Unusual Indeed

The trouble with a caustic, pseudo-originalist opinion of Wakeling JA

In my last post, I described the decision of the Alberta Court of Appeal in R v Hills, 2020 ABCA 263, which upheld a mandatory minimum sentence for the offence of firing a gun into a place “knowing that or being reckless as to whether another person” is there. Two of the judges, Justices O’Ferrall and Wakeling delivered concurring opinions in which they called on the Supreme Court to reconsider its jurisprudence on mandatory minimum sentences and indeed on the interpretation of section 12 of the Canadian Charter of Rights and Freedoms, which protects against “any cruel and unusual treatment or punishment”, more broadly, notably R v Smith, [1987] 1 SCR 1045 and R v Nur, 2015 SCC 15, [2015] 1 SCR 773. I summarized the arguments made by both of the concurring judges in the last post.

Here, I consider specifically Justice Wakeling’s opinion. It is very unusual indeed, in both substance and form. It deploys unorthodox and, in my view, untenable, interpretive techniques, and arrives at startling conclusions. It is long, seemingly scholarly (though there is less real scholarship to it than meets the eye), and caustic. I don’t recall reading anything quite like it in Canada, though admittedly I do not read as many judgments as I would like, especially below the Supreme Court level.


Let me begin with Justice Wakeling’s approach to constitutional interpretation. Justice Wakeling does not explain what he is doing, which is unfortunate, because an explanation might have clarified matters ― not least to Justice Wakeling himself. Be that as it may, what Justice Wakeling seemingly does is resort to a sort of expected applications originalism. This is a way of describing attempts to interpret constitutional provisions by asking how their framers would have expected a question about their application to be resolved. This is a fool’s errand. Serious originalists have long given up on what Benjamin Oliphant and I have described as “speculative transgenerational mind reading”. (126) As Randy Barnett has written, “ascertaining ‘what the framers would have done’ is a counterfactual, not a factual or historical inquiry”. (71)

But Justice Wakeling’s version of expected applications originalism is particularly bad, because he refers to a great extent to events and real or purported beliefs that long predate the enactment of the Charter. Indeed his discussion of the Charter and the views, if any, of its framers is remarkably brief. Justice Wakeling points out that the late

Professor Hogg predicted in 1982 that Canadian courts would give section 12 of the Charter “the same interpretation” courts gave section 2(b) of the Canadian Bill of Rights. In other words, section 12 was of minimal value. Modern political realities made a constitutional death-penalty watch dog unnecessary. And that was the only role section 12 was intended to serve. [217; references omitted]

Most of what Justice Wakeling has to say about the meaning of section 12 goes back much further. The Bill of Rights 1688 is of special significance to him, as he argues that its

prohibition of cruel and unusual punishment was undoubtedly a response, either entirely or, at least partially, to the blood-thirsty sanctions Chief Justice Jeffrey and the other judges imposed on supporters of the 1685 Monmouth Rebellion that challenged the rule of the Catholic King James II during the Bloody Assizes of 1685 and the brutal flogging imposed on Titus Oates for his perjured testimony that cost a large number of Catholics their lives. [148]

From this, Justice Wakeling draws a straight line to the Eighth Amendment to the US Constitution, the Canadian Bill of Rights, and the section 12. He describes the US Supreme Court’s departure from the focus on “horrific penalties” akin to torture and its embrace of disproportionality as a touchstone for assessing violations of the Eighth Amendment in Weems v United States, 217 U.S. 349 (1910) as “judicial heresy”, and writes of the author of the majority opinion in that case that “Justice McKenna’s fingerprints are all over” Smith, [187] and thus subsequent section 12 jurisprudence.

This approach to the interpretation of section 12 makes no sense. Even on an originalist view, why should the meaning of the Charter be determined by what might have been the intentions or expectations not of its framers, but of those of the Bill of Rights 1688, the Eighth Amendment, or even the Canadian Bill of Rights? This isn’t expected applications originalism but expected applications pre-originalism. I know of no precedent or justification for it.

The better originalist approach is that which focuses on the public meaning of constitutional provisions. Historical antecedents are not irrelevant to establishing public meaning (and I have referred to the Magna Carta and the Bill of Rights 1688 myself in writing about section 12 here). However, they are useful in that they ― and their interpretation ― helps us ascertain how a contemporaneous reader would have understood the provision when it was enacted. That being so, the signicance of Weems and subsequent American jurisprudence is very different from that which Justice Wakeling attributes to them. Whether or not they were accurate interpretations of the Eighth Amendment’s original meaning is beside the point. What is noteworthy is that these interpretations would have been part of the context in which section 12 was enacted, and so colour the public meaning the phrase “cruel and unusual punishment” had by the time the Charter was adopted.

A related problem with Justice Wakeling’s approach to interpretation is his use of texts that use wording different from that of section 12 to suggest that the meaning of section must be different. This can be a very useful interpretive tool, but it has to be wielded carefully and honestly. Justice Wakeling relies on three comparisons: with early the constitutions of some American States; with a rejected draft of the Canadian Bill of Rights; and with section 9 of the New Zealand Bill of Rights Act 1990. All of these texts explicitly refer to proportionality, whereas section 12 does not.

Of these, the American texts are somewhat expansive policy statements, of a kind that was mostly ― except, notoriously, in the case of the Second Amendment ― rejected in (what became known as) the US Bill of Rights. The absence of such a statement from the Eighth Amendment doesn’t prove that it disproportionality is not part of its permissible construction. (Somewhat similarly, the absence of an explicit reference to separation of powers, analogous to that found in some State constitutions, in the US Constitution doesn’t mean it does not in fact provide for separate powers.)

With respect to the proposed wording of the Canadian Bill of Rights, Justice Wakeling says that “[a] number of commentators criticized its vagueness”. [201; reference omitted] The concerns of the only such commentator whom Justice Wakeling actually quotes are telling, for he worried, in part about whether a reference to “inhuman or degrading” punishment might be taken to outlaw flogging. Yet Justice Wakeling himself notes that the British “Parliament has repealed the brutal punishments that prompted the 1689 Parliamentary prohibition of cruel and unusual punishments” [153] ― including “flogging”! [154] That commentator’s concerns, in other words, do not deserve to be taken seriously, on Justice Wakeling’s own account. (The reference to flogging is interesting in another way, to which I will shorty turn.) And anyway the exclusion of words like “inhuman” because of their vagueness does not prove that the words retained did not have an element of vagueness calling for construction.

Lastly, the reference to the New Zealand Bill of Rights Act strikes me as quite inappropriate, since that statute was enacted eight years after the Charter. Some of its provisions sought to remedy avoid the Charter‘s real or perceived ambiguities; they tend to be more specific than the Charter‘s. (Compare, for example, New Zealand’s distinct provisions on “freedom of thought, conscience, and religion” and the “manifestation of religion and belief” with section 2(a) of the Charter.) In the case of section 9, one might suppose ― I have not looked into this ― that they New Zealand drafters thought that the outcome of Smith was justified and wrote it into the statute in so many words for the avoidance of doubt. But their choice to do so does not mean tell us anything about the meaning of the Charter, whose drafters were obviously not aware of the subsequent work of their Kiwi counterparts.

The last interpretive issue I will address here is Justice Wakeling’s reading of section 12 as a mere enumeration, and a remarkably brief one at that, of prohibited punishments. One striking consequence of this reading is that Justice Wakeling thinks that, because imprisonment was a commonly used punishment when the Charter was enacted and thus not unusual,

section 12 … does not allow a court to declare jail sentences cruel or unusual punishments. … [O]ffenders may not invoke section 12 to challenge either mandatory-minimum or mandatory-maximum jail sentences or any other jail sentence. [244]

(It is worth noting that Justice O’Ferrall “question[s]” [115] and indeed seems to reject this view.)

