The Rule of Law All the Way Up

Introducing my recently-published chapter on the Rule of Law and Canadian constitutional law

LexisNexis Canada recently published (if I understand correctly, as a standalone book as well as a dedicated issue of the Supreme Court Law Review (2d)) Attacks on the Rule of Law from Within, a collection of essays co-edited by my friends Joanna Baron and Maxime St-Hilaire. The publisher’s blurb gives a concise summary of the project’s background and contents:

This volume is a collection of six papers developed from the Runnymede Society’s 2018 national conference by a community of legal experts in response to Supreme Court of Canada Justice Rosalie Abella’s comment that “the phrase ‘rule of law’ annoys her”. 

Grounded on the intuition that the legal profession supports the rule of law, the papers examine the historical perspective on threats to the rule of law, the sufficiency of the current Canadian legal framework to support this ideal and how the principle of stare decisis as observed by the Supreme Court of Canada undermines the spirit of the rule of law. The volume also discusses how the law relating to Aboriginal title and the duty to consult fails to adhere to the Rule of Law standards … to the detriment of indigenous and non-indigenous Canadians alike.

I am honoured to have contributed to this volume, with an essay called “The Rule of Law All the Way Up”, which focuses on what I see as the lack of commitment to the Rule of constitutional Law in by scholars, judges, and politicians. Here is the abstract:

Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements―the need for general, stable, and prospective rules, the congruence between the “in the books” and the law “in action, and the availability of impartial, independent courts to adjudicate legal disputes―are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.

This article describes four of these ideas, to which it refers as “politicization techniques”, because they transform what purports to be “the supreme law of Canada” into a set of malleable political commitments. These are, first, deference to legislatures or the application of a “margin of appreciation” and the “presumption of constitutionality” in constitutional adjudication; second, constitutional “dialogue” in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of “living tree” constitutional interpretation.

The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.

The entire chapter is available to download on SSRN. It builds on many of the themes developed on my posts here ― the rejection of judicial deference on constitutional issues, whether to legislatures or to the administrative state; the imperative to renounce the use of the Charter‘s “notwithstanding clause”; and the perils of “living constitutionalism”. Some of these, notably the issue of deference to administrative interpretations of constitutional law and constitutional interpretation, I will also be pursuing in future work. (Indeed, the first of these is the subject of the paper I will be presenting at the Journal of Commonwealth Law symposium next month.)

I am very grateful to Ms. Baron and Professor St-Hilaire for having given me the opportunity to present these thoughts, and write them up for publication. I am also grateful to Justice Bradley Miller, of the Court of Appeal for Ontario, who gave me thoughtful comments when I presented my chapter (then still very much in draft form) at the 2018 Runnymede Society conference, as well as to Kerry Sun, who was a very helpful editor. And I am looking forward to reading the other contributions in the volume, once I am done preparing the talks I am about to give in the coming weeks.

The Tragedy of Lord Sumption

Thoughts on Lord Sumption’s views on the relationship between law and politics

In my last post, I summarized at length Lord Sumption’s Reith Lectures, delivered earlier this year. As I noted there, Lord Sumption’s views on politics, law, and the relationship between the two are challenging ― especially, but by no means only, to those of us who support judicial review of legislation. Here, I would like to explain why I think there is much truth in what Lord Sumption says, but also to point out the weaknesses and even contradictions in his claims.

By way of reminder, Lord Sumption begins by arguing that the domain of law has been expanding for the last two hundred years, as people have (once again) turned to the state as the provider of physical and economic security and moral certainty. But this expansion has brought with it concerns that the state’s power reaches too far. Representative politics can help mitigate these concerns by generating compromise and accommodation between majorities and minorities. Yet as politics loses its lustre, people turn to law to control the outcomes politics produces. Law promises (and sometimes delivers) principled decision-making, but it does so at the cost of compromise and accommodation and thus, ultimately, legitimacy. The courts end up creating and defining new constraints on politics, and there is little to choose between such constraints being undemocratically imposed in the name of liberalism or of some other ideology. Moreover, in the long run, politics, with its capacity to legitimate limitations on state power provides better security for rights than the law. Yet politics is ailing. Constitutional reform, and especially constitutional entrenchment, will not save it. If democracy is hollowed out, Lord Sumption grimly concludes, we will not notice, “and the fault will be ours”. (V/7; NB: I will use roman numerals to designate the lecture, and arabic ones for the page in the transcript; links to individual transcripts are in the previous post.)


Significant parts of Lord Sumption’s argument run along the lines drawn by Jeremy Waldron, notably in “The Core of the Case against Judicial Review”. The emphasis on the importance of disagreement and the preference for settling disagreement about rights through the political process, in part because it is more egalitarian than adjudication, sound Waldronian. The skepticism about the capacity of judges, or indeed of anyone else, to find out the truth of the matter about moral issues, is Waldronian too. Lord Sumption does not mention Professor Waldron, or indeed any thinker more contemporary that A.V. Dicey, so it’s not quite clear whether how direct Professor Waldron’s influence on him is. However, original or not, these points are important and bear repetition.

Lord Sumption’s critique of the undemocratic character of “dynamic treaties” ― or, I would add, any constitutional documents interpreted as “living instruments” ― builds on these arguments. He focuses on the judicial creation of rights on the basis that “a modern democracy ought to have” (III/3) them ― or, in other words, of what I have been calling “constitutionalism from the cave” ― as qualitatively different from mere application of fixed texts to new facts. Readers will not be surprised to learn that this strikes me as compelling. Lord Sumption’s argument tracks public meaning originalist views, a point to which I will return, but since he does not disclose his influences, I don’t know whether he is at all interested in originalist theory. It is worth noting that, in a later lecture on “Judicial Review and Judicial Supremacy“, Professor Waldron too has focused on living constitutionalism, and specifically the claim that a constitutional court is entitled “to develop new views about (what the court thinks) the constitution ought to have forbidden (though it did not) and to act on these views” (40) as especially problematic.

One additional point on which Lord Sumption echoes that lecture of Professor Waldron is the rejection of comprehensive systems of values as suitable objects for judicial enforcement. Professor Waldron does not want judges to “begin to think of themselves and present themselves as pursuing a coherent program or policy rather just responding to” (27) individual violations of the constitution that happen from time to time. Lord Sumption’s forceful rejection of values systems ― which he equates with one another for this purpose, so that entrenchment and judicial enforcement of a liberal dogma is, in a sense, no different from that of “Islamic political theology or the dictatorship of the proletariat” (IV/4) ― seems to reflect this concern. If asked to take judicial review of legislation as a given, as Professor Waldron does in the “Judicial Supremacy” lecture, Lord Sumption would also urge a piecemeal rather than a systematic approach as the more modest one.


But Lord Sumption’s argument is not simply a reprise of Professor Waldron’s. What makes him interesting, and challenging not just for supporters of judicial review of legislation but also for critics, is that his vision of politics is a gloomy one. Those who have misgivings about judicial review, including Professor Waldron or, to take a couple of Canadian examples, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench in a lecture on “The Charter and Canada’s New Political Culture” and Joanna Baron and Geoffrey Sigalet in a Policy Options post earlier this year, tend to be fairly optimistic about democratic politics. Professor Waldron, especially in “The Core of the Case”, thinks that democratic majorities will protect rights about as well as courts, although in later work he has recognized that some minorities (such as criminal suspects) might end up being routinely shortchanged by the democratic process. He has also forcefully criticized the views of those who equate the Rule of Law with the protection of property and contract rights and, on this basis, are skeptical of social legislation and the welfare state. Chief Justice Joyal, for his part, has extolled “bold” and

“purposeful” governance … expected to include and achieve … the realization of big and bold federal and provincial objectives [and] to assist in the accommodation and brokering of … diverse and conflicting interests underlying the various societal ills and problems. 

