Not So Super Majorities

We all want to live under good constitutions… whatever good really means. But how do we make sure that our constitution is, in fact, good? In a post at the Volokh Conspiracy (part of a series discussing their book on originalism), John McGinnis and Michael Rappaport argue that that “stringent supe[r]majority rules provide the best way to make a national constitution.” A constitution, they say, should be enacted by a super-majority and placed beyond the reach of amendment, except again by supermajority. I do not think that they succeed in demonstrating this claim.

First, it is important to distinguish two questions which professors McGinnis and Rappaport seem to run together. One concerns the best way to enact a new constitution; the other concerns the best way to amend an existing one. To be sure, this distinction is somewhat artificial and can be difficult to make; at some point an amendment might be so fundamental as to be equivalent to the making of a new constitution. Nevertheless, there seems nothing wrong with the idea that, say, the unanimous agreement of formerly independent states is required to create a new federal constitution uniting them, which will subsequently be amendable without their unanimous consent. The opposite move ― the creation of a constitution with lower support than would be required to amend it ― might seem sneaky, but I’m not sure that it is actually wrong in all circumstances. In Canada, the Constitution Act, 1982, was entrenched with the support of nine provinces, yet it requires the agreement of all ten for some types of constitutional amendment. I am not aware of anyone having criticized it for that reason.

Be that as it may, professors McGinnis and Rappaport seem to think that both the initial creation of a good constitution and the making of good amendments thereto require supermajority agreement. They make four arguments in support of this view. First, [“s]upermajority rules … screen norms for substantial consensus and bipartisan support,” which, in turn, “creates legitimacy and allegiance as citizens come to regard the Constitution as part of their common bond.” Second, “supermajority rules … encourag[e] richer deliberation about the Constitution.” Third, supermajority requirements ensure that citizens know that they might not be able to change the constitutional rules when they apply to them, and hence are more likely to settle on rules that are fair to all and express the public interest rather than partisan advantage. And fourth, “[s]upermajority rules also generate constitutions that are more likely to protect minorities,” since minorities are able to block the enactment of rules that do not protect them.

I do not think that any of these arguments proves that supermajority rules are either necessary or sufficient to make good constitutions. To keep this post from being much too long, I will mostly focus on the first claim ― that supermajority agreement on the contents of a constitution makes it more legitimate. However, here some quick thoughts about the other ones. Supermajority rules can, indeed, encourage richer deliberation, but they can just as well encourage unprincipled compromise, such as the “trading of fish for rights” that preceded the enactment of the Constitution Act, 1982 ― or, say, the compromise that preserved slavery and even give slave-owning states disproportionate political power under the U.S. Constitution as originally enacted. For the same reason, supermajority rules do not guarantee that a constitution will respect the public interest ― they might simply encourage horse-trading between partisan factions instead. And while supermajority rules can protect minorities, they can also give them the power to extract disproportionate advantages or protections that are larger than necessary and unduly impede collective action.

To return now to the claim that the legitimacy of and citizens’ loyalty to a constitution depend on the breadth of the consensus on its contents, it seems to me that it leads to absurd consequences. Most obviously, it means no only that supermajority is better than simple majority, but also that unanimity is better than any other supermajority. Yet professors McGinnis and Rappaport are not arguing for unanimity. Perhaps that is merely because it would be impractical. Perhaps also there is, in fact, a diminishing return on additional support, at least past a certain threshold. Yet it is not clear where that threshold lies, and whether it does in fact lie in supermajority territory. For some purposes―including elections in the Canada as well as in the U.S. ―we accept a plurality, not even a simple majority as sufficient for the win. Indeed, it is possible for a party or a candidate to win such elections without even a plurality of the national popular vote. It is reasonable to demand that a constitution, expected to endure for decades and even centuries, enjoy higher support than a politician elected to hold office for four or five years, but it is by no means clear just how much higher.

However, there is an even more fundamental problem with the argument that constitutions are best enacted and amended by supermajorities because their legitimacy is a function of the consensus they generate. If a constitution (however enacted) can only be amended by a supermajority, then it is quite possible for a constitutional provision to remain in force even though a majority of the people come to think that it is a rotten one. The more stringent the supermajority requirement, the wider consensus the can be on the need for constitutional amendment without the amendment being realized. From the standpoint of a consensus on the substance of constitutional provisions, the constitution is in such circumstances quite illegitimate, and thus supermajority requirements make illegitimate constitutions more, rather than less, likely.

