is the idea that “if the text…is clear, interpreters should not impeach the text using extrinsic evidence of statutory purpose…” (Manning & Stephenson, Legislation and Regulation, at 94), textualism does not ask a court to “put on blinders that shield the legislative purpose from view” (Scalia & Garner, at 20; see also William Popkin, “An ‘Internal’ Critique of Justice Scalia’s Theory of Statutory Interpretation,” 76 Minn L Rev 1133, 1142 (1992)).  Instead, purpose is “deduced from a close reading of the text” (Scalia & Garner, 20).  Put differently, purpose is derived from text on the textualist account.

Why are textualists concerned about purposes achieved without reference to the text? First, textualists are concerned about the generality problem (see Max Radin, “Statutory Interpretation,” 43 Harv L Rev 863, 876 (1930)). A court motivated by its own results-oriented reasoning could choose a purpose that is barely represented in text, or is otherwise quite abstract in relation to text. Indeed, at the highest level of generality, every statute could be said to pursue “justice and security” (see Radin). But choosing that purpose could distort the means used by the statute chosen to achieve its ends by “enabling…crabbed interpretations to limiting provisions and unrealistically expansive interpretations to narrow provisions” (Scalia & Garner, at 20). This particular problem also has resonance in administrative interpretations of law, where an expansive purposive interpretation of enabling provisions could actually result in more deference to decision-makers than what the text itself allows.

Second, textualists are concerned with the realities of the legislative process and the fact that legislatures are imperfect. The takeaway from the Legal Process school, which influences purposivism, is that legislatures pursue reasonable purposes reasonably. But textualists understand that legislation, especially in the US, is a result of legislative compromise. While purposes may be clear, text pursues purposes in different ways. In this way, textualists are more concerned with the implementational rather than the ulterior purposes of legislation. Legislation can implement purposes in text in various ways.  A generalized example here is instructive:

For example, a statute providing a specific protection and a discrete remedy for purchasers of goods can be said to have as its purpose “protecting the consumer.” That would not justify expansive consumer-friendly interpretations of provisions that are narrowly drawn (Scalia & Garner, at 57).

What does this dispute between textualists and purposivists have to do with Canada? From a descriptive perspective, it describes perfectly what is happening in Canadian courts right now with regards to purpose. Normatively, Scalia & Garner’s text explains why a textualist-purposive approach is well-justified.

On the descriptive account, the Supreme Court in the past has fallen victim to the “level of generality” problem. West Fraser is a classic example. There, the dispute was whether a British Columbia statute permitted fines to be levied for workplace safety violations against owners of land on which accidents occurred. The relevant provision under which West Fraser was fined was, by its text, only applicable to “employers.” But Chief Justice McLachlin, for the majority, held that the ultimate purpose of the statute was to “promote workplace safety in the broadest sense” (see West Fraser, at para 17). This allowed her to conclude that the particular text of the section under interpretation should be interpreted to cover off West Fraser’s conduct. But here is a classic example of the purposive approach: purpose was used to interpret the text under consideration, rather than the other way around.

Justice Côté in dissent, in my view, had much better of the argument. Her view was that the relevant provision had chosen the means by which to pursue the purpose of workplace safety. The text had chosen “limited means” to pursue that purpose—by limiting fines to employers (see West Fraser, at para 107). This is a classic dispute between ulterior and implementational purposes.

Justice Côté’s view has recently been picked up in recent Supreme Court cases and in cases in the Federal Court of Appeal. I cite two examples here. First is Telus v Wellman, which I wrote about here. There, the dispute was what purpose should be chosen: for the majority, the purpose of the Arbitration Act, as directly reflected in the relevant statutory provisions, was that the Act ensures that parties abide by their agreements. But in dissent, Abella and Karakatsanis JJ would have pitched the purpose of the statute at the level of “access to justice.” Moldaver J in majority rejected the dissent’s characterization, holding that this purpose could “distort the actual words of the statute” (Telus, at para 79). The access to justice purpose was not rooted in statute. Moldaver J, then, could be said to adopt a position closer to Cote J in West Fraser, and closer to the textualist position identified by Scalia & Garner.

Similarly, in Hillier, Justice Stratas rejected the Attorney General’s attempt to cast a statute at the high level of abstraction of “administrative efficiency.” Rather, he concluded that not “every section in the Act is aimed at furthering efficiency” (Hillier, at para 35). Rather, the relevant provision under interpretation “pursues a different, more limited purpose” (Hillier, at para 35). That limited purpose governed, not the abstract purpose chosen by the Attorney General.

In these cases, the Supreme Court and the Federal Court of Appeal corrects the error in West Fraser. And here is a good point to say why it is that the textualist approach adopted by Moldaver J and Stratas JA is preferable. First, as noted above, a liberal application of the purposive approach could lead to high error costs. By prioritizing ulterior motive over implementational purpose (abstract versus specific purposes), the court could fail to understand how and why a statute achieves a particular goal. In other words, reasoning backwards from purpose (as McLachlin CJ did in West Fraser) could lead to ignoring what the text actually says, and how the text decides to pursue a particular goal. For McLachlin CJ in West Fraser, it was of no moment that the relevant provision only applied to employers. But this was the interpretive dispute at hand. The interpretive approach in West Fraser, in this sense, ignores the import of the text.

Secondly, and pragmatically, choosing more abstract purposes of statutes over more implementational ones does not actually help the interpretive task. To say that the purpose of a statute is “access to justice” will rarely do anything to determine how the text is actually supposed to be interpreted. This is because there are many different ways that a statute can methodologically choose to pursue access to justice. More likely, abstract, ulterior purposes can be used to distort text to achieve policy outcomes the interpreter likes. This is profoundly violative of the Rule of Law.

And finally, as Scalia & Garner note, perhaps the most important interpretive canon is that one which says that “[t]he words of a governing text are of paramount concern, and what they convey, in their context is what the text means” (Scalia & Garner, at 56). This sentiment has been expressed by the Supreme Court of Canada, particularly where text is “clear” (see Celgene, at para 21). It is as old as Justinian’s Digests (“A verbis legis non est recedendum”). A powerful principle of democracy justifies the canon. It is, after all, text which is enacted by our democratic institutions. Purpose should revolve around text, such that the purpose with the most reflection in text should govern. Sourcing text from purpose risks prioritizing an ideal with little democratic pedigree over the specific and finely-wrought means by which the text enacts that purpose.

Overall, and while no Canadian court will probably ever describe itself as textualist, courts in Canada are increasingly looking to text to discern purpose. In my view, this is a salutary development.

The Mirror and the Light

Thoughts on finally finishing the last part of Hilary Mantel’s Thomas Cromwell trilogy

More determined readers finished it long ago, but I only did so yesterday, and thought I would offer some thoughts on Hilary Mantel’s The Mirror and the Light, the final book of her Thomas Cromwell trilogy. I suppose I should say “spoiler alert”, but of course there aren’t any spoilers there. We know exactly how the book ends. (And indeed I have blogged about a straight-up biography of Cromwell here.) For Dame Hilary’s readers, it is the journey, not the destination, that matters.

