Pity the Censor

I have started reading the WWI memoir of a British journalist, Philip Gibbs, called Now It Can Be Told. At least part of the reason for the title is that during the war, what he saw could not be told because of military censorship. Gibbs’ description of the censors’ modus operandi is worth quoting at some length:

It seemed the G.H.Q.―mysterious people in a mysterious place―were drawing up rules for war correspondence and censorship; altering rules made the day before, formulating new rules for tomorrow, establishing precedents, writing minutes, initialing reports with, “Passed to you,” or, “I agree,” written on the margin. The censors who lived with us and traveled with us and were our friends, and read what we wrote before the ink was dry, had to examine our screeds with microscopic eyes and with infinite remembrance of the thousand and one rules. Was it safe to mention the weather? Would that give any information to the enemy? Was it permissible to describe the smell of chloride-of-lime in the trenches, or would that discourage recruiting? That description of traffic on the roads of war, with transport wagons, gun-limbers, lorries, mules―how did that conflict with Rule No. 17a (or whatever it was) prohibiting all mention of movements of troops?

This brought to mind my post about the struggles of the Alberta Court of Appeal in defining hate speech. To be sure, there is a great deal of difference between trying to eliminate one particular, and narrowly, if imprecisely, defined sort of undesirable speech and the sort of comprehensive censorship which Gibbs describes. There might also be a difference―at least the common law’s traditional position was that there was a great difference―between “prior restraints,” the requirement of the state’s permission to publish (the imprimatur―”let it be printed”), and the possibility of punishment or liability after publication.

Still, the two cases illustrate just how difficult any attempt to prohibit some speech on the basis of its content is bound to be. Perhaps paradoxically, the difficulty is especially acute if the censors enforcing the prohibition try to go about it in good faith and with the general sense that they should not prohibit or punish more than is necessary. It is easy enough to be a brutal censor and just prohibit anything at all in case of the slightest doubt. But being a conscientious censor is very hard indeed.

Of course, something being difficult is not a conclusive reason for refraining from it. For instance, it is difficult to maintain the law of defamation while respecting freedom of speech, but I think that there are good reasons not to give up trying, as the U.S. pretty much have. Nonetheless, the difficulty of censorship is a good reason (among many others of course) for having as little of it as possible.

Judicial Independence, Freedom, and Duty

Judicial independence is a familiar idea, though it is also a difficult one, in more than one sense. Difficult to accept, on the one hand, because independence from political, and ultimately electoral, control seats uneasily with our notions of democracy in which political power (which judges exercise, since they make their decisions in the name of the community) must spring from and be answerable to the voters. Difficult to work out, on the other hand, because even if we agree that, democratic qualms notwithstanding, that judicial independence is a good and important thing, we are bound to disagree about what, exactly it means or requires. To what extent can the executive be involved in the administration of the courts? Can the legislature lower the judges’ salaries along with those of all civil servants? Can it fail to raise these salaries for some prolonged period of time? People, and polities, committed to judicial independence as a principle can give different answers to these questions.

There is also a more profound difficulty with judicial independence, as Fabien Gélinas points out in a short and very interesting paper. (Full disclosure: prof. Gélinas taught me constitutional law at McGill, and I worked for him as a research assistant on several projects on judicial independence, among others, though not on this one.) As prof. Gélinas says, there some confusion not only over what judicial independence is, but also over what it is for. In fact, he argues, it has two distinct purposes. One is to ensure the impartiality of ordinary adjudication. Judges need to be independent and secure in order to avoid situations where they will have or will be seen as having an interest in the case before them. No one ought to be the judge in his own case. Nemo judex in propria causa. (As prof. Gélinas observes, the maxim, in this form, is not actually Roman―he traces it to Lord Coke. The Roman law had rules to the same effect, but neither as general nor as pithy.) The second purpose of judicial independence is to guarantee that the judiciary will, along with the legislature and the executive, have what Madison called “a will of its own”, an ability to stand up to the other branches of government. Prof. Gélinas says that this is peculiarly important in the modern state, where citizens recognize the possibility that the executive, and even the legislature, will abuse their power, and must be kept in check, particularly by means of judicial review of legislation. If courts are to expose and resist the abuses of the “political branches”, they must be, and be seen to be, impartial not only as between private litigants, but also between private litigants and the government itself.