Justice Wakeling repeats a mistake committed by Justice Scalia, including in his comments on the Eighth Amendment in the famous lecture “Originalism: The Lesser Evil”. Justice Wakeling refers to some of Justice Scalia’s decisions seeking to limit the import of the Eighth Amendment to the 1791 catalogue of barbarity ― but not to that lecture where, tellingly, Justice Scalia professed being a “faint-hearted” originalist, because he wouldn’t bring himself to countenance the punishment of flogging even if was practised in 1791. The catalogue approach, it seems, doesn’t really work.

In a lecture of his own, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism“, Randy Barnett explains why. He points out that

original public meaning originalism attempts to identify the level of generality in which the Constitution is objectively expressed. Does the text ban particular punishments of which they were aware, or does it ban all cruel and unusual punishments? (23)

As Professor Barnett notes, “[t]his is not to say … the broader provisions of the text lack all historical meaning and are open to anything we may wish them to mean”. (23) But that meaning, if there is one, must be established with reference to the time of those provisions’ enactment ― not to a period that preceded it by two or three centuries. Justice Wakeling’s own reasons suggest that, whatever may have been the case in 1689 or even 1791, the phrase “cruel and unusual” may well have acquired a broad and morally loaded meaning by 1982. He does not even contemplate this possibility.


This leads me to concerns about the form and tone of Justice Wakeling’s opinion. It has an air of scholarliness: at over 12,000 words and 200 footnotes, it has the heft of an academic article. And yet this is only an appearance. It is inimical to good scholarship ― even, I would argue, in a judicial opinion, and not only in an academic setting ― to ignore counter-arguments and relevant sources that do not support one’s claims. Meanwhile, a great many of those footnotes turns out to cite to Justice Wakeling’s own opinions; a flaw of much academic writing, my own not excepted, but manifested here to an inordinate degree.

And then there is the bitter vehemence of Justice Wakeling’s writing. From the outset, he heaps scorn on the Supreme Court’s precedents, calling the “reasonable hypothetical” approach to section 12 they command “remarkable, to say the least”, [124] and claim that “[t]here is no constitutional doctrine that justifies this unusual method”. The decision in Smith is “surprising[]” [219] and “unexpected”. [220] “The contribution” that an argument made by Justice Lamer ― to whom Justice Wakeling denies the courtesy of a “as he then was” ― “makes to the debate is difficult to comprehend”. [226]

But Canadian courts and judges are not the only targets of Justice Wakeling’s contempt. I have already referred to his desription of Weems as “heresy”. If this were said about a fellow judge on Justice Wakeling’s court, this would be as mean as any of Justice Scalia’s cantankerous dissents. Still, such disagreements can appropriately be aired. But judges do not normally take it upon themselves to critique their colleagues in other jurisdictions. Not only is Justice Wakeling not qualified to pronounce on what it orthodox and what is heretical under American law ― it’s just not his job. Not content with commentary on the past, however, Justice Wakeling dabbles in political prognostication too, declaring that he

suspect[s] that the likelihood that additional states will abolish the death penalty is probably about the same as the likelihood that the Supreme Court – with a majority of conservative-minded justices – will sanction additional limits on the availability of the death penalty. [181; reference omitted]

To be clear, I have no objection to a judge expressing disagreement with the jurisprudence of a higher court. On the contrary, judicial criticism of binding authority ― so long as that authority is followed ― can be valuable; no less, and arguably more, than that of scholars and other commentators. If the lower courts are saying that a legal doctrine is not working well, the higher courts would do well to listen ― though they need not agree, and they should not agree in this case, as I argued in my last post. Justice O’Ferrall’s opinion strikes me as perfectly fine. But not so Justice Wakeling’s.

I have been tone-policed enough to be wary of engaging in such critiques myself. But Justice Wakeling is, after all, a judge ― and I think that judges can rightly be held to a standard of equanimity that should not be applied to academics, whose role it is to critique, and sometimes criticize, the exercise of the judicial power. I have also defended the use of strong language in judicial opinions. Still, there are lines not to be crossed. A judge ought not to be dismissive or petulant; nor should he engage in political commentary or, I think, make any sort of pronouncement on the merits of the laws (enacted or judicially articulated) of other countries. Justice Wakeling is and does all of these things. If he wants to act like a politically preoccupied professor, he should resign his judicial office.


I do not know how widespread the views expressed by Justices O’Ferrall and Wakeling are. Perhaps the Supreme Court will take heed and reconsider its jurisprudence in relation to section 12. In any case it will face other difficult questions about the interpretation of the Charter. Justice Wakeling’s opinion illustrates a number of things not to do in such cases. Courts should not look to the ways the authors of constitutional provisions, let alone the authors of their predecessors, expected these provisions to be applied. They should not be careless, let alone deliberately unfair, when they compare different texts. They should not convert moral language into laundry lists. And, of course, they should not be mean-spirited. Justice Wakeling’s opinion is unusual indeed, and I hope it stays that way.

Counter-Rebellion

Judges of the Alberta Court of Appeal question the Supreme Court’s jurisprudence on mandatory minimum sentences

Last month the Alberta Court of Appeal issued an interesting decision that concerned the constitutionality of yet another mandatory minimum sentence, this one in section 244.2 of the Criminal Code, for “intentionally discharg[ing] a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place”. The mandatory minimum is four years’ imprisonment (or more if organized crime is involved). For fairly straightforward rasons given by Justice Antonio, R v Hills, 2020 ABCA 263, upholds the four-year mandatory minimum, rejecting the claim that it is “cruel and unusual” within the meaning of section 12 of the Canadian Charter of Rights and Freedoms.

But in separate concurring reasons Justices O’Ferrall and Wakeling go on to criticize the Supreme Court’s approach for dealing with such cases. Both concurring opinions raise important questions, not only about the correct approach to mandatory minimum sentences under section 12 of the Charter, but also about constitutional interpretation and construction more broadly.

In this post, I summarize Justice Antonio’s lead opinion, as well as the common aspects of the two concurring ones, and explain why I think the Supreme Court is right and Justices O’Ferrall and Wakeling are wrong about section 12. In a follow up post, I shall write in some detail about Justice Wakeling’s opinion, which is startling, and startlingly wrong, in its method and tone, and deserves special attention and criticism.


In R v Smith, [1987] 1 SCR 1045 and, more recently, R v Nur, 2015 SCC 15, [2015] 1 SCR 773, the Supreme Court held that a mandatory minimum sentence that is “grossly disproportionate” to the gravity and blameworthiness of an offence is “cruel and unusual” within the meaning of section 12. Gross disproportionality can be shown either in the particular case or, alternatively ― and controversially ―, in a reasonable hypothetical, a set of circumstances that can be expected to occur and that would be captured by the impugned provision. This is the approach that the accused in Hills took.

Mr. Hills pleaded guilty to having repeatedly fired a rifle “suitable for big game hunting” [4] into the walls and windows of a family residence ― among with less frightening misdeeds, all part of a rampage undertaken in a state that a former Toronto mayor would have described as drunken stupor. The sentencing judge considered that the mandatory minimum would not be grossly disproportionate to his offence, but it could be in a reasonable hypothetical, mainly because the applicable definition of “firearm” captures weapons shown by an expert to be incapable of penetrating a typical building wall. One could therefore reasonably imagine the four-year sentence being imposed on a person who fired a weapon “at a place” whose occupants were not thereby endangered. The judge sentenced Mr. Hills to three and a half years’ imprisonment.

Justice Antonio (with whose reasons Justice O’Ferrall agrees, so far as they go) considers this to be an error. This is because the shots fired even from low-power weapons might “penetrate a door or window”. [80] Moreover, the weapons or the shots might alarm bystanders or the people inside the place at which they are fired, and generally undermine “the feeling the safety in communities”. [82] Justice Antonio also refers to Nur, where

 a 40-month sentence was imposed on a 19-year-old first offender who merely possessed a loaded firearm in a public place for a short period of time and did not discharge it or use it in a threatening manner. If 40 months was an appropriate sentence in the Nur case, then an additional eight months as a mandatory minimum penalty where a firearm was actually used does not amount to a grossly disproportionate sentence.

