Keeping Faith

A master class in public meaning originalism, delivered by the US Supreme Court’s Justice Elena Kagan

Earlier this week, the Supreme Court of the United States delivered its decision in Chiafalo v Washington, upholding the constitutionality of a state statute imposing fines on “faithless” presidential electors ― those who do not vote for the candidate who won their state’s popular vote. The majority judgment, given by Justice Kagan for a seven-judge majority (and indeed unanimous on some key points), should be of some interest to Canadian readers for what it says about constitutional interpretation and, in particular, about the role of conventions and practice. As others, notably Josh Blackman over at the Volokh Conspiracy, have noted, Justice Kagan’s opinion is a thoroughly, and intelligently, originalist ― which should remind skeptics of originalism inclined to dismiss it as a partisan affectation that it is not.

As Justice Kagan explains,

Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few “electors” then choose the President. (1)

But what is it that ensures that the vote of the Electors is aligned with that of the electorate? The text of the Constitution of the United States says little on this. Article II, §1, cl 2 provides that

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Nothing here suggests that the Electors are bound to follow the popular vote; indeed, nothing here suggests that a popular vote need be held at all. At least some of the framers of the Constitution expected the Electors to exercise their personal discernment in choosing the President. Alexander Hamilton’s vision, in Federalist No. 68, is the best known. He hoped that the President would be chosen

by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

But this is not how things worked out. As Justice Kagan puts it, “[a]lmost immediately, presidential electors became trusty transmitters of other people’s decisions”. (13) This was the result of the development of political parties, not anticipated ― indeed feared ― when the Constitution was being drafted. George Washington was elected without meaningful opposition. But, once he retired, presidential elections were contested by parties. As Justice Kagan explains, initially

state legislatures mostly picked the electors, with the majority party sending a delegation of its choice to the Electoral College. By 1832, though, all States but one had introduced popular presidential elections. … At first, citizens voted for a slate of electors put forward by a political party, expecting that the winning slate would vote for its party’s presidential (and vice presidential) nominee in the Electoral College. By the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors.

The alignment between the popular and the electoral votes (within each State, of course, there being, as we know, no necessary alignment at the national level) was thus secured by a combination of State law and partisanship ― but also by what looks, to an observer based in a Westminster-type constitutional system, an awful lot like constitutional convention. Law allowed partisans to be appointed as electors, and partisanship motivated them to vote for their party’s candidate. But so too did a sense of propriety, of moral obligation. This moral obligation, explains why those electors who, from time to time, broke with their party were called “faithless”. There is normally nothing “faithless”, except to a rabid partisan, about putting country ahead of party. But something greater than partisanship is at stake in the presidential election ― nothing less, indeed, than democratic principle itself. And “convention” is what Westminster systems call the settled practice of constitutional actors rooted in constitutional principle.

Some States, though, felt that relying on convention was not enough, and legislated to back up the electors’ moral duty with a threat of punishment. According to Mr Chiafalo, they could not do so constitutionally. After all, the Constitution’s framers meant for them to exercise their own judgment, guided but not fettered by that of the voters. And the very vote “elector” connotes the exercise of a personal choice.

Not so, says Justice Kagan. For her, “the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect”. (9) A “demand that the elector actually live up to his pledge, on pain of penalty” (10) is nothing more than a condition of appointment, which nothing in the Constitution’s text prohibits. Justice Thomas, concurring (with the agreement of Justice Gorsuch), disagrees with this approach. For him, imposing such conditions is not part of the original meaning of the power of choosing the “manner” of the electors’ appointment. Instead, the States’ ability to do so comes from the structure of the Constitution, which preserves their powers unless expressly limited, and from the Tenth Amendment, which codifies the same principle. Justice Thomas makes some compelling points, but this disagreement is not so important for Canadian readers ― or, for that matter, for practical purposes.

What matters most is Justice Kagan’s firm rejection of an appeal to the purported authority of the Framers’ supposed expectation that “the Electors’ votes [would] reflect their own judgments”. (12) This rejection is firmly rooted in original public meaning originalism:

even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be. (12-13)

This is a great passage. For one thing, it refers to an important reason for being suspicious about the intentions and expectations of constitutional framers: they might not all have agreed with those whose views are on the record. For another, there is an allusion, which I personally find delightful, to Hamilton’s rather hubristic suggestion, in the first paragraph of the Federalist No. 1 that the U.S. Constitution would

decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Justice Kagan understands, as Hamilton did not (or at least affected not to) that choice and accident are not so easily disentangled, even in constitutional reflection. Most importantly, though, Justice Kagan drives home the point that “thoughts” “not reduce[d] … to the printed page”― or, more precisely, the enacted page ― do not bind. Justice Thomas specifically concurs with the majority on this point, explaining that “the Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning.” For all its reputation of being incorrigibly politically divided the Supreme Court of the United States is unanimous on this.

Justice Kagan goes on to make another argument, which is less straightforwardly originalist. She appeals to what she regards as the settled practice ― and what I have suggested we may regard as the convention ― of electors casting their ballots only to ratify the voters’ choice, rather than to make their own. “From the first”, Justice Kagan points, “States sent them to the Electoral College … to vote for preselected candidates, rather than to use their own judgment. And electors (or at any rate, almost all of them) rapidly settled into that non-discretionary role.” (14)

It is not quite clear how much weight this should carry on a proper originalist interpretation. In a post at Volokh, Keith Whittington suggests (based on an article which Justice Kagan actually cited ― for another point) that

we should think of this tradition of pledged electors as a “constitutional construction” that is consistent with the constitutional text but not required by the constitutional text. …  But that by itself does not tell us whether such constructions can be leveraged to empower state legislatures to punish or replace faithless electors or whether this longstanding norm has fixed the meaning of the text in a way that cannot be altered by future changes in our shared practices. How constitutional text and tradition interact is a difficult conceptual problem, and the Court’s opinion highlights that problem without doing very much to explain how it ought to be resolved.