I am inclined to think that what makes a constitution ― or, for that matter, a government ― legitimate is not the breadth of substantive agreement with it, but agreement on the procedures that led to its creation. This is what explains the continuing legitimacy of constitutional provisions with which a majority of citizens ― but one not sufficient to overcome a supermajority requirement ― disagree with. The focus on the contents of constitutional rules imposes too high a threshold for their legitimacy.

What I have said so far means that supermajority rules are not sufficient to make a good constitution. They are also not necessary. It is, surely, possible to arrive at good rules (whether by this we mean rules that generate broad agreement, or are conducive to the public interest, or protect minorities) by other procedures too, whether simple majority, through the development of constitutional conventions, or through adjudication. (On this last point, professors McGinnis and Rappaport recognize, in a subsequent post, that in some cases, judicial “precedent now enjoys such strong support that it is comparable to that necessary to pass a constitutional amendment.”)

The question of what procedure, if any, is the best for making a good constitution is clearly a difficult one. I have not attempted to answer it in this post. I do think, however, that professors McGinnis and Rappaport have not succeeded in demonstrating that supermajority enactment and amendment is that procedure. Supermajority requirements have some benefits, but also considerable flaws.

What to Make of the Constitution

I have written a post on the Senate Reference hearings for I-CONnect, the blog of the International Journal of Constitutional Law. In large part, it follows up on and develops some of the ideas I had in my first impressions post last week, with a bit more context. I am cross-posting it below.

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Over the course of three days last week, the Supreme Court of Canada heard submissions from the federal government, the ten provinces, two territories, two ami curiae, and several interveners on the constitutionality of the federal government’s proposals for reforming the unelected upper house of the Parliament of Canada, the Senate. Beyond the obvious importance of possible Senate reform, which has been discussed almost as long as Canada has existed, this case is potentially of great significance because it is the first time the Court considers the meaning of Part V of the Constitution Act, 1982, which includes Canada’s plethora of procedures for constitutional amendment.

The questions the Court is called upon to answer concern four possible reforms. First, the limitation of the terms of a senator’s office, currently held until a retirement age of 75, to a fixed number of years (possibly 9 or 10) or to the life of two Parliaments (about 8 years under normal circumstances, but shorter in the case of minority governments). Second, the creation of a system of consultative elections to be held in the provinces that desire it, the winners of which the Prime Minister would be required to “consider” recommending to the Governor General for appointment to the Senate. Third, the removal of the “property qualification” of $4000 to hold senatorial office, a considerable sum in 1867, meant to ensure the Senate’s position as the House of privilege, but by now a somewhat comical relic of an age long gone and little lamented. And fourth, the outright abolition of the Senate.

The first three of these reforms, the federal government argued, could be implemented by Parliament acting unilaterally, either under s. 44 of the Constitution Act, 1982 (for term limits and the property qualification) or under the residual “peace, order and good government” power of s. 91 of the Constitution Act, 1867 (for consultative elections). As for abolition of the Senate, the federal government took the position that it could be done under the “general” amending formula of the Constitution Act, 1982, requiring the consent of 7 provinces representing at least 50% of Canada’s population (the “7/50 formula”). Most provinces, as well as the interveners, however, are of the view that the instauration both of term limits and of consultative elections can only be done under the 7/50 formula, and that abolishing the Senate requires the provinces’ unanimous consent.

Legally, the reasons for these disagreements come down to differences over the proper way of interpreting Part V of the Constitution Act, 1982. Part V applies to changes to “the Constitution of Canada,” and provides several different amending formulae, ranging from unilateral action to agreement between the federal Parliament and all the provinces, depending on the subject of the proposed amendment. The trouble is that the subjects singled out for special amending formulae are described in confusing terms, making it unclear under which provision of Part V a proposed amendment falls. But the confusion goes even deeper, because the very definition of “the Constitution of Canada,” to the amendments to which Part V applies, is unclear and incomplete.

Over the course of arguments before the Supreme Court, there emerged three interpretive approaches that the Court might adopt. The federal government’s preferred approach is―its denials notwithstanding―literalist. On this reading, the “powers of the Senate” entrenched by s. 44 do not include any senatorial independence that might be compromised by shortened term limits. The expression “method of selecting senators,” in the same provision, refers only to the formal appointment by the Governor General, and not to the fact that Senators are understood to be appointees lacking electoral legitimacy. And, since the list of constitutional changes requiring unanimous agreement of the provinces in s. 41 of the Constitution Act, 1982, does not specifically mention the abolition of the Senate, it does not cover it.