And what a journey it is! The book is well over 850 pages long. To be honest, it really should have been two books. I went into it a huge fan of Dame Hilary and, to anticipate, I come out of it a huge fan still; but my commitment has been sorely tested. There is, inevitably, a mind-boggling amount of detail about the events of Cromwell’s years of power and then his downfall ― indeed, only a sample of the events, as some strands of the historical Cromwell’s story are worn down to barely perceptible threads. But, in addition, the narrative gets lost in meditations ― Cromwell’s or Dame Hilary’s narrator’s, it is characteristically hard to tell; meditations on time and place, on fate and memory, on life and death. It may well be that this sense of being caught in a maze of events, perhaps inconsequential, and reveries, likely fateful ― in a sprawling house full of hidden recesses and secret passages and dark basements filled with secreted relics and not a few skeletons, like Cromwell’s Austin Friars ― is exactly what Dame Hilary wants her reader to feel. (She gives an account of her thoughts on these things in Reith Lectures, which I highly recommend.) But, for all the mastery with which it is delivered, and for all the depth of the thoughts ― to some of which I return below ―, it is sometimes too much.

But, as the story breaks out of the maze at last, in the last 150 or so pages, and speeds up to its inevitable conclusion on Tower Hill, its telling is at a level that few writers can even hope to ever achieve. The reader knows what is coming, of course: the fall, the Tower, the scaffold. Denied the possibility to surprise, Dame Hilary must entrance the reader; she sets herself a seemingly impossible task: how can you tell a man’s execution, especially when her writing, as always, is very much inside her character’s mind, this inimitable hybrid between a third- and a first-person narration that the readers of Wolf Hall and Bring Up the Bodies will remember? Well, you and I couldn’t, but Dame Hilary can. In the real Cromwell’s life much remains unknown, caught in the record only as a reflection or a shadow. For Dame Hilary’s readers, it will be impossible to imagine that events unfolded in a way different than the one she conjectures, or indeed that Cromwell’s thoughts were not those she imputes to him.


Let me say something about these thoughts, and others that Dame Hilary explores. I don’t imagine that she meant to write about our current moment in particular. For one thing that would be diminishing what is really a timeless literary achievement. For another, as brilliant as she is at imagining the past, I don’t suppose that Dame Hilary can see the future, and after all she worked on The Mirror and the Light a long time, starting when the world was still a different, and in some ways a more innocent place. So, to repeat, the book is no allegory for the present. Yet so much of it seems to be about 2020, not 1540.

Of course there are meditations on the law. Dame Hilary studied law, and her Cromwell is very much a lawyer. (So are the protagonists of her excellent early novel about the French revolution, A Place of Greater Safety ― Danton, Dumoulin, and Robespierre.) There is this, on retroactive law, and on due process more generally:

A prince cannot be impeded by temporal distinctions: past, present, future. Nor can he excuse the past, just for being over and done. He can’t say, ‘all water under the bridges’; the past is always trickling under the soil, a slow leak you can’t trace. Often, meaning is only revealed retrospectively. The will of God, for instance, is brought to light these days by more skilful translators. As for the future, the king’s desires move swiftly and the law must run to keep up. ‘Bear in mind his Majesty’s remarkable foresight, at the trial of the late queen. He knew the sentence before the verdict was in.’

And process is again all-important at the end, as Cromwell is arrested and charged with fanciful, made-up transgressions: “‘Valentines? Sorcerers? Any jury would laugh you out of court.’ But, he thinks, there will be no jury. There will be no trial. They will pass a bill to put an end to me. I cannot complain of the process. I have used it myself.”

In the end, Dame Hilary’s Cromwell becomes a sort of critical legal scholar:

Rats have eaten the laws of ancient times. They relish fish-glue and vellum; anything that was once alive, they will eat it, and then out of habit, they will eat what is dead; from the margins they chew their way in, to the secret history of England. It is the glory of the men who have worked with Cromwell that instead of merely cursing the vermin they have patched, they have mended, they have stretched a point to replace a gnawed vowel; they have been ready to substitute a digested phrase with a clause that will help the crown. But what has it availed? He has lived by the laws he has made and must be content to die by them. But the law is not an instrument to find out truth. It is there to create a fiction that will help us move past atrocious acts and face our future. It seems there is no mercy in this world, but a kind of haphazard justice: men pay for crimes, but not necessarily their own.

Perhaps what we have come to call the Rule of Law is better, then.

Beyond law, there are reflections on power ― princely power, of course, but I think we must ask how they apply to power exercised not only by monarchs but also by electorates or even by online mobs. In the very beginning, at the execution of Anne Boleyn, Cromwell turns on the Duke of Suffolk, who demands to know why he did not force Anne’s father to witness it. He insists that he must protect the King from being needlessly cruel: “[i]f you love the king … , pay some heed to his soul. One day he will stand before God and answer for every subject.” But can a man who uses and abuses the law as Dame Hilary’s Cromwell does truly say that he pays heed to the King’s soul? He does not seem to ask himself these questions, not until it is too late and he realizes that for “ten years I have had my soul flattened and pressed till it’s not the thickness of paper”. But we must.

The sovereign, perhaps, is not like the rest of us:

is a prince even human? If you add him up, does the total make a man? He is made of shards and broken fragments of the past, of prophecies and of the dreams of his ancestral line. The tides of history break inside him, their current threatens to carry him away. His blood is not his own, but ancient blood. His dreams are not his own, but the dreams of all England: the dark forest, deserted heath; the stir in the leaves, the dragon’s footprint; the hand breaking the waters of a lake. His forefathers interrupt his sleep to castigate, to warn, to shake their heads in mute disappointment.

An electorate, a people, is not human either. It too is all these things, perhaps; it too is haunted.

Against power, there is also disobedience, and revolt. The Pilgrimage of Grace is at least a better-sounding name than populism, but is there much difference ― in reality, or in how those in power think about these things? The rebels think, or those who write about them say they think, that

[t]here was a former age, it seems, when wives were chaste and pedlars honest, when roses bloomed at Christmas and every pot bubbled with fat self-renewing capons. If these times are not those times, who is to blame? Londoners, probably. Members of Parliament. Reforming bishops. People who use English to talk to God.

Their leaders tell them that Henry has made himself God. Now if a child falls sick between Truro and Newcastle, they lay it at the king’s door; if a well dries, if the butter spoils, if a bucket leaks: everything that is out of joint with them, from a fall of hailstones to a cricked neck, they blame on the court and council. Their grievances run like streams underground, welling up from the Scots border to Dover, till the whole land is flooded with nonsense.

Finally, a constant theme in The Mirror and the Light, and an especially relevant one just now, is what can be said. After the run-in with Suffolk, Cromwell wonders if he has gone too far in rebuking the duke, but wonders: “if you cannot speak truth at a beheading, when can you speak it?” He also tells his son, shortly thereafter, that “[i]t is not wrong to speak your mind. On selected occasions. They make it painful for you. But you must do it.” Yet as the story unfolds, the selection of the occasions grows ever stricter. He tells the King’s unloved, suspected daughter Mary “to compromise her conscience” to get back in his good graces. He knows that “of course she will despise herself afterwards. But that is the price. … [T]ime will ease the sting of it.” Dogma is uncertain and unsteady, but also deadly.