Justice Antonio concludes that a fit sentence for Mr. Hills would be four and a half years’ imprisonment.


As mentioned above, Justices O’Ferrall and Wakeling both call for the Supreme Court’s decisions in Smith and Nur to be revisited insofar as they require the courts to undertake gross disproportionality analysis based on reasonable hypotheticals, and not only the facts before the sentencing court. Some of the arguments they make are similar. I address them here. Justice Wakeling’s opinion also makes additional points not raised by Justice O’Ferrall. I turn to them below.

The main argument on which Justices O’Ferrall and Wakeling rely is that the use of reasonable hypotheticals to test the constitutionality of mandatory minimum sentences is inconsistent with the import of section 12. Justice O’Ferrall argues that

[a]n interpretation [of the Charter] which relies on the presumed detriment to a non-existent offender if a certain term of imprisonment is imposed is not an interpretation which a citizen would contemplate. It is an interpretation which might legitimately surprise the citizen. It does not flow logically from the text of s.12 of the Charter. [108; see aslo Justice Wakeling’s comment at [126]]

For Justices O’Ferrall and Wakeling, since section 12 protects an individual “right not to be subjected to any cruel and unusual treatment or punishment”, only the situation of the offender before the court can be taken into consideration, and the courts should avoid invalidating provisions that might only hypothetically result in unconstitutional applications. Just as laws are not invalidated because they might be invoked to effect unconstitutional arrests, they should not be disturbed because they might, in some cases, lead to unconstitutional sentences. As Justice O’Ferrall puts it, “[b]ut for the approved reasonable hypothetical analysis, the accused could [sic] care less about the constitutionality of the law. His complaint is with respect to his treatment or punishment”. [109]

Indeed, Justices O’Ferrall and Wakeling reject the test of “gross disproportionality” itself, which the Supreme Court has long used as a proxy for deciding whether a punishment is cruel and unusual. Justice O’Ferrall argues that

A sentence may be disproportionate from the perspective of both the offender and the offence and yet … prescribed to achieve the fundamental purpose of sentencing, namely protecting society. Even a grossly disproportionate sentence may not be found to constitute cruel and unusual punishment if, for example, in order to stem the tide of a deadly pandemic, Parliament found it necessary to prescribe extremely harsh punishments for what otherwise might be regarded as minor misdemeanors. [117; see also Justice Wakeling’s comment at [132]]

I do not think that any of this is right.

Start with the meaning of section 12. The concurring opinions go wrong because they fail to distinguish between the interpretation and the construction of constitutional provisions. Interpretation is the activity of ascertaining the communicative content of the text. Construction is the elaboration of doctrines that allow the text to be given legal effect. Some cases can be resolved at the interpretation stage. As I have argued here, the interpretation of section 12, and specifically of the word “cruel”, can tell us that this provision does not protect corporations. But in other cases courts need to engage in (good faith) construction to apply vague language ― and that of section 12 is vague, if not quite as vague as some commentators would have believe.

The word “cruel” is not infinitely malleable, but it is not self-explanatory either. Unless they are going to rely on seat-of-the-pants impressionistic decision-making in every case, courts need to work out a consistent way to determine whether a given sentence is cruel and unusual. This is an exercise in construction, which is a form of legal reasoning. Unlike in the realm of interpretation, the presumed (actually, purely conjectured) reactions of reactions of citizens are not a useful guide to what the courts should do here. The courts’ task is not to avoid surprises ― the framers of the constitution make a certain degree of judicial creativity unavoidable when they use vague language ― but rather, as Randy Barnett and Evan Bernick have argued, to give effect to the purpose of the provision.

Is the test of gross disproportionality a misguided construction of section 12? In my previous post on that provision’s meaning (linked to above) I have suggested that it is not, so far as the punishment of natural persons is concerned. I wrote that “disproportionality can be a useful indication of cruelty”, provided that “also causes or reflects indifference to suffering”, which may “always be the case with grossly disproportional punishment is inflicted on human beings”. Justice O’Ferrall’s example is ambiguous and does not persuade me. It may be taken to suggest that in the circumstances of “a deadly pandemic” “what otherwise might be regarded as minor misdemeanors” become extremely blameworthy crimes. If so, there is no gross disproportionality in punishing them harshly, so long as the relevant circumstances exist. But if Justice O’Ferrall suggests that a public emergency justifies harsh punishment of unrelated offences, I don’t see how that follows.

If not the gross disproportionality test, is the reasonable hypothetical approach an impermissible construction of section 12? Actually, I think there are very good reasons for the courts to adopt it. Contrary to what Justices O’Ferrall and Wakeling say, a mandatory minimum sentence impacts an offender as to whom it would not be cruel and unusual, albeit indirectly. As Justice Arbour explained in her concurrence in R v Morrisey, [2000] 2 SCR 90,

mandatory minimum sentences … must act as an inflationary floor, setting a new minimum punishment applicable to the so-called ‘best’ offender whose conduct is caught by these provisions.  The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has  committed the offence in the very worst circumstances.  The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [75] 

Justice Wakeling’s own reasons illustrate this dynamic. He breaks down the range of sentences permitted by Parliament into bands for the least and most serious cases, and those in the middle. On this approach, if Parliament enacts or raises the mandatory minimum, the sentences of most offenders, except perhaps the very worst ones, go up. Of course, Parliament is entitled to intervene in sentencing. But the fact that its intervention impacts all offenders means that it is appropriate to consider its constitutionality even in cases where the minimum sentence would not have been cruel and unusual. At the risk of mixing metaphors, I think it’s not an implausible construction of section 12 to say that it does not permit the inflationary floor to be sullied by the cruelty of sentences required to be imposed even on some, albeit not all, offenders.

The other reason for the courts to continue to police reasonable hypotheticals might sound more in policy, but it too is relevant to section 12. It is plea bargaining. A prosecutor can threaten an accused person with a high mandatory minimum sentence so as to secure a guilty plea to some other, less serious offence. By the very nature of such situations, there is no scope for the mandatory minimum to be challenged; indeed the offence to which it is attached never even features before a court. But to the extent that the mandatory minimum has served to secure a guilty plea from a person who might be innocent (or at least might be able to raise a reasonable doubt about his or her guilt), its deployment by the prosecutor is, arguably, a form of cruel and unusual treatment that offends the Charter.


It has been set that the judicial response to the last Conservative government’s “tough on crime” agenda has been nothing less than a rebellion. Justice Wakeling professes himself “extremely troubled by the fact that Canadian courts have been busy striking down Criminal Code provisions that impose mandatory-minimum sentences”. [123] The concurring opinions in Hills are a counter-rebellion of sorts, directed not against Parliament but against the Supreme Court.

But the rebels are wrong. Their approach to constitutional text, which collapses interpretation and construction and oversimplifies constitutional meaning is not compelling. They fail to see the repercussions of mandatory minimum laws that deserve the suspicion with which the courts have treated them. The Supreme Court has often read constitutional provisions ― both power-conferring and rights-protecting ones ― more expansively than it should have. But I am not convinced that this is the case with section 12 of the Charter.


PS: I have neglected blogging on judicial decisions in the last couple of months, and will try to make up at least some of this backlog. If you have a case I should get onto in mind, please do get in touch.

Bouthillier on Expanding Bill 101

Announcing an upcoming guest post by Simon Bouthillier

We are pleased to welcome a new guest blogger, Simon Bouthillier, who will shortly publish a post (en français) on the constitutionality or otherwise of the Québec government’s plan to apply the French-in-the-workplace provisions of the Charter of the French Language, a.k.a. Bill 101, to federally-regulated businesses in the province. Mr. Bouthillier is a graduate of the Université de Sherbrooke (LL.B. and M.B.A.) and is currently studying towards an LL.M. at the McGill Faculty of Law. His research is mainly concerned with the constitutional rights of prisoners. Having read a draft of his post, I am very much looking forward to it.