This is interesting, but I think it does not go far enough.  The focus on judicial review is unjustified. The political branches are not just involved in litigation against citizens in cases involving claims that a statute is unconstitutional. Much more frequently, citizens challenge the legality of executive, rather than the constitutionality of legislative, action, and in such cases too the judiciary must be independent in order to adjudicate impartially. But notice too that we are still speaking of impartiality here―albeit between citizen and state rather than between two citizens. I think that the second purpose of judicial independence, one that arguably goes beyond impartiality, is to avoid situations where judges become instruments of state policy, as administrative agencies can be. Even where the state is not involved in litigation, it might still want, for policy reasons, the case to come out a certain way. Depending on its political preferences, a government might like courts to favour, say, employees over employers in unjust dismissal cases, or corporate defendants over plaintiffs in product liability cases. Judicial independence is means to make sure that if a cabinet minister in such a government picks up the phone, rings the Chief Justice, and tells her about the government’s preference for these outcomes, the the Chief Justice will tell him to go to hell―and that she will not suffer for it.

Of course, the legislature can, subject to the constitution, change the law to, say, make proof of liability for a defective product easier, or to expand the definition of what constitutes just cause for dismissing an employee. But it must do so publicly, after at least a modicum of parliamentary debate, and usually prospectively, so that those affected by the change will have time to prepare for it. A change in the law is also more difficult to reverse than a change in policy, so it is less lightly to be undertaken lightly, as a matter of temporary convenience. Judicial independence does not stop the government from acting―but it forces it to act transparently, democratically and, perhaps, for good reasons rather than on a whim.

The independence of the judiciary gives judges an extraordinary freedom. Nobody can force an independent judge to decide a case one way rather than another. (Appellate courts have some control over lower-court judges of course, because the latter do not like having their decisions reversed―but they will take the chance sometimes.) They can act in ways that are deeply unpopular and retain their positions. This is precisely what is worrying about judicial independence from a democratic perspective (though if what I said in the previous paragraph is right, judicial independence is also, in some ways, democracy-enhancing). But it is worth asking ourselves what it is exactly that judges are free to do.

The somewhat paradoxical, but reassuring answer is that, by and large, judges are free simply to do their duty. This is not to deny the existence of judicial discretion in hard cases. But even in those cases,  the judge has and keenly feels a duty to decide the case, according to what the law requires, or at least to a rule that fits with the law as it stands, after having respectfully listened to the parties and taken their arguments into account, and to give the reasons for his decision. A judge who is not independent―a judge, for example, who takes orders from the government, or who worries about being confirmed in his job by the legislature, or who is underpaid and seeks to ingratiate himself with a powerful litigant―is not free to do his judicial duty.

The Confusion in Hate Speech

The Alberta Court of Appeal delivered an interesting decision on the meaning and application of prohibition on “hate speech” in the province’s human rights legislation. The case, Lund v. Boissoin, 2012 ABCA 300, concerned the publication in a Red Deer newspaper of a letter to the editor urging citizens to resist “the homosexual agenda”, and in particular the teaching of homosexuality’s acceptability in schools. The letter was intemperate and offensive. Two weeks after its publication, a gay teenager was attacked in Red Deer. Outraged by the letter and the attack, an activist brought a complaint against the author of the letter and an organization of which he was the head to the Alberta Human Rights and Citizenship Commission, saying that it contravened the provision of Alberta’s human rights legislation that prohibits publishing or causing the publication of a statement “likely to expose a person or a class of persons to hatred or contempt” on the basis of a personal characteristic, such as sexual orientation. Eventually, a tribunal found in the complainant’s favour, and ordered the respondents to apologize and to pay damages. That decision was then overturned by the Court of Queen’s Bench. The complainant appealed.

