Leonid Sirota

Constitutional Veggie Burgers

My lecture on the Alberta Sovereignty Act and the Saskatchewan First Bill

Last month I had the honour and the pleasure of delivering a lecture at the Centre for Constitutional and Political Studies (CEPC) in Madrid, which they entitled “The Canadian Constitution under Pressure: The Alberta Sovereignty in a United Canada Act of 2022”. In addition to the Alberta statute, I also spoke about the Saskatchewan First bill. This event (as well as a seminar I gave at the University of Barcelona) was supported by the Canadian embassy in Spain, so for my Canadian readers: it’s your tax dollars at work! I am grateful to the embassy, and also to the Fundación Canada, which also supported my trip and made the necessary connections that made the event happen.

I should say, despite my gratitude to my kind hosts, that the title of my talk was one they chose, not I, and that I wasn’t entirely happy about it. I doubt that, for all the bluster, these laws really put the Canadian constitution “under pressure”. They are pernicious, as Mark Mancini, Maxime St-Hilaire, and I have argued elsewhere about the Alberta Sovereignty Act, especially insofar as they seek to undermine the respect necessary in every federation for judicial determination of the metes and bounds of the jurisdictions of the two orders of government. But it will take more than these ultimately mostly toothless laws to really put the constitution under pressure.

Hence my own working title, as I thought about what I would say (I didn’t have prepared remarks; I prefer speaking without notes), was “Constitutional Veggie Burgers”. That’s what I think these laws mostly are: fake, tasteless, and meant to virtue-signal. Sorry, vegetarians, not sorry. Anyway, the CEPC has now made a video of my talk available, so you can judge for yourself whether I have made my case (my remarks start at about 7:15):

https://media.watchity.com/cepc/videos/20230216_Video.mp4

The Made-Up Law Made Them Do It

The Supreme Court’s made-up right to vote doctrine works its mischief at the Ontario Court of Appeal

Earlier this week, the Court of Appeal for Ontario released its decision in Working Families Coalition (Canada) Inc v Ontario (Attorney General), 2023 ONCA 139, which considers the constitutionality of an extension, from six months before an election to a whole year, of the period during which political speech by civil society actors in Ontario is severely restricted. The Superior Court had previously found that this extension was an unconstitutional violation of the freedom of expression protected by s 2(b) of the Canadian Charter of Rights and Freedoms. However, the Ontario legislature re-enacted it, invoking the Charter’s “notwithstanding clause”, s 33. The Court of Appeal unanimously holds that s 33 was validly relied on, but also, by a 2-1 majority, that the law nonetheless violates the right to vote, protected by s 3 of the Charter, whose application cannot be ousted under s 33.

The outcome is a disturbing one. The idea that a law that does not affect anyone’s ability to cast a ballot or run for office ― the two rights protected by s 3 ― but rather censors individuals and groups who are not candidates at an election precisely because they are not candidates, is a violation of the right to vote is, to put it mildly, counter-intuitive. The problem with the impugned legislation is that it is rank political censorship. Yet one would think that, since it enables legislatures to disregard the freedom of expression, s 33 of the Charter enables just this sort of self-serving abuse of power. Yet it would be a mistake to blame the Court of Appeal. The majority’s decision is a plausible application of one of the Supreme Court’s worst decisions of the last half-century: Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827.

Before getting to the main issue, a few words on the unambiguously correct and good aspect of the Court of Appeal’s ruling: the rejection of the argument that s 33 could not have been invoked in the first place. This too is a straightforward application of Supreme Court precedent, Ford v Quebec (Attorney General), [1988] 2 SCR 712, which held that the only implicit limit on resort to s 33 is that it cannot be retroactive; subject to this constraint, legislatures need not explain or justify suspending the enforceability of Charter rights. The applicants argued that Ford could be disregarded, either because election law was a special case or because the Supreme Court’s decision was no longer in tune with “the evolution of Charter jurisprudence since … 1988″ [56]. The Court of Appeal makes short work of both arguments, explaining that the importance of elections to the maintenance of democracy is sufficiently addressed by the fact that s 3 of the Charter is not subject to s 33, and that Ford has never been questioned, let alone overruled, by the Supreme Court.

This is quite right on both points. The fashionable academic theories on which the applicants relied, developed in the last few years in response to the resurgence of s 33, are unmoored from the Charter‘s text, and rely on fanciful extension of underlying principles about whose effects the Supreme Court is ambivalent at best. Of course, the Supreme Court remains free to make things up and reverse Ford. It may yet be urged to do so, whether if this case is appealed or indeed, as some have suggested, in a reference intended to limit the use of s 33. But I hope that the ease with which the Court of Appeal rejected the claim that Ford has been superseded by jurisprudential developments is indication of what is to come if that happens.

Section 2(b) of the Charter having been successfully ousted, the Court of Appeal moves on to the main event: the s 3 argument. This too is governed by Supreme Court precedent, Harper, which concerned the constitutionality of the federal scheme for silencing civil society political speech during (but not prior to) election campaigns. But the guidance it provides is nothing as clear as Ford‘s, and it is necessary to reproduce it here at some length.

Harper was mainly argued and decided on the basis of s 2(b), but s 3 was also raised. Bastrache J’s majority reasons on this point began by noting that it “cannot be” that “the right to meaningful participation” in elections, which is how the Supreme Court has long re-interpreted s 3, has an identical content “with the exercise of freedom of expression. … The right to free expression and the right to vote are distinct rights”. [67] Would that Justice Bastarache had stopped here! Instead, he declared that “[t]he right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner”. [70] This drew on no s 3 precedent whatever, but rather on Libman v Quebec (Attorney General), [1997] 3 SCR 569, a s 2(b) case. Undeterred, Ba starache J had the following to say:

[E]quality in the political discourse is necessary for meaningful participation in the electoral process and ultimately enhances the right to vote. Therefore … s. 3 does not guarantee a right to unlimited information or to unlimited participation. Spending limits, however, must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters. Spending limits which are overly restrictive may undermine the informational component of the right to vote. To constitute an infringement of the right to vote, these spending limits would have to restrict information in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented.

