Constitutional Theory
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What’s Constitutional Law, Anyway?
Understandings of what is constitutional law depend on time and place Law is beset with definitional problems. Quite apart from the law’s struggles to define terms external to it, and translation difficulties, 2400 years after Plato, we can even agree about what law is. And it is similarly difficult to define specific legal categories and Continue reading
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Yes Or No?
Post-Brexit thoughts on referenda, especially in the context of electoral reform In the aftermath of the Brexit referendum, there is renewed debate about the lessons, if any, that it might hold for other democratic polities on the use of the referendum generally, and in particular for Canada about an eventual referendum on electoral reform. Many Continue reading
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How To Do Constitutional Adjudication
Some thoughts on Asher Honickman’s take on the judicial role As I mentioned in my previous post, I would like to respond to a number of points that Asher Honickman makes in a very interesting ― albeit, in my view, misguided ― essay written for CBA Alberta’s Law Matters and published at the website of Continue reading
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Expanding Hatred Again
Don’t expand the Criminal Code’s hate speech provisions. Repeal them! This morning, the federal government has introduced a new bill in Parliament, C-16, that would, if enacted, add “gender identity” and “gender expression” to the definition of “identifiable grounds” used in the advocacy of genocide and hate speech provisions of the Criminal Code. (It would Continue reading
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Originalism in Canada
A couple of papers about originalism, and a call for comments As promised in my last post, I have something to show for my silence in the last few weeks. Benjamin Oliphant and I have been working very intensively on a study of originalism in Canadian constitutional law. In a nutshell, we argue that, contrary Continue reading
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Extra Time
Assisted suicide and the trouble with giving politicians time to respond to judicial decisions This morning, the Supreme Court heard oral argument in the federal government’s application to extend the suspension of the declaration of invalidity of the Criminal Code‘s provisions that have the effect of prohibiting assisted suicide in any circumstances, which the Court granted Continue reading
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A Cost/Benefit Analysis of Judicial Review
I want to come back to the issue of judicial review ― both of legislation and of administrative decisions ― and deference, about which I wrote earlier this week. In that post, I suggested that our views on deference in judicial review are a function of our deeper beliefs on such principles as democracy and the Rule Continue reading
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Consistency and Complexity in Judicial Review
In a (somewhat) recent post commenting on Justice Brown’s appointment to the Supreme Court, Paul Daly wrote about “an interesting paradox” in the world of judicial review of decisions by the “political branches” of government: “[t]hose [who] would defer to Parliament would not defer to the executive.” The “conservatives” who are skeptical of judicial review of Continue reading
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Don’t Blame the Courts
Critics of judicial review of legislation, such as Jeremy Waldron, argue that judicial invalidation of democratically enacted laws often occurs in the realm of reasonable disagreement. Perhaps we have a moral right to assisted suicide; perhaps not; it’s a difficult question and we can disagree about the answer ― and it’s not obvious that in Continue reading
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Happy 800th, Magna Carta!
Today is the 800th anniversary of the signing of the Magna Carta Libertatum ― or just the Magna Carta, among friends. The Great Charter has been much celebrated, and also derided, of late. In the New York Times, Sarah Lyall does an excellent job of summarizing the competing perspectives. The celebrations tend to emphasize Magna Carta’s Continue reading
Double Aspect 