Indeed, I’m not sure that the argument from practice or convention has a great deal of weight for Justice Kagan: she might only be making it to turn the tables on Mr. Chiafalo, who invoked the (quite exceptional, as Justice Kagan shows) example of past “faithless electors” to argue that it proves that the Constitution protected their autonomy.

But Justice Kagan does suggest what I think is a good reason why the argument should have weight in the particular circumstances of this case: the practice, and arguably even the convention, forms part of the context to a constitutional text ― namely, the Twelfth Amendment to the Constitution. This amendment, “grew out of a pair of fiascos” (14) at the elections of 1796 and 1800. Prior to it, electors cast two votes; the candidate who received the most became president, and the next one, vice-president. In 1796 the top two candidates were “bitter rivals” (14) John Adams and Thomas Jefferson. In 1800, Jefferson, his party’s intended presidential candidate, was tied by its intended vice-president, Aaron Burr, as the electors who supported the one all supported the other. To prevent this reoccurring, the presidential and vice-presidential ballots were split. Justice Kagan points out that, in this way, “[t]he Twelfth Amendment embraced” party politics, “both acknowledging and facilitating the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting”. (14)

The issue isn’t quite the same as the one that, as I argue in a recent article about which I blogged here, the Supreme Court of Canada faced in the Senate Reform Reference, 2014 SCC 32, [2014] 1 SCR 704. There, the original public meaning of Part V of the Constitution Act, 1982 had to be established by referring to conventions. In Chiafolo, conventions are not necessary to establish the original meaning of the Twelfth Amendment. But it is arguably fair to say that the Twelfth Amendment implicitly ratifies them, or takes them into account; while it might have been written as it was in the absence of conventions, the fact that is that it was written as it was because the conventions existed. As a result, Justice Kagan’s appeal to practice, or to convention, is, at least, less troubling here than it might have been in the absence of something like the Twelfth Amendment.

All in all, then, her opinion is an interesting demonstration of what good originalism looks like ― and also of the fact that it can be practiced by a judge who is nobody’s idea of a conservative or a libertarian, and with the agreement of her colleagues, including those whose ideological leanings are quite different from hers. Justice Kagan may or may not be correct: at the Originalism Blog, Michael Ramsay argues that she is not. But that does not matter so much to me. As Asher Honickman recently argued in response to another American decision, textualist ― and originalist ― interpretive methods do not promise complete legal certainty, but they are still valuable because (among other things) they narrow the scope of possible disagreements, and do provide more certainty than alternatives. Justice Kagan and her colleagues show us how to keep faith with a constitutional text. We should pay attention.

Immuring Dicey’s Ghost

Introducing a new article on the Senate Reform Reference, constitutional conventions, and originalism ― and some thoughts on publishing heterodox scholarship

The Ottawa Law Review has just published a new paper of mine, “Immuring Dicey’s Ghost: The Senate Reform Reference and Constitutional Conventions“. It’s been many years in the making ― apparently, I started working on this paper in August 2016, a prehistoric time in my own life, to say nothing of the outside world ― and I don’t think I have ever said much about this project here. So let me introduce it ― and let me also say something about its “making of”, in the hope that its complicated, but ultimately successful fate will inspire readers who may be struggling with wayward papers of their own.

Here is the article’s abstract:

Although the metaphor of “constitutional architecture” appeared in some of the Supreme Court of Canada’s previous opinions, it took on a new importance in Reference re Senate Reform, where the Court held that amendments to constitutional architecture had to comply with the requirements of Part V of the Constitution Act, 1982. However, the Court provided very little guidance as to the scope of this entrenched “architecture.” As a result, the metaphor’s meaning and implications have been the subject of considerable scholarly debate. This article contributes to this debate by arguing that “constitutional architecture” incorporates (some) constitutional conventions. It further takes the position that, instead of relying on this confusing metaphor, the Court should have candidly admitted that conventions were central to its decision by acknowledging that the text of the Canadian Constitution cannot be fully understood without reference to conventions.

Part I reviews, first, the Supreme Court’s opinions in which the notion of constitutional “architecture” has been mentioned, focusing first on this concept’s place in the Senate Reform Reference, and second, some of the scholarly commentary that has endeavoured to make sense of it. Part II sets out my own view that constitutional “architecture,” as this concept is used by the Supreme Court, is concerned primarily if not exclusively with constitutional conventions. Part III considers whether it is possible to determine just which conventions the notion of constitutional architecture encompasses, examining the conventions’ importance and their relationship to the constitutional text as possible criteria, and concluding that neither allows precise determinations. Part IV sets out what would have been a less confusing way of addressing the significance of conventions to the questions the Court was facing in the Senate Reform Reference: frankly recognizing that conventions were relevant to the interpretation of the applicable constitutional texts. Part V examines two objections to the incorporation of conventions (via “architecture” or through interpretation) into the realm of constitutional law, arguing that this incorporation is not illegitimate and that it will not stultify the Constitution’s development. Part VI concludes with an appeal for greater transparency on the part of the Supreme Court.