A second approach, championed by Québec, might be called originalist, in that it focuses on preserving the bargain struck at confederation in 1867. The Senate was, all agree, a central element of that bargain, so it is not to be touched without the consent of the parties to that bargain―that is to say, the provinces as well as the federal government. And even if some of the expectations of these parties, such as those regarding senatorial independence, have not been fulfilled, they must be upheld “regardless of reality.”

Most provinces, however, as well as the interveners and the amici curiae, urged the Court to take what was often described as the “living tree” approach, focusing not so much on the words of the constitutional text or the historical compromises that gave birth to it as on what matters most for its present and future operation. So the “method of selecting senators” is not only the part of the selection process described in the constitutional text (i.e. the appointment by the Governor General); “the powers of the Senate” include its independence, whatever exactly that might be (since it is clear that the Senate is, in fact, a political, partisan body); and the requirement of unanimous consent applies not only to the changes listed in s. 41, but also to other fundamental changes to the constitution.

In reality, however, interpretive approaches are not so neatly distinct. In what an intervener described as a dangerous application of the living tree approach, the federal government urged the Court to allow Parliament to bring the Senate into the 21st century, and not to require unrealistic levels of political agreement, condemning the country to another “135 years of talks.” Conversely, those opposed to the federal government’s proposal made much of the fact that the abolition of the Senate was simply not contemplated when the amending formula was being drafted in 1981, arguing that this, rather than the relative unimportance of such a change, explained its conspicuous absence from s. 41. As a bemused Justice Rothstein put it to Manitoba’s lawyer, “whatever works?” “Welcome to the law,” she replied.

What works, and what doesn’t, are questions that will weigh heavily on the Court’s collective mind. What works with an amending formula which, although drafted merely a generation ago, seems to reflect a very different country than the one in which we now live? A country where constitutional negotiations were not being described as the opening of a “can of worms,” and where agreement on substantive constitutional change seemed within reach; a country much preoccupied by the then-Prime Minister’s suspected republicanism, but not all by the prospect of the abolition of the Senate; a country that thought nothing of ruling its northern territories like colonies, and its First Nations like subject peoples, whose views on constitutional change could safely be ignored. What sort of authority can a constitutional text drafted under such circumstances have? Yet saying that this text is insufficient to meet the needs of today―never mind those of the years and decades to come―only forces one to confront the question of what sort of authority the Supreme Court has effectively to re-write it.

Yet the Supreme Court of Canada has not been shy about intervening in constitutional reform in the past. It stopped possible Senate reform in its tracks with the in 1979, prevented unilateral Patriation of the constitution in 1981, and ruled that a unilateral secession of Québec would be illegal in 1998. In none of these cases was it relying on explicit constitutional provisions. In all of them, it ruled that constitutional change required a broad agreement between the federal government and the provinces, and could not result from unilateral action. Although it is, of course, dangerous to make such predictions on the basis of questions asked at oral argument, insofar as it concludes that Part V of the Constitution Act, 1982 does not clearly reflect this preference for consensus, the Court did not seem very likely to heed the federal government’s call for it not to treat the constitutional text as a mere “suggestion box.”

First Impressions

I will have more structured and fuller thoughts in the next days, but here are some initial impressions, in no particular order, of the Supreme Court’s hearings on the Senate Reference, almost all of which I watched.

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This case is, of course, largely about constitutional interpretation. (Much more so, in fact, than most constitutional cases in Canada, certainly much more than the many Charter cases where the constitutional text is barely alluded to.) Now, in Canada, we often think of constitutional interpretation as involving a choice between two options: the “living tree” approach on the one hand, and something like originalism on the other. But the arguments in the Senate reference suggest that there are, in fact, at least three different approaches: the living tree, which most provinces invoked; originalism, in the sense of giving an overriding importance to the bargains that made confederation possible, which was Québec’s preferred approach; and literalism or textualism, which is the federal government’s. In reality, things are even more complicated, because the provinces also rely on constitutional structure, and the amici curiae focus primarily on it. And provinces, despite their invocations of the living tree, don’t hesitate also to appeal to the original bargain. In the funniest exchange of the three days, Justice Rothstein summed it all up as “whatever works,” to which Heather Leonoff, Manitoba’s lawyer, replied: “Welcome to the law!”

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Speaking of the lawyers, it’s a tough job they had. None more so than Nancy Brown, for British Columbia, the first to argue yesterday. She was, perhaps, a bit slow to get into the substance of her argument ― as all of her colleagues who preceded her, none of whom could resist the temptation of reminding the court of the historic significance of the case, had been. As Ms Brown was speaking of the importance of confederation, the Chief Justice snapped that the Court had already heard about it many times, and demanded to be told something “new.” The Chief Justice achieved what I suppose was her aim ― the lawyers who went after Ms Brown focused and shortened their arguments, trying not to repeat too much of what others had said before. But I had the impression that Ms. Brown was somewhat thrown off course by the Chief Justice’s comments, and that it was not very fair to take the court’s (admittedly understandable) frustration out on her in this way.

