Constitutional Theory
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Why Do the Write Thing?
Sir Geoffrey Palmer and Andrew Butler, both of them former legal academics and current barristers, Sir Geoffrey having also served as Attorney-General and Prime Minister in between, are about to publish a book advocating that New Zealand enact a “written” constitution. They have also set up a Twitter account and a website to both promote the book and… Continue reading
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Constraint and Candour
The case for a constrained judiciary ― but also candour about adjudication At the website of Advocates for the Rule of Law (ARL), Asher Honickman has posted a reply to my post here on “How to Do Constitutional Adjudication” (which was itself a reply to some of his arguments in a previous ARL essay making “The… Continue reading
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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