The question, then, is whether the spending limits … interfere with the right of each citizen to play a meaningful role in the electoral process. The trial judge found that the advertising expense limits allow third parties to engage in “modest, national, informational campaigns” as well as “reasonable electoral district informational campaigns” but would prevent third parties from engaging in an “effective persuasive campaign” … [But] [m]eaningful participation in elections is not synonymous with the ability to mount a media campaign capable of determining the outcome. [72-74; paragraph break removed]

The outcome of Working Families turns on the meaning of this less-than-pellucid passage, of which the majority and the dissent take different views.

The majority, Zarnett and Sossin JJA sees it as setting out “two proxies, or methods of ascertaining whether the restriction” on voter information “is constitutionally offside”. [86] The first is asking whether the restriction is, in Bastarache J’s words, “carefully tailord”, which in turn “”The requirement that the restriction be carefully tailored “invites the court to examine the rationale, express or implicit, for the amount and duration of the spending limit – the express or implicit reasons why the lines were drawn where they were”. [87] This, the majority insists, is a very different matter from the analysis required by s 1 of the Charter, and in particular from its “minimal impairment” stage, which asks whether less restrictive alternatives to the impugned measure were (reasonably) available to the legislature. Here,

the question is whether the challenged spending restrictions draw the line at the point of preventing the well-resourced from dominating political discussion without being overly restrictive so as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented. A conclusion that a choice was in some other sense “reasonable” does not answer this question. [89]

Moreover, in this case, this assessment must focus not only on the legal end-state created by the impugned law, but specifically on the transition from the regulatory regime it displaced, which restricted political speech by civil society actors for six months rather than a year. It is the change from the one to the other that must “carefully tailored” in the above sense.

The majority holds that it was not. While explicitly rejecting the contention that the impugned legislation “constitutes partisan self-dealing by the incumbent government”, [102] it considers that “doubling the restricted period without increasing the quantum, a result that was twice as restrictive as what had been found appropriate, without explanation, does not denote careful tailoring”. [109] While the government argued that the new regime did not impede the voters’ participation, the majority takes the position that “[i]f at least some voters are prevented from exposure to political information of value from third parties in the 6 to 12-month period, their right to meaningful participation under s. 3 may be undermined”. [112] That the new restriction is one of a range of reasonable alternatives does not matter either ― that would be a consideration under s 1 of the Charter, but not at the point of establishing a s 3 infringement.

The second “proxy” is whether the restrictions leave room for at least “a modest informational campaign”. The majority finds that there was no evidence that this was so. The first-instance judge’s suggestion that affordable means of communicating with the voters were available and sufficient for a modest campaign was speculative. Moreover, the resources that could be used under the impugned law had to be deployed over a period of 12 months, which again threw the validity of the law into doubt.

Having briefly considered whether the restriction of s 3 rights could be justified under s 1 of the Charter, the majority concludes that it could not. The law is unconstitutional, but the declaration to this effect is suspended for a year to allow the legislature time to consider its next steps.

In dissent, Benotto JA rejects the majority’s interpretation of Bastarache J’s reasons in Harper. For him

[t]he controlling test is not whether the spending limits are carefully tailored but whether they restrict information in such a way to undermine the right of citizens to meaningfully participate in the electoral process, which includes the right to vote in an informed manner. [161]

This test is concerned with the effects of the impugned law, not with whether a justification for it exists. To look at justification is to conflate the s 3 analysis with that which ought to take place under s 1. In this case, moreover, it would be a mistake to focus on the change from s six-month period of restricting civil society speech to the one-year one; the longer period “had to stand or fall on its own. It was not the change that was determinative, but whether the legislation … was Charter compliant.” [176]

The dissenting judge considers there was enough evidence that the impugned law left some space for civil society actors to communicate their views to the voters, which was all that Harper required. The judge below made findings to this effect which were open to him and should not be disturbed.

I have no strong views on whether the majority opinion or the dissent is the better application of Bastarache J’s comments in Harper. I think both the majority’s reading, which emphasises the importance of the “careful tailoring” language and the dissent’s, which focuses on the way Bastarache J seems to have formulated the ultimate question before him are plausible. It is true, as the dissent charges, that the majority’s “careful tailoring” analysis is hard to tell apart from what would normally take place under s 1 of the Charter. I would add, moreover, that the “two proxies” approach will be unhelpful if the two point in different directions, which one might think was the case here: the law wasn’t tailored carefully, or indeed at all, but it arguably did leave some room for political speech. But the approach favoured by the dissent suffers from its own flaws. For one thing, it seems to ignore Bastarache J’s tailoring language altogether. For another, it is entirely impressionistic, and leaves an ostensible constitutional right at the mercy of the government producing an expert who will say, as a former Chief Electoral Officer did in this case, that the spending limit imposed on civil society was “not nothing”. Pick your poison.

For my part, I want to stress that this case highlights the rare feat achieved by Bastarache J (and, of course, the other judges who signed onto his opinion) in Harper: being at once vapid and pernicious. Vapid, because the discussion of s 3 in Harper is too vague and self-contradictory to mean much of anything, let alone provide real guidance to the courts that are nonetheless bound to apply it. To repeat, it is not the Court of Appeal judges’ fault that they have a hard time puzzling out whether “careful tailoring”, “modest informational campaign”, or “meaningful participation” is the test for a s 3 violation, and what any of these things mean. Pernicious, because it still opens the door to what is quite obviously a freedom of expression issue that should be dealt with under s 2(b) of the Charter ― or, as here, ignored because the self-dealing legislature so decreed ― to be considered under the aegis of a different right, unsuited to the exercise as a matter of both constitutional text and doctrine.

Of course it’s true that, as Bastarache J said in Harper, “[g]reater participation in the political discourse leads to a wider expression of beliefs and opinions and results in an enriched political debate, thereby enhancing the quality of Canada’s democracy”. [70] But it simply does not follow that this is a matter for s 3 of the Charter and that “the right to vote in an election of members of the House of Commons or of a legislative assembly” includes a “right to exercise his or her vote in an informed manner”. [71] Not everything that is needed to make a given Charter right fully effective can be rolled into that particular right. A free press, and certainly the media’s ability to report on court proceedings, “enhance the quality” of the administration of justice and, for instance, the right to be judged by an independent and impartial tribunal. But it does not follow that restrictions on reporting on criminal trials are to be dealt with under s 11(d) of the Charter instead of s 2(b). Different Charter provisions have independent meanings and distinct doctrinal frameworks that give them effect, and confusing them is both wrong in principle and unhelpful in practice ― except, of course, for crassly results-oriented purposes.