Actually, the article’s core idea ― that the architecture to which the Senate Reform Reference refers incorporates constitutional conventions ― was part of my initial reaction to the Supreme Court’s opinion. And of course it only develops the suggestions made by Fabien Gélinas and me in a paper we wrote before the Senate Reform Reference was argued. It is also of a piece with my other work on conventions, which argues against the theoretical validity of a sharp distinction between the conventions and the law of the constitution.

The other thing the article does, though, is a new departure. When Professor Gélinas and I wrote about the role of conventions in the then-upcoming Senate Reform Reference, we accepted that the constitution is a “living tree”, and indeed made it the basis of our argument that constitutional interpretation must incorporate conventions. But of course I no longer think that living constitutionalism is the correct approach. So the article begins the project of making sense of the reality that a very significant part of the Canadian constitution is “unwritten”, or rather extra-textual, uncodified, from an originalist perspective.

The argument, as it happens, does not change: as I explain, an originalist must also read the constitutional text in light of conventions which were ― in originalist terms ― part of the publicly available context at the time of the text’s framing. Still, it was important for me to set out this argument from an originalist, as well as a written constitutionalist perspective. It was also important to give the reader a glimpse of how this originalist argument works. To this end, the article wades into historical evidence, looking at the Confederation debates to argue that the conventions relative to the functioning of the Senate were anticipated by the framers of the Constitution Act, 1867 (in addition to being well known to those of the Constitution Act, 1982). Future work ― mine and perhaps that of others ― can build on this foundation, and on Ryan Alford’s recent book Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law, to fully integrate not only conventions (and therefore “architecture”) but also underlying principles and structural arguments into a comprehensive originalist conception of the Canadian constitution.

This brings me to the “making of” part of the post. As you might imagine, getting the originalist arguments through peer review was not an entirely straightforward proposition. I deliberately diluted them, presenting them only as alternative to the living constitutionalist approach, to which I gave equal attention and which I refrained from criticizing.

Still, at first, this was not enough. The reviewers selected by the first journal to which I submitted the paper were quite skeptical of the whole project, and the attention it devoted to history and to originalism contributed to that skepticism. I was asked to revise and resubmit in light of the reviewers’ comments, and did so, although I could not make the sorts of changes that would have assuaged their concerns without changing the nature of the whole piece. The editor referred the revised article to the same reviewers, who understandably were unimpressed with my revisions, and the article was rejected. Frankly, the revision and resubmission was a waste of my time, as well as of the reviewers’. Their initial objections were too fundamental that there was no real chance of their accepting any revisions I might plausibly have made.

So, after sulking a bit, I submitted the paper elsewhere ― namely, to the Ottawa Law Review. The reviewers there were more open-minded, though one remarked on the oddity, as he or she thought, of granting so much airtime to originalism, and suggested cutting that part of the paper. But the article was accepted, and so revisions were more at my discretion than they would have been in a revise-and-resubmit process. To me, of course, the discussion of originalism was very much part of the point of the paper, so I insisted on keeping it. (I have to say that, while many scholars will of course disagree with originalism as a normative matter, I find it hard to understand how one still can argue that it simply isn’t relevant to Canadian constitutional law; and least of all, how one can make such an argument in a discussion of the Senate Reform Reference, which very much relies on arguments about the intentions of the framers of the Constitution Act, 1982.)

To my mind, there are a few lessons here. One is that if you have an unorthodox agenda, it might be useful to go slowly, and plan to make several steps before getting to your ultimate destination. If you present your idea, not as certain truth right away, but as a possibility to be entertained, you make the pill easier to swallow while still moving the argument from being, as American scholars put it, “off the wall” to “on the wall”. I’m not sure, of course, but I think that this cautious approach helped me here.

The second lesson is that the peer review process is a bit of a crapshoot. Even if you are cautious, some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy. But others may see their role differently, and say that, while they disagree with the paper, it is still well argued and deserves a hearing. (Of course, you have to make their life easier and make sure that the paper is indeed well argued; the more heterodox you are, the more you need to dot your i’s and cross your t’s.) To be sure, there are limits to such tolerance: at some point, heterodoxy veers into kookiness, and even an open-minded reviewer should say so. And, of course, where heterodoxy ends, and kookiness begins is not a question that admits of easy answers. Perhaps to the original reviewers who rejected my piece I was a kook.

But this brings me to the third lesson. If at first you don’t succeed, try again. Try with a different journal, hope you get different reviewers, perhaps a more sympathetic editor. That’s easier to do when your paper is one that doesn’t need to be out right away ― I’ve given up on a comment on R v Comeau, in part because a case comment loses its relevance after a while ― whereas this article, making a less topical and more fundamental claim, could wait. And perhaps there is a further lesson here, which is that it is better to reserve heterodox ideas for articles of this sort, knowing that it might be a while before they can run the peer review gamut. But, be that as it may, the point is that, precisely because it is a crapshoot, precisely because it empowers people who enjoy being more Catholic than the Pope, the peer review process can be dispiriting ― but knowing why it is this way should remind us that it isn’t always this way.

Good luck with your heterodox articles ― and please read mine, and let me know what you think!

Immuring Dicey’s Ghost

The Senate Reform Reference and constitutional conventions

In its opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, the Supreme Court notoriously relied on a metaphor that had previously popped up, but played no real role, in its jurisprudence: “constitutional architecture”. Notably, the court was of the view that moves towards an effectively elected Senate would modify the constitution’s architecture, and such modifications required formal amendment under Part V of the Constitution Act, 1982, just as much as changes to the explicit provisions of the constitution’s text. Yet the court’s explanations of just what this architecture was were short and cryptic, and haven’t been elaborated upon ― judicially ― in the intervening years.