Corpus Christi is a miracle. It is a mystery. Once consecrated, the host contains your God, alive: the wine is his blood. You cannot hope to understand it but you must believe it. And if you fail to believe it you must keep quiet, because your failure can kill you.

Even the archbishop of Canterbury is afraid:

“[O]nce the bill is passed, none of us will preach on the Blessed Sacrament, its nature. We dare not. We would not know what it is safe to say, without being tripped by the law and cited for heresy.” This is what the king calls concord: an enforced silence.

Henry VIII has disciples in our own time, and people are afraid of them as the Bishop Robert Barnes was afraid of the enforcers of Henry’s shape-shifting orthodoxy: “It’s not his faith, but his temperament that will fail. He is not Luther. Here he stands: till Gardiner knocks him across the room.” Others too feel they “are living on borrowed time, in small rooms, a bag always packed, an ear always alert; … sleep[ing] lightly and some nights hardly at all.” In the end, Cromwell decides that he cannot speak the truth, certainly nothing like the whole truth, at his own turn on the block. For the sake of his son, his nephew, his friends, he speaks little, and says less.

A little earlier, as he awaits his execution, Cromwell imagines Heaven and Hell. “When he pictures Hell he can only think of a cold place, a wasteland, a wharf, a marsh, a landing stage; Walter” ― his abusive father ―

distantly bawling, then the bawling coming nearer. That is how it will be – not pain itself, but the constant apprehension of pain; the constant apprehension of fault, the knowledge that you are going to be punished for something you couldn’t help and didn’t even know was wrong; and the discord in Hell will be constant, repeating for ever and ever, a violent argument being carried on in the next room.

Sounds familiar, doesn’t it?


Anyway, read the book. Skip the middle 500 pages if you must, but do read it. You won’t be sorry.

Keeping Faith

A master class in public meaning originalism, delivered by the US Supreme Court’s Justice Elena Kagan

Earlier this week, the Supreme Court of the United States delivered its decision in Chiafalo v Washington, upholding the constitutionality of a state statute imposing fines on “faithless” presidential electors ― those who do not vote for the candidate who won their state’s popular vote. The majority judgment, given by Justice Kagan for a seven-judge majority (and indeed unanimous on some key points), should be of some interest to Canadian readers for what it says about constitutional interpretation and, in particular, about the role of conventions and practice. As others, notably Josh Blackman over at the Volokh Conspiracy, have noted, Justice Kagan’s opinion is a thoroughly, and intelligently, originalist ― which should remind skeptics of originalism inclined to dismiss it as a partisan affectation that it is not.


As Justice Kagan explains,

Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few “electors” then choose the President. (1)

But what is it that ensures that the vote of the Electors is aligned with that of the electorate? The text of the Constitution of the United States says little on this. Article II, §1, cl 2 provides that

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Nothing here suggests that the Electors are bound to follow the popular vote; indeed, nothing here suggests that a popular vote need be held at all. At least some of the framers of the Constitution expected the Electors to exercise their personal discernment in choosing the President. Alexander Hamilton’s vision, in Federalist No. 68, is the best known. He hoped that the President would be chosen

by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

But this is not how things worked out. As Justice Kagan puts it, “[a]lmost immediately, presidential electors became trusty transmitters of other people’s decisions”. (13) This was the result of the development of political parties, not anticipated ― indeed feared ― when the Constitution was being drafted. George Washington was elected without meaningful opposition. But, once he retired, presidential elections were contested by parties. As Justice Kagan explains, initially

state legislatures mostly picked the electors, with the majority party sending a delegation of its choice to the Electoral College. By 1832, though, all States but one had introduced popular presidential elections. … At first, citizens voted for a slate of electors put forward by a political party, expecting that the winning slate would vote for its party’s presidential (and vice presidential) nominee in the Electoral College. By the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors.

The alignment between the popular and the electoral votes (within each State, of course, there being, as we know, no necessary alignment at the national level) was thus secured by a combination of State law and partisanship ― but also by what looks, to an observer based in a Westminster-type constitutional system, an awful lot like constitutional convention. Law allowed partisans to be appointed as electors, and partisanship motivated them to vote for their party’s candidate. But so too did a sense of propriety, of moral obligation. This moral obligation, explains why those electors who, from time to time, broke with their party were called “faithless”. There is normally nothing “faithless”, except to a rabid partisan, about putting country ahead of party. But something greater than partisanship is at stake in the presidential election ― nothing less, indeed, than democratic principle itself. And “convention” is what Westminster systems call the settled practice of constitutional actors rooted in constitutional principle.

Some States, though, felt that relying on convention was not enough, and legislated to back up the electors’ moral duty with a threat of punishment. According to Mr Chiafalo, they could not do so constitutionally. After all, the Constitution’s framers meant for them to exercise their own judgment, guided but not fettered by that of the voters. And the very vote “elector” connotes the exercise of a personal choice.


Not so, says Justice Kagan. For her, “the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect”. (9) A “demand that the elector actually live up to his pledge, on pain of penalty” (10) is nothing more than a condition of appointment, which nothing in the Constitution’s text prohibits. Justice Thomas, concurring (with the agreement of Justice Gorsuch), disagrees with this approach. For him, imposing such conditions is not part of the original meaning of the power of choosing the “manner” of the electors’ appointment. Instead, the States’ ability to do so comes from the structure of the Constitution, which preserves their powers unless expressly limited, and from the Tenth Amendment, which codifies the same principle. Justice Thomas makes some compelling points, but this disagreement is not so important for Canadian readers ― or, for that matter, for practical purposes.

What matters most is Justice Kagan’s firm rejection of an appeal to the purported authority of the Framers’ supposed expectation that “the Electors’ votes [would] reflect their own judgments”. (12) This rejection is firmly rooted in original public meaning originalism:

even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be. (12-13)

This is a great passage. For one thing, it refers to an important reason for being suspicious about the intentions and expectations of constitutional framers: they might not all have agreed with those whose views are on the record. For another, there is an allusion, which I personally find delightful, to Hamilton’s rather hubristic suggestion, in the first paragraph of the Federalist No. 1 that the U.S. Constitution would

decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Justice Kagan understands, as Hamilton did not (or at least affected not to) that choice and accident are not so easily disentangled, even in constitutional reflection. Most importantly, though, Justice Kagan drives home the point that “thoughts” “not reduce[d] … to the printed page”― or, more precisely, the enacted page ― do not bind. Justice Thomas specifically concurs with the majority on this point, explaining that “the Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning.” For all its reputation of being incorrigibly politically divided the Supreme Court of the United States is unanimous on this.