Accommodation and compromise are the best outcomes that Lord Sumption sees democratic politics produce. “Bold” and “purposeful” governance? He seems pretty skeptical. It is not just that he sees and laments the decline in the authority of political institutions ― Chief Justice Joyal saw and lamented that too. More interestingly, I take Lord Sumption to raise the possibility that, even when it functions well, democratic politics is dangerous.

Much of Lord Sumption’s first lecture is devoted to establishing this proposition. Pointing out “rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity” (I/4), as well the voters’ tendency to be “afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with”, (I/6) he seems to echo Lord Acton’s prescient warning, in the Lectures on Modern History, about seeing the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”, (289) though again he does not refer to Acton or to any other source. Lord Sumption’s concern at the far-reaching and unrealistic expectations that people have of government and government’s tendency to restrict liberty to try to meet these expectations points to an ineradicable flaw of democracy.

What is more, at times, Lord Sumption seems to accept that certain rights are could appropriately be entrenched beyond the reach of democratic politics. He mentions, repeatedly, rights not to have one’s life, liberty, or property interfered with arbitrarily or without the ability to challenge the interference in court, as well as democratic rights. At other times, admittedly, Lord Sumption seems to say that, in the United Kingdom anyway, an entrenched constitution ― even, it might seem, one limited to protecting these rights, would be inappropriate. This contradiction is never fully resolved, although perhaps what Lord Sumption means is that a narrowly drawn constitution protecting these rights is theoretically desirable, but does not offer sufficient benefits to be worth the dislocation that would occur if it were to be enacted in the UK. Be that as it may, Lord Sumption’s nods in the direction of a limited entrenched constitution and his support for a fairly robust version of the principle of legality ― including in cases like R (Unison) v Lord Chancellor [2017] UKSC 51, which others have criticized as impinging on Parliamentary sovereignty ― suggest concern at what democratic institutions, if left unchecked, might do to important rights and constitutional principles.

This is what prompts me to see Lord Sumption’s vision of law and politics as tragic. He doesn’t have much hope for law, and says we must trust in politics, but his “praise of politics”, to borrow the title of his second lecture, is damningly faint. If all goes as well as it might, he says, we’ll keep muddling through, and not oppress too many people while lurching between overbearing optimism and fretful censoriousness. And perhaps, all will not go so well, although we will not even notice.


Is this the best we can do? I do not want to give quite so easily, and so I would like to try to rescue law, and perhaps, in a way, even politics, from Lord Sumption’s critique. This is almost a matter of necessity: after all, Lord Sumption himself thinks that some measure of entrenchment may well be justified, or at least excusable, and between that and his admonition to avoid dislocating established and functioning constitutional orders, those of us living in polities with entrenched constitutions should probably try to make them work before thinking about abolishing them. Moreover, even if we agree with Lord Sumption that entrenching rights is a bad idea, we still need to think about structural features of constitutions, to which Lord Sumption pays almost no attention. (This is another element of his thinking that he shares with Professor Waldron.) And besides, I am as worried as Lord Sumption by the overbearing, illiberal tendencies of contemporary democracy, and less willing to resign myself to them.

One question that needs to be asked is whether attempts to impose legal constraints on government are necessarily bound to degenerate into living constitutionalist creation of unwarranted constraints by the courts. Lord Sumption seems to think so. He implicitly accepts the living constitutionalist view that constitutional terms such as “due process of law” have no fixed meanings, and that adjudication based on such terms is inevitably going to answer the question not “whether the right exists but whether it ought to exist”. (IV/5) And, to be sure, there is no shortage of living constitutionalists who agree with him, from the hosts of the Stereo Decisis podcast to Supreme Court judges giving constitutional benediction to rights they invent. As I have suggested here,

if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. 

But while Lord Sumption is right about this, I believe he errs in accepting that adjudication of rights issues must devolve into judicial benediction of rights or ― what is equally non-judicial ― dogmatic deference to legislative choices. In many ― I think in most ― cases, an originalist court that seeks to ascertain the public meaning of constitutional texts, and perhaps to engage in good-faith development of constitutional doctrine based on the texts’ original purposes can actually avoid adjudicating primarily on the basis of its normative priors. As William Baude has pointed out, this requires an effort at self-restraint on the court’s part: the court must accept that its first task is to ascertain the meaning of existing law, without rushing to conclude that this meaning is obscure so as to impose its own views on the parties. But I do not think that such an effort is impossible for courts to undertake. Indeed, even that ostensible champion of living constitutionalism, the Supreme Court Canada, already engages in originalist adjudication, admittedly of varying quality, in a non-negligible number of cases, as I have most recently discussed here.

Emphasizing the importance of constrained, originalist constitutional adjudication ― rather than throwing up our hands and conceding that the courts will do what they please with constitutional texts ― is all the more important because it can help resolve not only cases about fundamental rights but also those dealing with structural aspects of constitutions. Lord Sumption says almost nothing about federalism and separation of powers; to me, the way in which he breezes past them in his discussion of the United States is quite disappointing, a rare moment of incuriosity in an otherwise very thoughtful lecture series. Lord Sumption’s preferred understanding of democracy, as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” (III/7) seems to put structural issues front and centre. And given his sharp comments about the pernicious effects of bypassing the usual parliamentary mechanism in favour of a referendum on Brexit, I think he ought at least to give some thought to the question of whether, quite apart from entrenching rights, the decision-making processes of representative democracy may require robust constitutional safeguards against elected officials inclined to sacrifice them for momentary political advantage.

Ultimately, though, I think that Lord Sumption is too quick to reject the desirability of substantive limits on legislation, as well as to ignore the need for structural safeguards. He thinks that it is not a problem that, under the existing UK constitution, “the limits on what Parliament [or legislatures] can do depend on political conventions [that] derive their force from shared political sentiment which would make it politically costly to disregard them”. (V/2) (The situation is the same under the Canadian constitution except with respect to issues on which the Canadian Charter of Rights and Freedoms has something to say.) Yet Lord Sumption gives cogent reasons to think that democratic politics often do not make it costly for Parliament to overreach and overregulate; and, on the contrary, that voters will, in the long run, demand too much conformity and control. These concerns echo those already expressed F.A. Hayek’s, in The Road to Serfdom. They are not new. They should be addressed, if possible, with more than vague hopes of compromise.

Indeed, I also think that Lord Sumption oversells compromise. He is right that one cannot expect to always get what one wants in politics, and that unwillingness to give an inch to partisan opponents one believes to be unprincipled at best, if not outright evil, is a real problem. But surely compromise isn’t valuable on any terms. To say so is only to encourage extremist opening bids by people who will expect us to agree to slightly more moderate versions of their still unreasonable demands in the name of accommodation. (The Québec government’s defence of its anti-religious dress code as moderate is a good example of this.) Compromise is important, but it cannot always be justly expected. As Lord Sumption himself recognizes, there are laws that make civilized coexistence or full membership in a democratic community impossible.