To fill in this void, an academic cottage industry sprang up to speculate about the meaning of the architectural metaphor and about what other constitutional reforms it might block. For example, Kate Glover Berger suggested that “action taken to dismantle or undermine the administrative state could be deemed unconstitutional” because the administrative state is built into the architecture of the Canadian constitution. Lorne Neudorf invoked architecture in the service of an argument to the effect that courts can read down or indeed invalidate vague delegations of legislative power to the executive branch. Michael Pal speculated that the first-past-the-post electoral system might be entrenched as part of the constitutional architecture.

All this while, I have been working on my own contribution to this genre, called “Immuring Dicey’s Ghost: The Senate Reform Reference and Constitutional Conventions”, which is finally going to be published by the Ottawa Law Review later this year. In a nutshell, I argue that “architecture” is really just code for “conventions” ― those supposedly non-legal but fundamentally important constitutional rules, arising out of political practice and morality, which courts have long said they could not possibly enforce. And I argue, further, that the Supreme Court should have squarely addressed the fact that it was relying on conventions, instead of playing confusing rhetorical games.

A draft is now available, for your reading pleasure. Here is the abstract:

Although the metaphor of “constitutional architecture” had appeared in some previous opinions of the Supreme Court of Canada, it took on a new importance in Reference re Senate Reform, where the Court held that amendments to constitutional architecture had to comply with the requirements of Part V of the Constitution Act, 1982. However, the Court provided very little guidance as to the scope of this entrenched “architecture”. As a result, the metaphor’s meaning and implications have been the subject of considerable scholarly debate.

This article contributes to this debate by arguing that “constitutional architecture” incorporates (some) constitutional conventions. It further takes the position that, instead of relying on this confusing metaphor, the Court should have candidly admitted that conventions were central to its decision by acknowledging that the text of the Canadian constitution cannot be fully understood without reference to conventions.

Part I reviews, first, the Supreme Court’s opinions in which the notion of constitutional “architecture” has been mentioned, focusing on this concept’s place in the Senate Reform Reference, and then some of the scholarly commentary that has endeavoured to make sense of it. Part II sets out my own view that constitutional “architecture”, as this concept is used by the Supreme Court, is concerned primarily if not exclusively with constitutional conventions. Part III considers whether it is possible to determine precisely which conventions are encompassed by the notion of constitutional architecture, examining the conventions’ importance, and their relationship to the constitutional text as possible criteria, and concluding that neither allows precise determinations. Part IV sets out what would in my view have been a less confusing way of addressing the significance of conventions to the questions the Court was facing in the Senate Reform Reference: frankly recognizing that conventions were relevant to the interpretation of the applicable constitutional texts. Part V examines two objections to the incorporation of conventions (via “architecture” or through interpretation) into the realm of constitutional law, arguing that this incorporation is not illegitimate, and that it will not stultify the constitution’s development. Part VI concludes with an appeal for greater transparency on the part of the Supreme Court.

The last thing I mention here is that this paper begins the project of bringing together two subjects on which I had mostly been writing separately: constitutional conventions on the one hand, and originalism on the other. As explained here, Canadian originalism has to grapple with the fact that some of our most important constitutional rules are unwritten. This paper, although it doesn’t make a case for originalism, begins to outline what that an originalist approach to conventions will look like.


The UK Supreme Court’s decision in “the Case of Prorogations” and the political constitution

I wrote last week about the UK Supreme Court’s decision in R (Miller) v Prime Minister, [2019] UKSC 41 (Miller (No 2)), which unanimously held that the Prime Minister’s advice that the Queen prorogue Parliament for five weeks was unlawful, and the prorogation itself, therefore invalid. There was, however, one aspect of Miller (No 2) that I did not discuss in any detail: that of the Court’s treatment of the “political constitution”, and the distinction between those constitutional rules that are part of constitutional law and those that are not. In this post, I want to come back to this issue.

It is useful to begin with the orthodox view of the political constitution, articulated by scholars such as A.V. Dicey and courts in cases like Re: Resolution to amend the Constitution, [1981] 1 SCR 753 (Patriation Reference) and R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5 (Miller (No. 1)). On the orthodox view, only some constitutional rules ― statutes and common law rules, such as those circumscribing the scope of the royal prerogative and, in part, of Parliamentary privilege ― are part of constitutional law. Other rules, known as constitutional conventions, are not constitutional law and the courts will not enforce them, although they can sometimes take note of them in resolving properly legal issues.

In the Patriation Reference, the Supreme Court of Canada suggests a number of reasons for distinguishing convention and law. First, the majority opinion on the conventional question insists that “unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves.” (880) The majority opinion on the legal question makes the same point, and adds that “[t]he very nature of a convention, as political in inception and as depending on a consistent course of political recognition … is inconsistent with its legal enforcement”. (774-75) In Miller (No 1) the majority of the UK Supreme Court put it more pithily: “[j]udges”, it said, “are neither the parents nor the guardians of political conventions”. [146]

Second, and relatedly, the Patriation Reference suggests that it would be inappropriate to enforce conventions, given their questionable pedigree. “What is desirable as a political limitation ”, it says, “does not translate into a legal limitation, without expression in imperative constitutional text or statute”. (784) Third, the majority opinion on the conventional question argues that the courts lack remedies to compel compliance with conventions. Fourth and last, the same opinion notes that conventions conflict with legal rules, and courts are bound to apply the latter. Others have also argued that conventions are too shrouded in uncertainty―that both their very existence and their implications for specific situations are too doubtful―for them to function as meaningful legal rules.

