In the Trenches

Here’s the second part of my comment on C.J. Peters’ claim, in a recent and very interesting blog post, that constitutional law consists of “rules that are both entrenched and secondary.” I argued yesterday that constitutional rules often are primary rules (in H.L.A. Hart’s sense) or at least have a “double aspect” and are both secondary and primary rules. I turn today to the question of the entrenchment of constitutional law.

Prof. Peters defines “‘entrenched’ rules” as those “that are especially difficult to eliminate or change,” “typical[ly]” because they cannot be amended by “the ordinary legislative process.” He also says that such rules need not compiled in “canonical written texts,” such as the U.S. Constitution (or Canada’s Constitution Act, 1867 and Constitution Act, 1982). The important thing is that the rules that define democratic law-making processes not be subject to easy modification by these same processes:

We cannot have a functioning system of democracy if we are continually debating the details of how laws get made, who has the authority to interpret and enforce them, and so on.

Even countries without what is usually (and sloppily) called a “written constitution,” such as the United Kingdom, have “constitutional law” (emphasis prof. Peters’), the rules of which

take the form of entrenched statutes, traditional institutions, and established procedures rather than provisions of a single canonical document.

Constitutional law can sometimes be incomplete or uncertain in the details, but it must exist and do at least a tolerable job of defining law-making processes.

That much I have no quarrel with, at least if we understand “constitutional law” broadly, as prof. Peters does, and in particular if we understand it to include what in Westminster-type constitutional systems are called constitutional conventions. I should note, however, that this is not the orthodox self-understanding in such constitutional systems. Most notably, the Supreme Court of Canada has explicitly held, in Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (a.k.a. the Patriation Reference)  that constitutional conventions are not law and are not judicially enforceable. As I explain at length in my paper on the subject, “Towards a Jurisprudence of Constitutional Conventions”, 11 O.U.C.L.J. 29, I think this was and is a mistake, but until further notice, it remains the law.

I also have no quarrel with saying that constitutional law, so understood, must be “settled,” to borrow a word prof. Peters uses in passing. But there is quite a difference between “settled”―which I take to mean relatively stable, not often challenged and still less often changed―and “entrenched.” Constitutional law, especially rules specifying who may make what laws and how they must go about it, must be settled for ordinary political process to happen without constant challenges to the legitimacy of its output. As prof. Peters puts it,

continual fights about the meaning of democracy would make the actual operation of democracy impossible.  It would be like trying to play baseball with the teams constantly debating the definition of a strike.

But I don’t think entrenchment is necessary (arguably, it is not even sufficient) to prevent this sort of instability.

That is certainly the case for formal entrenchment―legal mechanisms preventing the amendment of constitutional rules through the ordinary legislative process. The British constitution is the most obvious counterexample, since none of its rules is protected from amendment by an ordinary act of Parliament. That includes statutes (those, for example, defining the membership and powers of the House of Lords), rules of the common law (such as those defining the royal prerogative, which is always subject to redefinition by Parliament) and even constitutional conventions (so the Statute of Westminster, 1931, superseded the conventions that had been developed to govern the relationship between the imperial Parliament and the dominions). But even in a system which to a great extent relies on formal entrenchment, such as the U.S. Constitution, some rules that are constitutional, in the sense of defining the procedures for making and interpreting law, are not formally entrenched. One example of such a rule is that which provides that there are to be 435 members of the House of Representatives: this is a statutory rule, which Congress could change tomorrow it felt like it, and which it had changed in the past, though not (with a minor exception) for the past century. Another notable example is the rule providing that there to be nine Justices on the U.S. Supreme Court.

This rule illustrates, however, an important qualification. Although it is not protected from amendment by ordinary legislation by any formal legal rule, it is quite unamendable by virtue of a constitutional convention, as Franklin Roosevelt discovered to his cost when he tried to “pack” the court with friendly Justices by increasing its size, in order to have it overturn decisions hostile to New Deal legislation. So it is possible that some, perhaps many, rules which appear not to be entrenched at first sight really are entrenched by convention which, prof. Peters believes is, and I argue ought to be treated as, just another sort of legal rule.

But the same is not true of every constitutional rule. I don’t know whether a convention could be said to have frozen the membership of the U.S. House of Representatives at 435, but there certainly exists no such convention with respect to the membership of the Canadian House of Commons, which is being increased every now and then to reflect population growth. In Canada again, legislation has also restricted royal prerogative, giving Parliament (some, limited and arguably insufficient) control over decision- and rule-making formerly entirely reserved to the Crown (and by convention to the cabinet). In the U.K., an ordinary Act of Parliament threw hereditary peers out of the House of Lords. In some Canadian provinces, ordinary laws created fixed-date elections. And so on.

It is certainly true that the rules of the democratic game ought to be reasonably clear at any given point in time. It is almost certainly true that it is best that these rules not change too frequently or without some very good reasons. But it is not the case that formal, or even informal, entrenchment is necessary in order to ensure such clarity and stability.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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