Things I Dislike about the Constitution

In an interesting Volokh Conspiracy post, Ilya Somin provides a “list of several areas where … the Constitution [of the United States] gets important issues badly wrong”. This is in response to concerns that (American) originalists, most of whom tend to be conservatives or libertarians, come to their position on how to interpret (their) constitution because they think that originalism yields results consonant with their political views. As Professor Somin notes, “[s]imilar charges, of course, are often made against living constitutionalists, who have long been accused of just coming up with ways to constitutionalize their (mostly liberal) political views”. But, even if one’s work is focused on those areas where one’s political and constitutional views are aligned, for any principled person there are likely to be areas where this alignment break down.

Here are some of mine (for the Canadian constitution of course, not the American one). It is a very tentative list. That’s partly due to my ignorance in some areas, especially that of Aboriginal law, and partly because there simply hasn’t been enough work done on the originalist interpretation of the Canadian constitution. There is still less written on the correct originalist approach to non-textual constitutional rules (notably constitutional conventions and principles) and also to provisions that are spent or obsolete and yet have never been excised from the constitutional text (notably sections 55-57 of the Constitution Act, 1867, which provide for the intervention of the UK government in the Canadian legislative process, and which I have simply ignore here).

Anyway, this is a start. The list, after the first two items, is more or less in the order in which things come up if you read the Constitution Acts 1867 and 1982.

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1. What is the constitution of Canada?

Let’s us start with the most conceptually fundamental problem. Section 52(2) of the Constitution Act, 1982 provides that “[t]he Constitution of Canada includes” a number of legislative instruments, notably the Constitution Acts, 1867 – 1982. The word “includes”, as the Supreme Court has correctly recognized, means that the list it introduces is not exhaustive. So what else is part of the “Constitution of Canada”? I doubt that the term “constitution” has an unambiguous original public meaning, given its fluidity in the Westminster tradition, which the existence of constitutional texts in Canada only compounds.

This is a big problem, because it is “the Constitution of Canada” that, by virtue of section 52(1) of the Constitution Act, 1982, “is the supreme law of Canada”, invalidating any other inconsistent law, and by the (self-referential) terms of section 52(3) can only be amended “in accordance with the authority contained in the Constitution of Canada”? Section 52(2) fails to provide useful guidance on an issue of fundamental importance in our constitutional law. Ideally, it should be amended to clarify what is, and what is not subject to sections 52(1) and 52(3), in particular among Imperial legislation such as the Bill of Rights 1688, as well as “unwritten” constitutional rules and principles.

2. Parliamentary sovereignty

My biggest philosophical problem with the Canadian constitution is that, subject to the federal division of powers and the specific restrictions on legislative power found mostly in the Canadian Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982, it is underpinned by the traditional view of Parliamentary sovereignty.  As much as I would like the constitution to include something like a Barnettian “presumption of liberty“, and whether or not such a presumption exists under the Constitution of the United States, correctly interpreted, it is a thing alien to the Westminster tradition as it evolved in the 18th and 19th centuries. I don’t think there is or can be any serious dispute about that.

Under the Canadian constitution, subject to the aforementioned limitations, Parliament and the legislatures are free to enact laws that benefit some people at the expense of others or are otherwise  not rational means to advance the public interest. Now, these limitations are not insignificant. They would be more important still if the courts interpreted them correctly, instead of letting their pro-regulatory bias dictate their decisions, as the Supreme Court recently did in R v Comeau, 2018 SCC 15, and if they adhered to the original requirement of exclusivity in the federal division of powers. Nevertheless, the scope of legislative power under the Canadian constitution is much too broad.

Parliamentary sovereignty is also pernicious because it is, paradoxically, the constitutional foundation of the administrative state. While I would not yet concede the constitutionality of judicial deference to administrative decision-makers, Parliamentary sovereignty is the best argument for it. And there is no doubt that Parliamentary sovereignty is the justification for the delegation of considerable legislative and adjudicative powers to administrative decision-makers in the first place. Whatever limits on such delegation might exist as a matter of the constitution’s original public meaning ― a subject that I would love to see explored ― I strongly suspect (based notably on decisions made by the Judicial Committee of the Privy Council, whose outlook was more or less originalist), that any such limits are pretty broad. Thus, even if constitution, properly understood, is more constraining than the courts now recognize, Parliamentary sovereignty means that Canadian legislatures are entitled to create an extensive administrative state ― and that’s bad  for the liberty of the subject, the accountability of government, and the Rule of Law.

