A very interesting post about constitutionalism by C.J. Peters on his new MODblog makes a couple of claims that is worth addressing at some length. Constitutional law, prof. Peters suggests, consists of “legal rules that are both entrenched and secondary” (his emphasis). “Secondary” rules refers to H.L.A. Hart’s category for rules that, unlike “primary” rules which impose duties to do or not to do something, do not directly impose duties but rather specify in various ways how primary rules are to be created, changed, and ascertained. I think both of prof. Peters’ claims are overstated. Constitutional rules are not necessarily entrenched, nor are they always secondary rules. I will leave the first claim to a separate post, probably tomorrow, and take up the second one here.
Prof. Peters writes that in contrast primary rules “that govern people’s everyday conduct,”
[r]ules about who makes law and how (e.g., bicameralism in Congress, the division of power between the federal and state governments) are examples of secondary rules; so are rules about whether and to what extent the government can regulate areas of conduct like speech and religion. These secondary rules don’t directly apply to the conduct of most people living their everyday lives. Instead, they govern the making and content of the primary legal rules that apply to everyday conduct. Most constitutional provisions are examples of secondary legal rules. (The only current exception in the U.S. Constitution is section 1 of the Thirteenth Amendment, which directly prohibits private actors from practicing “slavery [or] involuntary servitude.”)
This might get the distinction between primary and secondary rules, as defined by Hart in The Concept of Law somewhat wrong. The fact that a rule governs “people’s everyday conduct” isn’t relevant―plenty of primary rules apply in very narrow circumstances or to very few people. The key point is not whether a rule applies to “everyday conduct” but whether it creates duties or powers (81). So Hart classifies rules governing the formation of contracts as secondary, not primary, as prof. Peters does.
In any case, prof. Peters is not alone in saying that constitutional rules are secondary rules because they govern the way in which other rules come into existence. Jeremy Waldron takes the same view in a paper called “Are Constitutional Norms Legal Norms?“.
I think that’s not quite right. Some constitutional rules certainly are secondary rules. Prof. Peters’ example of bicameralism is a good one. So are arguably, for example, rules of both the US and the Canadian constitutions that create or allow the creation of federal courts. But the case of some other rules is more complicated.
I start with constitutional rules that are not generally recognized, albeit mistakenly in my opinion, as legal―constitutional conventions. Let me quote at some length from a paper I have published, “Towards a Jurisprudence of Constitutional Conventions”, 11 O.U.C.L.J. 29:
Jeremy Waldron argues [in the paper linked to above] that conventions are secondary rules … His main example is the rule (which I will refer to as R1) that the monarch must assent to Bills that have passed both Houses of Parliament. R1, he writes, ‘is plainly not a primary rule of the British legal system, since it operates to structure the creation of law.’  But notice the way in which R1 does so operate. Before R1 came into being, the old legal rule (R0) provided that the monarch may, in her discretion, give or withhold assent to a Bill passed by the Houses of Parliament. R0 was plainly a power-conferring rule; it made the monarch an active agent in the creation of law by Parliament. R1 deprived her of that role. It does not confer any power on the monarch but on the contrary denies a power that would exist in its absence and imposes a strict duty specifying how the monarch is to behave. At most, we could say (borrowing an expression from Canadian constitutional law) that the distinction between primary and secondary rules is not always categorical, and that some rules, such as R1, have a ‘double aspect’—they can appear, from different perspectives, either primary or secondary. (Similarly, the prohibition on fraud can be seen either (as it is in criminal law) as a primary rule, a duty not to deceive, or (as it is in contract law) as part of the rules specifying the conditions of the formation of a valid contract, which Hart repeatedly provides as an example of power-conferring, secondary rules.) (31)
I think that the same could be said of many other constitutional rules, including those which are incontrovertibly legal. To return to prof. Peters’ example, the rules that divide power between federal and state or provincial legislatures impose duties on legislators not to act in certain ways (i.e. not to legislate ultra vires). So do rights-protecting constitutional provisions. The opening of the First Amendment of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”; emphasis mine) makes this especially clear.
These rules structure the way laws are made―at least federalism rules do; I’m not sure that this is a very apt description of rights-protecting provisions, which do not define or structure how laws are made, but rather limit what content the laws can have. But as importantly (in the case of federalism provisions) or more importantly (in the case of rights provisions) they tell legislators and officials in the executive branch of government what to do and what not to do. They are thus primary rules, or at least have a “double aspect” and are both secondary and primary rules.