In another controversy about election laws in Ontario, the Supreme Court put an end to similar confusion. In Toronto (City) v Ontario (Attorney General), 2021 SCC 34, it rejected the Superior Court’s re-branding of the franchise in municipal elections, to which s 3 of the Charter does not apply, as a form of expression protected by s 2(b). If given the opportunity, it should do the same with the re-branding of pre-electoral expression as “the right to vote in an election of members … of a legislative assembly”. This should be done in the clearest way possible ― that is to say, by rejecting Harper, at least on this point (until, in the fullness of time, its s 2(b) holding is also overturned). Harper‘s s 3 “analysis” was made-up, and it needs to be unmade in the place whence it came.

Consequences

Are demands that speech not be punished just a childish attempt to escape consequences?

A recent piece by Max Fawcett in the National Observer invokes a number of common tropes about freedom of expression. One, which I address here, is that when people are punished for what they have said or written, they have “not been denied that right. But neither [have they] been excused from the potential consequences associated with exercising it”. The implication is that it is just as absurd ― perhaps childish ― to try to escape punishment for one’s words as it is to escape the consequences of one’s actions.

The context of Mr. Fawcett’s piece is a dispute between Jordan Peterson and the Ontario College of Psychologists, which ― like pretty much everything else Dr. Peterson-related ― I don’t care about. But this response to all manner of speech-related controversies is widespread. It is, in these terms, particularly favoured on the social justice-minded left: see, for instance, the comments of a man whom the BBC describes as engaged in “publicly shaming” people for real or perceived transgressions against progressive propriety and “ultimately getting the people ‘cancelled'”: “These times of doing whatever you want without consequences are over”, the BBC quotes him as saying. But, as Cathy Young points out just today in The Bulwark, the political right, especially in the United States, is also quite willing to visit retribution on those who say and write things it doesn’t like, even as it poses as a defender of free speech.

Why is the claim that punishment for the expression of ideas is just “consequences” and, as such, must be accepted by any reasonable adult wrong? Because the whole point of freedom ― of any freedom, not only freedom of expression or speech, but also freedom of religion, of assembly, or association for example ― is precisely freedom from certain kinds of consequences. And it is only, I think, with freedom of expression that anyone would dispute this. Imagine saying “you’re free to go to Church on Sunday, but you must accept the consequence of being fined for it”; or, “you’re free to form a union, but you must accept that you’ll be jailed if you do”. This is arrant nonsense, and everyone will instantly recognize that it is just that. The freedom of expression is no different: it is also, of course, an immunity from at least some kind of consequences attaching to its exercise.

Now, the real issue ― and again, this is true of freedoms other than that of expression ― is what consequences, imposed by whom, are off-limits. At one end of the spectrum, almost everyone agrees that it’s wrong for government to jail people for what they say, at least in most circumstances; it’s wrong to fine people for going to this or that house of worship, or to beat them up for holding a peaceful protest in a public square. At the other end, contrary to the caricature prevalent in social-justice circles, very few people, if anyone really, think that pure criticism is a forbidden consequence for speech. Again, other freedoms are mostly similar, though there is, it seems to me, a tendency in some quarters to view any criticism of (some) religious beliefs as categorically wrong; indeed, there is a perplexing overlap between the people who believe this and those who argue that even state-imposed or -backed punishment for speech is just “consequences”.

The difficult questions, when it comes to expression, are of two main sorts. First, what are the exceptions to the general principle that the state should not punish people for what they say? I don’t think anyone who accepts the legitimacy of the state denies that there are some exceptions. Fraud is committed through speech or writing, for example. But there are issues on which reasonable people disagree in good faith; hate speech is a classic example. I’m inclined to say, though, that this category of hard questions is actually a comparatively narrow one.

The bigger and perhaps more socially provocative one has to do with the vast middle part of the spectrum between state-imposed punishment on the one hand and pure criticism on the other. Does an employer have the right to fire an employees for their politics? Can a social media platform censor a story it considers to be disinformation, or indeed ban a user inclined to share such stories? Should people be able, not just to criticise someone who they think has crossed a line that should not be crossed in polite society, but to seek to get them fired from their job? How about doxxing them?

What makes these questions even more fraught is that each of them, in truth, is at least two questions, if not more. Does an employer have a legal right to fire an ideological dissident? Does an employer have a moral right to do it? And, perhaps, even if there is a moral right, should a good employer forbear from exercising it? And so on. Far too many people confuse the legal and moral issues, or think that the law should precisely track (their) morality, but here as elsewhere there may be perfectly good reasons for law and morality to diverge.

This is the stuff the “culture war” about freedom of expression is largely about; the legal debates, less so, but increasingly in the last few years. There are genuinely difficult questions there. Questions about line-drawing, for example, such as when, if ever, what would be perfectly legitimate criticism coming from one person becomes a morally reprehensible pile-on when engaged in by a large group. Questions about clashing rights, such as those that arise in relation to employers or social media, who have expressive interests of their own to set up against those of employees and users. Questions about the nature and relevance, or not, of market competition and monopoly. And no doubt many others.

When such difficult questions are debated, as they should be, nobody is served by amalgam, clichés, and misdirection. The tired claim that punishment for speech at the hands of the state ― or for that matter at the hands of an online mob ― is just “consequences” is all of these things. Yes, of course a punishment is a consequence, but if we believe in freedom of expression at all, we are committed to the principle that not every consequence that can be visited on a person for what he or she says or writes is just. What we want to know is what consequences are just, and when. Let’s talk about that.

I will try to address a particular set of questions related to this, also based on Mr. Fawcett’s piece ― specifically, on his claim that “[t]here is nothing unjust or illiberal about professional organizations enforcing codes of conduct for their members” ― in a separate post. Stay tuned.

In the Name of God, Go!

The Canadian Judicial Council wants a tardy, cantankerous judge gone. So do I.

Yesterday, the Canadian Judicial Council published a report recommending the removal from office of a Quebec Superior Court judge, Gérard Dugré. I hadn’t followed this sordid story until now, and was a bit wary on seeing the news, especially given that media reports mentioned, somewhat blandly, off-colour remarks and such as grounds for the CJC’s recommendation. Was it a case of tone policing rather than genuine misconduct? It turns out, no ― not at all.