Importantly, the parties did not raise constitutional issues on appeal. The court suggests quite strongly that these issues deserve to be debated. It wonders whether the hate speech prohibition is intra vires the province, in light of the “Implied Bill of Rights” cases holding that Parliament has the exclusive power to regulate (political) speech, and whether they are in keeping with the Charter’s guarantee of freedom of expression. But since the parties do not argue these issues, the court cannot decide them, much as―one suspects―it would like to. As McGill’s prof. Fabien Gélinas writes in a paper on “Virtual Justice and the Rule of Law,” “in all but the exceptional cases, [the judge] can only answer those questions that someone cares to ask him―which are not by any means always those which he yearns to answer.”

Proceeding on the basis that the statute is constitutional, the court nonetheless must interpret it to decide what “expos[ing] a person or a class of persons to hatred or contempt means.” It must also interpret an exception to the general prohibition on publishing statements having that effect, which provides that “nothing” in the prohibition “shall be deemed to interfere with the free expression of opinion on any subject.” And it must decide whether the respondent’s letter fits the scope of the prohibition and the exception.

On the interpretation of the general prohibition, one issue was whether, in order to come within its scope, speech had to have some sort of nexus to actual discrimination or infringement of human rights. The judgment below reached this conclusion, and the provincial Attorney General, who intervened, supported it. But the Court of Appeal rejects it firmly, holding that it had no basis in the language of the statute. The narrower interpretation is the result of a “reading down” of the statute, a narrow reading designed to preserve its constitutionality where a broader one would be unconstitutional. But here there is no conclusion―though there is doubt―that the broader, “plain” reading of the legislation is unconstitutional, so the reading down is uncalled for. The other issue, of course, is the meaning of the phrase “hatred or contempt.” Relying the Supreme Court’s interpretation of the same words in equivalent federal legislation, the Court of Appeal finds that it must be a narrow one, encompassing only extreme ill-will.

Applying this interpretation to the respondent’s letter, the Court holds that it does not reach the level of extremeness prohibited by the statute. A statement alleged to expose people to hatred or contempt must be considered in context. In particular, it is important to keep in mind that in a free society, it is permissible to express opinions on the morality of others’ behaviour―and thus to say that a person’s behaviour is immoral. Here, the context was a live public debate on the appropriateness of schools’ teaching children about homosexuality. As part of this debate, an independent newspaper concluded that the views the letter expressed deserved to be brought to the public’s attention―and that the readers’ critical response to it would be enough to promote tolerance. Thus

“[w]hether offensive or not, the letter was perceived to stimulate and add to an ongoing public debate on matters of public interest, as distinct from hate propaganda which serves no useful function and has no redeeming qualities” (par. 70).

It is also the expression of an opinion on the morality of certain behaviour, which is a matter of public debate.

“Frequently, expression on these topics arises from deep seated religious conviction , and is not always temperate. It is unfortunate when some choose to express their opinions in a crude and offensive manner, but sincerely held convictions sometimes give rise to extreme polemical speech. Freedom of speech does not just protect polite speech” (par. 72).

Ultimately, says the court, reasonable people will differ about what amounts to hate speech and what doesn’t. But in its view, the respondent’s letter is nothing more than “an overstated and intemperate opinion of a writer whose extreme and insensitive language undermines whatever credibility he might otherwise have hoped to have” (par. 77).

Although it thus concludes that the letter does not come within the scope of the prohibition on hate speech, the Court considers the meaning of the exception for expression of opinions. The trouble, in its view, is that it seems to be so broad as fully contradict the general prohibition. In order to avoid interpreting one provision so as to cancel out the effect of the other, the court below blended the two is a sort of balancing exercise, treating the exception as a reminder of the importance of freedom of expression. The Court of Appeal holds that this is not the right approach. The statute’s words must be given their full effect. The exception cover all statements of opinion―but not purported statements of fact. The letter at issue, the Court holds, is an expression of opinion, and thus covered by the exception.