Telling People Whom to Vote for

An illiberal community seeks to dictate its members’ votes. How can, and should, the law respond ― and quite how different are liberal democracies anyway?

When it comes to election campaigns, where does permissible ― and perhaps even laudable ― persuasion end, and deplorable ― perhaps even illegal ― manipulation or indeed coercion begin? This is a fraught question, as a recent story by Sally Murphy for Radio New Zealand illustrates.

The story concerns what seems to be an totalitarian and abusive fundamentalist religious community, whose leaders seek to dictate not only how members will live, but also how they will vote:

Former members of Gloriavale Christian Community say people still there do not have the freedom to vote for who they want in the general election. … [T]hose inside don’t have free access to the internet or news sources and are told as a collective who to vote for. … One former member … told RNZ Gloriavale leaders would choose which politicians would come and talk to the community before an election. 

“They would talk about their policies and what they would do for us then when they left there would be a discussion, but it was usually only a couple of the leaders who would talk,” she said. “They would say we like this party because of this policy and that we should all vote for them because it’s best if we vote as a collective.” 

It seems fair to infer that current members are likely not to feel free to cast a vote at odds with the preferences of their leaders. But does that mean that something untoward or illegal is going on, and further, that something can, or should, be done?


Consider, first, existing election law. (I am leaving out the charities law aspect of this issue, mostly because it’s not my area of expertise. For a discussion of the restrictions on charties’ ability to engage in politics in the Canadian context, see this guest post by Benjamin Oliphant; and for a broader discussion of the tensions at work in the regulation of charities, this guest post by Kathryn Chan.) Section 218 of the Electoral Act 1993 makes it an offence and a “corrupt practice” to

make[] use of or threaten[] to make use of any force, violence, or restraint, or inflict[] or threaten[] to inflict … any temporal or spiritual injury, damage, harm, or loss upon or against any person, in order to induce or compel that person to vote for or against a particular candidate or party … or on account of that person having voted for or against a particular candidate

But ― going by the statements quoted in Ms. Murphy’s story ― no threats are being made in relation to voting specifically. Gloriavale members are told to vote a certain way, but not actually threatened with reprisals if they do not. Besides, as the Electoral Commission points out, the secrecy of the ballot ought to mean that all voters, including Gloriavale members, can “express their preferences free of outside influence or coercion”.

Beyond threats, the regulation of the persuasion of voters focuses (in various ways) mainly on spending and to some extent on the use of mass media, especially broadcast media. Private, face-to-face exhortation is not targeted, and it would be absurd if it were. Would we want political conversations within families or among friends and co-workers to be subject to regulation? I should think not, even though some of these conversations may be emotionally charged, and people may be uncomfortable, or even distressed, at the idea of going against the wishes or preferences of those close to them. Again, the primary remedy for such situations is ballot secrecy, with section 218 outlawing outright threats.

If the Gloriavale leadership is not breaking election law, is it nevertheless acting immorally in seeking to influencing the members’ votes, and should the law be changed? Again, in relation to voting specifically, it’s not obvious to me that a wrong is being done. All sorts of people and entities tell us to vote one way or another. I don’t think that they necessarily wrong us just by doing so ― even if these people are close to us and may be reluctant to offend or contradict them. Just as it would be absurd to have legal rules regulating political discussions among friends, family members, or other close associates, I think a moral rule to this effect would be contrary to widely held views of both of a good life and of good democratic citizenship. The latter, in particular, surely permits people to urge others to vote in ways they consider to be better for the community.

What makes the Gloriavale situation disturbing is the broader atmosphere ― the habit of obedience and the limitation of alternative sources of information and opinion imposed on its members. People who tell us, even quite forcefully, that we should vote one way or another do not wrong us if the choice is ultimately ours. People who keep us from making an informed choice wrong us even if they do not impose their own preferences. Imagine, hypothetically, that the Gloriavale leadership did not tell the members how to vote. To the extent that they are simply denied information from the outside world, the members would have no idea, and would not be in a position to make a more meaningful choice than they are now, and those responsible for putting them in this position are to blame.

However, election law is not the remedy for such cases. The challenge of illiberal and authoritarian communities within their midst is not an easy one for liberal societies, but to the extent it can be solved at all, the solution has to be at a rather more fundamental level. Perhaps ironically, though, extreme examples like Gloriavale can help us reflect on the fact that liberal societies themselves are not entirely innocent of trying to restrict the information and choices available to their members.

Hard restrictions are, admittedly, rare. Yet not non-existent. In New Zealand, the Classification Office, headed by a Chief Censor, is empowered to ban publications in various media. While that outfit’s website’s proclaims that its enabling legislation “does not regulate political speech, the expression of opinions, or ‘hate speech'”, it has notoriously banned the Christchurch shooter’s “manifesto”, which is obviously an example of ― horrible ― political speech. As Ilya Somin has shown, reading it, in all its gruesomeness, is actually instructive. But New Zealanders are not permitted to do it, because the Chief Censor, on his own motion, decided that he knew better. In some other democratic countries, especially in Europe, political choices can be restricted by the authorities banning political parties deemed opposed to democracy or the existing constitutional order.

Of course, these are extreme examples. There is no equivalence between excluding some outlier political options while preserving a wide range of choice and excluding all options but one. Arguably that the most important thing about democracy is not the ability to vote for one’s preferred agenda ― which constitutional constraints or the vagaries of the electoral system, not to mention a shortage of people who agree with it and are willing to run for office ― might make impossible, but simply the ability to make some kind of choice, and so to throw the bums out from time to time. Still, the censorship impulse has a common foundation in both cases ― the distrust of people’s ability to make acceptable choices, and a confidence in one’s ability to choose on others’ behalf.

And softer, more insidious ways of shaping the range of choices available to voters are common. How do teachers are university professors speak about political views outside the mainstream ― or outside what they perceive as the mainstream? How, if at all, do the media cover unorthodox politicians, at least those who do not also happen to be celebrities? Are the above-mentioned regulations of spending on election campaigns structured so as to favour established parties ― as they are in New Zealand, for example, with the allowed spending on broadcast advertising dependent, in part, on a party’s share of the vote in the previous election? To ask these questions is not, by itself, to advocate for root-and-branch reform of the education system, the demise of the legacy media, and complete deregulation of electoral campaigns. But here again the effects of seemingly disparate and often well-intentioned policies and practices commonly followed in liberal democracies are a little less different from those of the practices of demonstrably illiberal communities than we might be quite comfortable with.


The difficulty of ensuring that all voters, including those who happen to belong to heterodox and illiberal communities, are able to take a meaningful part in an election if they wish to should not stop us from trying. Features of the electoral process that help facilitate meaningful participation and might strike us as obvious today, such as the secret ballot, did not always exist: they had to be invented, and the law had to be changed to implement them. One should of course be wary of unintended consequences, including those of well-meaning but excessive regulation. But perhaps there are ways to make things easier for members of Gloriavale and others caught in similar situations, without introducing unnecessarily intrusive laws. But as we look for such solutions, we should remember that existing laws and practices constrain the range of political choices available to all citizens, and that some of them have effects that differ in degree, but perhaps not in kind, from those of the impositions at Gloriavale and elsewhere. Not all authoritarians in our midst are content to run cults.

Unholy Trinity

Introducing a new article that makes the case against judicial deference to administrative applications of constitutional law

Readers may recall my unhappiness when the Supreme Court decided the companion cases in which the Trinity Western University challenged the denials of accreditation to its proposed law school by the law societies in British Columbia and Ontario, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 SCR 453. I argued that “[t]he Supreme Court’s decision and reasoning subvert the Rule of Law and nullify the constitutional protection for religious freedom“.