I haven’t been able to find out much about Justice Dugré’s career prior to his appointment to the bench, but here’s at least one indication that it was an accomplished one: back in 2006, he was named Plaideur de l’année ― oral advocate of the year ― by Le Monde juridique. Among other winners of this particular accolade is one Suzanne Côté, in 2008, now of course Justice Côté of the Supreme Court of Canada. Presumably, one doesn’t get this sort of recognition without being a talented and hardworking lawyer, as Justice Côté’s example suggests. Unfortunately, on his appointment to the bench, Justice Dugré did not live up to this kind of standard.

The CJC report proposes two grounds for his removal, each of them independently sufficient. The first is chronic tardiness in the delivery of judgments Justice Dugré took under advisement. The second, the one that seems to have attracted more media attention, is his persistent misbehaviour in the courtroom.

On the subject of delay, the report deals with two somewhat different issues. For one thing, there was a particular case where Justice Dugré disregarded his own undertaking to the parties to give judgment promptly in light of the exigency of the circumstances (the matter involved the sale of a family home, and delay resulted in heavy financial costs as well as, obviously, stress and inconvenience). Having let the parties think the case would be disposed of in weeks if not days, Justice Dugré took eight months.

But this case was, it turns out, merely illustrative. Concerns about Justice Dugré’s slowness were raised early in his tenure. He received both admonitions and help from his Chief Justices and Associate Chief Justices. His assistant kept track of his delays, presumably as part of this process. It was all to no avail. Of his

185 judgments, 60% … were rendered more than six months after being taken under advisement and 18% were rendered more than a year after that date. … [T]here were no other judges who experienced comparable delays in rendering judgments. [67]

One shudders at the thought of the cost this imposed on everyone involved in these cases ― again, financial cost, stress, delayed life plans. The CJC is right that a judge who behaves like this must not be allowed to continue in office.

And then, there are Justice Dugré’s courtroom antics. I will give only a few examples from the litany in the CJC report, which itself, I take it, is only a selection from what had been established during the fact-finding process. It is hard not to chuckle at reading some them ― Justice Dugré’s mannerisms had a certain darkly comedic quality. Only, he was a judge, not a comic, and there were real people at the receiving end of it all.

For example, in what the CJC describes as “a choice of school case” (in the family law context, I assume), Justice Dugré “[o]n two occasions, proposed a solution whereby the child in question would be sent to boarding school or put up for adoption”. [68] In a civil case, Justice Dugré

[m]ade jokes in reference to allegations of sexual misconduct about a
colleague of one of the parties. He asked whether one of the parties had
been “accused of sexual assault yet”, suggesting that he just wanted to
make sure that “everyone’s behaved themselves.” The case had
absolutely nothing to do with sexual assault. [70]

In a different family law case, Justice Dugré “[s]uggested the complainant’s non-disclosure of certain documents could result in a finding of contempt of court and incarceration in a cell with starving rats”. [71] In the same case, in addition to taking over the examination of witnesses ― for forty minutes at a stretch in one instance, justice Dugré went on the following rant, which the CJC soberly describes as “shar[ing] his views on alcoholism with a witness on the stand

Because a lot of people drink two bottles of wine a day, one at noon, one in the evening, are perfectly, they aren’t alcoholics at all, because they like wine, and they really like it. And after all, lunch goes on for three hours, and supper goes on for three hours. So, there’s five glasses, in a bottle of wine, so there’s, we’re two people, that makes two glasses, four glasses. Fine. They had two bottles of wine. That’s nothing. But a guy who has one glass of wine, he gets totally enraged, and all that, but he has to be careful, he can’t touch that, he’s not allowed. Because he gets totally crazy. So, that’s what alcoholism is. [71]

To which one is sorely tempted to say, go home, my Lord, you’re drunk. The CJC doesn’t put it in so many words, but its conclusion is to the same effect: Justice Dugré’s “behaviour in belittling parties and counsel, making inappropriate and offensive comments and not permitting parties an opportunity to present their case, are all sufficient to ground a finding of judicial misconduct”. [82] Again, no disagreement from me on this one.

Before ending this sorry tale, a word on Justice Dugré’s response to the CJC process. Assuming the report provides a fair account of his arguments (and I have no reason not to assume this), they consisted very largely of procedural quibbles about the manner in which his conduct was investigated and considered. This is of a piece with Justice Dugré’s repeated attempts to stop the investigation in its tracks by filing multiple judicial review applications, which resulted in three increasingly terse dismissals by the Federal Court of Appeal, and two dismissed applications for leave to appeal to the Supreme Court.

Of course, a judge investigated by the CJC is entitled to procedural fairness, but there is something unseemly in the extreme when this entitlement is used in an attempt to avoid a conclusion on the merits, instead of to ensure a fair consideration of the case, which there seems to be no reason to think Justice Dugré was denied. I have no problem with a person accused of a crime trying to “get off on a technicality”. But when a public officeholder’s fitness for office is in question, I think decency requires him or her to see to it that a decision on the merits is reached, so long as the process affords him or her a full opportunity to make his or her case. Justice Dugré, for his part, chose not to testify. The CJC is careful to note that no adverse inference should be drawn from this, but from a moral rather than a legal standpoint, I think this is bad form at the very least.

So while Justice Dugré will now have the opportunity to commence yet another judicial review, I can only hope he does not take it. This is pretty much his last chance to leave a job for which, for whatever reason, he turned out to be utterly unsuited with at least a modicum of good grace. He should have gone long ago. He must do it now. Now.

Why Couldn’t They?

Quebec probably can abolish the requirement that Members of the National Assembly swear allegiance to the King

The Quebec government has made news, even on this side of the pond, by introducing Bill 4, which purports to amend the Constitution Act, 1867 “by inserting the following section after section 128: ‘128Q.1. Section 128 does not apply to Quebec'”. Section 128 provides, in part, that

Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act.

No more oath of allegiance to King Charles, then, for members of the National Assembly? Not so fast, say a number of people whose judgment I regard highly. A province (or for that matter Parliament) cannot unilaterally change this provision’s application to itself, though, as Lyle Skinner notes, there seems to be some division of views on what the appropriate procedure would be.

But I’m not sure I see what it is that stops a province from proceeding unilaterally; or at any rate, I have not seen the relevant evidence yet, though I admit I haven’t followed this whole controversy closely. I should also note that I what I am about to say does not endorse Quebec’s predilection for purporting to inscribe amendments to its provincial constitution into the Constitution Act, 1867. I think this way of doing things is self-indulgent and silly, and I don’t know whether it is lawful either. Perhaps Bill 4 could be attacked on this ground, but I leave this question aside and focus on its substance.