Lord Sumption’s Reith lectures are well worth listening to or reading, and reflecting on. They challenge those of us who support judicial review of legislation with an accessible but powerful restatement of the Waldronian case against that constitutional device and affirmation of the importance of democracy. They challenge Waldronians and other supporters of democratic institutions with a frank and not at all optimistic assessment of these institutions’ output. They are not right about everything ― but, insofar as they are wrong, they are wrong in interesting ways. As I said in introducing my summary of the lectures, I think that incoming law students, in particular, would benefit from engaging with Lord Sumption’s ideas. But so would those with more experience of the law. I am sure I have.

The Fault Will Be Ours

Lord Sumption on politics, law, and the meaning and decline of democracy

A couple of months ago, Jonathan Sumption, former barrister extraordinaire, recently-retired UK Supreme Court judge, and well-regarded historian too, delivered the BBC’s Reith Lectures for this year, speaking on Law and the Decline of Politics. Despite my delay in getting to them, I think they are worth writing about. Lord Sumption’s arguments challenge most if not all of us in one way or another. I expect that those used to the North American way of thinking about constitutional law will find them more uncongenial than many lawyers in the United Kingdom or in New Zealand, but Lord Sumption’s views do not neatly fit into any pre-defined category, and will have something that will force just about anyone to reflect. (I particularly recommend the lectures to any students who are about to start studying law; they are quite accessible, but will give you an excellent preview of many of the debates you will confront in the coming years, and expose you to a way of thinking that is not exactly prevalent in North American law schools.)

In a nutshell, Lord Sumption’s argument is that, as he put it in the first lecture, “Law’s Expanding Empire“,

law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate. (2-3)

The question is, how does law relate to this larger system? What is the place of law vis-à-vis politics? Should it, in particular, be used to control political outcomes and bring them into alignment with some set of substantive values? Lord Sumption wants to caution us against the dangers he says lying in wait if we go down this path. But it is not because he takes an especially optimistic view of politics. In this post, I summarize the five lectures. (It will, I am afraid, be quite long.) I will comment separately.


Lord Sumption’s misgivings appear especially strongly in his first lecture. Law, he says, is an alternative to chaos. But just how much law (and how many lawyers) do we need? Lord Sumption observes that

Until the 19th century, most human interactions were governed by custom and convention. The law dealt with a narrow range of human problems. It regulated title to property, it enforced contracts, it protected people’s lives, their persons, their liberty and their property against arbitrary injury, but that was about all. Today, law penetrates every corner of human life. (3)

It need not be that way. The Rule of Law requires limitation of government power and the protection against interference with life, liberty, and property, as well access to the courts to enforce these limits and protections, but it does not necessarily follow that law needs to be pervasive. Rather, this is something that the voters have chosen, in an ongoing fit of general optimism about the prospects of collective action. Democracy “has inevitably led to rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity”. (4)

Moreover, after a retreat over the course of the 19th and 20th centuries, “a growing moral and social absolutism … looks to law to produce conformity”. Even when there is no real consensus in the community about what how a particular moral issue ought to be treated,

we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgment and behaviour. We are afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with. (6)

It is as if moral judgment, which would have been individual in the past, has increasingly been collectivized. In a growing number of cases, moreover, this judgment has been delegated to the judiciary.

At the same time, there has been a push to take judgments about safety and security away from individuals and hand them over to public authorities, under judicial supervision. As more misfortunes appear preventable, the demands are made for them to be prevented; “we are no longer willing to accept the wheel of fortune as an ordinary incident of human existence”. (7) Yet this is achieved only by “restricting the liberty of the public at large in order to deprive them of the opportunity to harm themselves”. (7)

The result of it all, Lord Sumption says, is the comeback of the Hobbesian Leviathan: “[t]he 17th century may have abolished absolute monarchy but the 20th century created absolute democracy in its place”. (8) And unlike when government was an external, antagonistic force, democratic government “is us”. (8) We both fear and repose our fondest hopes in it.


In his second lecture, “In Praise of Politics“, Lord Sumption asks, “how do we control the potentially oppressive power of democratic majorities without undermining democracy itself?” (2) He focuses on the notion of legitimacy, which he defines as “a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing”. (2) Any government, but especially a democratic one, must preserve its legitimacy. Democracy does this by accommodating differences between majorities and minorities, and securing compromises that mean that minorities do not become “permanently disaffected groups [with] no common bonds to transcend their differences with the majority”. (2) This can be done through representative government or through law.

Representative institutions, in contrast to winner-take-all direct democracy, exist in part to accommodate the interests and demands of minorities. They make compromise possible. Building on the thought of James Madison and Edmund Burke, Lord Sumption argues that “political elites have their uses. Professional politicians can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors”. (3) They are also better placed to further national “collective interests which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment”. (3)

Bypassing the processes of representative government, as was done with the Brexit referendum is dangerous. Compromise becomes impossible, as

52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don’t matter at all. … It is the mentality which has created an unwarranted sense of entitlement among the sort of people who denounce those who disagree with them as enemies, traitors, saboteurs, even Nazis. This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink, short of actual violence.

Lord Sumption warns, however, that disengagement from politics calls into question the ability of the political process to generate compromise and legitimacy. Political parties play an important role in securing the accommodation of various interests in policy-making, but as their membership has declined greatly, they are no longer representative of the broader citizenry, and the candidates whom they put forward are increasingly out of touch with the voters. All this “is, in the long
run, likely to lead to a far more partisan and authoritarian style of political leadership”. (5)

Law, the other barrier to oppressive majorities, has become more important as politics has lost its lustre. The politicians’ authority is waning, but the judges’ is undiminished; indeed it is growing:

Judges are intelligent, reflective and articulate people. They are intellectually honest, by and large. They are used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world. The whole judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making. (5)

The judiciary is now more active than it used to be in policing the actions of other public authorities. It does so, in particular, by enforcing the principle of legality, which Lord Sumption suggests should rather be called “the principle of legitimacy”. The principle is appropriately applied to ensure that Parliament faces the consequences of measures that would amount to, notably, “retrospective legislation, oppression of individuals, obstructing access to a [c]ourt, [or] acts contrary to international law”. However, it can be taken further, and made into a barrier to Parliament acting, even advisedly, in ways the courts simply disagree with.

However much we may agree with the outcomes in particular cases, we should be wary of this empowerment of politically unaccountable institutions. It is not the courts’ function to generate compromise, and therefore legitimacy. The law’s strengths are also its weaknesses:

Law is rational. Law is coherent. Law is analytically consistent and rigorous. But in public affairs these are not always virtues. Opacity, inconsistency and fudge maybe intellectually impure, which is why lawyers don’t like them, but they are often inseparable from the kind of compromises that we have to make as a society if we are going to live together in peace. (7)


Lord Sumption’s third lecture, “Human Rights and Wrongs” focuses on what he describes as “an unfriendly meeting” (1) between law and politics. The idea of fundamental rights is not new; in earlier times it was expressed through the concept of natural rights. The trouble with it, however, is that

[t]o say that rights are inherent in our humanity without law is really no more than rhetoric. It doesn’t get us anywhere unless there is some way of identifying which rights are inherent in our humanity and why, and that is essentially a matter of opinion. (2)

Indeed, “[r]ights … are the creation of law which is a product of social organisation and is therefore, necessarily, a matter of political choice”. (2) How is the choice to be made, how are the differences of opinion to be settled? Appealing to democracy is a problem since the point of rights is to protect people from what democratic majorities might do to them. But what else is there? Neither religion nor ideology work in a democratic society.