3. Lack of proportional representation of the provinces in the House of Commons

Proportional representation of the provinces was one of the key aims of Confederation, and it is seemingly enshrined in sections 52 of the Constitution Act, 1867, and 42(1)(a) of the Constitution Act, 1982. Yet this principle is qualified by sections 51 and 51A of the Constitution Act, 1867 and 41(b) of the Constitution Act, 1982, to ensure that the representation of small provinces is not reduced. The result is that small provinces are over-represented, and also that the size of the House of Commons keeps increasing, and will likely have to keep increasing in perpetuity, since this is the only way to dilute this over-representation. I do not particularly like either of these things, but there they are, doubtless a necessary if unprincipled political compromise.

4. Lack of recognition of municipal institutions

While the Constitution Act, 1867 has served us well ― for the most part, as noted below ― in maintaining a robust division of powers between the Dominion and the provinces, but this is probably not enough. The kerfuffle about the imposition by Ontario of a downsizing on Toronto’s municipal council, which I take it has the support of pretty much nobody in the city, is only the latest evidence for the proposition that municipal self-government ought to enjoy at least some constitutional protection from provincial interference. While I do not know just what this protections should take, and do not argue that municipalities ought to be recognized as a full-blown third order of government, the situation in which they can be interfered with at will, for good reasons, bad reasons, and no reasons, seems undesirable. Yet as things stand, municipalities are subject to the provinces’ plenary power under section 92(8) of the Constitution Act, 1867, and the right to vote in municipal elections is not protected by section 3 of the Charter, which by its clear terms only applies to “election[s] of members of the House of Commons or of a legislative assembly” of a province. The ongoing litigation between Toronto and Ontario may yet see the courts accept some of the city’s strained constitutional arguments, but I do not think that there is any serious claim that the constitution’s original public meaning prevents the province from doing what it did, however unwise its decision was.

5. Taxation provisions

My thoughts here are  tentative, because I am by no means an expert on tax law, or even on just its constitutional aspects. I take it, however, is that the distinction between “direct” and “indirect” taxes that forms the basis of section 92(2) of the Constitution Act, 1867 and is ― as decisions of both the Judicial Committee of the Privy Council and the Supreme Court recognize ― based on economic views prevailing at the time that legislation was enacted, is obsolete. The Supreme Court is right to try to stick with the original meaning of the constitution taxation provisions, but it would probably be a good thing if these provisions were amended to reflect more up-to-date economic concepts ― and, ideally, provide a clearer distinction between the respective sources of income of the federal and provincial governments.

6. Trade and commerce

Here too my thoughts are somewhat tentative, but there are ways in which the federal power over trade and commerce inmight be both too broad and too narrow. For one thing, like Professor Somin, I lament the indubitable constitutionality of tariffs. Professor Somin writes that “[a] well-designed Constitution would at the very least make it far more difficult to enact trade barriers than ours does” ― but the Canadian constitution, by this standard, is no better than the American one. Section 122 of the Constitution Act, 1867 clearly authorizes Parliament to enact “Customs and Excise law”. At the same time,  section 91(2) of the Constitution Act, 1867 is arguably too narrow in that, read together with section 92(13), it leaves securities law, to provincial jurisdiction (as the Supreme Court correctly found in Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837). Again I am no expert, but I take it that federal power in this area is widely regarded as desirable. It is worth noting that on the whole Canada has been well served by the decentralized division of powers embodied in sections 91 and 92 of the Constitution Act, 1867. But, while generally sound, this division is not perfect.