The authority for Bill 4, if it exists, must come from section 45 of the Constitution Act, 1982, which provides that “[s]ubject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” Legislation must, satisfy two obvious criteria to be valid under this provision: it must be concerned with “the constitution of the province” and it must not trench on matters protected section 41 of the Constitution Act, 1982.

The first test is explained in Justice Beetz’s majority judgment in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2. It has two branches. First,

is the enactment constitutional in nature? In other words, is the enactment in question, by its object, relative to a branch of the government of [the province] or, to use the language of this Court in Attorney General of Quebec v Blaikie, [1979] 2 SCR 1016, at p. 1024, does “it [bear] on the operation of an organ of the government of the Province”? Does it for instance determine the composition, powers, authority, privileges and duties of the legislative or of the executive branches or their members? Does it regulate the interrelationship between two or more branches? Or does it set out some principle of government? (38-39)

The existence, contents, and abolition of an oath to be sworn by members of the legislative assembly obvious meets this test, bearing as it does on the composition and duties of the members of the legislative branch. The fact that s 128 lies outside the part of the Constitution Act, 1867 entitled “Provincial Constitutions” is neither here nor there. It is the substance that matters here, as Justice Beetz pointed out.

The second branch of the OPSEU test is the one that those who believe Quebec lacks the authority to enact Bill 4 have in mind. It says that

provisions relating to the constitution of the federal state, considered as a whole, or essential to the implementation of the federal principle, are beyond the reach of the amending power bestowed upon the province … Furthermore, other provisions of the Constitution Act, 1867 could be similarly entrenched and held to be beyond the reach of s. 92(1), not because they were essential to the implementation of the federal principle, but because, for historical reasons, they constituted a fundamental term or condition of the union formed in 1867. (39-40)

Now, I think it’s obvious that the oath of allegiance has nothing to do with the federal principle and the distribution of powers among Parliament and the provincial legislatures, or with “the constitution of the federal state, considered as a whole”. On the contrary, part of the point of Canadian federalism is that Parliament and the provincial legislatures function autonomously. They are elected in separate elections, pursuant to different electoral legislation (and, potentially, with a different franchise, though subject to s 3 of the Canadian Charter of Rights and Freedoms); they have different privileges and different internal procedures.

If the second branch of the OPSEU test prevents provinces from abolishing the oath of allegiance for their legislators, it must be because this oath “constituted a fundamental term or condition of the union formed in 1867”. And… I just have a hard time thinking that that’s the case, whether for reasons of form or substance.

So far as form is concerned, it is true that s 128 mentions federal and provincial legislators in the same provision, indeed in the same sentence. But I don’t think it follows that they cannot be disaggregated. Consider s 96 of the Constitution Act, 1867, which provides in part that “the Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province”. Here too, federal and provincial institutions are mentioned ― and indeed, not merely mentioned in parallel as in s 128, but intertwined. Yet that did not stop the provinces from exercising their s 92(14) power over “the Constitution, Maintenance, and Organization of Provincial Courts” to abolish District and County courts.

As for substance, the example to which Justice Beetz points in OPSEU is s 133 of the Constitution Act, 1867, which imposes the requirement of legislative and judicial bilingualism on both Parliament and the Quebec legislature. This is the provision considered in Blaikie. The Supreme Court referred to the judgment of the Quebec Superior Court “[o]n matters of detail and of history”. (1027) That judgment, for its part, quoted at some length from the Confederation Debates, where John A. Macdonald noted that it “was proposed by the Canadian Government … and it was assented to by the deputation from each province that the use of the French language should form one of the principles upon which the Confederation should be established”. Meanwhile, Georges-Étienne Cartier added that

The members of the [Quebec] Conference had wanted that this [French-Canadian] majority [in Quebec] be unable to enact the abolition of the use of the English language in the local legislature … just as the English majority in the Federal legislature would be able to do it to the French Language.

This is what a fundamental term of confederation looks like. A quick skim through PrimaryDocuments.ca doesn’t suggest any equivalent attention having been paid to the oath of allegiance. It was only a quick skim and it’s entirely possible that I have missed something, of course. But unless and until someone points to specific facts that suggest that the oath had any sort of comparable importance, I will not be persuaded that it was a “fundamental term or condition” without which Confederation would not have happened.

Thus, I don’t think that the OPSEU test prevents a province from changing or abolishing the oath of allegiance the members of its legislature must subscribe. There remains, though, the other restriction on section 45: section 41 and, specifically, the restriction that a province may not amend its constitution so far as it relates to “the office of the Queen, … and the Lieutenant Governor”.

Mr Skinner, in the tweet linked to above, says he “ha[s] not seen anyone suggest” that this restriction applied, but this overlooks obiter dicta in Blaikie. In responding to Quebec’s contention that s 133 was similar to certain other provisions of the Constitution Act, 1867 in being part of the provincial constitution despite not being included in the part entitled “Provincial Constitutions”, the Court had considered s 128. It said, however, that it “raises a different issue, referable to the office of the Governor-General and of the Lieutenant-Governor and touching the position of the Crown in respect of members of the legislative chambers, so long as such chambers exist”. (1024) But the Court did not fully canvass this issue, stating that “[i]t does not seem necessary to come to a determination whether s 128 is part of the Constitution of the Province and amendable as such”. (1025)

For my part, I find it difficult to accept the Court’s suggestion. I do not think that an abolition of the oath of allegiance affects “the office” of the monarch. The highest authority we have on the meaning of this phrase is Motard v Attorney General of Canada, 2019 QCCA 1826, where the Quebec Court of Appeal held that it referred to “the powers, status or constitutional role devolved upon the Queen”. [92] While I suspect that that judgment was wrong in its key holding ― that the rules of succession to the throne were not also part of the royal “office” ― I do not see the existence or otherwise of the oath as pertaining to “the powers, status or constitutional role” of the sovereign. It is a constraint on members of the legislature, not a privilege or power of the King.

In short, subject to better historical evidence on the importance of the oath of allegiance as a condition of Confederation coming to light, I think that a province has the power to dispense with it unilaterally. That does not make such a dispensation a good idea, though I have argued elsewhere that similar oaths are useless at best and pernicious at worst. It is arguable that legislators are in a different position than would-be citizens or would-be lawyers, but I don’t know how compelling these arguments are. And, of course, even the desirability of abolishing the oath requirement, let alone the constitutionality of doing so, has nothing to do with the desirability of preserving the monarchy. God save the King!

