Constitutional Theory
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What Will They Be Thinking?
Jack Balkin has an interesting post on Balkinization, discussing what he calls “arguments from the future” in constitutional law―arguments to the effect that a constitutional issue has to be resolved a certain way because of what people will think about it at some point in the future, say in 20 years. “If,” he writes, like Martin… Continue reading
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Rights for Us, or Limits on Them?
I blogged recently about whether, in Canadian constitutional law, corporations can challenge laws as violations of the freedom of religion. The answer, I said, is sometimes yes, and sometimes maybe, depending on the nature of the statute at issue, and maybe on other things too. But does that make sense in theory? A corporation itself… Continue reading
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Freedom of Corporate Religion?
A number of cases now working their way through the US court system and attracting a great deal of commentary, some of which Josh Blackman summarizes and/or links to in this post, ask an interesting question: can a corporation challenge a requirement that it provide its employees with health insurance covering, among a great many… Continue reading
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A Purely Hypothetical Maiden
In one of my first posts, I wrote―referring to the suggestion in Stanislaw Lem’s The Cyberiad that there are “three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical, … all, one might say, nonexistent, but each nonexist[ing] in an entirely different way”―that “judicial activism is something like the dragon of constitutional… Continue reading
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Vive la Différence!
It was a long time in coming, but the Supreme Court has finally delivered its ruling regarding the constitutionality of Québec’s (absence of) legal regime for de facto (a.k.a. common law) couples. The dispute pitted a wealthy businessman, identified by the Supreme Court as “B”, against his former common law spouse (and mother of his… Continue reading
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Original Myth
Any constitution, at least I suppose any constitution that has existed for a while, is surrounded by myths―stories that we tell ourselves to explain why things are as they are and, often, to reassure ourselves that they are as they ought to be. Among the myths surrounding the Canadian constitution, one of the most popular… Continue reading
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This Will Be Good
I wrote last summer about the issue whether a federal legislature could enact a statute in order to implement a treaty despite the fact that, absent the treaty, the statute would be ultra vires (because provincial or state, rather than the federal legislatures have jurisdiction over its subject matter. If so, I said, this would… Continue reading
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In the Trenches
Here’s the second part of my comment on C.J. Peters’ claim, in a recent and very interesting blog post, that constitutional law consists of “rules that are both entrenched and secondary.” I argued yesterday that constitutional rules often are primary rules (in H.L.A. Hart’s sense) or at least have a “double aspect” and are both secondary and primary… Continue reading
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What Sort of Rules Are in a Constitution?
A very interesting post about constitutionalism by C.J. Peters on his new MODblog makes a couple of claims that is worth addressing at some length. Constitutional law, prof. Peters suggests, consists of “legal rules that are both entrenched and secondary” (his emphasis). “Secondary” rules refers to H.L.A. Hart’s category for rules that, unlike “primary” rules which impose duties to… Continue reading
Double Aspect 