Justice Kagan goes on to make another argument, which is less straightforwardly originalist. She appeals to what she regards as the settled practice ― and what I have suggested we may regard as the convention ― of electors casting their ballots only to ratify the voters’ choice, rather than to make their own. “From the first”, Justice Kagan points, “States sent them to the Electoral College … to vote for preselected candidates, rather than to use their own judgment. And electors (or at any rate, almost all of them) rapidly settled into that non-discretionary role.” (14)

It is not quite clear how much weight this should carry on a proper originalist interpretation. In a post at Volokh, Keith Whittington suggests (based on an article which Justice Kagan actually cited ― for another point) that

we should think of this tradition of pledged electors as a “constitutional construction” that is consistent with the constitutional text but not required by the constitutional text. …  But that by itself does not tell us whether such constructions can be leveraged to empower state legislatures to punish or replace faithless electors or whether this longstanding norm has fixed the meaning of the text in a way that cannot be altered by future changes in our shared practices. How constitutional text and tradition interact is a difficult conceptual problem, and the Court’s opinion highlights that problem without doing very much to explain how it ought to be resolved.

Indeed, I’m not sure that the argument from practice or convention has a great deal of weight for Justice Kagan: she might only be making it to turn the tables on Mr. Chiafalo, who invoked the (quite exceptional, as Justice Kagan shows) example of past “faithless electors” to argue that it proves that the Constitution protected their autonomy.

But Justice Kagan does suggest what I think is a good reason why the argument should have weight in the particular circumstances of this case: the practice, and arguably even the convention, forms part of the context to a constitutional text ― namely, the Twelfth Amendment to the Constitution. This amendment, “grew out of a pair of fiascos” (14) at the elections of 1796 and 1800. Prior to it, electors cast two votes; the candidate who received the most became president, and the next one, vice-president. In 1796 the top two candidates were “bitter rivals” (14) John Adams and Thomas Jefferson. In 1800, Jefferson, his party’s intended presidential candidate, was tied by its intended vice-president, Aaron Burr, as the electors who supported the one all supported the other. To prevent this reoccurring, the presidential and vice-presidential ballots were split. Justice Kagan points out that, in this way, “[t]he Twelfth Amendment embraced” party politics, “both acknowledging and facilitating the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting”. (14)

The issue isn’t quite the same as the one that, as I argue in a recent article about which I blogged here, the Supreme Court of Canada faced in the Senate Reform Reference, 2014 SCC 32, [2014] 1 SCR 704. There, the original public meaning of Part V of the Constitution Act, 1982 had to be established by referring to conventions. In Chiafolo, conventions are not necessary to establish the original meaning of the Twelfth Amendment. But it is arguably fair to say that the Twelfth Amendment implicitly ratifies them, or takes them into account; while it might have been written as it was in the absence of conventions, the fact that is that it was written as it was because the conventions existed. As a result, Justice Kagan’s appeal to practice, or to convention, is, at least, less troubling here than it might have been in the absence of something like the Twelfth Amendment.


All in all, then, her opinion is an interesting demonstration of what good originalism looks like ― and also of the fact that it can be practiced by a judge who is nobody’s idea of a conservative or a libertarian, and with the agreement of her colleagues, including those whose ideological leanings are quite different from hers. Justice Kagan may or may not be correct: at the Originalism Blog, Michael Ramsay argues that she is not. But that does not matter so much to me. As Asher Honickman recently argued in response to another American decision, textualist ― and originalist ― interpretive methods do not promise complete legal certainty, but they are still valuable because (among other things) they narrow the scope of possible disagreements, and do provide more certainty than alternatives. Justice Kagan and her colleagues show us how to keep faith with a constitutional text. We should pay attention.

Happy Canada Day!

The anniversary of an imperfect constitution drafted by imperfect men is well worth celebrating

Canada Day, like most other days it seems, comes at a bad time this year. A time when symbols of the history ― be they flags, monuments, names of buildings ― are objects of suspicion at best, and not infrequently unqualified vitriol, seems ill-suited to a celebration of what is now more than a sesquicentennial constitution. A constitution that is stubbornly monarchical in form, politically incorrect in wording, and dependent for its existence, livelihood, and amendment on old-fashioned procedures of parliamentary democracy rather than on heady revolutionary movements.

But we do not get to choose anniversaries, and perhaps this is a useful reminder that we do not get to choose everything, that there can be no such thing as a tabula rasa, and that demands for one can only be the products of ignorance or bad faith. This is not an apology for conservatism. As I have said before, I am no no conservative. Much in the world, and in Canada, should change. But the idea that everything can change, and that everything can be just as we ― whoever “we” are ― wish it to be, is unserious; indeed it is perhaps the nec plus ultra of solipsism.

The framers of our constitution understood this, and the constitution’s existence is proof of this, as of their wisdom and humility more generally. They were no doubt flawed in various ways, as men always were, still are, and ever will be. And in some ways we can, legitimately I hope, say that we are better than they. But we are certainly no better, on the whole, if we do not practice the virtues that were theirs: humility, as I have already said, and openness to compromise; magnanimity and willingness to live and let live; above all, perhaps, determination to hope for the future more than to dwell on the past.

Let George Brown’s words, spoken on February 8, 1865, during the Confederation debates, be our inspiration in this time of acute awareness of the imperfections of our institutions and the world around us:

No constitution ever framed was without defect; no act of human wisdom was ever free from imperfection; no amount of talent and wisdom and integrity combined in preparing such a scheme could have placed it beyond the reach of criticism. And the framers of this scheme had immense special difficulties to overcome. We had the prejudices of race and language and religion to deal with; and we had to encounter all the rivalries of trade and commerce, and all the jealousies of diversified local interests. To assert, then, that our scheme is without fault, would be folly.

It was necessarily the work of concession; not one of the thirty-three framers but had, on some points, to yield his opinions; and, for myself, I freely admit that I struggled earnestly, for days together, to have portions of the scheme amended. But, Mr. Speaker, admitting all this—admitting all the difficulties that beset us—admitting frankly that defects in the measure exist …  I believe it will accomplish all, and more than all, that we, … ever hoped to see accomplished. 

Canada itself stands as the greatest monument to these framers, and they could wish for no better. We are lucky to have it as their bequest. We can and must improve it, but today, of all days, we can and must simply be grateful for it. Happy Canada Day!

The Ivory Tower Prisoner’s Dilemma

Why law journals are useless, and why we can’t do without them

“Are [scholarly law] journals even useful nowadays?” Francis Lévesque asked this question in response to a Twitter discussion about the ideological problems that plague the system of peer review, which screens articles published in such journals pretty much everywhere except in the United States. Since I already complained about these problems in a recent post, I might as well reproduce a slightly expanded version of my answer. In short, I think that journals are useless, but they remain, and probably will remain, indispensable due to academia’s collective action problem.

Why are journals fundamentally useless? Because nobody actually reads them. I don’t mean that people don’t read what is in the journals. Well, often, they don’t. But sometimes they do. And not just academics, though admittedly that’s often the audience for which scholars write. At least some articles attract the attention of practising lawyers and of judges. But here’s the thing. People read articles, not journals. Journals as physical or electronic objects, i.e. assemblages of several articles that share a masthead and a typography and not much besides, appearing several time a year, are obsolete and unnecessary.