In Memoriam, Stephen A. Smith

Memories of one of my favourite professors

Stephen A. Smith, who taught me Contract Law and Advanced Common Law Obligations at McGill, and for whom I was a research assistant for two summers, has died. It is very sad news indeed. He was a good teacher and a good man.

Professor Smith was a leading private law theorist. He once joked that “every law professor only has one thing to say”, and there is truth in this, I’m afraid, as in any good joke, but he was very much the exception to this rule. Still, others will be better placed to speak to his accomplishments. As much as I liked him and enjoyed working for him, private law was and has remained beyond me, and indeed I don’t think I realized how important a scholar he was until much later; I’m afraid we took our professors for granted a lot. But I wanted to try to explain why I liked Professor Smith, despite not having been very interested in his subject.

As a teacher, he was always interested in why the law worked the way it did. One way in which this manifested itself, which I don’t think was especially popular but was probably my favourite part of the three semesters he taught me for, was having his second-year students read David Ibbetson’s A Historical Introduction to the Law of Obligations. Knowing that, centuries before Donoghue v Stevenson, there had been a case about a shipper who “by force of arms”, introduced salt water into the plaintiff’s wine barrels? I was there for that. Also, because he was interested in how things fit together and made sense, Professor Smith had no piety for courts that failed to live up to that standard. He wasn’t the only one of my professors from whom I learned this, but he was definitely one of them.

At the same time, he was mild-mannered, pleasant, unpretentious, and supportive. When a torts professor asked a class to describe the reasonable person, someone said that it was simply Stephen Smith. And he was.

Well, most of the time. Perhaps, to paraphrase Arthur Clarke, to discover the limits of the reasonable one needs to cross them a little into the unreasonable, and that’s what he did in the research he got me to help with. One of his jobs for me was to find out about remedies in French law. This sounds straightforward enough, until you realize that French law has no concept of remedies at all. It thinks in terms of obligations and the execution of obligations, rather than rights and remedies like the common law, and translating one into the other is by no means obvious. Professor Smith then went one better: what about remedies in Roman law? I’d never studied Roman law; good luck to me… And that wasn’t all. The best one, in fact, was this: try to find out if there actually exist private law examples of rights without remedies. That brought to mind Cristobal Junta, a character from the Strugatsky brothers’ Monday Starts on Saturday, a former inquisitor become researcher into wizardry and magic who regarded it as a point of principle to only investigate questions that had no answers, because if an answer exists, what’s the point of looking for it?

It wasn’t always easy to wrap my head around these things, but I think I learned a lot from them. Not so much about remedies, alas, but about law more generally, and about curiosity and thinking outside the box. I’m grateful to Professor Smith for having given me these opportunities ― despite my not having been an especially good student in his classes. These assignments may have made my head swim at the time, but they are some of my fondest law school memories now.

It is trite to say that one will miss a person who has died. But there it is, I will miss Professor Smith. He made me think harder and better, and he made the world a more interesting place, even if it was always in a low-key, reasonable, way. Thanks, and farewell.

Why Read Cases?

Some advice for law students

Legal education in the common law world revolves around reading cases. Perhaps a little less than in the past, but still. But why? And why should students spend time on reading cases in full, instead of finding short summaries? Especially now that (unlike, say, 100 or perhaps even 50 years ago) there are great textbooks that summarise whole areas of the law, and (unlike, say, 20 or perhaps even 10 years ago) online sources, some of them quite good, that summarise individual cases, and indeed short and sometimes plain-language summaries produced by the courts themselves?

Before I explain why, I mention a fundamental fact which students at the outset of their legal careers probably don’t think much about, understandably: your legal career, if that’s the one you choose, may well extend for 40 or even 50 years, and during this time the law will change a lot. Think about what the law was like in 1972, and what it is like now. How many statutes and even cases from back then are you encountering in your classes? Some, no doubt; perhaps quite a few if your lecturers are more historically-minded. But still. For lawyers who graduated in 1972 or 1982, almost all of the law they are applying now was made after they left law school.

In a superficial sense, law school cannot prepare you for this, because we don’t have time machines and cannot really guess what the law of the future will look like. So how do the lawyers who graduated in 1972 and 1982 manage? It’s because law school doesn’t only or even mainly teach you what the law happens to be at the moment in time when you go there. Instead, it teaches you the skills you need to understand the law as it develops over the course of your career. This is why law school is not just a trade school, but part of a university: it is doesn’t just teach you how to do something, but how to think.

Reading cases is one such skill, for (at least) three categories of reasons. The first has to do with learning what the law is; the second, with expressing oneself in the law’s language; the third, with solving problems like a lawyer. All of these, it is worth noting, apply across all areas of law ― nothing in what I will say here is specific to public law.

To begin with, you need to read cases to know what the law is because many of the most important legal rules and principles are not recorded in legislation, and are only given form, however imperfect, in judicial decisions. Moreover, even legislation seldom stands by itself. You need to know how it is interpreted and applied by the courts. Of course, you can pick up a lot about the cases decided in the past from the abovementioned sources ― textbooks, online summaries, etc. Maybe, from this perspective, you could get away with not reading cases in law school, though it’s not a good idea. These sources may be wrong, or, even more likely, they may be incomplete or slanted in one way or another. You want, as much as possible, to be able to judge for yourself.

And then, what happens when you graduate, and new cases keep getting decided? Suppose the Supreme Court decides a case that bears on an ongoing issue you are helping a client with. You cannot very well tell them to wait for a few months or even years until someone else does the work for you. You need to know how to read the case for yourself and update your advice to your client accordingly. Practicing to read and understand cases in law school is how you prepare for that.

Next, you need to read cases to write and speak like a lawyer. Like any profession, law has its own jargon. It can be peculiar. To be sure, law has become less attached to some of the more archaic English or even Latin words and phrases it used to be fond of ― though of course you may still need to be comfortable with them to understand older cases. But that doesn’t mean that lawyers now speak like any other educated persons. You need to know, for example, that you can have a claim at common law, or in equity, and not in common law or at equity. Why? I’m not sure there’s a reason. It certainly doesn’t make a whole lot of sense. But you need to know these things to establish a common language with your fellow lawyers and with the judges, without which you cannot be a full member of the legal community ― or an effective representative of your clients’ interests.