Miller (No 2)  doesn’t explicitly engage with any of this. But by the time the UK Lady Hale and Lord Reed are done with the case, not much of the old orthodoxy is left standing. They not only regularly advert to conventions (which courts can do on the orthodox view), but seem to assimilate the exercise of conventional and legal powers, and arguably provide a way for judicial enforcement of conventions, in disregard of the traditional distinction between conventions and law. This might be a good thing, but I am uneasy at the way it is accomplished.

The tone is set early on. At the beginning of the judgment, Lady Hale and Lord Reed explain what a prorogation is, and contrast it with a dissolution of Parliament. Following the latter, they note, “[t]he Government remains in office but there are conventional constraints on what it can do during that period”. [4] There is no particular need to mention these “conventional restraints”, even for the sake of the descriptive point the Court is making (which is itself unnecessary, although perhaps helpful, to explaining the decision in the case at bar). A more orthodox court would probably have avoided mentioning conventions here. Not this one.

More relevantly to the case, Lady Hale and Lord Reed say that they “know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister”. [15] They go on to further explain that

the power to order the prorogation of Parliament is … exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. [30]

The double negative allows the judgment to ostensibly “express no view on” [30] whether Her Majesty was indeed “obliged by constitutional convention” to accept the Prime Minister’s advice, but the fig leaf is quickly blown away. The Court proceeds to assess the lawfulness of the Prime Minister’s advice, which makes little sense unless one assumes that Her Majesty had to follow it. If the advice was in reality what it is in name, why would the Court be looking into it? This is further confirmed by the Court’s approach to the remedy. The applicants’ lawyers, implicitly adopting a more orthodox position, only sought “a declaration that the advice given to Her Majesty was unlawful”. [62] But the Court goes further, and says that this advice “led to the Order in Council [pursuant to which the prorogation was carried out] which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed.” [69] Led to? Founded on? This, I am tempted to say, is an imitation fig leaf, not even the real thing. What Lady Hale and Lord Reed mean ― the only way they reasoning makes sense ― is that the advice required the order in council to be made; that it was legally determinative, not just factually causative.

Consider: If I write a letter to Boris Johnson with a devious master plan for executing no-deal Brexit, and he follows it to the letter, my letter, which will actually be advice, in the sense of a suggestion, will not be the subject of court proceedings. The relevant choices will still be the Prime Minister’s, and, should their legality be called into question, my intervention will be no more than a part of the factual background, if that, even though it would be fair to describe it as “leading to” the Prime Minister’s actions, which would be “founded on” it. Of course, my position vis-à-vis the Prime Minister is different, in a constitutionally significant way, from the Prime Minister’s vis-à-vis the Queen. But, on the orthodox view, this would significant as a matter only of political, not legal, constitutionalism. The Supreme Court sees things differently. To repeat, Lady Hale and Lord Reed’s approach only makes sense if the Prime Minister’s advice is binding on Her Majesty, so that there is no daylight between his ostensibly conventional role and the exercise of the Crown’s legal powers.

Perhaps one might argue that the UK Supreme Court’s treatment of conventions is orthodox because it is only a necessary step towards resolving a properly legal question as to the scope of the prerogative power of prorogation. The Court, on this view, does not do what the Diceyan dogma tells us is impossible: enforce a convention. But is that so? And if it is so in this case, what about others in which the Court’s reasoning might be applied? (As discussed last week, the Court claims that Miller (No 2) is a “one off”. That remains to be seen.)

It is crucial, I think, to Lady Hale and Lord Reed’s reasoning that they are able to confidently assert that, while “Parliament does not remain permanently in session … [i]n modern practice, Parliament is normally prorogued for only a short time”. [45] They rely, moreover, on a statement by a former Prime Minister to the effect that nothing more is necessary. And they conclude that constitutional principles (specifically, Parliamentary sovereignty and executive accountability) mean departures from modern practice would require justification. Without explicitly undertaking an analysis in terms of the Jennings test adopted by the Supreme Court of Canada in the Patriation Reference, Lady Hale and Lord Reed come close to showing that the relevant constitutional actors seem to be following a rule, that they feel bound by the rule (or at least that they have no reason not to follow it), and that there are reasons, in the shape of important constitutional principles, for this rule ― in other words, that, according to the Jennings test, there exists a convention. Only, in effect, Miller (No. 2) very nearly transmutes this “modern practice” into law. (Very nearly, because in principle it is still open to a Prime Minister to justify departure from the practice.)

And beyond what has or has not happened in this particular case, I think the reasoning deployed by Lady Hale and Lord Reed can serve as a blueprint for judicial enforcement of conventions in the future. In a nutshell, what Miller (No 2) says is that the exercise of the royal prerogative is subject to implicit limits imposed by constitutional principles, and that the location of these limits ― which can be inferred, in part at least, from “modern practice” ― is a justiciable question. So consider, for example, the convention requiring the sovereign to assent to legislation passed by the House of Commons and the House of Lords (or only the House of Commons legislating pursuant to the Parliament Act 1949). Courts couldn’t enforce that convention and either require the sovereign to assent or treat a bill passed by the Commons and the Lords as law without her assent, right? Well, they could say that the power to withhold assent is subject to implicit limits imposed by the democratic principle, such that any departures from the modern ― or, this case, centuries-old practice of not withholding assent ― must be justified, and… voilà!

As readers may know, I am a longtime skeptic of the Diceyan orthodoxy on the separation between conventions and law. I think that the courts should have regarded conventions as common law rules en devenir and enforced them if and when necessary, subject however to justiciability concerns ― for example when the conventional rule is vague and/or its application in a given case involves political judgment. So the outcome of Miller (No 2) is not all bad, from that perspective.