In effect, the Court interprets the hate speech provisions of Alberta’s human rights legislation as a prohibition on the more extreme forms of group defamation. The distinction between purported statements of fact and opinion comes straight from the law of defamation―though the law of defamation is very wary of the idea of group defamation, requiring the plaintiff to be identifiable as the subject of the defamatory statement. And there is another importance nuance in the law of defamation. It only protects statements of opinion for which accurate factual context is either provided with the statement, or is deemed to be generally known. The Court doesn’t seem to import this limitation in its interpretation of the hate speech provisions.

Overall, this case illustrates, once again, the problems with attempts to prohibit hate speech. I have some sympathy for the impulse behind the attempts (defended, for example, by Jeremy Waldron in this column). But when it comes to transforming the good intention into statutory language, the outcome tends to be hopeless vague. And judicial interpretation results in the statutes being vanishingly  narrow, yet at the same time still desperately unclear. Whether or not it is philosophically attractive, hate speech legislation is not a success.

Federalism and Judicial Review

First of all, apologies for my silence in the last 10 days. I have a partial excuse in that I gave a guest-lecture in Fabien Gélinas’ constitutional law class at McGill last Thursday, about the Rule of Law and the legitimacy of the judges’ law-creating activity, which of course had me freaking-out to prepare. But it went well―the students, with just a month of law school under their belts, deserve a lot of credit for understanding the material which was quite difficult―and I have no excuses any more, and I plan to resume a more normal blogging pace now.

There’s no shortage of material either, but I start off with more shameless self-promotion. I just posted a new draft paper, “Federalism and Democracy: A Defence of Federalism-Based Judicial Review“, on SSRN.  It is a response to critiques of judicial enforcement of constitutional divisions of power between federations and sub-federal units, such as ss. 91/92 of the Constitution Act, 1867. Although such criticism is seldom heard in Canada, it is common enough, at least in the legal academia, in the United States, and it is also an implication, albeit an unexplored one, of the general critiques of judicial review, such as that of Jeremy Waldron.

Here is the abstract:

Not only critics of judicial review of legislation, but sometimes even those who support its use to protect the rights of individuals or minorities are critical of judicial review on federalism grounds. I want to argue that they are mistaken. When it is used to protect a federal division of powers, judicial review of legislation is not only counter-majoritarian, but also pro-majoritarian.

In a federation, democracy happens at more than one level, a democratic federal legislature and democratic state legislatures. Thus, insisting that issues of federalism must be resolved democratically obscures the fact that, in a federation, there are different decision-makers with different constituencies and democratic claims of equal strength. To allow one of these decision-makers to impose its understanding of federalism on the other is no less undemocratic than to subject it to judicial review.

“Political safeguards of federalism” cannot resolve this problem, because they are either ineffective at giving states a voice in federal legislation or, if effective, they allow states to override the views of the national majority. Judicial review is the best practical solution for settling disputes about federalism. From a democratic standpoint, it is not a mere loss, but an important investment.

I will present it at the Third Annual Constitutional Law Colloquium at the Loyola University of Chicago School of Law in early November, and then revising it before, I hope submitting it for publication. So comments are more than welcome.

Moving the Earth

Last week, the Supreme Court issued an important judgment on the law of public interest standing. Although it might seem like a technical issue, the importance of standing, or locus standi, was already clear to Archimedes 2200 years ago, when he asserted that if given a place to stand, he would move the earth. Ok, maybe he didn’t mean that sort of locus standi, and anyway he spoke Greek, not Latin. But in law no less than in physics, if you want to move the earth, you need a place to stand.

The Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 makes finding one easier. It relaxes, or clarifies, as the Court’s judgment insists, the test courts use to determine whether to grant “public interest” standing to a party who does not have standing―simply put, the right to initiate a lawsuit―to challenge the legality or constitutionality of government action under the traditional (“private interest”) definition of standing, which requires the would-be plaintiff to have a specific personal interest in the dispute.