One salient feature of these cases was the Supreme Court’s (re-)embrace of its earlier decisions in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, which urged judicial deference to administrative decision-makers who applied (or indeed simply ought to have borne in mind) the Canadian Charter of Rights and Freedoms. The Trinity Western cases emphasize this deference, as well as various other aspects of the Canadian judiciary’s surrender of its interpretive authority over the law, which has now been partially walked back in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

At the kind invitation of Matthew Harrington in his capacity as editor of the Journal of Commonwealth Law, I have put my thoughts on this aspect of the Trinity Western cases and generally on the misbegotten idea of judicial deference to administrative applications of constitutional law into article form. The piece, “Unholy Trinity: The Failure of Administrative Constitutionalism in Canada”, is now available from the Journal’s website and my SSRN. Here is the abstract:

The jurisprudence of the Supreme Court of Canada that follows Doré v Barreau du Québec involves administrative decision-makers as key actors in the implementation of the Canadian Charter of Rights and Freedoms. The Supreme Court emphasizes their expertise in implementing constitutional rights and “Charter values” in the context of the regulatory regimes they are charged with enforcing, and holds that this expertise entitles administrative tribunals to deference when they make decisions that affect the rights the Charter protects or the values that underpin these rights. This article argues that the Supreme Court is wrong to endorse this deferential approach, sometimes described as “administrative constitutionalism”.

It does so by examining the Supreme Court’s decisions in the companion cases that upheld the denial of accreditation by the law societies of British Columbia and Ontario to a proposed fundamentalist Christian law school (the Trinity Western Cases). After reviewing both academic defences of “administrative constitutionalism” and Supreme Court’s previous engagement with it, the article shows that the Trinity Western Cases illustrate the failure of “administrative constitutionalism” to live up to the main arguments made by its supporters. This failure is not accidental, but consistent with significant trends in Canadian administrative law. The article then goes on to consider the implications of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov for the future of “administrative constitutionalism” in Canada, arguing that Vavilov undermines the theoretical foundations of “administrative constitutionalism” or, at a minimum, will change the way it is implemented. The article concludes with an argument that, in addition to not delivering on the promises made on its behalf, “administrative constitutionalism” is also contrary to the Rule of Law. “Administrative constitutionalism” is second-rate constitutionalism in practice, and wrong in principle. The sooner it is recognized for the misguided idea that it is and abandoned, the stronger our actual constitution and the rights it protects will be.

The issue of whether, or at least to what extent and on what conditions, courts should continue to defer to administrative applications of the Charter is very much a live one in the aftermath of Vavilov. Lower courts have ask themselves how to apply Doré in light of Vavilov’s guidance on reasonableness review, and my article makes some suggestions which might be useful in this regard. And the Supreme Court itself, having punted on deference in Charter cases for now, will have to revisit the issue, presumably once Doré‘s author and staunch defender, Justice Abella, retires next year. I would like to think that my paper ― and the somewhat less uncompromising one by co-blogger Mark Mancini, which is set to appear in the Dalhousie Law Journal ― can contribute to the arguments that those challenging Doré will make on that occasion. I’ll be happy to speak to anyone making such arguments. Doré must go, and the delusion of “administrative constitutionalism” and the injustice of the Trinity Western cases must go with it.

Antigone in Hamilton

The confrontation between New Zealand legal system and a family trying to bury a dead husband/father is eerily like Sophocles’ tragedy

It’s the story of wanting to mourn and bury a family member, and being prevented from doing so by law, perhaps not an unreasonable law. It’s the story of breaking the law to do what one thinks is right, and of not only being punished for it but being scolded by a man self-righteously posing as the voice of his people. It’s an old story. It’s one of the oldest stories. It’s a story that’s 2500 years old.

No, wait. It’s a new story. It just happened in Hamilton. (The New Zealand Hamilton, that is.) Stuff reports that a mother and her children “had flown over from Brisbane after the children’s father suffered a stroke and died on July 20. … She said the children had watched their father take his last breaths on a video call”. On arrival in New Zealand, they were put in quarantine. They applied for a compassionate exemption to attend the funeral, but their application was denied on the basis that “their ‘circumstances were not exceptional'”. So they escaped. The mother and three children were quickly captured, but a 17-year-old boy made it from Hamilton to Auckland, and “was able to spend between three and four hours with his father’s body before he negotiated with police and was detained”. And hence the grandstanding in Hamilton Youth Court: 

All appeared in front of Judge Noel Cocurullo, who said that New Zealanders were “sick and tired” of quarantine breaches. “The New Zealand public would be gutted at your behaviour,” he told the family. “You know the rules required of you coming into the country. It’s most important you comply with the rules.”

The mother, though, is not impressed with this. She “told Stuff ‘[she] was doing what any other mother would have done for their children'”.

I’m not sure about “any”, but as Sophocles knew, she certainly has a point. He tells of Creon, the king of Thebes, prohibiting anyone on pain of death from giving the funeral rites to Polyneikes, who tried to bring an invading foreign army to the city. Polyneikes’ sister Antigone defied Creon’s edict and tried to bury her brother.

The resulting conversions, although fortunately not the ultimate outcome (spoiler alert: it’s a tragedy, so everybody dies) foreshadow the recent events quite uncannily. Creon, like Justice Cocurullo appeals to the public authority of the laws, and Antigone, like the mother here, trumps it with that of natural, pre-political obligation:

Creon: Knew’st thou the edicts which forbade these things?

Antigone: I knew them. Could I fail? Full clear were they.

Creon: And thou did’st dare to disobey these laws?

Antigone: Yes, for it was not Zeus who gave them forth,⁠
Nor Justice, dwelling with the Gods below,
Who traced these laws for all the sons of men;
Nor did I deem thy edicts strong enough,
That thou, a mortal man, should’st over-pass
The unwritten laws of God that know not change.
They are not of to-day nor yesterday,
But live for ever, nor can man assign
When first they sprang to being. Not through fear
Of any man’s resolve was I prepared
Before the Gods to bear the penalty
Of sinning against these.

And Creon, like Justice Cocurullo, insists that the people are with him, not with the one who defies him. She, though, begs to differ:

Creon: Of all the race of Cadmos thou alone
Look’st thus upon the deed.

Antigone: ⁠They see it too
As I do, but their tongue is tied for thee.

Creon: Art not ashamed against their thoughts to think?⁠

Antig: There is nought base in honouring our own blood.

And, is it turns out, it is probably Antigone who is right about the state of public opinion. Creon’s son and Antigone’s fiancé, Haemon, challenges his father:

Haemon: ‘Tis my lot to watch
What each man says or does, or blames in thee,
For dread thy face to one of low estate,⁠
Who speaks what thou wilt not rejoice to hear.
But I can hear the things in darkness said,
Ηοw the whole city wails this maiden’s fate,

I won’t pretend to know where the state of public opinion in New Zealand lies on this story. And, wherever it lies, this should not matter for Justice Cocurullo’s verdict. We have the advantage of separation of powers over the Thebans, and this means that our judges must apply the law as it is ― and it is, then, for the Crown and its responsible advisors to exercise the prerogative of mercy in the appropriate cases. I won’t even pretend to say whether this is such a case.

But what I think I can say is that Justice Cocurullo, and other judges ― not just in New Zealand ― should not be so quick to saddle their moral high horse. Another, more recent work of literature comes to mind ― Patrick O’Brian’s Desolation Island (one of the novels in the Master and Commander series), of all things, where Dr Maturin, I believe, has this to say:

judges … not only are … subjected to the evil influence of authority but also to that of righteous indignation, which is even more deleterious. Those who judge and sentence criminals address them with an unbridled, vindictive righteousness that would be excessive in an archangel and that is indecent to the highest degree in one sinner speaking to another, and he defenceless. Righteous indignation every day, and publicly applauded!

And if there is one thing worse still than righteous indignation on own’s behalf, it is that on behalf of others ― who, as often as not, will not actually share in it. That is as true now as it was 2500 years ago.