And its reasoning makes the arguments invoked in support of the orthodoxy that much more difficult to sustain. The emphasis that Lady Hale and Lord Reed put on the development of the common law constitutional rules in cases such as the Case of Proclamations shows that the disclaimers of the creative role of the judiciary and protestations about its inability to translate “what is desirable as a political limitation” into legal rule always proved too much. Similarly, their confident treatment of the question of the remedy and of the evidentiary issues shows that concerns about the courts’ ability to engage with conventional issues have been greatly exaggerated.

That said, I have my reservations about the approach the Miller (No 2) court takes. For one thing, I wish Lady Hale and Lord Reed had been more transparent about what they were doing. Miller (No 1), where the UK Supreme Court reiterated the orthodox view that a convention could not be judicially enforced ― even a convention enshrined in statute! ― was only decided a couple of years ago. Miller (No 2) is almost a complete U-turn from its namesake, yet we have little explanation about why the ladies and lords were for turning. Here as on other issues, the suspicion of results-oriented reasoning must weigh heavily on the Court. More substantively, Lady Hale and Lord Reed may be overconfident in the courts’ ability to dispose of the factual questions that may arise when the courts enter the realm of politics. As noted above, I think that these questions will sometimes ― though by no means always ― be difficult enough that non-justiciability is a real concern. The reasoning in Miller (No 2) does not acknowledge this, and in my view this is a mistake.

Miller (No 2) thus seems to be a very significant, albeit unacknowledged, development in the UK Supreme Court’s understanding of the nature of the constitution, and specifically of what used to be thought of as its political, non-legal component. Without saying so, the Court is, perhaps, in the process of correcting the mistake made by scholars and judges who saw a sharp separation between law and politics when, at the heart of the UK’s constitution, none existed. Views on the nature and status of conventions that were just recently said to be quite heretical now appear to have prevailed.

If anything, the pendulum may have swung too far in the other direction. The Court hasn’t thought through the implications of its reasoning. Perhaps this is just how the common law develops: case by case, without the courts fully understanding the consequences of one decision for those that will follow. In that sense, Miller (No. 2) might not be an innovation at all. The system works, perhaps, but it is not always a pretty sight.

An Originalism for North Freedonia

Thoughts on an essay on “Originalism without Text” by Stephen Sachs ― and its relevance to Canada

The latest issue of the Yale Law Journal includes a short but very interesting essay by Stephen Sachs, “Originalism without Text“. To be an originalist, prof. Sachs argues, is not just (or mostly) “to read words in a particular way”. (157) It is to attach special significance to the legal past, indeed to “treat[e] modern law as vulnerable to history as open to refutation by claims about the past”. (158) This claim matters for originalist theory but, and this is the point on which I want to focus here, it is especially important for any attempt to give an originalist account of the Canadian constitution.

Prof. Sachs asks us to imagine a hypothetical polity, Freedonia, that “has no writing and no written law”. (159) Its law, such as it is, is an oral tradition transmitted from generation to generation. If Freedonia decides to designate a particular point in the evolution of this tradition as a reference, and to say that no deviation from the law as it then stood is to be tolerated, then, says Prof. Sachs, Freedonia is an originalist polity. If innovations are made, and criticized on account of departing from that historical reference, such criticism is originalist.

This is so regardless of the fact that the critics’ point is not about enforcing the meaning of a canonical legal text ― which is what originalism is often understood to be about. In Prof. Sachs’s view, what matters is not whether the critics are appealing to the authority of a legal text, but the fact that “[t]hey’re trying to recover the content of the law as it stood at a specific point in history, because they believe that this antique law determines the law as it stands today”. (161) Prof. Sachs points out that “[n]ot all law is written law, and not every society needs to rely on it in the same way”. (164) Indeed, even in those polities where “unwritten” law coexists with written documents, it is important not to make the mistake of “reading the text correctly while utterly misunderstanding the legal role it was to play”. (165)

Prof. Sachs’s main concern seems to be with how the term “originalism” itself is used. He writes that “Freedonia is just a hypothetical, and it’s also a special case. In the real world, where literacy is widespread and ink is plentiful, we tend to write these things down” (168) ― these things being the fundamental rules according to which the polity functions. But I would suggest that the real world is more varied, and Freedonia is less hypothetical that Prof. Sachs lets on.

Consider another polity ― call it North Freedonia ― whose fundamental rules are of two kinds. An important part was written down at a particular historical juncture, some 150 years ago, when important institutional reforms were undertaken. But these reforms, important though they were, were not meant to upend other rules that existed in the form of unwritten understandings. Indeed, when one part of the rules was being written down, this was done in a way that only made sense on the assumption that the other, unwritten, part of the rules would continue in force. Much later, 35 years ago, North Freedonia again changed its fundamental rules, including by agreeing on a procedure for future amendments to replace informally-developed arrangements that had previously been made for this purpose. Once again, however, the unwritten rules ― which had evolved somewhat but remained stable in some key ways over the intervening 115 years ― were left in place, and the newly-written rules, as much as those written down a century earlier, only made sense in light of the unwritten ones.