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Not everybody had such a hard time, though. The academics involved ― Sébastien Grammond, the Dean of the Civil Law Section at the Faculty of Law of the University of Ottawa, was impressive in his argument for the Fédération des communautés francophones et acadienne du Canada, and McGill Law’s Dean Daniel Jutras, even more so. (I’m biased, of course, as an alumnus!) Dean Jutras’ fellow amicus, John Hunter was very good as well, though the Court gave him a hard time. But perhaps the most impressive performance was that of Senator Serge Joyal, who intervened and represented himself. It is often said that a lawyer who represents himself has a fool for a client, but Mr. Joyal is no fool. He spoke with both emotion and intelligence, and brought insights to the Court which the judges had been looking for (about the pre-Patriation constitutional negotiations, in which he was very much involved). Indeed, Mr. Joyal, I think, is precisely the sort of person of whom the Senate was meant to consist. Too bad there are not more of them there.

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As for the best moment involving a judge, it came this morning when Justice Cromwell asked Mr. Hunter, who was arguing that the federal government’s plan to institute purportedly non-binding elections to choose persons whose appointment to the Senate the Prime Minister would have to “consider” did not entail a modification of the constitution, whether the government could, instead of elections, auction off Senate seats ― provided the auction was non-binding. (Mr. Hunter initially resisted, but eventually conceded this would be possible, subject of course to an eventual judgment of the voters. Not a great moment, I think, for the position he was supporting.)

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This brings me to way this will go. The federal government is in trouble. It is, of course, dangerous to make predictions based on hearings, but I have a strong impression that the Court ― all eight judges ― was skeptical of its position. The questioning both of its lawyers and of those who supported its position (as Alberta and Saskatchewan largely did, and Mr. Hunter did in part) was tougher than that of its opponents. Especially issue of the abolition of the Senate, I would be very surprised indeed if the Court were to endorse the federal government’s view that it could be effected without the unanimous consent of the provinces.

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If that is right, however, the Court may well ― though perhaps it will not ― more or less re-write the Constitution Act, 1982. The constitutional text does not, after all, mention the abolition of the Senate, which would at first glance suggest that the federal government’s position that the general amending formula, requiring the consent of 7 provinces with 50% of Canada’s population, should apply to it. What became quite clear in the course of the argument, however, is that the constitutional text does not contemplate a great many things which were not thought of in 1981, including some very fundamental changes, and that the Court seems reticent to hold that such changes (including, for example, turning Canada into a dictatorship), might happen with less than unanimous support. Judging by the tenor of the arguments, the Court may well follow the suggestion of some provinces and of the amici curiae, and hold that such fundamental changes require  unanimity, regardless of what the constitutional text says ― or, rather, doesn’t say. The federal government’s lawyers’ concluding exhortation not treat the Constitution Act, 1982, as a “suggestion box” may have come too late. Yet there would have been no need for it if the government itself had not done exactly that with its plan for getting to an elected Senate through the back door.

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Whichever way the Court’s decision goes ― whether it ends up endorsing the federal government’s plan for getting around constitutional text or re-writing that text ― it would be pretty revolutionary. The Chief Justice might have been tired of hearing it, but this is, indeed, a historic case.

What We Said

Apologies for the recent silence. There was no particularly good reason for it, either. Anyway, I’m back.

And there is a very good reason for that: the Québec Court of Appeal has released its opinion in response to a reference by the Québec government on the constitutionality of the Federal Government’s Senate reform plans, which involve the limitation of Senators’ terms to 9 years and, more importantly, the setting up of provincial elections the appointment of the winners of which a Prime Minister would be obliged to “consider” recommending to the Governor General. In Reference re Bill C-7 Concerning the Reform of the Senate, 2013 QCCA 1807 (the French opinion is here; English translation here), the Québec Court of Appeal holds that this project is unconstitutional if undertaken unilaterally by Parliament; it can only be implemented as a constitutional appointment pursuant to par. 42(1)(b) of the Constitution Act, 1982.