A Citizen’s Guide to the Rule of Law

Introducing a chapter on the nature and importance of the Rule of Law

Last year, Peter Biro of Section1 asked me to contribute a chapter on the Rule of Law for the book he was putting together. The book, Constitutional Democracy under Stress: A Time for Heroic Citizenship, is going to be available in the second week of August, but, with Mr. Biro’s kind permission, you can read my contribution, “A Citizen’s Guide to the Rule of Law“, now ― and for free. It’s meant to be a relatively concise and accessible introduction to the concept of the Rule of Law and to the main strands of scholarship about it, as well as an examination of whether Canadian law actually lives up to the Rule of Law’s requirements. Here is an abstract:

This chapter sets out, for both a generalist and a legally trained readership, the basic contours of the Rule of Law as a legal and political ideal, with a special focus on the ways in which ideal is understood and implemented in the Canadian legal system. It begins by explaining why law is necessary, and why it must bind both government and individuals. A review of three key themes around which the understanding of the Rule of Law is often organized in scholarship follows. The first of these themes is the form that the law, especially legislation, takes. The second is the process by which law is made and enforced by legislatures, the courts, and the administrative state. The third is the possibility that the Rule of Law may impose constraints on the substance of the laws, especially in order to protect fundamental individual rights. The chapter concludes by arguing that adherence to the Rule of Law is the only way in which the exercise of power can be contained and the arbitrariness inherent in it in the absence of law can be counteracted.

The reason for writing this chapter (other than that Mr. Biro asked me to do it) is that too many people ― up to and including at least a couple of Supreme Court judges ― don’t seem to understand what the Rule of Law is and why it matters. I write in the introduction, the Rule of Law is paired with “the supremacy of God” in the preamble to the Canadian Charter of Rights and Freedoms and

there is indeed something theological about the reverence with which some lawyers speak of the Rule of Law, and … it too is an elusive and mysterious idea—and one, moreover, that induces as much impatience in those not converted to it as any religious dogma. (104)

The reason for this impatience is that, however dimly they understand it, the Rule of Law’s detractors ― from absolutist kings to populist politicians to the judges who would abet the ones or the others ― realize that it is a break on the exercise of political power. As I explain in the conclusion of the chapter,

It is precisely the constraint that law represents that so infuriated James I … and that infuriates his spiritual descendants, as impatient as he of limits on their ability to do what they are convinced is right and necessary or just. Be they administrators on a mission to rationalize and organize society, do-gooders on a quest for equality, or patriots in pursuit of national greatness, they resent their inability to act without prior authorization; they chafe at the need to give those unwilling to be organized or equalized opportunities to challenge their commands; they would disregard ancient rights in the pursuit of the greater good. They wish they could do what they believe is necessary, right, and just. (120)

Yet power, as I have explained here, here, here, here, and here, corrupts. It must be kept in check. The Rule of Law is necessary for us to be able to do so. It is, in a real sense, a victim of its own success: people in Western democracies have forgotten what life without the Rule of Law is like, so they speculate about its being dispensable. But no one among those engaged in such speculation would want to live without the Rule of Law. If it sometimes gets in the way of their, and our, good intentions, this is a price well worth paying. I hope you read my chapter to understand, or better yet to simply remind yourselves, why this is.

The Mirror and the Light

Thoughts on finally finishing the last part of Hilary Mantel’s Thomas Cromwell trilogy

More determined readers finished it long ago, but I only did so yesterday, and thought I would offer some thoughts on Hilary Mantel’s The Mirror and the Light, the final book of her Thomas Cromwell trilogy. I suppose I should say “spoiler alert”, but of course there aren’t any spoilers there. We know exactly how the book ends. (And indeed I have blogged about a straight-up biography of Cromwell here.) For Dame Hilary’s readers, it is the journey, not the destination, that matters.

And what a journey it is! The book is well over 850 pages long. To be honest, it really should have been two books. I went into it a huge fan of Dame Hilary and, to anticipate, I come out of it a huge fan still; but my commitment has been sorely tested. There is, inevitably, a mind-boggling amount of detail about the events of Cromwell’s years of power and then his downfall ― indeed, only a sample of the events, as some strands of the historical Cromwell’s story are worn down to barely perceptible threads. But, in addition, the narrative gets lost in meditations ― Cromwell’s or Dame Hilary’s narrator’s, it is characteristically hard to tell; meditations on time and place, on fate and memory, on life and death. It may well be that this sense of being caught in a maze of events, perhaps inconsequential, and reveries, likely fateful ― in a sprawling house full of hidden recesses and secret passages and dark basements filled with secreted relics and not a few skeletons, like Cromwell’s Austin Friars ― is exactly what Dame Hilary wants her reader to feel. (She gives an account of her thoughts on these things in Reith Lectures, which I highly recommend.) But, for all the mastery with which it is delivered, and for all the depth of the thoughts ― to some of which I return below ―, it is sometimes too much.

But, as the story breaks out of the maze at last, in the last 150 or so pages, and speeds up to its inevitable conclusion on Tower Hill, its telling is at a level that few writers can even hope to ever achieve. The reader knows what is coming, of course: the fall, the Tower, the scaffold. Denied the possibility to surprise, Dame Hilary must entrance the reader; she sets herself a seemingly impossible task: how can you tell a man’s execution, especially when her writing, as always, is very much inside her character’s mind, this inimitable hybrid between a third- and a first-person narration that the readers of Wolf Hall and Bring Up the Bodies will remember? Well, you and I couldn’t, but Dame Hilary can. In the real Cromwell’s life much remains unknown, caught in the record only as a reflection or a shadow. For Dame Hilary’s readers, it will be impossible to imagine that events unfolded in a way different than the one she conjectures, or indeed that Cromwell’s thoughts were not those she imputes to him.


Let me say something about these thoughts, and others that Dame Hilary explores. I don’t imagine that she meant to write about our current moment in particular. For one thing that would be diminishing what is really a timeless literary achievement. For another, as brilliant as she is at imagining the past, I don’t suppose that Dame Hilary can see the future, and after all she worked on The Mirror and the Light a long time, starting when the world was still a different, and in some ways a more innocent place. So, to repeat, the book is no allegory for the present. Yet so much of it seems to be about 2020, not 1540.

Of course there are meditations on the law. Dame Hilary studied law, and her Cromwell is very much a lawyer. (So are the protagonists of her excellent early novel about the French revolution, A Place of Greater Safety ― Danton, Dumoulin, and Robespierre.) There is this, on retroactive law, and on due process more generally:

A prince cannot be impeded by temporal distinctions: past, present, future. Nor can he excuse the past, just for being over and done. He can’t say, ‘all water under the bridges’; the past is always trickling under the soil, a slow leak you can’t trace. Often, meaning is only revealed retrospectively. The will of God, for instance, is brought to light these days by more skilful translators. As for the future, the king’s desires move swiftly and the law must run to keep up. ‘Bear in mind his Majesty’s remarkable foresight, at the trial of the late queen. He knew the sentence before the verdict was in.’

And process is again all-important at the end, as Cromwell is arrested and charged with fanciful, made-up transgressions: “‘Valentines? Sorcerers? Any jury would laugh you out of court.’ But, he thinks, there will be no jury. There will be no trial. They will pass a bill to put an end to me. I cannot complain of the process. I have used it myself.”

In the end, Dame Hilary’s Cromwell becomes a sort of critical legal scholar:

Rats have eaten the laws of ancient times. They relish fish-glue and vellum; anything that was once alive, they will eat it, and then out of habit, they will eat what is dead; from the margins they chew their way in, to the secret history of England. It is the glory of the men who have worked with Cromwell that instead of merely cursing the vermin they have patched, they have mended, they have stretched a point to replace a gnawed vowel; they have been ready to substitute a digested phrase with a clause that will help the crown. But what has it availed? He has lived by the laws he has made and must be content to die by them. But the law is not an instrument to find out truth. It is there to create a fiction that will help us move past atrocious acts and face our future. It seems there is no mercy in this world, but a kind of haphazard justice: men pay for crimes, but not necessarily their own.