Can North Freedonia be originalist? Admittedly, scholars of high authority tell us that it is not. North Freedonian judges themselves tend not to think of themselves as being originalists; some loudly disparage the idea. But when they decide cases, their record is actually mixed. Though their decisions are far from consistently originalist, or consistently anything in particular, it is originalist rather more often than they care to admit. Still, could North Freedonians be consistent originalists even if they tried? On some views, those that Prof. Sachs challenges, the fact that some of their most important rules are not written down in authoritative texts would be a problem for them. Prof. Sachs argues forcefully and, in my view, convincingly, that these views are misguided. Though crucial aspects of North Freedonia’s constitution are unwritten, and though even the written parts rely on unwritten ones, North Freedonia could be originalist if it recognizes the authority of its past and accepts that claims about what it rules are today can be defeated by claims about what they were 35 or 150 years ago.

Now, some North Freedonians will object that Prof. Sachs’s theory is inapplicable to their polity, because it is about “recovering law” from the past ― and the unwritten rules of North Freedonia’s constitution are not actually laws, having been neither enacted in legislation nor laid down in judicial precedent. They are, instead, derived from the practice of North Freedonia’s political actors trying to exercise their discretionary powers in accordance with North Freedonia’s fundamental constitutional principles. But the objection is not convincing. The unwritten laws of Prof. Sachs’s Freedonia itself have never been enacted or, or at least for the most part, laid down in authoritative precedents. They are a tradition developed over time, up to a defined point in history, by the authorities responsible for its application. Though North Freedonia’s institutional arrangements are more complex than Freedonia’s, and include a measure of separation of powers, especially between judicial and other officials, the process by which its unwritten rules came to be, and thus their nature, is not relevantly different from those in Freedonia.

North Freedonias could be originalists if they wanted to.  Needless to say, that does not mean that they are, or prove that they ought to be. I’d say that they ought to give the idea some serious thought though. Jeffrey Pojanowski has outlined some very good reasons to do so in an excellent recent essay. But a fuller argument from me on that point must wait. Prof. Sachs’s conclusions are important in their own right, and an impetus for further reflection ― including in non-hypothetical polities.

Judicial Independence in America

A look at the conventions of judicial independence in the United States

Although American constitutional thought has long ignored the fact that conventions are scarcely less important to the operation of the Constitution of the United States than they are to Westminster-type constitutions, this blind spot is being removed. Tara Leigh Grove’s forthcoming article on “The Origins (and Fragility) of Judicial Independence” under the US Constitution is largely, and deliberately, a story of conventions, and a well-told one. Although Article III of the Constitution entrenches some protections for judges ― the tenure and salary guarantees that were already protected in Great Britain by the Act of Settlement 1701 ― prof. Groves shows that much of the architecture of judicial independence that observers of the American judiciary take for granted has no obvious foundation in the constitutional text. It is, instead, built of convention.

Prof. Grove examines three ways in which judicial independence is respected in the United States that “are so deeply ingrained in our public consciousness that it rarely occurs to anyone to question them”, and that they have assumed the status of “self-evident” “truths”:

judges are entitled to life tenure and salary protections, and cannot be removed outside the impeachment process. Political actors must comply with federal court orders. And “packing” the Supreme Court is wrong. (1)

There is, prof. Grove argues, nothing self-evident about any of this. The constitutional text was once thought to permit these violations of judicial independence. But then ― quite recently ― “political actors built the conventions” that make them well-nigh unthinkable. (2)

More specifically, prof. Grove shows that American political actors long thought that it was permissible to remove judges from office by abolishing their courts (except the Supreme Court itself, on the basis that it alone was explicitly mentioned in the constitution). There were a number of attempts to do so, some of them successful:

Through at least the early twentieth century, although the abolition of federal court judgeships was controversial, it was by no means considered “ridiculous” or “off-the-wall”. (13)

And yet over the course of the last century that is exactly how this idea came to be treated. Indeed the very fact that judges had in the past been removed because their courts were abolished was forgotten. Proposals of such measures are now met with consternation and fierce resistance ― as befits violations of conventions.

Similarly, although there now exists “widespread and bipartisan consensus that political actors must abide by federal court orders”, (17) this too is a relatively recent constitutional innovation. While some scholars still suggest that there is, occasionally, room for executive resistance to judicial decisions, political actors have abandoned this view, which they had long held. Prof. Grove traces this change of political heart to the aftermath of  desegregation decisions, showing that even those politicians who, like President Eisenhower, had originally seemed to accept resistance to court orders as legitimate then came to condemn it. From then on, “subsequent political actors did not want to be equated with the segregationists who led the ‘massive resistance’ to” the cause of civil rights. (25)

Last but not least, “[t]here is a strong norm today against … modifying the [Supreme] Court’s size in order to alter the future course of its decisions”. (29) Yet the text of the US Constitution says nothing about the number of judges there must be on the Court (except that there must be a Chief Justice), and historically, Congress has decreased and increased it on a number of occasions, “often … in part for partisan reasons”. (30) Indeed, the convention against doing so has not been around for as long as one might think. Prof. Grove points out that although Franklin Roosevelt’s notorious “court-packing” scheme  aroused “strong opposition”, it “also had considerable support in Congress and came close to passage”. (29) It is only “starting in the late 1950s”, (34) some time after a proposal for a constitutional amendment fixing the Supreme Court’s size failed to pass, that the convention against court-packing solidified ― to the point where the term “court-packing” became an all-purpose epithet.

Prof. Grove argues that the conventions of judicial independence are “historically contingent”; they could have been different now, and they might be different in the future. She notes that there is no convention preventing the enactment of legislation denying the federal courts, or specifically the Supreme Court, the jurisdiction over certain types of cases, although in her view “the protection for judicial independence would be far stronger if there were a convention leading officials not even to propose, much less seriously consider, jurisdiction-stripping bills”. (42) Why, though, is there no such convention, while there conventions against firing judges by abolishing courts, disobeying court orders, or court-packing? Prof. Grove attributes the difference to “narratives” ― to the way lawyers and officials (many of them, of course, lawyers by training) ― were told the stories of the various forms of interference with the courts and re-told these stories in their turn. Conventions developed against those practices that the “narratives” condemned, and against that which it did not.