Reading cases is the most obvious way in which you will acquire this peculiar language. Textbooks and summaries often abstract it away in the process of distilling the cases’ holdings to single sentences or short paragraphs. They might help a little, but they won’t be enough. I suppose you might read statutes, but I’m not sure that’ll be as effective, and I’m certain it will be boring. (You should sometimes read statutes too, to know what they are like. But you don’t need to do it as much as with cases.)

Finally, and perhaps most importantly, you need to read cases to understand how lawyers and judges solve problems. In his famous report of Prohibitions del Roy, Coke CJ claims that he told James I that the King could not decide cases himself, instead of letting his courts do it, because

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it.

While a lot in that report was made up, this idea was true in 1607, and it remains true today. The law has its own way of thinking through difficult questions, and being a smart person, which you are if you have made it to law school, isn’t enough to grasp it. In sports, you probably won’t be picked for a high-level team without some natural gifts. But you still need to train to become a great athlete, and not just someone who could have been one. It’s the same in law.

The cases are where you absorb legal reasoning. Textbooks and summaries focus on giving you the outcome, and not the step-by-step reasoning of the judges. Nor do they usually tell you which arguments the court found unpersuasive, or spend much time unpacking judicial rhetoric, which can be very useful if you are going to persuade judges: giving them ready-made arguments they can re-use will make them more likely to side with you. Lectures may go into such details from time to time, but they are too short to do it much.

Ultimately, there is no substitute for taking your own time and working your own way through judgments. Even if someone could learn all the legal rules that exist when they graduate law school without acquiring ― through long study and experience ― the skills that reading cases gives you, they would be useless to their clients within 10 years. And they’d still have 80% of their career ahead of them. You don’t want to be that person. The good news is that cases are often fun to read. They are stories, often interesting and sometimes well-told. The more you get use to reading them, the more attuned you become to the smaller details that can make them fascinating. And the sooner you start, the better you will be at it.

Standing Isn’t Free

On the importance of thinking about costs, as well as benefits, of judicial review of administrative action

NB: This post has been prompted by my teaching and is first addressed to my students in Public Law 2 at Reading, but I hope that other readers, at least those interested in administrative law, will also find it of interest.

Who can challenge an administrative decision: only the persons directly affected by it or, well, just about anyone? This is the question of standing. US law resolutely sticks to the narrow view (as will be apparent, for example, from the discussion of the prospects of the challenges to President Biden’s debt-cancellation plan on this recent episode of Advisory Opinions). But Commonwealth jurisdictions have tended to take a broader view.

As Lord Hope put it in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868, (even as he disclaimed “risk[ing] a definition of what constitutes standing in the public law context”), “the interest of the person affected by or having a reasonable concern in the matter to which the application related” is enough. [63; emphasis added] This means that “[a] personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” [63] Or, in the more colourful words of Palmer J in Smith v Attorney-General [2017] NZHC 1647: “The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists.” [2] While there are differences between the UK and New Zealand approaches, this description is apt for UK law too.

But is this very considerable relaxation of the standing requirement ― when you need to say that something “still exists”, its existence, evidently, is a matter of some doubt ― a good thing? Or does the stricter, American-style, approach has something to recommend it? It is not, after all, without precedent in English law too. In R v Environment Secretary, ex p Rose Theatre Trust [1990] 1 QB 504, Schiemann J insisted that “the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated”. (522) Doesn’t it, though?

The other view is exemplified in a much quoted (and sometimes implicitly referenced) statement of Sedley J in R v Somerset CC Ex p Dixon, [1998] Env LR 111 (1997):

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs —that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. (121)

The idea is that the law must see to it that public wrongs are set right, and that it matters little who commences the litigation that may lead to this beneficial result. The way I put it to students in my public law tutorials is that the people who take this view emphasise the “review” part of judicial review ― in contrast to those who stress the “judicial” part and so are wary of transforming courts into general-purpose defenders of the public interest.

But to say that an area of the law “is about wrongs” is not enough to show that it must make it possible to identify and ensure consequences for every wrong of the relevant kind that occurs. Just as the socially optimal amount of crime is not zero, so to the socially optimal amount of misuse of public power is not zero either. Some wrongs should actually go unredressed. The idea might seem counter-intuitive, but it makes good sense. The costs of a wrong, be it crime, misuse of public power, or anything else, must be set off against the costs of preventing or rectifying it. If prevention or redress consume more resources (money, time, brainpower, etc) than are lost as a result of the wrong itself, or indeed if they generate further wrongs, then they are wasteful, from the standpoint of society.

In the context of crime, this means, for example, that we wouldn’t want a police officer on every street corner. While their presence would probably deter and possibly help solve some meaningful number of crimes, it would be very costly. The cost, to be clear, is not just money, though that’s part of the story. Salaries are indeed costly, but so are the unseen opportunities lost due to all these people not doing something more productive than standing on street corners. And so, too, is the possibility that they may, if only to occupy themselves, harass or arrest people who are quite innocent.

Recognising all this does not mean that we do not care about crime and about the Rule of Law. As Lord Reed put it in AXA, “the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted”. [170] Acknowledging the costs involved simply means being realistic about the constraints that apply when our ideals come into contact with reality.

The same sort of thinking should apply in public law. While Sedley J and other advocates of expansive standing (such as Lady Hale) do not acknowledge this, some public wrongs are not worth redressing through judicial review because of the cost of doing so. Timothy Endicott’s Administrative Law textbook does make this point. Professor Endicott writes that “the test of standing is a proportionality test. … Proportionality in this case is a relation between the value of hearing a claim for judicial review and the process cost, and any process danger that may result.” (415) I think this is basically the right idea, but it worth unpacking further.

Professor Endicott’s review of the decided cases suggests that courts do, in fact, attach some importance to “the value of hearing a claim”, in that standing is the more easily granted the more serious the claim raised in a case is. And it is not exactly a surprise that courts would pay some attention to this despite sometimes embracing the justice-at-all-costs rhetoric exemplified by Sedley J’s dictum. I have argued here that something similar happens in the realm of procedural fairness. But this is only one side of the proportionality equation.