Perhaps what we have come to call the Rule of Law is better, then.

Beyond law, there are reflections on power ― princely power, of course, but I think we must ask how they apply to power exercised not only by monarchs but also by electorates or even by online mobs. In the very beginning, at the execution of Anne Boleyn, Cromwell turns on the Duke of Suffolk, who demands to know why he did not force Anne’s father to witness it. He insists that he must protect the King from being needlessly cruel: “[i]f you love the king … , pay some heed to his soul. One day he will stand before God and answer for every subject.” But can a man who uses and abuses the law as Dame Hilary’s Cromwell does truly say that he pays heed to the King’s soul? He does not seem to ask himself these questions, not until it is too late and he realizes that for “ten years I have had my soul flattened and pressed till it’s not the thickness of paper”. But we must.

The sovereign, perhaps, is not like the rest of us:

is a prince even human? If you add him up, does the total make a man? He is made of shards and broken fragments of the past, of prophecies and of the dreams of his ancestral line. The tides of history break inside him, their current threatens to carry him away. His blood is not his own, but ancient blood. His dreams are not his own, but the dreams of all England: the dark forest, deserted heath; the stir in the leaves, the dragon’s footprint; the hand breaking the waters of a lake. His forefathers interrupt his sleep to castigate, to warn, to shake their heads in mute disappointment.

An electorate, a people, is not human either. It too is all these things, perhaps; it too is haunted.

Against power, there is also disobedience, and revolt. The Pilgrimage of Grace is at least a better-sounding name than populism, but is there much difference ― in reality, or in how those in power think about these things? The rebels think, or those who write about them say they think, that

[t]here was a former age, it seems, when wives were chaste and pedlars honest, when roses bloomed at Christmas and every pot bubbled with fat self-renewing capons. If these times are not those times, who is to blame? Londoners, probably. Members of Parliament. Reforming bishops. People who use English to talk to God.

Their leaders tell them that Henry has made himself God. Now if a child falls sick between Truro and Newcastle, they lay it at the king’s door; if a well dries, if the butter spoils, if a bucket leaks: everything that is out of joint with them, from a fall of hailstones to a cricked neck, they blame on the court and council. Their grievances run like streams underground, welling up from the Scots border to Dover, till the whole land is flooded with nonsense.

Finally, a constant theme in The Mirror and the Light, and an especially relevant one just now, is what can be said. After the run-in with Suffolk, Cromwell wonders if he has gone too far in rebuking the duke, but wonders: “if you cannot speak truth at a beheading, when can you speak it?” He also tells his son, shortly thereafter, that “[i]t is not wrong to speak your mind. On selected occasions. They make it painful for you. But you must do it.” Yet as the story unfolds, the selection of the occasions grows ever stricter. He tells the King’s unloved, suspected daughter Mary “to compromise her conscience” to get back in his good graces. He knows that “of course she will despise herself afterwards. But that is the price. … [T]ime will ease the sting of it.” Dogma is uncertain and unsteady, but also deadly.

Corpus Christi is a miracle. It is a mystery. Once consecrated, the host contains your God, alive: the wine is his blood. You cannot hope to understand it but you must believe it. And if you fail to believe it you must keep quiet, because your failure can kill you.

Even the archbishop of Canterbury is afraid:

“[O]nce the bill is passed, none of us will preach on the Blessed Sacrament, its nature. We dare not. We would not know what it is safe to say, without being tripped by the law and cited for heresy.” This is what the king calls concord: an enforced silence.

Henry VIII has disciples in our own time, and people are afraid of them as the Bishop Robert Barnes was afraid of the enforcers of Henry’s shape-shifting orthodoxy: “It’s not his faith, but his temperament that will fail. He is not Luther. Here he stands: till Gardiner knocks him across the room.” Others too feel they “are living on borrowed time, in small rooms, a bag always packed, an ear always alert; … sleep[ing] lightly and some nights hardly at all.” In the end, Cromwell decides that he cannot speak the truth, certainly nothing like the whole truth, at his own turn on the block. For the sake of his son, his nephew, his friends, he speaks little, and says less.

A little earlier, as he awaits his execution, Cromwell imagines Heaven and Hell. “When he pictures Hell he can only think of a cold place, a wasteland, a wharf, a marsh, a landing stage; Walter” ― his abusive father ―

distantly bawling, then the bawling coming nearer. That is how it will be – not pain itself, but the constant apprehension of pain; the constant apprehension of fault, the knowledge that you are going to be punished for something you couldn’t help and didn’t even know was wrong; and the discord in Hell will be constant, repeating for ever and ever, a violent argument being carried on in the next room.

Sounds familiar, doesn’t it?


Anyway, read the book. Skip the middle 500 pages if you must, but do read it. You won’t be sorry.

Keeping Faith

A master class in public meaning originalism, delivered by the US Supreme Court’s Justice Elena Kagan

Earlier this week, the Supreme Court of the United States delivered its decision in Chiafalo v Washington, upholding the constitutionality of a state statute imposing fines on “faithless” presidential electors ― those who do not vote for the candidate who won their state’s popular vote. The majority judgment, given by Justice Kagan for a seven-judge majority (and indeed unanimous on some key points), should be of some interest to Canadian readers for what it says about constitutional interpretation and, in particular, about the role of conventions and practice. As others, notably Josh Blackman over at the Volokh Conspiracy, have noted, Justice Kagan’s opinion is a thoroughly, and intelligently, originalist ― which should remind skeptics of originalism inclined to dismiss it as a partisan affectation that it is not.


As Justice Kagan explains,

Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few “electors” then choose the President. (1)

But what is it that ensures that the vote of the Electors is aligned with that of the electorate? The text of the Constitution of the United States says little on this. Article II, §1, cl 2 provides that

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Nothing here suggests that the Electors are bound to follow the popular vote; indeed, nothing here suggests that a popular vote need be held at all. At least some of the framers of the Constitution expected the Electors to exercise their personal discernment in choosing the President. Alexander Hamilton’s vision, in Federalist No. 68, is the best known. He hoped that the President would be chosen

by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

But this is not how things worked out. As Justice Kagan puts it, “[a]lmost immediately, presidential electors became trusty transmitters of other people’s decisions”. (13) This was the result of the development of political parties, not anticipated ― indeed feared ― when the Constitution was being drafted. George Washington was elected without meaningful opposition. But, once he retired, presidential elections were contested by parties. As Justice Kagan explains, initially

state legislatures mostly picked the electors, with the majority party sending a delegation of its choice to the Electoral College. By 1832, though, all States but one had introduced popular presidential elections. … At first, citizens voted for a slate of electors put forward by a political party, expecting that the winning slate would vote for its party’s presidential (and vice presidential) nominee in the Electoral College. By the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors.

The alignment between the popular and the electoral votes (within each State, of course, there being, as we know, no necessary alignment at the national level) was thus secured by a combination of State law and partisanship ― but also by what looks, to an observer based in a Westminster-type constitutional system, an awful lot like constitutional convention. Law allowed partisans to be appointed as electors, and partisanship motivated them to vote for their party’s candidate. But so too did a sense of propriety, of moral obligation. This moral obligation, explains why those electors who, from time to time, broke with their party were called “faithless”. There is normally nothing “faithless”, except to a rabid partisan, about putting country ahead of party. But something greater than partisanship is at stake in the presidential election ― nothing less, indeed, than democratic principle itself. And “convention” is what Westminster systems call the settled practice of constitutional actors rooted in constitutional principle.

Some States, though, felt that relying on convention was not enough, and legislated to back up the electors’ moral duty with a threat of punishment. According to Mr Chiafalo, they could not do so constitutionally. After all, the Constitution’s framers meant for them to exercise their own judgment, guided but not fettered by that of the voters. And the very vote “elector” connotes the exercise of a personal choice.