The reason for this is, of course, that you don’t need a journal, whether in physical or electronic form, to find articles, which, to repeat, is what people (sometimes) want to read. Articles are mostly either discovered by word of mouth ― again, literal or electronic (say posts, for example on this blog, that mention new articles) or found through databases such as HeinOnline, CanLII, or SSRN. Perhaps a few journals ― think, the Harvard Law Review ― are prestigious enough to command attention in their own right. Perhaps some specialized journals are of interest to people in particular areas of research or practice. Thematic issues of particular journals might also be interesting as collections of articles. But the ordinary, generalist journals? Nope. If I read an interesting piece that was published by, say, the McGill Law Journal, I’m not going to even bother looking what else was in the same issue.

But while journals as platforms for scholarship are largely useless, journals as institutions are not. They provide bundles of services some of which may be useful, and one of which makes them indispensable. The maybe-useful services are the ones you are probably thinking of. In particular, journals review and select manuscripts (what a quaint word for things that haven’t been written by hand this past century!), and edit the ones they choose, and journals ensure that published articles are transmitted to databases where they can, hopefully, be found. The indispensable service is one you might also be thinking of but wouldn’t want to admit to be: signalling.

The maybe-useful stuff should be really useful, but it isn’t always, as it turns out. The review and selection process is sometimes ― and perhaps more commonly than I would have thought ― tainted by ideological gate-keeping or simple turf wars or even cronyism and rank snobbery. In the United States, the problems are a bit different, since it is student editors who are fully in control or editorial decisions, without input from peer reviewers, but things are not necessarily better overall. The editing can be hit-or-miss ― sometimes useful, but sometimes the editors try to impose arbitrary ideas of what good writing should look like on authors who actually have more sense and experience. Even the transmission-to-databases function, which is genuinely important ― it’s one massive advantage journals have over blogs, for which no equivalent of the journal databases exists ― works better with some journals than with others. North American student-run journals are widely available; the ones owned by publishing companies such as the University of Toronto Press, the Oxford University Press, SAGE, etc, are sometimes only available through their proprietary databases, which makes the difficult to find.

Signaling is another matter though. Journals provide it reliably because they don’t actually need to do anything to provide it. Their reputation just exists ― in the case of journals associated with particular law schools, primarily as a result of the school’s reputation. But it becomes a self-fulfilling prophecy. Publishing in a particular journal, or category of journals, marks you as a successful scholar, so people who want to be known as successful publish in these journals, which helps preserve their reputation, and so on and on.

Yet despite being the result of little more than bootstrapping, this signalling function is very important to academics. Your disciplinary peers ― those who write in the same area as you ― don’t need it. They can assess the value of your scholarship directly, by reading it. But others can’t do that well, because they lack time and interest, and because they just don’t know enough about your particular area. The latter problem is getting ever worse, as legal scholarship becomes more and more specialized. And these others matter in a scholar’s career: they are the members of hiring and promotion committees, and perhaps those who assess proposals for funding agencies (though I lack experience to speak to that). Not being able to assess a scholar’s output directly, they look for informational shortcuts and proxies. Journal prestige is the most obvious one.

As a result, unless you’ve achieved everything you wanted in your career and have no aspirations for further promotions or going to another school, or unless you can signal your productivity and quality through books alone (and I don’t think many legal academics can do that), you can’t afford not to chase the signaling that journals provide. Even if you believe that the signal is actual mostly noise, even if you think it means little, you can’t ignore it. You are competing against people who might not share these views and get all the signal they can, and the judges of that competition might actually believe that the signal is meaningful.

The result is a classic prisoner’s dilemma. It’s in your best interest to act in a way you know is sub-optimal for the scholarly community. You know that if you don’t, you’ll be, to use a technical term, screwed. One might devise alternative systems for publication. They could well provide the useful services that journals may or may not be providing now. They might even try to provide their own signaling. But unless almost everyone buys into the same alternative system more or less at once, you’ll have to be mad to go for one in particular. What if it doesn’t take off? Then your efforts to establish your reputation have been wasted, and your career is compromised.

So we are stuck. Perhaps some senior scholars can take the lead and establish a new system. Perhaps then those of us who still have careers to make can follow them. But I’m not optimistic. That said, if you think I’m wrong, and especially if you have concrete ideas, I’d love to hear from you. It would be nice to be wrong about this. Mr. Lévesque thinks I am, but I’m afraid that his technological optimism is no match for my collective-action pessimism.

Results-Oriented Conservatism: A Defence of Bostock

Should textualism lead to more “conservative” outcomes as a matter of course? No.

Those who wish to transform textualism—a methodology of interpretation—into a vessel for conservative policy outcomes are in the wrong business. Instead of being in the business of law, they are in the business of politics. For years, a small group of Canadian judges have fought hard against this tendency. As Justice Stratas, for example, notes in Hillier, at para 33:

Those we elect and, within legislative limits, their delegatees (e.g., Ministers making regulations) alone may take their freestanding policy preferences and make them bind by passing legislation. Absent constitutional concern, those who apply legislation—from the most obscure administrative decision-makers to the judges on our highest court—must take the legislation as it is, applying it without fear or favour. Their freestanding policy preferences do not bind, nor can they make them bind by amending the legislation: Euro-Excellence Inc. v. Kraft Canada Inc., 2007 SCC 37, [2007] 3 S.C.R. 20 at para.

On this account, the proper venue for political change is the legislature, not the courts. For that reason, it was always faulty to attach a political agenda to textualism. Recent “disappointments” for conservatives at the Supreme Court of the United States are a reflection of the reality: textualism was never designed to achieve certain policy ends, and rightly so. Conservatives who wish to do so, in my view, are just as unprincipled as living treeists, who would adapt the Constitution and statutes to suit their policy preferences.

To make this point, I focus on the SCOTUS’ recent decision in Bostock, which has rankled conservatives who have a political agenda (though as I will note, there are others who have principled objections to the interpretation in Bostock). I first outline why, on first principles, Gorsuch J’s interpretation in the case is justified. Then I move on to consider the perils of the approach shared by some conservatives and progressives. As Brian Tamanaha notes in his important book, this results-oriented reasoning in statutory interpretation is profoundly disrespectful of the Rule of Law, which presupposes law as an independent field, a closed system–even if we may only reach that result imperfectly.

Bostock—Textual Interpretation

The case of Bostock in the United States is perhaps the best example of conservatives who have been somehow “betrayed” by textualism. Here are some examples:

  • In the link above, Josh Hammer says that Bostock represents the end of legal conservativism, arguing that “[w]hat we need is a more forceful conservative legal movement, just as willing as the left to make moral arguments in court, based on principles of justice, natural law…the common good and religious and moral traditions underlying Anglo-American constitutional order.” Forget if these traditions are not represented in legislation; they should somehow subvert Congress’ choices.
  • Senator Josh Hawley spelled the end of the conservative legal movement, arguing: “And if those are the things that we’ve been fighting for—it’s what I thought we had been fighting for, those of us who call ourselves legal conservatives—if we’ve been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven’t been fighting for very much.”
  • Robert George argues that the case “…vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding “progressive” strategy of imposing a substantive moral-political agenda through the courts by appointing “originalist” and “textualist” judges is hopeless.” What is the conservative version of such an agenda? The goal is to “…advance a socially conservative moral and political vision.”

