Constitutional Theory
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Blind Spots
In a new and fascinating paper, Jeremy Waldron asks why it is that Sir Isaiah Berlin, in his work on the Enlightenment, paid no attention to “one of the most important achievements of the European enlightenment” ― what prof. Waldron calls “Enlightenment constitutionalism.” The paper is a reflection not only on Berlin and the constitutional ideas… Continue reading
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Charter, Meet Google
Josh Blackman has just published a fascinating new essay, “What Happens if Data Is Speech?” in the University of Pennsylvania Journal of Constitutional Law Online, asking some important questions about how courts should treat ― and how we should think about ― attempts to regulate the (re)creation and arrangement of information by “algorithms parsing data” (25).… Continue reading
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Reticence and Power
The Supreme Court of Canada is in the habit of “suspending” its declarations of unconstitutionality of legislation, especially controversial or important legislation, ostensibly in order to give the legislature which enacted the statute at issue time to re-write it so as to remove the constitutional defect while preserving as much of the substance of the… Continue reading
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Nurturing Conventions?
The idea of constitutional conventions, familiar in the Commonwealth since the times of A.V. Dicey, has recently been attracting some attention from American scholars. Gerard Magliocca is apparently using it in a forthcoming article. And, most recently, it appears in an intriguing guest-post by Miguel Schor at Balkinization. Prof. Schor argues that conventions are important… Continue reading
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Greed Is Not Good
Many bad things have been said about the “victim surcharge” which the Criminal Code requires people found guilty of an offence to pay, and which recent amendments have made mandatory, depriving judges of any discretion to waive it, regardless of whether it represented a disproportionate punishment for a minor offence or would cause great hardship… Continue reading
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Is It in the Constitution?
How much does an entrenched constitutional text have to do with, you know, the actual constitution? I have argued (here and here for example) that a text is, at best, a partial and incomplete statement if what a constitution really is. It is quite possible to have a constitution without an entrenched text. But even… Continue reading
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Not Established
I wrote in my last post about a brief recently submitted to the U.S. Supreme Court arguing that an act of Congress which exempts religious believers from the application of any law that interferes with their religious beliefs and practices unless the law is the least restrictive means to realize a compelling government objective is… Continue reading
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Room for Disagreement
The issue of the respective roles of courts and legislatures in defending ― and defining ― individual rights and liberties is a controversial one. Some, like Jeremy Waldron, argue that protecting rights is the legislatures’ job, at least in the last resort. Others, like Dahlia Lithwick and Sonja West, apparently believe that rights are the exclusive preserve… Continue reading
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A Shield Not a Sword?
In my post discussing Brent Rathgeber’s take on the Supreme Court’s recent decision striking down the prostitution-related provisions of the Criminal Code (Canada (Attorney General) v. Bedford, 2013 SCC 72), I mentioned that Mr. Rathgeber had an interesting theory of the proper role of courts and judicial review. I think it is worth discussing, but I do not… Continue reading
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Not So Super Majorities
We all want to live under good constitutions… whatever good really means. But how do we make sure that our constitution is, in fact, good? In a post at the Volokh Conspiracy (part of a series discussing their book on originalism), John McGinnis and Michael Rappaport argue that that “stringent supe[r]majority rules provide the best… Continue reading