The would-be plaintiffs in Downtown Eastside are an organization and a former sex-worker who want to challenge the constitutionality of the Criminal Code‘s provisions relating to prostitution, which they say infringe their rights to freedom of speech, freedom of association, security of the person, and equality before the law. Since they neither stand accused under the Criminal Code provisions they want to challenge nor are likely to find themselves in that position, they have no “private interest” in the challenge. But, they say, they should be given standing in the public interest. The Supreme Court of British Columbia refused to do so; the Court of Appeal reversed that decision, and the government appealed. The Supreme Court dismissed the appeal.

Courts can grant a would-be plaintiff public interest standing when his challenge raises serious and justiciable issues, the plaintiff has a genuine interest (in a non-technical sense―this is not a legal interest, in the sense of a personal stake) in the dispute, and, as the Supreme Court put it in Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575 at 598, “there is no other reasonable and effective manner in which the issue may be brought before the Court.” But, as Justice Cromwell explains in his opinion for the unanimous Court, “no” here doesn’t quite mean no.

Rather, than a categorical bright-line rule, the test is a flexible standard, requiring the court to assess “whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). This still allows the courts to accomplish the purposes of the rules on standing: to keep away “mere busybodies” (more hypothetical than real, says the Court) and economize judicial resources; to ensure that courts will be expose to a full adversarial debate; and to keep them within the bounds of their constitutional role. At the same time, it helps enforce “the principle of legality,” which requires constitutional and statutory authorization for government action, by ensuring that no unconstitutional or illegal action can permanently escape a legal challenge.

Justice Cromwell provides (par. 51) a helpful, albeit non-exhaustive, list of factors to be taken into account in deciding “whether the proposed suit is a reasonable and effective way to” litigate an issue. These include a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court―in practice, not in theory.

Applying these considerations to the would be-plaintiffs in Downtown Eastside, Justice Cromwell finds that they favour granting them public interest standing. In particular, he considers that, contrary to what the trial judge had found, it would be very difficult for the same set of issues to be raised in any other manner. To be sure, individual sex workers or their clients are often charged under the Criminal Code’s prostitution provisions. But even when they challenge the constitutionality of the provisions under which they are charged, they do not―and cannot as of right―challenge the whole scheme adopted by Parliament to deal with prostitution. Nor do they have the sort of resources the would-be plaintiffs here will bring to bear. (Anyway, many of these challenges are not heard because the cases are resolved otherwise.) He also notes that, given the legal and social stigma prostitution engenders, potential individual plaintiffs are unwilling to come forward to bring a comprehensive challenge of their own volition.

This could turn out to be a very important decision―or not. The degree to which the circumstances in which sex workers find themselves prevent them from challenging the laws that affect them might be unique. And we have no way of knowing, for now, just how flexibly courts will apply the “reasonable and effective” standard Justice Cromwell articulates.

I will, at least for now, refrain from further commentary. That is, first, so as not to over-extend an already lengthy post. But second, and more importantly, because my NYU colleague, Trudeau Scholar, and wonderful person, Lisa Kerr, who worked on the winning side of this case with the Pivot Legal Society (which represents the would-be plaintiffs), will soon guest-blog about it here. I am very much looking forward to her comments. I’ll save mine for later, if there is anything left to add.

State, Means, and Ends

I am auditing Jeremy Waldron’s seminar on human dignity this semester. Since prof. Waldron’s rule is that auditors “must be seen but not heard” in class, I will use the blog as an outlet for thoughts and comments.

One thing we did in yesterday’s seminar was to go through the rights-protecting amendments to the U.S. Constitution and look for ways in which they can be said to rely on or further dignitarian ideas. It’s an interesting exercise, because it highlights the variety of these ideas, and shows how specific rights are connected to some of them, but not others. For example, dignity is associated with autonomy or self-direction, and the First Amendment’s protection of the “free exercise” of religion can be read as upholding that autonomy. Dignity is also associated with (high-status) equality, and the guarantee of the “equal protection of the laws” in the 14th amendment, or voting equality in the 15th and the 19th are related to that strand in the dignitarian thought. (Of course, a right can be related  to more than one facet of the concept of dignity. For example, the prohibition of slavery in the 13th amendment is related both to autonomy and to equality.)