I could go on. What unites these critiques is the idea that somehow the Court, in applying a plausible textual interpretation, failed conservatives on substantive grounds. To this I say: so be it. The place for these visions of the good deserve to be aired in public, not in august courtrooms.

What was the offense caused to conservatives in Bostock? The Court (per Gorsuch J for the majority) decided that Title VII protected against discrimination on the basis of sexual orientation and identity because such discrimination necessarily and logically involves discrimination on the basis of sex. The textual problem in Bostock was, in some ways, staggering: Title VII does not include sexual orientation or identity as distinct grounds of discrimination. However, for Gorsuch J, the ordinary meaning of the term “sex” applied today just as it did when Title VII was promulgated. Applying that definition, Gorsuch J reasoned that when one discriminates on the basis of sexual orientation or identity, one must necessarily discriminate on the basis of sex. This is because when one fires someone, for example, for being gay, they are necessarily making an implicit judgment about the person’s gender. If a man is attracted to another man, and is fired on that basis, the employer is implicitly saying that she would tolerate that attraction if the employee was a woman attracted to a man. Gender plays at least some small part in the decision to fire.

Because of the text of Title VII which prohibits discrimination “because of sex,” it did not matter if gender was not the primary cause of the discrimination. The “because of” standard encompasses even a 1% causal vector of the discrimination. This was supported by precedent.

Notably Gorsuch J refused to consider the fact that post-Title VII enactment Congresses have not amended Title VII to include sexual identity or orientation. This “post-enactment legislative history,” as it is technically called, should be anathema to textualists, because there is no good reason to suppose why Congresses failed to amend the statute. Just like pre-enactment legislative history, this sort of evidence should not ground an interpretation on its own; at best, it can be used with caution, particularly where the reason why Congress failed to act is clear.

My main point here is not to defend this particular interpretation, but I cannot help but make a tentative case for Gorsuch J’s view. I do this in order to demonstrate that the real dispute here is not a political one, but a legal one, between textualists. In my view, a number of interpretive considerations support his view.

Text: Gorsuch J’s textual interpretation comes down to the plausibility of his point that sex is inextricably linked to sexual orientation and identity: or more specifically, that discrimination on these grounds are all closely related. While Alito J in dissent disputed this point, and others have as well, there is some textual logic to it. First, there are at least some cases where sex is necessarily bound up with discrimination based on orientation. If there is even a chance that an employer could tolerate opposite sex attraction, but oppose same sex attraction, then the relevant difference is sex. With that aside, more importantly, a textual interpretation of the words “because of” leads to the conclusion that these words are broad. Broad words=broad meaning. On that account, any chance that discrimination could occur on the basis of sex, in the course of discrimination based on other unlisted grounds, is encompassed in the “because of” language.

Precedent supported this conclusion. In Oncale (per Scalia J, the king of textualists), Justice Scalia held that Title VII prohibited discrimination based on same-sex harassment. Why? Because the words “because of” encompassed situations involving same sex: “…we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of…sex” merely because the plaintiff and defendant…are of the same sex” (79).

This is a simple matter of dynamic interpretation. When courts interpret broad, causal language, they must apply these terms to new situations. This is not a re-writing of the statute. Indeed, both sides in Bostock agree that the meanings of “sex” and “because of” are the same when Title VII was enacted and in the present day. But where new fact situations arise, that original meaning must be applied to new situations. As Justice Scalia noted in Oncale, while male-on-male sexual harassment was not the evil Congress was concerned with when it enacted Title VII, “…statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed” (my emphasis). As Justice Scalia also says in his classic A Matter of Interpretation, statutory interpretation is governed by the rule that text should be interpreted “….to contain all that it fairly means” (23). This is all Gorsuch J did in Bostock.

Some might say this is a plain meaning approach. But I don’t see it. Justice Gorsuch gave the words “sex” and “because of” the same meaning they had when Title VII was enacted. He merely interpreted those words to encompass phenomenon that reasonably fall within their ambit. The fact that a phenomenon is new does not mean that it is necessarily excluded from broad statutory language. The question then is not whether Congress anticipated particular applications to new phenomenon. The question is whether the text can cover off those applications.

Context and Legislative History: If the text is clear—or at least clear enough—then there is no need or warrant to deviate from it. The Canadian Supreme Court accepts this reality (see Celgene, at para 21, and more, and more). And so does the American Supreme Court: see Milner. What this means is that legislative history, and post-enactment legislative history, cannot enter the interpretive task. This means that the fact Congress did not act to explicitly adopt certain explicit prohibitions is irrelevant.

Why should these be considered irrelevant? Post-enactment legislative history is a dangerous tool, on both principled and pragmatic grounds. On the former, legislative history goes to the intent of lawmakers, not to the natural import of the words they adopt in legislation. The latter matters. Whatever Congress did or didn’t do is of no relevance to the meaning of the words adopted. But the problems mount on pragmatic grounds. Legislative history, as Justice Scalia always noted, is not probative, because whatever people say may not be reflected in text. Post-enactment legislative history is even worse. Now we are trying to draw inferences based on what Congress did not do. That is a fool’s errand. As Justice Gorsuch notes, we will never know why Congress did not act to amend Title VII. This is not interpretation, but rather arm-chair psychology about what Congresses may have thought.

Results-Oriented Conservatism

Before continuing, I want to clearly acknowledge that there are plausible textual interpretations that run counter to Gorsuch J’s view. Some could argue that Gorsuch J’s analysis is a literalist approach, rather than one based on ordinary meaning. One could even say that Gorsuch J’s interpretation is itself compelled by results oriented reasoning, rather than the law. But this latter attack would only be strong if Gorsuch J’s approach was not plausibly based on text and precedent. Since, I hope, most would concede that this is a close call (in the name of humility), it is difficult to say anyone was results-oriented in Bostock. Better to keep politics out of it—after all, lawyers have no special political views warranting special treatment—and view the matter as a textual disagreement. I would characterize Bostock as a debate about legal interpretation, not political aims.

But there are exogenous, conservative forces that want to introduce this phantom into Bostock. Conservatives often get angry at progressives who invoke living constitutionalism (in Canada, the living tree metaphor) to adapt the Constitution to present realities. In Canada, we are familiar with this interpretive trick. How else to explain what Justice Abella did in SFL, where she, in all her wisdom, decided that it was now the time to grant “benediction” to a right to strike in Canada’s Constitution? The same phenomenon is at play when conservatives seek to use the law to achieve policy aims that should be achieved in the legislature.

Both attempts by ideologues to subvert law should be rejected. This is no longer a popular view, but law is an autonomous field, within reason, in the realm of statutory interpretation. The methods of interpretation are just that: methodologies. They are designed to reach the authentic meaning (contrast this with intent or expected application) of legislation. If a Congress passes legislation that is socialistic, then it should be authentically applied, leading to socialistic outcomes. If Congress passes legislation cutting back on social benefits, that legislation should be applied leading to its natural outcome. Judges do not bring special moral or political wisdom to the interpretive task. If lawyers are upset about the terms of legislation, they can speak out about it in the political realm. But that’s all.