Still, there is wide agreement that there are some truly fundamental rights: those having to do with due process of law (though Lord Sumption does not use this label), and democratic rights, such as “freedom of thought and expression, assembly and association, and the right to participate in fair and regular elections”. (3)

Legislators can create further rights, including by subscribing to rights-creating treaties. But what Lord Sumption describes as “dynamic treaties”, such as the European Convention Human Rights (ECHR), as it has been interpreted by the European Court of Human Rights (the Strasbourg Court), whose content keeps being developed by supranational institutions after their implementation in law “escape[] parliamentary control”. (3) As Lord Sumption describes the Strasbourg Court’s jurisprudence, it “develops [the ECHR] by a process of extrapolation or analogy so as to reflect its own view of what additional rights a modern democracy ought to have”. (3) This goes beyond “applying an abstract statement of principle to concrete facts” that weren’t originally anticipated, or giving effect to “concepts … such as the notion of inhuman or degrading treatment [that] plainly do evolve over the time with changes in our collective values”. (4) Such developments are “a form of non-consensual legislation”. (4)

Good or bad, this judicial legislation is controversial; in any case, law should not be made judges, disempowering citizens. In particular, questions about the limitation of rights, the purposes for which it can be undertaken, and the degree to which it is necessary, “are all intensely political … . Yet, the [ECHR] reclassifies them as questions of law”, (6) to be settled by the courts rather than the political process.

We can think of democracy, Lord Sumption says, either as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” or as “a system of values”, (7) of substantive requirements that a political system must fulfill. A political system that is democratic in one sense is not necessarily democratic in the other. Lord Sumption worries that “[d]emocracy, in its traditional sense” (that is, the first one) “is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter”. (7) And he worries that many lawyers are tempted to attribute such urgency to liberal values. For his part, he rejects this view, which he finds

conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. (7)


Lord Sumption’s fourth lecture, “Rights and the Ideal Constitution” takes on a constitutional system that has implemented a number of substantive, values-based constraints on democratic decision-making: that of the United States. Lord Sumption is skeptical of what he calls the “legal model” of the state, since “in the long run, political constraints on the part of majorities are likely to be a great deal more effective than legal ones”. (2) To be sure, the “legal model” promises constraint “based on a body of principle applied by judges” (3) immune from the sort of pressures and incentives to which politicians are subject. This model is based on mistrust of “elective institutions” and their ability “to form opinions about [rights] with the necessary restraint, intelligence or moral sensibility”. (3)

Against that, Lord Sumption argues, we need to count the value of legitimacy: “‘We, the people,’ is the emotional foundation of democracy in Britain as well as in the United States”. Democratic decision-making is also egalitarian. A constitution that enforces a set of substantive values, be they those of “liberalism, human rights, Islamic political theology or the
dictatorship of the proletariat” (4) is neither egalitarian nor legitimate in the eyes of those who do not share these values. It is, therefore, not the right kind of constitution: “the proper function of a constitution is to determine how we participate in the decision-making processes of the state and not to determine what the outcome should be”. (4) Instead of looking for “the right answers to … moral dilemmas”, a polity should content itself with “a political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions”. (4)

Echoing the arguments made in the previous lecture in the context of the ECHR, Lord Sumption reiterates that in deciding rights claims based on vague constitutional language judges are deciding not so much “whether the right exists but whether it ought to exist. Yet, that is surely a question for lawmakers and not judges.” (5) Anyway, “on politically controversial issues, the decisions of judges almost always involve a large element of political value judgment”, and “are not necessarily wiser or morally superior to the judgments of the legislature”. (5) Lord Sumption also reiterates his earlier point that judicial resolution of essentially political disputes does not leave room for compromise and accommodation. By contrast, political compromise may succeed at resolving differences in the community, as it did over abortion in Britain (in contrast to the United States).

All that said, Lord Sumption cautions that it does not follow “that there are no rights which should be constitutionally protected in a democracy”. (6) Rather, “one must be very careful about which rights one regards as
so fundamental as to be beyond democratic choice”. (6) Again, life, liberty, property, due process, and democratic rights fit the bill. But they will not be enough to protect against the tyranny of the majority. Ultimately, “the Courts cannot parry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves”. (7) If any barrier can do that, it must be found in the political culture, not in the law.


Lord Sumption’s fifth and last lecture, “Shifting the Foundations“, addresses the proposals for introducing the “legal model” of the state to the United Kingdom. Lord Sumption suggests that, although presented as a solution to the ongoing crisis of political institutions, this idea, like all calls for institutional reform in response to crises real or supposed, has little to do with the problems it purports to address. There is something, Lord Sumption says, to the criticisms of the UK’s existing constitutional arrangements, said to be “obscure, old-fashioned, out of step with international practice and giv[ing] far too much power to Parliament”. (3) But there is also something to be said in defense of these arrangements.

Lord Sumption points out that “[t]he godparents of written constitutions have been revolution, invasion, civil war and decolonisation”. (3) Nothing of the sort has happened in the UK in centuries. As a result, there is no blank slate on which to write a new constitution. If this were nevertheless done, the result, even if

an artefact of perfect rationality, a thing of great intellectual beauty … would have no basis in our historical experience, and experience counts for a great deal in human affairs; more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. (3)

Besides, the flexible political constitution has been able “to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”. (3)

The problem, and not just in the UK but elsewhere, Lord Sumption argues, is not with institutions but a political culture struggling with

long term decline in the membership … of all the major national political parties, falling turnout at elections, widespread contempt for professional politicians, the rise of powerful regional nationalisms offering a more immediate source of legitimacy. (4)

The reason for this malaise, Lord Sumption suggests, is that democracy cannot meet the unrealistic expectations for it that result “from the eternal optimism of mankind, … a misunderstanding of the role of politicians, and … an exaggerated view of their power to effect major change”, as well as “the auction of promises at every general election”. (5) This produces “a sense of impotent frustration [that] undermines public confidence in the whole political process”. (5) Those who are disappointed with the representative institutions (Lord Sumption specifically mentions environmentalists frustrated by inaction on climate change) are prepared to look to a strongman who will “get things done”. A further problem is that “[p]eople expect their representatives, not just to act for them, but to be like them”, yet “all political systems are aristocracies of knowledge. Democracy is only different in that the aristocracies are installed and removable by popular vote”. (5) This exacerbates “[r]esentment of political elites”, (6) which plays a large role in current politics.

For Lord Sumption, constitutional change is not the answer to these difficulties, although he is interested in electoral reform “if it boosted public engagement with politics and enabled them, once more, to accommodate differences of interest and opinion across our population”. (7) An entrenched constitution subject to judicial interpretation, by contrast, “will simply produce a partial shift of power from an elective and removable aristocracy of knowledge to a core of professional judges which is just as remote, less representative and neither elective nor removable”. (6)

Lord Sumption ends on a dark note:

we will not recognise the end of democracy when it comes, if it does. Advanced democracies are not overthrown, there are no tanks on the street, no sudden catastrophes, no brash dictators or braying mobs, instead, their institutions are imperceptibly drained of everything that once made them democratic. The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours. (7)


As noted above, there is much to reflect on here. I am not suggesting that everything Lord Sumption says is right; indeed, it cannot be, because his arguments are not altogether consistent with one another. I will set out some reflections on Lord Sumption’s views in my next post. For now, suffice it to say that, if we are to avoid the dark future whose possibility Lord Sumption asks us to confront, we need to think seriously about the issues he cogently outlines.