Now there was, as I remember it, a single section of the Bill of Rights for which no one, apparently, seemed able to come up with a dignitarian explanation: the Third Amendment, which prohibits the quartering of troops in private houses in peacetime without the consent of the owner. But I think that it can actually be related to one familiar dignitarian idea: Kant’s injunction against treating persons as means to an end rather than as ends in themselves. When the government, without your consent, uses your house as improvised barracks, it treats your expense of time and/or money on building or buying and keeping up the house as means to its own ends.

The Bill of Rights contains other rights related to the same sense of dignity, notably in the Fifth Amendment, which includes protections against the taking of private property by the state without compensation and against compelled self-incrimination. (Arguably, the Canadian Charter of Rights and Freedoms is rather less protective of this aspect of dignity, but it also includes a protection against compelled self-incrimination.) Yet in other ways the U.S. Constitution (as well as the Charter) countenances and arguably even requires the use of citizens as means to the government’s ends. It does not prevent the draft, for example. It also protects the right to jury trials, which means that the state must conscript citizens to serve as jury members.

I wonder what to make of this contradiction. Is it even a contradiction, or is there some broader principle, or some distinction, that I am missing? If it is, is it wrong? Can or should we do things differently? Your thoughts are very welcome.

Google as Regulator, Part Deux

A recent story, reported for example by the Globe and Mail, nicely illustrates Google’s dual, and perhaps ambiguous, role as “speaker and censor,” at once exercising, or claiming to exercise, an editorial judgment and making itself he agent of speech-restricting governments, about which I blogged some time ago. According to the Globe, “Google’s search algorithm will begin demoting websites that are frequently reported for copyright violations, a move that will likely make it more difficult to find file-sharing, Torrent and so-called file locker sites.” These websites will not be removed from search results, but they will be harder to find.

This is, it seems to me, an obvious example of “editorial judgment,” which – as I explain in more detail in the post linked to above – Google claims to exercise when designing its search algorithms. At the same time, it is an an example of Google acting, in effect, as a regulator, if not, in this case, as a censor. The decision to demote allegedly-copyright-infringing websites is not, one suspects, motivated by commercial considerations; at least not immediately commercial considerations, since, as the Globe puts it, the move “should please Hollywood” – and other content producers – and perhaps Google considers pleasing them as an investment that will pay off. Google’s state reason for this decision is that it will “help users find legitimate, quality sources of content more easily” (my emphasis). One usually associates concerns for legitimacy with public authorities rather than private corporations.

Indeed, some might want Google to take an even more public-spirited position. As Deven Desai, of the Thomas Jefferson School of Law, notes in a post on Concurring Opinions, “this shift may open the door to more arguments for Google to be a gatekeeper and policer of content.” Indeed, although he does not favour such an approach, he points out that it is a “difficult question … why or why not act on some issues but not others.” Why, for example, copyright infringement but not hate speech? For now, even Google might lack the data and/or content-analyzing capacities effectively to recognize hate speech. But given how fast technology evolves, this might change sooner rather than later. As prof. Desai observes, if Google becomes a more overt internet regulator, it will be criticized, for example from a competition-law standpoint. But of course it will also be criticized if it refuses to take on that role.

Either way, there will be a lot of interesting questions for lawyers. At what point does Google, acting as a quasi-regulator, become a state agent subject to constitutional constraints? How does competition law, and its prohibition on abuse of a dominant position, interact with the constitutional protection of freedom of speech, if the latter encompasses Google’s freedom of editorial judgment about its algorithm? What sort of due process rights do or should people affected by Google’s editorial decisions have – and what legal framework – for example, administrative or maybe tort law – is appropriate for settling this question? This is a lot to think about. No answers from me for now.

Interpreting Interpretations

I would like to come back to the two cases I mentioned in yesterday’s postA.-G. Canada v A.-G. Ontario, [1937] A.C. 326, better known as the Labour Conventions Reference, and Missouri v. Holland, because they might tell us something about a problem much broader than the issue (important though it is in its own right) that they addressed, the ability of a federal legislature to legislate in order to implement a treaty if similar legislation would be, in the absence of the treaty, of the resort of state or provincial legislatures. The judgments in the two cases are an interesting comparison, being authored by two of the greatest judges of their respective countries (and of the common law world), less than two decades apart – and arriving at diametrically opposed conclusions. One apparent difference between the reasons Lord Atkin and Justice Holmes give for their respective conclusions lies in the interpretive methodologies they use. Could it explain the difference of outcomes?

