Immuring Dicey’s Ghost

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.

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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 so 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!