Madison and Canadian Constitutional Law

Because we are in the slow days of summer, and I have a bit more time on my hands than I would usually have, I picked up a copy of Richard Matthews’ 1995 book, If Men Were Angels: James Madison & the Heartless Empire of Reason. Immediately, one’s Canadian eyes might begin to glaze over. Why should one care about an American Founding Father, specifically one that is somewhat more obscure in the common eye than Thomas Jefferson or Alexander Hamilton? To my mind, Madison raises a number of implications for contemporary debates in Canada about the nature of our government and the interpretation of our Constitution. In this post, I’d like to address two of those implications. First is the idea of deference to legislatures, and how Madison’s views serve as lighting rods for debate on the relative institutional capacities of courts and legislatures. Secondly, and more controversially, is the idea of to whom the Constitution “belongs” and whether it matters for the interpretive approach one adopts in relation to the Constitution.

First, a bit of background about the book and its subject. Matthews paints a picture of Madison as a “quintessential liberal,” who continues to, today, impact the way Americans view their government. Madison, who was a chief architect of the Constitution’s structural provisions and the Bill of Rights, is often placed on a lower rung than Thomas Jefferson in the hierarchy of American founders. And yet, for Matthews, it is Madison who has come to typify modern American government and life. This reality lies, for Matthews, in a quintessential difference in Madisonian and Jeffersonian politics. Matthews paints Madison, at heart, as a Hobbesian; or perhaps a Malthus. Either way, Madison does not view political life as a teleological good as the ancients did. Rather, political life is nasty, brutish, and short; and humanity leans inexorably towards degeneration. Madison is a political skeptic. To him, left to their own devices, humans will inevitably turn on one another, no matter how good or virtuous they might be. Hence, democracy had to be tempered because “had every Athenian Citizen been a Socrates, every Athenian assembly would still have been a mob (see The Federalist Papers, No. 55). For Matthews, “[f]rom Madison’s view of the individual, democracy was a fool’s illusion; in the long run, little could be done, beyond playing for time, to forestall the decline or to improve the human condition” [51] because “passion never fails to wrest the scepter from reason” (The Federalist Papers, No.50).

Madison’s prescription for this natural state of affairs was republican constitutionalism. If the human condition could not be improved, and if virtue could not be instilled, the least one could do is preserve a peaceful status quo. For Hobbes, the method to do this was the Leviathan. But for Madison, the separation of powers was the preferred prescription. By making “ambition counteract ambition” through the mutual jealousy of the branches of government, the worst vices of humanity could be tempered. And, by making a republic that extended over a large geographic area rather than a classic Athenian demos, the risk of factionalism decreased.

On the other hand, Jefferson’s political philosophy reveals a different sort of view of the human condition and political organization. For Jefferson, politics is a constitutive act of citizenship, in which the people constantly reinvent their laws to suit their circumstances. Hence Jefferson’s frequently-cited admonition that “[t]he tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” And Jefferson operationalized this reality: he believed that the Constitution and the laws should renew every generation, so that the dead do not bind the living in their constant fulfillment of democratic, civic republicanism. Jefferson obviously viewed humans as far less fallible than Madison did.

Matthews views the matter differently than Madison, adopting a Jeffersonian position on the matter. For Matthews, “Madison’s liberal dream has, as he knew it would, turned into a nightmare for an increasing number of marginalized Americans” [279]. And this rings somewhat true: even more so than in 1995, the ability of people to connect over the Internet and to peddle in fake news and “deep fakes” has made it much easier to bypass republic protections and create mob rule.

This political theorizing seems far off from the world of Canadian law, and so how does any of it apply? As I noted above, I think there are real reasons why Madison’s thinking, Jefferson’s philosophy, and Matthews’ book all have something to say about contemporary debates in our own institutions. Take first the question of judicial deference to legislatures. In Canada, courts will defer to legislatures on constitutional questions under the Oakes test. If one adopts the Madisonian position, why is there any reason to defer to legislators? The question rings powerfully in the context of Canadian law, where there is a more closely-tied legislature and executive, and where the executive is responsible to the legislature. In such a case, there are no separation of powers protections to prevent the worst human vices. Couldn’t the legislature or executive simply channel mob rule?

There is some evidence of this, as co-blogger Leonid Sirota and I wrote about here in reference to the SNC-Lavalin affair. The example shows that humans—of which politicians are a special class—will not act properly when the incentives aren’t right. The lure of winning an election and doing whatever it takes to do so might be too great a Madisonian evil. After all, it was Justin Trudeau’s justification in the SNC-Lavalin affair that “jobs” were the driving force behind his attempted interference in the prosecution of SNC-Lavalin. This leaves us wondering whether there is any reason for courts to defer to legislatures controlled by calculating executives.

But one must take the situation as it is. In this sense, Hart and Sacks and the legal process school had something right: institutional competency matters. And while legislatures are apt to turn into ineffectual mobs (look at the US Congress and the issue of gun control), or to focus on their own electoral futures, we are talking here about deference to legislatures on constitutional questions. Constitutional questions are more questions of policy-resolution than legal interpretation in the modern day. Of course, this is not normatively desirable or necessary. But it is the state of the world. And if that is the case, legislatures should have a legitimate say—if not a final one, because that responsibility is the judiciary’s—in how issues of policy are resolved. This says nothing of the fact that the people are the ultimate control on government, and for that reason, are always the best control on legislatures appealing to the worst of us.

Finally, I want to say a note about Jefferson’s living constitutionalism. Madison, I think, provides a response that is still apt today:

Would not a Government so often revised become too mutable to retain those prejudices in its favour which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age?

Madison advances a valid epistemological reason for refusing to throw away the past, one I find convincing instinctively. But there is an additional reason why the principle of constitutionalism means that we cannot escape the past. As Hayek notes, the distinctive American contribution to the Rule of Law was the addition of the principle of constitutionalism, explained by Madison as the idea that the Constitution is supreme over ordinary law; that it is “fundamental.” The choice to make supreme certain elements of law is an intentional one, taken by a people after the expense of extensive political capital and energy. It is a sacred act. When it comes to bills of rights, the choice to make certain rights and freedoms beyond the reach of ordinary legislation is a deliberate choice to remove from the sphere of political debate those rights and freedoms. That, too, is a sacred act. The reason why the Constitution cannot be automatically renewed every generation—short of the amending procedure—is that to do so would disrespect the original choice to remove certain, important rights from the sphere of debate. This is an important formal act that should be presumptively respected because it represents the democratic choice of the people at a select time. That choice, absent the amending procedure, should not be abridged by an extralegal “renewal” of the Constitution; especially by courts. This, of course, is slightly different than saying that the people made the choices they did for good reasons.

I could write more, but this post is long enough. It is enough to say that Madison’s politics do view humans as inherently flawed, and these flaws reverberate through all of our institutions. It is fundamentally a question, though, of asking with respect to a particular legal question who is worse. Sometimes courts are best suited to deal with issues, but other times they are decidedly not.