Lord Atkin’s discussion of s. 132 of the Constitution Act, 1867, and his dismissal of the possibility that this provision justifies Parliament’s power to legislate in order to implement a treaty is remarkably formalist/originalist. S. 132 provides that “[t]he Parliament … of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.” The federal government argued that, in light of Canada’s accession to independence and becoming able to enter into treaties on its own (rather than as part of the Empire), which was not anticipated when the Constitution Act, 1867, was drafted and enacted, this provision should be interpreted as giving Parliament the power to implement not only imperial treaties, but also those concluded by Canada. Not so, says Lord Atkin: “it is impossible to strain the section so as to cover the uncontemplated event” (p. 7 in the document linked to). This from a body which, only a few years earlier, berated the Supreme Court of Canada for its originalism and refusal to “strain the section” in Edwards v. A.-G. Canada, [1930] A.C. 124, better known as the Persons Case, famously insisting that “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”

Now I actually think that Lord Atkin could have made a plausible principled argument for why s. 132 could not be applied to treaties concluded by Canada in its own capacity. Relative to the Canadian constitutional order, imperial treaties were external events; they could be imposed on Canada, without much regard for the usual framework of Canadian federalism and democracy. So arguably it did not matter much which legislature was given the power to implement them. By contrast, the implementation of Canadian treaties, the products of Canada’s own constitution, should respect this framework. (It is perhaps for this reason that s. 132 is found among the “miscellaneous” provisions of the Constitution Act, 1867, rather than along with the distribution of legislative powers in ss. 91-95.) Indeed, Lord Atkin might be hinting at something like this argument, mentioning a “distinction between … obligations imposed upon Canada as part of the Empire by an Imperial executive responsible to and controlled by the Imperial Parliament and … obligations created by the Dominion executive responsible to and controlled by the Dominion Parliament.” But Lord Atkin says it is “unnecessary to dwell upon” this, and it seems not to be the reason for his holding concerning the meaning of s. 132, which is purely what would now be called textualist or originalist.

By contrast, Justice Holmes in Holland explicitly rejects these interpretive methodologies (at 433):

when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

A constitution, says Justice Holmes, should be interpreted in light only of today’s practical concerns. The treaty and legislation at issue concern migratory birds,

a national interest of very nearly the first magnitude … . It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. (435)

(Incidentally, although I am very far from being an expert on the topic, I do not recall any attempts to engage with these arguments in the literature dealing with originalism.)

But is drawing this contrast between Lord Atkin’s and Justice Holmes’s judgments enough to say that interpretive approaches explain their contrary conclusions? It might make sense to suppose that a textualist/originalist approach to the interpretation of federalist provisions of a constitution is likely to be more favourable to state or provinces, while a practical or principled one will favour federal governments. Changes in the way our societies function (in the economic realm especially) seem to dictate larger roles for central governments at the expense of local ones. Some have characterized the Supreme Court’s ruling in Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, declaring unconstitutional the establishment of a federal securities regulator, as impractical and stuck in the 19th century.

Yet if one looks carefully at the reasons in the Labour Conventions Reference and in Holland, things are not so neat. Justice Holmes is a textualist when he parses the Supremacy Clause of Article VI of the U.S. Constitution for confirmation of the status of treaties, while Lord Atkin is mindful of principle and of practical concerns when he calls our attention to the reasons behind the federal division of powers in the Constitution Act, 1867, and insists that “[i]n totality of legislative powers, Dominion and Provincial together, [Canada] is fully equipped” (p. 10) to implement any treaty it enters into. Debating the merits, whether in terms of legitimacy or of consequences, of constitutional interpretive methodologies can be entertaining (as the American academia’s fascination with such debates attests). But it is questionable whether their real-life application is ever so pure as to make the ostensible choice of one methodology over another matter much.