The flaws of adopting a political approach to interpretation are not only present on a principled basis. If the political aims of legislation become the sole basis on which interpretation is conducted, then the incentive is to simply appoint people based on their substantive political views, not on the quality of their legal craft. To some extent, this is already happening in the United States. In that context, all we will see is a flat-out war between progressives and conservatives who seek to subvert law to their own aims. Nothing, not even law, which is supposed to be a fetter on political wishes, will be sacred anymore. From a strategic perspective, this is bad for either side. Victories achieved by one side in the courtroom can easily be overturned once the “other side” achieves power. And the merry-go-round goes on.

Better, in my view, to hone our arguments to legal ones, applying neutral methodologies, as best we can. Interpretation is designed to determine the meaning of legislative texts. Let the legislature legislate, and let courts interpret. Believe it or not, lawyers and their political views are not particularly enlightened.

Immuring Dicey’s Ghost

Introducing a new article on the Senate Reform Reference, constitutional conventions, and originalism ― and some thoughts on publishing heterodox scholarship

The Ottawa Law Review has just published a new paper of mine, “Immuring Dicey’s Ghost: The Senate Reform Reference and Constitutional Conventions“. It’s been many years in the making ― apparently, I started working on this paper in August 2016, a prehistoric time in my own life, to say nothing of the outside world ― and I don’t think I have ever said much about this project here. So let me introduce it ― and let me also say something about its “making of”, in the hope that its complicated, but ultimately successful fate will inspire readers who may be struggling with wayward papers of their own.

Here is the article’s abstract:

Although the metaphor of “constitutional architecture” appeared in some of the Supreme Court of Canada’s previous opinions, it took on a new importance in Reference re Senate Reform, where the Court held that amendments to constitutional architecture had to comply with the requirements of Part V of the Constitution Act, 1982. However, the Court provided very little guidance as to the scope of this entrenched “architecture.” As a result, the metaphor’s meaning and implications have been the subject of considerable scholarly debate. This article contributes to this debate by arguing that “constitutional architecture” incorporates (some) constitutional conventions. It further takes the position that, instead of relying on this confusing metaphor, the Court should have candidly admitted that conventions were central to its decision by acknowledging that the text of the Canadian Constitution cannot be fully understood without reference to conventions.

Part I reviews, first, the Supreme Court’s opinions in which the notion of constitutional “architecture” has been mentioned, focusing first on this concept’s place in the Senate Reform Reference, and second, some of the scholarly commentary that has endeavoured to make sense of it. Part II sets out my own view that constitutional “architecture,” as this concept is used by the Supreme Court, is concerned primarily if not exclusively with constitutional conventions. Part III considers whether it is possible to determine just which conventions the notion of constitutional architecture encompasses, examining the conventions’ importance and their relationship to the constitutional text as possible criteria, and concluding that neither allows precise determinations. Part IV sets out what would have been a less confusing way of addressing the significance of conventions to the questions the Court was facing in the Senate Reform Reference: frankly recognizing that conventions were relevant to the interpretation of the applicable constitutional texts. Part V examines two objections to the incorporation of conventions (via “architecture” or through interpretation) into the realm of constitutional law, arguing that this incorporation is not illegitimate and that it will not stultify the Constitution’s development. Part VI concludes with an appeal for greater transparency on the part of the Supreme Court.

Actually, the article’s core idea ― that the architecture to which the Senate Reform Reference refers incorporates constitutional conventions ― was part of my initial reaction to the Supreme Court’s opinion. And of course it only develops the suggestions made by Fabien Gélinas and me in a paper we wrote before the Senate Reform Reference was argued. It is also of a piece with my other work on conventions, which argues against the theoretical validity of a sharp distinction between the conventions and the law of the constitution.

The other thing the article does, though, is a new departure. When Professor Gélinas and I wrote about the role of conventions in the then-upcoming Senate Reform Reference, we accepted that the constitution is a “living tree”, and indeed made it the basis of our argument that constitutional interpretation must incorporate conventions. But of course I no longer think that living constitutionalism is the correct approach. So the article begins the project of making sense of the reality that a very significant part of the Canadian constitution is “unwritten”, or rather extra-textual, uncodified, from an originalist perspective.

The argument, as it happens, does not change: as I explain, an originalist must also read the constitutional text in light of conventions which were ― in originalist terms ― part of the publicly available context at the time of the text’s framing. Still, it was important for me to set out this argument from an originalist, as well as a written constitutionalist perspective. It was also important to give the reader a glimpse of how this originalist argument works. To this end, the article wades into historical evidence, looking at the Confederation debates to argue that the conventions relative to the functioning of the Senate were anticipated by the framers of the Constitution Act, 1867 (in addition to being well known to those of the Constitution Act, 1982). Future work ― mine and perhaps that of others ― can build on this foundation, and on Ryan Alford’s recent book Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law, to fully integrate not only conventions (and therefore “architecture”) but also underlying principles and structural arguments into a comprehensive originalist conception of the Canadian constitution.

This brings me to the “making of” part of the post. As you might imagine, getting the originalist arguments through peer review was not an entirely straightforward proposition. I deliberately diluted them, presenting them only as alternative to the living constitutionalist approach, to which I gave equal attention and which I refrained from criticizing.

Still, at first, this was not enough. The reviewers selected by the first journal to which I submitted the paper were quite skeptical of the whole project, and the attention it devoted to history and to originalism contributed to that skepticism. I was asked to revise and resubmit in light of the reviewers’ comments, and did so, although I could not make the sorts of changes that would have assuaged their concerns without changing the nature of the whole piece. The editor referred the revised article to the same reviewers, who understandably were unimpressed with my revisions, and the article was rejected. Frankly, the revision and resubmission was a waste of my time, as well as of the reviewers’. Their initial objections were too fundamental that there was no real chance of their accepting any revisions I might plausibly have made.

So, after sulking a bit, I submitted the paper elsewhere ― namely, to the Ottawa Law Review. The reviewers there were more open-minded, though one remarked on the oddity, as he or she thought, of granting so much airtime to originalism, and suggested cutting that part of the paper. But the article was accepted, and so revisions were more at my discretion than they would have been in a revise-and-resubmit process. To me, of course, the discussion of originalism was very much part of the point of the paper, so I insisted on keeping it. (I have to say that, while many scholars will of course disagree with originalism as a normative matter, I find it hard to understand how one still can argue that it simply isn’t relevant to Canadian constitutional law; and least of all, how one can make such an argument in a discussion of the Senate Reform Reference, which very much relies on arguments about the intentions of the framers of the Constitution Act, 1982.)

To my mind, there are a few lessons here. One is that if you have an unorthodox agenda, it might be useful to go slowly, and plan to make several steps before getting to your ultimate destination. If you present your idea, not as certain truth right away, but as a possibility to be entertained, you make the pill easier to swallow while still moving the argument from being, as American scholars put it, “off the wall” to “on the wall”. I’m not sure, of course, but I think that this cautious approach helped me here.