Not so, says Justice Kagan. For her, “the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect”. (9) A “demand that the elector actually live up to his pledge, on pain of penalty” (10) is nothing more than a condition of appointment, which nothing in the Constitution’s text prohibits. Justice Thomas, concurring (with the agreement of Justice Gorsuch), disagrees with this approach. For him, imposing such conditions is not part of the original meaning of the power of choosing the “manner” of the electors’ appointment. Instead, the States’ ability to do so comes from the structure of the Constitution, which preserves their powers unless expressly limited, and from the Tenth Amendment, which codifies the same principle. Justice Thomas makes some compelling points, but this disagreement is not so important for Canadian readers ― or, for that matter, for practical purposes.

What matters most is Justice Kagan’s firm rejection of an appeal to the purported authority of the Framers’ supposed expectation that “the Electors’ votes [would] reflect their own judgments”. (12) This rejection is firmly rooted in original public meaning originalism:

even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be. (12-13)

This is a great passage. For one thing, it refers to an important reason for being suspicious about the intentions and expectations of constitutional framers: they might not all have agreed with those whose views are on the record. For another, there is an allusion, which I personally find delightful, to Hamilton’s rather hubristic suggestion, in the first paragraph of the Federalist No. 1 that the U.S. Constitution would

decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Justice Kagan understands, as Hamilton did not (or at least affected not to) that choice and accident are not so easily disentangled, even in constitutional reflection. Most importantly, though, Justice Kagan drives home the point that “thoughts” “not reduce[d] … to the printed page”― or, more precisely, the enacted page ― do not bind. Justice Thomas specifically concurs with the majority on this point, explaining that “the Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning.” For all its reputation of being incorrigibly politically divided the Supreme Court of the United States is unanimous on this.

Justice Kagan goes on to make another argument, which is less straightforwardly originalist. She appeals to what she regards as the settled practice ― and what I have suggested we may regard as the convention ― of electors casting their ballots only to ratify the voters’ choice, rather than to make their own. “From the first”, Justice Kagan points, “States sent them to the Electoral College … to vote for preselected candidates, rather than to use their own judgment. And electors (or at any rate, almost all of them) rapidly settled into that non-discretionary role.” (14)

It is not quite clear how much weight this should carry on a proper originalist interpretation. In a post at Volokh, Keith Whittington suggests (based on an article which Justice Kagan actually cited ― for another point) that

we should think of this tradition of pledged electors as a “constitutional construction” that is consistent with the constitutional text but not required by the constitutional text. …  But that by itself does not tell us whether such constructions can be leveraged to empower state legislatures to punish or replace faithless electors or whether this longstanding norm has fixed the meaning of the text in a way that cannot be altered by future changes in our shared practices. How constitutional text and tradition interact is a difficult conceptual problem, and the Court’s opinion highlights that problem without doing very much to explain how it ought to be resolved.

Indeed, I’m not sure that the argument from practice or convention has a great deal of weight for Justice Kagan: she might only be making it to turn the tables on Mr. Chiafalo, who invoked the (quite exceptional, as Justice Kagan shows) example of past “faithless electors” to argue that it proves that the Constitution protected their autonomy.

But Justice Kagan does suggest what I think is a good reason why the argument should have weight in the particular circumstances of this case: the practice, and arguably even the convention, forms part of the context to a constitutional text ― namely, the Twelfth Amendment to the Constitution. This amendment, “grew out of a pair of fiascos” (14) at the elections of 1796 and 1800. Prior to it, electors cast two votes; the candidate who received the most became president, and the next one, vice-president. In 1796 the top two candidates were “bitter rivals” (14) John Adams and Thomas Jefferson. In 1800, Jefferson, his party’s intended presidential candidate, was tied by its intended vice-president, Aaron Burr, as the electors who supported the one all supported the other. To prevent this reoccurring, the presidential and vice-presidential ballots were split. Justice Kagan points out that, in this way, “[t]he Twelfth Amendment embraced” party politics, “both acknowledging and facilitating the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting”. (14)

The issue isn’t quite the same as the one that, as I argue in a recent article about which I blogged here, the Supreme Court of Canada faced in the Senate Reform Reference, 2014 SCC 32, [2014] 1 SCR 704. There, the original public meaning of Part V of the Constitution Act, 1982 had to be established by referring to conventions. In Chiafolo, conventions are not necessary to establish the original meaning of the Twelfth Amendment. But it is arguably fair to say that the Twelfth Amendment implicitly ratifies them, or takes them into account; while it might have been written as it was in the absence of conventions, the fact that is that it was written as it was because the conventions existed. As a result, Justice Kagan’s appeal to practice, or to convention, is, at least, less troubling here than it might have been in the absence of something like the Twelfth Amendment.


All in all, then, her opinion is an interesting demonstration of what good originalism looks like ― and also of the fact that it can be practiced by a judge who is nobody’s idea of a conservative or a libertarian, and with the agreement of her colleagues, including those whose ideological leanings are quite different from hers. Justice Kagan may or may not be correct: at the Originalism Blog, Michael Ramsay argues that she is not. But that does not matter so much to me. As Asher Honickman recently argued in response to another American decision, textualist ― and originalist ― interpretive methods do not promise complete legal certainty, but they are still valuable because (among other things) they narrow the scope of possible disagreements, and do provide more certainty than alternatives. Justice Kagan and her colleagues show us how to keep faith with a constitutional text. We should pay attention.

Happy Canada Day!

The anniversary of an imperfect constitution drafted by imperfect men is well worth celebrating

Canada Day, like most other days it seems, comes at a bad time this year. A time when symbols of the history ― be they flags, monuments, names of buildings ― are objects of suspicion at best, and not infrequently unqualified vitriol, seems ill-suited to a celebration of what is now more than a sesquicentennial constitution. A constitution that is stubbornly monarchical in form, politically incorrect in wording, and dependent for its existence, livelihood, and amendment on old-fashioned procedures of parliamentary democracy rather than on heady revolutionary movements.

But we do not get to choose anniversaries, and perhaps this is a useful reminder that we do not get to choose everything, that there can be no such thing as a tabula rasa, and that demands for one can only be the products of ignorance or bad faith. This is not an apology for conservatism. As I have said before, I am no no conservative. Much in the world, and in Canada, should change. But the idea that everything can change, and that everything can be just as we ― whoever “we” are ― wish it to be, is unserious; indeed it is perhaps the nec plus ultra of solipsism.

The framers of our constitution understood this, and the constitution’s existence is proof of this, as of their wisdom and humility more generally. They were no doubt flawed in various ways, as men always were, still are, and ever will be. And in some ways we can, legitimately I hope, say that we are better than they. But we are certainly no better, on the whole, if we do not practice the virtues that were theirs: humility, as I have already said, and openness to compromise; magnanimity and willingness to live and let live; above all, perhaps, determination to hope for the future more than to dwell on the past.

Let George Brown’s words, spoken on February 8, 1865, during the Confederation debates, be our inspiration in this time of acute awareness of the imperfections of our institutions and the world around us:

No constitution ever framed was without defect; no act of human wisdom was ever free from imperfection; no amount of talent and wisdom and integrity combined in preparing such a scheme could have placed it beyond the reach of criticism. And the framers of this scheme had immense special difficulties to overcome. We had the prejudices of race and language and religion to deal with; and we had to encounter all the rivalries of trade and commerce, and all the jealousies of diversified local interests. To assert, then, that our scheme is without fault, would be folly.

It was necessarily the work of concession; not one of the thirty-three framers but had, on some points, to yield his opinions; and, for myself, I freely admit that I struggled earnestly, for days together, to have portions of the scheme amended. But, Mr. Speaker, admitting all this—admitting all the difficulties that beset us—admitting frankly that defects in the measure exist …  I believe it will accomplish all, and more than all, that we, … ever hoped to see accomplished. 

Canada itself stands as the greatest monument to these framers, and they could wish for no better. We are lucky to have it as their bequest. We can and must improve it, but today, of all days, we can and must simply be grateful for it. Happy Canada Day!