7. Lack of protections for judicial independence

The Canadian constitution has relatively little to say about judicial independence. The Judicature provisions of the Constitution Act, 1867 incorporate the rule of the Act of Settlement 1700 that the judges of the superior courts can only be removed by the Crown on address of the two houses of Parliament, and it is at least arguable that the convention that no such address would be moved except on grounds of misbehaviour or incapacity is part of the context in which this provision must be understood. The Constitution Act, 1867 also provides for the payment of these judges by Parliament, but seems to provide no protection against the reduction of judicial salaries, let alone any requirement for salaries to be set through some non-political process. Of course it does not apply to the judges of federal or provincial courts. Section 11(d) of the Charter provides a right to trial by an “independent and impartial tribunal” to persons “charged with an offence”, but does not specify what this means; nor does it guarantee the independence of judges who do not exercise criminal jurisdiction.

I would like to see more research into the original public meaning of the term “independent tribunal” as it is used by the Charter and into its good faith construction, but I am pretty skeptical that the Charter requires the sort of independent commissions for setting judicial salaries that the Supreme Court’s opinion in the Provincial Judges Reference, [1997] 3 SCR 3, demands. I am still more skeptical of the appropriateness of reading extensive protections for judicial independence, including for courts not covered by the Charter, into the constitution through the unwritten principle of judicial independence. Yet I also think that such protections are highly desirable. If I were re-writing the Canadian constitution, I would provide such protections for all courts ― superior, federal, and provincial alike. The weakness of existing constitutional provisions in this respect is somewhat embarrassing.

8. Lack of protections for economic liberty

The Charter does not protect property rights, freedom of contract, or the right to earn a living by lawful means of one’s choosing ― except the latter against discrimination “among persons primarily on the basis of province of present or previous residence”. As I’ve argued in the past (here and here), this is very unfortunate. As Professor Somin, among others, often points out, the absence or weakness of constitutional protections for property rights or economic freedom often causes the poorest and most politically disfavoured or excluded members of society to be disproportionately targeted by the state or by private interests who are able to use their political connections to put its coercive power at their own service. It is most unfortunate that the framers of the Charter failed to understand this. Indeed, if I had to rank my objections to the constitution in order of their practical signifiance, this one would probably be at the top of the list.

9. Protection for affirmative action

Section 15(2) of the Charter insulates affirmative action or positive discrimination programmes from scrutiny based on the Charter‘s equality guarantee. This is not the place for a full argument, but I don’t like this one bit. Discrimination is still discriminatory even if its present targets belong to groups that historically were perpetrators rather than victims. If exclusion based on innate characteristics is demeaning, then job postings that say that straight white men need not apply are demeaning. The framers of the Charter were wrong to tolerate such practices.

10. The “Notwithstanding Clause”

I’ve written a good deal about this one already: see here, here, here, and here. In a nutshell, I don’t think that allowing politicians to set aside constitutional protections for fundamental rights is a good idea. Of course, courts can err by expanding these protections beyond their original scope, or by failing to recognize the reasonableness of legislative limitations. But in my view the expected costs of legislative error are much higher than those of judicial error. Yet there is no question that section 33 of the Charter, which permits Parliament and legislatures to legislate “notwithstanding” some of the rights the Charter normally protects is part of the law of the constitution, and I don’t think that there is yet a convention against its use, even at the federal level, let alone in some of the provinces.

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This is a fairly lengthy list, and some of the items on it reach deep into the constitutional structure ― rather deeper, I think, than Professor Somin’s objections. Why, then, should I, or anyone, be an originalist, and insist that our flawed constitution is to be applied by the courts in accordance with its original public meaning, instead of urging the courts to make it just? Because, as Jeffrey Pojanowski argues, we should not be too demanding of constitutions. It is unrealistic to expect perfection, even if we believe that such a thing is conceptually possible. We should set our sights lower:

even if one has moral qualms about particular provisions of the constitution, any constitutional regime that passes a threshold of moral respectability has a moral claim to our support and respect. (586)

But for a morally respectable constitutional regime to serve as a law capable of guiding the expectations and conduct of citizen and government alike, its terms

must be known and reasonably durable. Were the constitution’s legal norms treated as merely good advice, a polity would not enjoy the moral benefits that positive law exists to provide in the first place … If one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms. (586-87)

The Canadian constitution is imperfect but, despite the shortcomings identified in this post, I think it easily passes the moral respectability threshold. So it deserves to be treated as law and not just as advice, good or bad according to the whims of the Supreme Court.