The second lesson is that the peer review process is a bit of a crapshoot. Even if you are cautious, some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy. But others may see their role differently, and say that, while they disagree with the paper, it is still well argued and deserves a hearing. (Of course, you have to make their life easier and make sure that the paper is indeed well argued; the more heterodox you are, the more you need to dot your i’s and cross your t’s.) To be sure, there are limits to such tolerance: at some point, heterodoxy veers into kookiness, and even an open-minded reviewer should say so. And, of course, where heterodoxy ends, and kookiness begins is not a question that admits of easy answers. Perhaps to the original reviewers who rejected my piece I was a kook.

But this brings me to the third lesson. If at first you don’t succeed, try again. Try with a different journal, hope you get different reviewers, perhaps a more sympathetic editor. That’s easier to do when your paper is one that doesn’t need to be out right away ― I’ve given up on a comment on R v Comeau, in part because a case comment loses its relevance after a while ― whereas this article, making a less topical and more fundamental claim, could wait. And perhaps there is a further lesson here, which is that it is better to reserve heterodox ideas for articles of this sort, knowing that it might be a while before they can run the peer review gamut. But, be that as it may, the point is that, precisely because it is a crapshoot, precisely because it empowers people who enjoy being more Catholic than the Pope, the peer review process can be dispiriting ― but knowing why it is this way should remind us that it isn’t always this way.

Good luck with your heterodox articles ― and please read mine, and let me know what you think!

ESA II: The Standard of Review and Rogers

In Entertainment Software Association, Stratas JA for the Court set out a number of important comments about statutory interpretation and international law. I dealt with those comments in a previous post. I write again about this case to highlight Stratas JA’s comments on the standard of review. Particularly, Stratas JA was faced with the propriety of the Rogers decision, which held that when an administrative regime contemplates concurrent jurisdiction between a decision-maker and a court, the standard is correctness. While Stratas JA rightly held that the issue should be left for another day, I think there are good reasons to affirm Rogers in light of Vavilov.

Stratas JA started out by noting that “[f]or some reviewing courts, Vavilov wrought a significant change in how reasonableness review should be conducted. But in our Court, at least for the conducting of reasonableness review in a case like this, Vavilov hardly changed anything at all” [23]. This was because one of Vavilov’s innovations (at least at the SCC) was its list of contextual “constraints” that act as indicia of a reasonable decision. For example, and perhaps most importantly, statutory language could be broad or narrow, which would either “liberate or constrain” the decision-maker (Entertainment Software Assoc, at para 24; Vavilov at paras 89, 110). Similarly, other factors (precedent, affect on the individual, etc) could set the context in which reasonableness is defined. In the Federal Court of Appeal, a similarly contextual approach was already known: see particularly the decisions in Farwaha, at para 91; Delios, at paras 26-27). In a way, Vavilov was a full vindication of the Federal Court of Appeal’s approach. No longer, Stratas JA said, would lower courts have to “tip-toe around dicta in Supreme Court decisions like [Edmonton East] and [Wilson].” Despite Abella and Karakatsanis JJ’s (surprising and unexpected, given cases like Saskatchewan Federation of Labour) call to follow stare decisis in relation to these cases, the majority rightly did away with them, leaving them to be read by generations of law students as exotic artifacts of times gone by. And the Federal Court of Appeal’s long-standing approach to these issues, rooted in sound doctrine, was vindicated.

More difficult was the propriety of Rogers. As noted in my previous post, the section of the Copyright Act under interpretation in the case “falls to be interpreted by both the Board and the courts” [14]. Under Rogers, the standard of correctness applied to such cases of concurrent jurisdiction. The question: does Vavilov throw doubt on Rogers?

As Stratas JA notes, Vavilov is exhaustive in that it addresses “all of the situations in which a reviewing court should derogate from the presumption of reasonableness review” (Vavilov, at para 69; see also Vavilov, at para 143 re “holistic revision”). While the Court left open the possibility for future categories of correctness review to be recognized in future cases (Vavilov, at para 70), Rogers clearly did not fit into the Vavilov correctness categories. This is odd, considering Rogers is of relatively recent vintage and the Court was clearly aware of it as a previously-recognized correctness category. My speculation is that, since Vavilov is clearly a compromise judgment.

That said, in my view, a case for Rogers could be made in light of Vavilov. Though Stratas JA left the merits of this argument for another day, he does point out that an organizing premise of Vavilov is legislative intent; specifically, a respect for the “institutional design choices” made by Parliament in establishing an administrative body (Vavilov, at paras 24, 26, 36, and 46). It is this concept that justifies a presumption of reasonableness review. Similarly, it is this concern that justifies one of the categories rebutting that presumption: statutory rights of appeal on questions of law. A respect for these “institutional design choices” (for example, the act of setting up an administrative actor in the first place, and the act of subjecting that administrative actor to a right of appeal on questions of law) might similarly militate in favour of recognizing concurrent jurisdiction as a category of correctness review (see Entertainment Software Assoc, at para 18).

While I find this argument quite convincing, there are three counter-arguments that should be tackled. First, one might argue that since Vavilov did not recognize Rogers, this should be taken as a sign that Rogers is no longer good law. While the Supreme Court in administrative law does have a history of simply ignoring precedents, no one should presume that this is what the Supreme Court decided implicitly in Vavilov. Remember that Vavilov is comprehensive; the Supreme Court took great pains to clarify its pre-Vavilov precedents. It is more likely that Rogers was not included because of the internal politics of keeping the majority together; not an implicit desire to overrule Rogers.

Second, one might argue that the conceptual basis of Rogers itself no longer exists. Specifically, Rogers says that “By setting up a specialized tribunal to determine certain issues the legislature is presumed to have recognized superior expertise in that body in respect of issues arising under its home statute…”(Rogers, at para 11). Similarly, in cases of concurrent jurisdiction, “…it must be inferred that the legislative intent was not to recognize superior expertise of the Board…” (Rogers, at para 15). On these extracts, expertise seems to be doing some conceptual work. Yet Vavilov dispatches with expertise as a reflexive reason for deference. What result?

While expertise is no longer the lynchpin for deference, Rogers still speaks of “legislative intent.” In this case, the relevant legislative intent has simply shifted. We do not go further and ask what legislative intent Parliament had with respect to expertise; we simply ask what Parliament did when it set up a decision-maker, from an institutional perspective. Under this new theoretical basis, and as noted above, there is at least a case that Rogers can fit in quite nicely.

Finally, one might take a page from Abella and Karakatsanis JJ’s disguised dissent and simply argue that concurrent jurisdiction should not necessarily lead to correctness review (the disguised dissent made this point re rights of appeal at Vavilov, para 249). One could argue that nothing should be gleaned from concurrent jurisdiction as a matter of legislative intent; and the presumption of deference should apply.

But the importance that the Vavilov Court attaches to delegation as a tool belies this argument. For the Court, it is the very act of delegation that invites reasonableness review (Vavilov, at para 30). But when Parliament delegates to a decision-maker but carves out jurisdiction for a court to decide the same or similar matters at first instance, the delegation to the administrative agency cannot be construed as “full.” Accordingly, the presumption of reasonableness should not be characterized as “full” either. The exception for courts to exercise original jurisdiction qualifies the delegation, undermining the conceptual basis for reasonableness review.

This is just a sampling of some of the considerations to take into account regarding Rogers. It will be interesting to see how courts deal with that case in light of Vavilov.