Guest Post: Andrew Bernstein

A response to Mark Mancini’s post on Supreme Court appointments

About every 15 months, a vacancy arises in the Supreme Court of Canada. There is then a search process that lasts somewhere between a few weeks and a few months, which recommends certain candidates to the Prime Minister. The Prime Minister then selects the candidate and the Governor-in-Council makes the formal appointment “under the Great Seal.”

Since the appointment of Justice Marshall Rothstein in 2006, the process has had an additional step: the “Parliamentary hearing.” At this point, the Prime Minister’s selection is named, but instead of simply being appointed to the Court, s/he is as the “nominee.” This “nominee” then to appears before a Parliamentary committee and answers questions (or as Mark Mancini noted in his recent post, not answer questions) about various things, including his or her record, bilingualism, and even judicial philosophy. After these proceedings, the “nominee” is formally appointed to the Court.

The concept of the “hearing,” which neither exists in Canada’s constitution nor the Supreme Court Act was put in place 24 years after the Charter was enacted, as the result of decades of demands by media, academic and some conservative political figures. The concept was that since the Supreme Court now has a greater influence on Canadians’ lives, we should demand greater transparency and accountability from its judges. As a result, the logic went, Parliament should have a greater role in selecting Supreme Court judges, akin to the “advise and consent” function of the United States Senate. We have even adopted the language of the American process, where the President selects a “nominee,” and the Senate can choose to confirm or not confirm that nominee to the position.

Mark’s post points out a number of flaws in the hearings as they currently stand. He suggests that these hearings could be made more useful if they were opened up to a broader array of questions and answers While I agree with his diagnosis, I differ on the prescription and prognosis. In my view, this patient is terminal and should be put out of its misery. For reasons that are institutional, constitutional and functional, my own view is that these “nomination hearings” will never serve any useful purpose, and this 13 year long experiment should be considered a failure.

Institutionally, the committee conducting the hearing is a toothless tiger. It has a power to ask questions, but no power to do anything with the answers. It does not get to vote at the end of the process. So instead, the most it can do is harass or try to embarrass the candidate (as some non-government members tried to do with one candidate’s lack of fluency in French – it was a one-day story which no doubt harmed Justice Moldaver). But a Prime Minister with two vertebrae to rub together will know that almost no one is paying attention. Unless the candidate gives an answer that will make persistent negative headlines, his or her “confirmation” (by the same Prime Minister that “nominated” them in the first place) is guaranteed. So the candidates know that they have one job: don’t embarrass the Prime Minister. Not exactly a tall order for someone with the brains and experience of a typical SCC nominee. And if that’s not enough, the whole thing is “moderated” by a trusted legal luminary, who presumably understands that her role is to ensure that things don’t get too interesting. So what results is a very bland hearing where the people conducting it don’t have any decision-making power. The only way that could ever change is to give the Parliamentary committee an effective veto by allowing it to vote on the nominee. But no PM will do this because it means giving up one of his or her most important prerogatives. In fact, both Prime Ministers Harper and Trudeau have occasionally skipped this “nomination” process altogether (for Justices Cote and Rowe, respectively) and simply inserted their pick on the Supreme Court (as the Supreme Court Act contemplates). So what exists is an optional hearing, before a powerless committee. As Mark says, this is not a process, it’s Kabuki theatre.

My second reason for eschewing the nomination hearing is that it is contrary to the structure of Canada’s (written and unwritten) Constitution, and, as a result, misapplies the notion of political accountability which it is intended to serve. In the United States, the strict separation of powers means that there can be sharp political divisions between the Executive and the two houses of Congress. A President neither requires the confidence of either house to form a government nor must maintain it. As a result, he (or maybe, some day, she?) has no structural accountability to the legislative branches, with one major exception: executive appointments must typically be approved by the Senate as part of its “advise and consent” function. This is in no way limited to the Supreme Court. It is true for lower Federal courts, cabinet departments, agencies, and any number of other roles selected by the Executive to perform various government functions. In other words, Senate approval was designed to be a check on executive power.

In Canada, of course, the separation of powers is blurrier and political accountability works very differently. Confidence of the legislature is a crucial prerequisite to forming a government, and a requirement for keeping that government in office. A Prime Minister that loses the confidence of the House of Commons for any reason must immediately resign. Conversely, a Prime Minister can be presumed to have the confidence of the House for all purposes, including making governor-in-council appointments. Some of these appointments have an enormous effect on the lives of Canadians; potentially much greater than any Supreme Court judge. The most notable of these are federal Cabinet Ministers and Deputy Ministers (the political and civil service heads of federal departments, respectively), as well as the Clerk of the Privy Council (the head of the federal civil service). In all cases, the Prime Minister must answer to the legislature for his choices, not by putting these people through a nomination process, but rather by answering questions in Parliament about who he selected and why. If enough MPs believe that the Prime Minister is being reckless in his or her choices, they can vote no confidence and trigger an election. That is what political accountability looks like in a Parliamentary democracy. There is no reason in principle to have a different process for Supreme Court.

My third and related point is functional: by having a fake hearing for the purposes of fake accountability, we are missing an opportunity to have a real hearing with real accountability for the person who should actually take responsibility for the appointment. I wholly endorse the portion of the process by which the Minister of Justice and the head of the independent search process appear before the committee to answer their questions. I would add that since the Prime Minister has the final word, he or she should also appear, and be prepared to answer real questions about the process, the strengths and weaknesses of the candidate, and any other question that Parliamentarians want to ask him. This could include tough questions like “this is your third Supreme Court selection, why haven’t you selected an indigenous judge?” It could explore the PM’s philosophy of judicial selection, including what his or her priorities are (demographics, experience, credentials, political involvement, geography, etc.) and how s/he intends to implement them. This is useful information: in an election, different parties might contrast their priorities with the current government’s and voters can make a more informed decision, if this matters enough to them.

Because it’s never a good idea to publish anything without letting someone you trust read it first, I should say that I ran a draft of this piece by my colleague Jeremy Opolsky. In addition to making some excellent edits, challenging some weaker points, and greatly improving the arguments, he made one point that I found persuasive (if not quite persuasive enough to change my mind). Jeremy pointed out that getting to know a Supreme Court candidate could have real value separate and apart from asking the government questions, and even if the committee cannot change the result. He points out that the hearings provide an informational function about the judge which is, at a minimum, interesting. So if the hearings can accomplish this and do no harm, he posits, why not hold them? However, I remain unpersuaded, for one essential reason: perhaps uniquely among important decision-makers, we actually do get to know our judges, through their written reasons for judgment. In fact, they reveal a lot more about themselves in their judicial writing than we could ever learn about them in a nomination hearing, and without the political theatre that goes with it.

In sum, I suggest we let the political actors deal with the politics of judicial appointments. It is, after all their job. Little that happens at a nomination hearing actually allows us to know how judges are going to do their job, or really anything useful about them at all. So let’s skip the part where the judges get grilled and move to asking questions of the person who could actually be held accountable for their nomination. The whole institution of the Canadian “nomination hearing” was invented to assuage the demands of legal academics and the media, who no doubt were suffering a little excitement envy from the U.S. even before the events of 2018, as well as conservative political figures who have criticized the perceived liberal bent of Canada’s judiciary. When it comes to the Supreme Court, the practicing bar is primarily concerned about the Court providing coherent and well-reasoned decisions that can actually be applied to future cases so we can properly advise our clients on their rights and obligations. So to many of us, the real question for any new appointment process is whether it will improve the overall quality of the Supreme Court’s adjudication. There is reason to believe that the current Prime Minister’s independent search process will actually do that; certainly the first two “outputs” from this process look extremely promising. However, in the 13 or so years since Justice Rothstein first appeared, the existence of these nomination hearings, appear to have made no difference one way or the other.