The Court starts off by explaining the importance of the Senate to the Fathers of Confederation. The constitution of Canada was meant to be, as the Preamble put it, “similar in principle to that of the United Kingdom,” and that meant, among other things, having an unelected Upper House of the legislature. The province of Canada had, in fact, experimented with an elected Upper House ― and Sir John A. Macdonald had not liked the experience. The appointed, undemocratic Senate was an essential part of the bargain struck in 1867. To this day, “it seems that the Senate and its members play a significant role in federal political life, and that the institution is not simply a mirror of the House of Commons” (par. 12). The Supreme Court has confirmed the Senate’s position as an entrenched, central part of the compromise that made Confederation possible, in Re: Authority of Parliament in relation to the Upper House, [1980] 1 SCR 54.

So much for the context. The relevant constitutional text consists of, on the one hand, par. 42(1)(b) and, on the other, s. 44 of the Constitution Act, 1982. The former provides that an amendment according to what is usually referred to as the 7/50 procedure, requiring the consent of 7 provinces representing between them at least half of the Canada’s population, is necessary to effect “[a]n amendment to the Constitution of Canada in relation to” any of a number of “matters,” among which are “the powers of the Senate and the method of selecting Senators.” As for s. 44, it provides that “[s]ubject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” Also relevant are s. 24 of the Constitution Act, 1867, which provides that Senators are “summon[ed]” by the Governor General, and par. 41(a) of the Constitution Act, 1982, which requires the unanimous consent of the provinces to amendments “in relation to … the office of the … Governor General.” Québec argued that the proposed Senate reform came within the terms of par. 42(1)(b) as affecting “the method of selecting Senators” and/or par. 41(a) as affecting the office of the Governor General. The Court accepted the former claim, and rejected the latter.

S. 42, it said, should not be interpreted restrictively, as an exception to a more general principle contained in s. 44. These provisions are of equal importance. Amendments relating with the “internal management” of the Senate fall under s. 44; those that have to do with the Senate’s “role[s] within the federal legislative structure, in particular those of ensuring provincial and regional representation and examining bills with sober second thought,” under s. 42 (par. 34).

Crucially, Parliament cannot get around the entrenchment of s. 42 by legislating so as to leave in place the formal provisions of the Constitution while changing the way it operates in practice. For one thing, this would contradict “the principle of supremacy of the Constitution” (par. 43). For another, it would subvert the compromise that made possible the Patriation of the 1981/82, which, so far as the Senate was concerned, had consisted in kicking the can down the road, and postponing any amendments ― to be effected at some later date pursuant to the new amending formula. Finally, s. 42 must be interpreted in light not only of the legal formalities, but also of the political realities of the constitution:

section 42 cannot be read as reflecting a consensus between the federal and provincial governments in 1982 to preserve the formalism but not the reality with respect to the matters set out therein, including the method of selecting senators. … [W]hat interest would the provinces have had when the Constitution Act, 1982 was adopted to protect a juridical reality that, even then, was inconsistent with political reality?

The political reality is that “the method of selecting Senators,” as it existed in 1982, included no electoral process. “The method of selecting Senators” refers not only to their final appointment by the Governor General, but to the entire process leading to that appointment. That process would be modified by the federal government’s reform project. Therefore that project requires a constitutional amendment.

That amendment need not be unanimously supported by the provinces, however, because it does not affect “the office of the Governor General”. While the Governor General is responsible for the final appointment of the Senators as a matter of law, “[i]n reality, the appointment of senators became the exclusive prerogative of the Prime Minister who was then in office whenever a vacancy occurred” (par. 55). The federal government’s reform project would have affected not the Governor General’s (purely formal) role in the process, but the Prime Minister’s. And “to assimilate an amendment of the powers of the Prime Minister with those of the Governor General for the purposes of paragraph 41(a) of the Constitution Act, 1982 would limit Parliament’s powers because of a constitutional convention. Such a limitation does not exist, or at a minimum, does not concern the courts” (par. 58). Conventions exist in a separate, non-justiciable realm. They can be modified by the behaviour of political actors; therefore, a fortiori, they can be modified by statute, without the need for a constitutional amendment.

If this all sounds familiar, it might be because you’ve read Fabien Gélinas’s and my paper on “Constitutional Conventions and Senate Reform,” in which we argued that the amending formula of the Constitution Act, 1982, must be understood in light of the constitutional conventions which determine the practical operation of the constitution. This means, on the one hand, that the “method of selecting Senators” means discretionary decision-making by the Prime Minister and no electoral process, and on the other, that “the office of the Governor General” does not in fact include the power to choose Senators. As a result, the federal government’s reform project comes within the scope of par. 42(1)(b), but not 41(a).

I am very happy with this opinion. I hope that the Supreme Court, which is set to hear the arguments on the federal government’s own Senate reform reference in a few weeks, comes to similar conclusions (and perhaps even spares a few words for us)!