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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…
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Mauvaise solution en quête de problème
Les transfuges politiques, les députés qui, en cours de mandat quittent le parti politique sous la bannière duquel ils ont été élus pour en rejoindre un autre, ne sont pas très populaires. Dans la mère-patrie de notre système parlementaire, on les appelle “rats” (d’un sens familier de to rat, « trahir »). Le fait que de grands…
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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…
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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…
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Happy New Year!
Happy 2013 to all my readers! I haven’t been posting much of late due to holiday craziness, but then again I doubt reading up on constitutional law was really a big part of your holiday plans. My apologies, and a tip of the hat, to those for whom it was. I will resume normal schedule…
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The Wrongs of Rights?
The New York Review of Books has an interesting piece by David Cole on Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. The thesis of the book (which I haven’t read, so I’m relying on prof. Cole’s summary) is that litigation in pursuit of the recognition…
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That’s Right
A couple of blog posts published over the holidays seem to confirm that two Canadian appellate decisions about which I posted recently are right―not necessarily as a matter of law, about which the posts don’t tell us much―but at least as a matter of policy. I thought they’re worth pointing out. *** First, at Concurring…
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Remain Nameless
I wrote in the past, here and here, about the serious problems that can result from people’s involvement in lawsuits, and details of their private lives and quarrels being exposed for all to see in court decisions available on the internet. But bad as it is if your name being associated with a lawsuit prevents you…
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The Faint of Heart
Justice Scalia of the Supreme Court of the United States famously admits to being a “fainthearted” originalist, who would hold that the punishment of flogging is “cruel and unusual” and thus prohibited by the Eighth Amendment to the U.S. Constitution, even though, at the time of its ratification, the Amendment was not generally understood to…
Double Aspect 