An Empty Vessel

Thoughts on the Justice Kasirer appointment process

A few weeks back, Prime Minister Trudeau’s nominee to the Supreme Court, Nicolas Kasirer, subjected himself to questions from parliamentarians. By all accounts, Justice Kasirer is a qualified nominee for the Court, having spent a decade on the Quebec Court of Appeal. But one must separate the nominee from the process through which he was appointed. While the Government’s independent search process is probably, in theory, a step in the right direction, it is still plagued by one meaningful problem: parliamentarians have virtually no power to shed any meaningful light on the Prime Minister’s nominee.

Of course, unlike the United States, Parliament and its committees have no constitutional duty or mandate to give “advice and consent” on nominations made by the Prime Minister to the Supreme Court. Yet the fact that the Constitution does not require something does not mean that systems of government should not aspire to be better. This was the logic behind the Prime Minister’s independent appointments process, which is also not at all required by the Constitution.

But the process adopted by the government when it comes to public consultation, while not inconsistent with the Constitution, falls well short of other standards of public transparency. The judicial nomination “hearing,” if one could even call it that, was limited by a number of overriding principles. For example, Justice Kasirer could not talk about any past decisions he rendered as a judge of the Quebec Court of Appeal; politicians could not ask him about any judgments he would render as a judge of the Supreme Court;  politicians could not “cross-examine” the nominee; nor ask him to take a position on “controversial” issues; and finally, the nominee could not comment on existing Supreme Court decisions, and whether he supported those decisions or not.

Some of these restrictions are understandable. Asking a nominee to pre-judge an issue presents a real judicial independence problem. But some of the restrictions, I think, end up short-circuiting legitimate questions about the role of the judge in the modern era. Particularly, asking a judge to comment on her past rulings or to comment generally about her philosophy does not present the same judicial independence concern as pre-judging a case on the merits. Indeed, there are other countervailing values that make these questions apt for answering, in the name of public transparency, and in light of the judicial role in the modern era.

The idea is this: no one denies—not even proponents of strong-form judicial review—that the Supreme Court deals with issues of great national importance. This is in part represented in the Supreme Court’s leave requirements; but it is also manifested in the cases the Supreme Court decides, and how it decides them. In the last number of years, the Court has decided cases of broad public controversy, including reading a right to assisted dying into the Constitution, doing the same for the right to strike, and similarly interpreting an existing constitutional provision to encompass a right to Wagner-style collective bargaining. All of these issues—issues over which reasonable people can disagree in the political realm—have been removed from the public sphere of debate by the Supreme Court’s constitutional rulings. While the Court has often replied that it is the people through their representatives that thrust this role upon them when enacting the Charter (see BC Motor Vehicles, at para 16), this argument does not change the basic fact that courts have taken on this role, often liberated by emancipating doctrines like a “living tree approach” and a lax standard for the admission of all sorts of social science evidence. When it comes to Charter decision-making, the judicial role takes on the character of policy, under which decisions are made by courts that at one point might have been made by legislatures.

Putting aside whether this is normatively desirable, and if this is the case, why shouldn’t the public have a window past the veil of judicial decision-making in a substantive way that sheds light on the things a judge values in the decision-making process? In other words, while there is no formal process for “advice and consent” (and perhaps there shouldn’t be) shouldn’t the public’s representatives have a right to query the judge’s overarching judicial philosophy, including how it would apply to past Supreme Court cases? The role of the Supreme Court in the modern era, if it is going to be expansive, is deserving of some sunlight.

I am alive to the criticisms. One might argue that this imports an American style advice and consent function into Canada, potentially creating the conditions for the sort of circus we see in the United States. But the function I have in mind is suited to Canadian circumstances. In reality, my prescription would amount to allowing a few more substantive questions to be asked in a hearing. Anyone who watched the Kasirer hearing was probably left sorely disappointed; the nominee’s reliance on the restrictions of the entire process was somewhat frustrating given the stakes of a Supreme Court appointment. But if the process was somewhat more substantive, with the scope of questioning somewhat expanded, perhaps there might be more interest in the entire endeavour, with Parliament taking on a real public monitoring function. On my account, the questions that could be asked could account for general judicial philosophy considerations, an account of the judge’s past decisions, and perhaps general comments about existing Supreme Court cases, always on guard for the potential for questions to go into “gotcha” territory.

Another concern is judicial independence, as I alluded to above. We do not want prospective Supreme Court judges pre-judging cases. But setting out a general philosophy—including generally reflecting on Supreme Court cases or to reflect on one’s own judicial tenure—is hardly pre-judging particular cases on the merits. Indeed, one can criticize a past Supreme Court decision and still resolve to apply it because it is the law—this would be the ultimate in honest and transparency. The truth is that every judge has some system or guiding star for deciding cases that the public deserves to know. Judicial independence should not be a prophylactic reason to prevent all questioning of judges, especially in a system where the Court carries so much power.

The goal of the entire nomination process should be to balance the selection of qualified jurists with the protection of their independence and the public’s legitimate interest in knowing who is nominated. A Kabuki theatre nomination hearing, like the Kasirer one, fails to create the conditions for the public to actually know a judge. This is far from ideal in a situation where the Supreme Court, as Justice Abella once said, is the apparent arbiter of Canadian moral values. If the Court arrogates this role to itself, its members should at least be accountable through some mechanism.

All or Nothing At All?: Restricting the Growth of the Administrative State

Non-delegation limits do not spell the end of administrative government.

The Supreme Court of United States (SCOTUS), in the recent Gundy decision, once again rejected a challenge to a delegation of legislative power based on the so-called non-delegation doctrine. The non-delegation doctrine, in theory, holds that all legislative power rests in Congress, and so by necessary implication, Congress cannot delegate that power away to agencies without an “intelligible principle” to guide the delegation. In practice, the SCOTUS has only ever sustained a non-delegation challenge in a handful of cases in the New Deal era, instead endorsing wide delegations of authority to any number of administrative bodies for over 70 years. One might say that the Court’s reluctance to invoke the non-delegation doctrine is due to the important fuel that delegation provides to the administrative state. Indeed, one might argue that such widespread delegation is necessary for the project of “modern governance.”

But this is not necessarily true. Much of the discussion of limitations on the administrative state speaks in large generalities, and Gundy is no exception. The spectre of the destruction of the modern government that Americans (and Canadians) have come to know is always invoked by those who seek to preserve its power. But, if the non-delegation doctrine is constitutionally justifiable, its invocation in any of its instantiations will not end up destroying modern government. This is because non-delegation limits do not speak in absolute prohibitions, but rather limits in degree and emphasis; shifting the onus back to Congress to legislate within the confines of the Constitution. Canadians should take note and remain wary of arguments advanced by those who reject constitutional limits on administrative power based on functional scares.

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Gundy involved a delegation of power from Congress to the Attorney General, under the Sex Offender Registration and Notification Act (SORNA). Under SORNA, it is up to the Attorney General to decide whether the statute’s requirements for registration of sex offenders convicted before the enactment of the statute apply.