What about “process cost” and “process danger”? Professor Endicott’s survey suggests judicial interest in this may be limited, and he too has comparatively little to say about these things. I’m not even quite sure what the distinction between “costs” and “dangers” is. Carol Harlow’s article “Public Law and Popular Justice” focuses on a particular set of such concerns, perhaps dangers rather than costs: those that have to do with courts being transformed into political institutions and/or made to address polycentric problems for which they lack institutional competence.

I think these dangers are real, but there is more, too. I discussed the costs (and the benefits) of judicial review in an old post here. I won’t rehash everything I said then, but one point that bears repetition is that

all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested … But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined … by an administrative decision-maker.

Perhaps I should have used a different word: judicial review is not so much superfluous as it is redundant, in the sense of providing an additional layer of protection to a system that could operate without it ― but at some real, and perhaps unacceptable, risk.

Be that as it may, the costs of judicial review, even those that accrue in any legal proceeding, are thus particularly significant. And some are peculiar to judicial review. Among other things, judicial review risks both unwarranted interference with the legitimate activities of government (insofar as anything the government does is legitimate) and, conversely, undue legitimation of government decisions that, while lawful and hence deserving of being upheld, are daft, immoral, or both. Ignoring these (and other) costs of judicial review does not make them go away; nor does it somehow strengthen the Rule of Law.

The other concern I have with Professor Endicott’s approach has to do with the concept of proportionality. As in human rights law, it seems to invite a comparison of things that cannot be assessed on anything like a common scale. As noted above, the costs of judicial review are not all reducible to pecuniary expenses, and its benefits are of course not pecuniary at all. How can we know that one is proportionate to the other? Professor Endicott argues that courts have not struck the right balance, allowing cases where there was no sufficient public interest in having the claims litigated to be brought forward, but with a proportionality approach, such arguments are inherently subjective.

What is more, case-by-case analysis of proportionality exacerbates what Professor Endicott laments as “[t]he irony of process”. This arises when

parties … need to be given more process than is actually due to them [because a] claimant without a sufficient interest in a matter is not entitled to be heard, but it is often necessary to hear the whole story from the claimant and the defendant in order to decide whether the claimant has a sufficient interest. (417; emphasis removed)

This, of course, only adds to the costs of judicial review: debates about standing have to be considered, on top of those of the substantive disputes.

In light of this, it is tempting to look for alternatives to proportionality in the form of clear, rigid rules. They might, of course, not be exactly right: perhaps they will allow some claims to go forward that should not, as is already the case now, Professor Endicott suggests. Or perhaps they will result in some unlawful decisions not being reviewed even though they should be. But if these rules can be applied straightforwardly and predictably, they will still be preferable to the uncertain proportionality approach, provided that they are reasonable proxies for where a case-by-case analysis would end up.

The argument for a narrower approach to standing, limiting it to those whose legal rights and obligations are directly affected by the administrative decision they seek to challenge, would have to be that this rule helps us distinguish those cases where the lawfulness of administrative action should be tested from those where doing so would be wasteful in a way that is more efficient than the proportionality approach preferred by Professor Endicott or the easy-going approach now preferred by the courts. I think this is possible: the redundant nature of judicial review is particularly salient in case where the applicant’s right and obligations are not involved, and it may be that it is also in those cases that the risks of undue interference with government, and perhaps also of undue legitimation of legally sound but morally questionable decisions arise. But this is just a tentative view for now.

What I am confident about is we must not neglect the costs of judicial review, even as we study and perhaps promote its importance and advantages. The ideals we seek to realise through the law are seldom unmitigated goods, and we do them no justice by forgetting about this. In judicial review as elsewhere, in the heavens as in on Earth, TANSTAAFL.

Learn Your Craft!

Justice Stratas shares his thoughts on succeeding in law school and beyond on the new episode of the Pod

Last month, co-blogger Mark Mancini launched an experiment in podcasting. We are back with a second episode, for which we have had the honour and the pleasure of speaking with Justice David Stratas, of the Federal Court of Appeal. With the new school year starting, we thought we would ask Justice Stratas for his thoughts on succeeding in law school and in the legal profession, with a particular emphasis on advice for first-year students. We are very grateful to him for accepting the invitation!

I am happy to report that the sound is rather better than last time, though no doubt we still have much to learn. Still, we think this should be an engaging and useful episode. You can listen to our conversation right here:

It is also available on Spotify and Google Podcasts. We also hope that you will share it with any law students ― especially first-year students ― you happen to know, or be teaching.

And, for further reading: Justice Stratas writing tips; and also, Mark’s post on “The First Year of Law School“.

Happy Constitution Day!

A love note to a document and a tradition

Today is Constitution Day in the United States. The reverence for and celebration of the Constitution ― not just on the anniversary of its signing at the conclusion of the Philadelphia Convention in 1787, but throughout the year ― might seem as quaint to outsiders ― and indeed as irritating to a certain type of insider ― as The Queue to the Queen’s lying in state is in the United Kingdom. Indeed, the British and Commonwealth monarchy and the US Constitution have something important in common, despite the latter being the result of a rebellion, ostensibly against the former.

Despite their less-than-angelic origins ― despite the connection of both with conquest and oppression ― what they mean to their respective supporters is, on the one hand, stability and tradition, and on the other freedom and, perhaps paradoxically but still importantly in the case of the monarchy, a check on the ambition of passing office-holders. To embody these two clusters of values, which in human history have more often than not been at odds with each other, is a remarkable success, and well worthy of admiration.

The Constitution makes these commitments more explicitly, of course, and in a way that is more teachable. It has been on my mind of late because I have been preparing some introductory lectures on the UK constitution, and the American one is an excellent example at the same time as it is an excellent foil. For anyone interested in constitutionalism and in government more generally, not only in the United States but far abroad too, the Constitution and the intellectual tradition to which it gave rise ought to remain of the greatest interest.

Yet my impression is that, among those interested in comparative constitutional law, the US Constitution has become unfashionable. It is said to be too old or too odd; too absolutist in its approach to any number of problems, from the freedom of speech to judicial review of legislation; too bound up with itself and its own history. I think this view is a mistake. We need not emulate the United States, but treating the US Constitution as if it now has nothing to teach us deprives us of an example far more successful than many people either realize or care to admit.

And as for American absolutism, it is a view that we ignore at our peril. In The Federalist No. 48, James Madison wrote “that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it”. He thought that this proposition would “not be denied”. Yet there are dangerous fools who do in fact deny it. And many more, alas, simply forget it. The American constitutional tradition is the best remedy we have against such forgetfulness.