Go Ask Your Mom!

Is it conceivable that states, like a child who, denied by one parent, asks the other to let them stay up late, ask around for permission to do something they would not normally be permitted? Lord Atkin enlisted the threat of such a course of action as an argument in his famous opinion for the Judicial Committee of the Privy Council in The Labour Conventions Reference, writing (at p.9 in the document linked to) that “it would be remarkable that while the Dominion could not initiate legislation however desirable which affected civil rights in the provinces, yet its government … need only agree with a foreign country to enact such legislation.”

The judgment, denying Parliament the ability to enact social legislation it felt was necessary to respond to the Great Depression on the ground that such legislation was for the provinces to adopt, made a lot of people furious and, if I remember well, F.R. Scott for example criticized this suggestion as being fanciful fear-mongering. Justice Holmes, writing for the majority of the Supreme Court of the United States in Missouri v. Holland, 252 U.S. 416 (1920), a case that presented much the same issue as Labour Conventions, did not even consider this question, and went on to hold – contrary to Lord Atkin and the Privy Council – that the federal legislature could legislate to implement an international treaty regardless of its (dis)ability to enact the same legislation in the absence of a treaty.

But recent developments suggest that Lord Atkin’s worry it is not so crazy anymore, if it ever was. On intellectual property for example, states (and supranational organizations such as the European Union) have apparently taken to using free-trade agreements as vehicles for smuggling into their domestic legislation restrictive rules on intellectual property which they would might find politically impossible to enact in stand-alone statutes visibly devoted to this purpose, as University of Ottawa’s Michael Geist has detailed in a series of blog posts.

Of course, there is a crucial difference between this example and the Labour Conventions case. The impediments to legislative expansions of IP rights are (mostly) purely political, not constitutional. In such cases, Lord Atkin’s “watertight compartments” (p. 10) are of no assistance. Nonetheless, his insistence that the existence of an international treaty should not prevent us from insisting that the usual constraints, be they constitutional or political, on government power ought always to be be upheld. Foreign governments should not be able to play the lenient parent if domestic courts, or voters, are inclined to be strict.

Arguing with Death, Again

I wrote, three months ago now, about the sorts of arguments people make for and against the death penalty. Contrary perhaps to our intuitions, from at least the times of Thucydides, death penalty’s opponents have tended to resort to consequentialist arguments, while its supporters have relied on appeals to justice. A couple of interviews the BBC has taken in California, where the abolition of death penalty is going to be the subject of a referendum in the fall, confirm this trend – mostly.

The mother of a murdered child, who supports the death penalty, talks about justice for the killer. “He deserves” to be put to death; he ought to pay for the victim’s suffering. The former warden of a prison who once oversaw executions and now opposes the death penalty talks about its expense and ineffectiveness.

Things are more complicated though. The mother (perhaps prompted by the interviewer, whom we don’t hear) speaks of lethal injection being “humane,” the “most humane” thing that can be done to the murderer. Never mind whether this is really so. What I want to emphasize is that, despite appealing to justice in the shape of retribution, she is not calling for him to be tortured and brutalized as he tortured and brutalized her son. The ex-warden, for her part, brings up the irrevocable injustice of innocents possibly being executed.

And then there is, on both sides, an argument that I hesitate classify as being either about justice or about consequences – the one about “closure.” The mother says she needs the death penalty inflicted on her son’s killer to have it; the ex-warden says that’s a “false hope.”

So the issue is complex. Still, a point a made in my original post might be true. Arguments made for the sales pitch to the electorate might (need to be) different from those that avail in philosophical disputations or even in a personal reflection on a fraught moral issue. (This might, incidentally, be a partial response to the worry, expressed for example by Jeremy Waldron, that judicial resolution of moral issues like the death penalty takes them from the realm of serious thinking into that of legal technicalities. It seems that the political process isn’t much better than the judicial one, since also transforms the way these issues are considered, albeit in a different way.)