Nonetheless, based on existing doctrine, Kagan J for the plurality said that the delegation in SORNA “easily passed constitutional muster.” This is because, to Kagan J, the SCOTUS in a previous case had already cabined the Attorney General’s discretion in this regard by requiring that SORNA apply to all pre-Act offenders “as soon as feasible.” Taken in light of the context, text, and purpose of the statute, the Court found that the delegating language was sufficiently cabined in order to provide an intelligible principle, because the Attorney General’s discretion is limited to deciding when it is feasible to apply the statute. The Court, then, interpreted the statute to avoid the non-delegation problem, as it had done years previously in the Benzene Case.

This conclusion appeared driven not only by the law, but by the consequences of permitting a non-delegation challenge to succeed. Kagan J frighteningly noted that “…if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Alito J concurred in the result, but noted that should a majority of the Court wish to revisit the non-delegation doctrine, he would.

Justice Gorsuch penned an important dissent. In it, he criticized the plurality’s apparent waving-away of the delegation problem. In the litigation, the Department of Justice did not concede that the Attorney General was required to apply the statute to pre-Act offenders “as soon as feasible.” More to the point, the Attorney General has wide discretion to select the offenders, if any, that should be subject to the statute. For Gorsuch J, “[t]hese unbounded policy choices have profound consequences for the people they affect,” including criminal defendants. In light of Gorsuch J’s problem with the SORNA delegation, he proposed a new test. That test would permit Congress to delegate the power to “fill up the details” of a statute—so delegation would not be prohibited outright. And, the delegation of power may make the “application of that rule depend on executive fact-finding.” But for Gorsuch J, the intelligible principle doctrine “has no basis in the original meaning of the Constitution, [or] in history” and should be replaced by a basic requirement that Congress make the necessary policy judgments.

In response to the problem that some have raised that Gorsuch J’s test would spell doom for the administrative state, he responded as such:

The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government. Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions….Congress is hardly bereft of options to accomplish all it might wish to achieve.

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I think Gundy contains within it a number of important implications for the delegation of legislative power that apply in both Canada and the United States. The first question is whether it is really true, as Kagan J notes, that non-delegation would render most of government unconstitutional; the second is the sort of limits that one could envision applying to delegations of power.

The Kagan J criticism is a classic functionalist proposition. So the argument goes, if the Court enforces a non-delegation norm of any sort, it would interfere with the practical ability of agencies to implement their enabling statutes, hobbling modern government. And to some observers, it wouldn’t take a full-fledged non-delegation doctrine: even some limitations on administrative government could have “pernicious consequences.” But this strikes me as a vast overstatement, and a self-defeating one at that. First, if Kagan J is right that most of government constitutes a delegation problem as the Constitution is interpreted, what does that say about modern government? It says that government as constituted is a sprawling beast that has far outpaced the Constitution. Some might respond: who cares? But for anyone who cares about the Rule of Law, and government by law, the Constitution reigns supreme over the fiat of administrators. And if one is a legal formalist—as I am—then the arrangement of an extra- constitutional government is itself a problem for both intrinsic and instrumental reasons.

But I do not think what Kagan J says is true, on the facts of Gundy or generally. First, Gundy involved a very particular type of delegation: the power to essentially decide how a statute applies, if at all. Some might say that these sorts of delegations exist all over the map, and they may be right. But one can draw a meaningful distinction between delegations that are meant to “fill in the details” of a statute, even in a legislative sense, and delegations designed to give power to an administrator to decide how, when, and to whom a statute applies, as in SORNA. Gymnastics around “feasibility” aside, SORNA delegates wide power for the Attorney General to decide the scope of application of a statute. This allows him to make law outside of the requirements of bicameralism and presentment. And for instrumentalist reasons, this is a problem: the Rule of Law requires predictability, and why should those deserving the presumption of innocence be subject to the whims of a chief prosecutor as to whether their conduct violates the law?

Now consider the consequences if a non-delegation limit is imposed on Congress. This would not render most of government unconstitutional, nor would it have “pernicious consequences.” Such arguments mistake the mere existence of a limitation for its extent. No one—not even Gorsuch J—is suggesting that delegation itself is unconstitutional. Such a finding would, indeed, render unconstitutional administrative government. But limiting delegation to simply require Congress to speak in more detail would only minimally increase the transaction costs of legislating while paying much more ex post in terms of predictability and consistency with the Constitution. It is unclear to me why the proponents of the administrative state fight even this requirement.

And this flows into the second question. Assuming the non-delegation doctrine is constitutionally justifiable, there are any number of limits that could be imposed on delegations, each of which would not hobble the ability of government to delegate. Courts could require Congress to speak using a clear-statement rule when it chooses to delegate legislative power. This would be on the theory that the delegation of power has the risk to be extra-constitutional, and should be treated with caution from a Rule of Law perspective. The SCOTUS already accepted this sort of requirement in the Benzene Case, when it interpreted the statute at issue to avoid the delegation problem in absence of any clear statement in the legislation. While clear statement rules of this sort could be attacked from the perspective that they allow courts to put their fingers on the scale in favour of certain interpretive outcomes, one might respond that the preferred outcome in this case is one protected by the Constitution in the form of a limit or restriction on delegation. It is apparent that requiring Congress to use a clear statement would likely do nothing to stop modern government.

Courts could also simply enforce the intelligible principle doctrine on its own terms. That is, courts should simply ask whether there is a “principle” that is “intelligible.” Intelligibility would impose some requirement on courts to actually interrogate the policy aims of a delegation to determine its internal consistency, and perhaps question whether it actually provides guidance to executive officials. A principle that is unintelligible will not provide guidance. One could meaningfully question whether courts have actually applied the existing doctrinal instantiation of the non-delegation doctrine on its own terms.

Finally, non-delegation limits might be imposed by the elected branches: this was the approach that was seemingly advocated by then Professor Antonin Scalia in a paper he wrote after the Benzene Case: (the questions raised by delegation “…are much more appropriate for a representative assembly than for a hermetically sealed committee of nine lawyers”). Congress could simply start to speak clearly. The incentive for Congress to do this might be political. As I have noted elsewhere, the delegation of power can be wielded in either direction. Gundy provides a great example. The delegation of power to the Attorney General to decide when, how, and to whom a law applies is a great deal of power. Right-wing legislators might predict that, when they are not in power, such a power might be used against political causes they support. In the US, Democrats are already seeing how powers can be abused by the Attorney General. Of course, the power of the executive can filter through executive agencies, as well. If Congress itself recognizes the ability for delegated power to be used for ends with which it may not be sympathetic, it may have an incentive to limit and control delegation within constitutional limits.

None of these limitations spell the end of administrative governance. Far from it. I fear that the death knell of administrative government is a rhetorical tool used by administrative law functionalists who wish to preserve the power of the administrative state. But as Gundy shows, the powers conferred on executives by Congress can be vast—and the delegation of vast power can be abused, contrary to constitutional limits. All actors in the system have the ability and the responsibility to prevent that abuse, as a corollary to the Rule of Law.

The upshot of all of this is that the administrative state is likely here to stay, but it does not have to remain in its current form to be successful or useful. It can move towards consistency with the Constitution at a small marginal cost to its supposed efficiency and effectiveness.