Prof. Grove concludes with a question that has caused considerable difficulty to courts and scholars in the Commonwealth: that of the relationship between conventions and law. Could it be the case that “the norms protecting judicial tenure and requiring obedience with federal court orders have become so well-accepted that they have transformed into binding rules of law”? (54) Prof. Grove says that she “do[es] not foreclose the possibility that conventions may over time crystallize into legal rules”, thought “the precise mechanisms by which such crystallization may occur” remain uncertain. (54) She notes that ultimately both conventions and legal rules can change in response to a changed political environment ― and cautions that this change need not always be for the better.

Prof. Grove’s historical account is worth the attention of anyone interested in American Constitutional law. Her demonstration of the importance of conventions in the operation of the constitution ― small c ― of the United States should provide an effective counter-argument to claims of exceptionalism, and resulting superiority or inferiority (depending on the speaker’s substantive views), made both in America and in the Commonwealth. “Written” constitutions do not settle all constitutional questions, nor do they prevent the development of conventions that restrict the discretion that constitutional actors might seem to enjoy under the terms of black-letter constitutional law, whether authoritatively enacted or common law.

Prof. Grove’s account leaves a number of important questions unanswered ― not only that of the interplay between convention and law and the possibility of “crystallization”, but also that of the role of “narratives” in relation to conventions. Saying that narratives determine whether conventions do or not arise seems to beg the question of why narratives develop in one way rather than another, and perhaps to obscure the role of constitutional principles that underpin conventions in shaping those narratives. Perhaps prof. Grove might have paid more attention to what the principle of judicial independence means ― and, for instance, to whether it actually requires restrictions on legislatures’ ability to limit courts’ jurisdiction. (It seems to me that some legislative control over jurisdiction is necessary for the good administration of justice, and that removal of discrete elements of a court’s jurisdiction will not always, perhaps rarely, interfere with its independence.)

But these are friendly criticisms ― one cannot expect a single article to fully tell a story as complex as that which prof. Grove begins. I hope that she and/or her colleagues will take it up. Constitutional theory can only be enriched if American scholars pay constitutional conventions the attention they deserve. Prof. Grove makes a very valuable contribution to this endeavour.

The Court on Conventions

Shameless self-promotion for my latest academic article

In academia if not so much elsewhere, the sesquicentennial of Confederation is being used an occasion for some retrospectives on Canada’s constitutional development that go back further than what Ian Holloway ironically calls the “year zero” of 1982. One such retrospective was a very successful conference organized by Matthew Harrington that was held at the Université de Montréal a couple of weeks ago; another, not coincidentally, is a book/special issue of the Supreme Court Law Review edited by prof. Harrington. The book consists of chapters by various Canadian academics examining specific areas of the Supreme Court’s jurisprudence in the realms of constitutional structure, individual rights, and private law.

My own contribution deals with constitutional conventions. In a nutshell, it is a review of the Court’s engagement with constitutional conventions, from the 1930s and into the early 21st century ― I don’t discuss the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, because that discussion would have required a separate, and longer, paper. (That paper is what I presented at the UdeM conference; I hope to have it ready for submission soon enough.) I do review some of the scholarly responses to that jurisprudence, and reiterate my own view that the Court’s take on conventions is misguided and should be revisited. Here is the abstract:

Conventions are among the most important rules of the Canadian constitution. Yet orthodox legal theory does not recognize them as being rules of law, a view which the Supreme Court of Canada endorsed in the Patriation Reference. Nevertheless, both before and after the Patriation Reference, the Court’s jurisprudence engaged with existing or alleged constitutional conventions. This article reviews this jurisprudence, and the scholarly commentary that responded to it. It concludes that the Court’s endorsement of the orthodox view that there exists a rigid separation between conventions and law was poorly justified, and ought to be abandoned.

The paper is available on SSRN. As Lawrence Solum says, download it while it’s hot!

Too Conventional

The UK Supreme Court’s conventional, and indefensible, thinking on the issue of constitutional conventions

In R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, the UK Supreme Court holds that the approval of the UK Parliament, but not ― as a matter of law anyway ― of the “devolved” legislatures of Scotland, Northern Ireland, and Wales is required before the UK government can serve notice of its intention to leave the European Union. Mark Elliott has already posted a full and, to me, a largely compelling critique of the decision on his (excellent) blog, Public Law for Everyone. The Judicial Power Project has posted shorter comments by eminent public lawyers, including John Finnis and Timothy Endicott. They and others say most of what there is to say about Miller, but I want to take note of its treatment of one specific issue, that of constitutional conventions, on which I part ways both with the Court and with the commentators who, however critical they are of its reasoning on other points, follow conventional wisdom on this one.

The Miller Court is perfectly orthodox on this point, reaffirming the Diceyan distinction between law and convention, the former being justiciable and the latter not. In my view, the Court is wrong to do so. Its reasoning on this point shows that the line which it attempts to draw between law and convention is so thin as to be evanescent. Indeed, it is at least arguable that its reasoning on the main issue, that of the availability of the royal prerogative to trigger the UK’s withdrawal from the EU, is in direct contradiction with that which underpins its refusal to treat conventions as legal, judicial cognizable rules.

As the majority judgment explains, one of the issues in Miller concerned the effect of the so-called Sewel Convention, which

was adopted as a means of establishing cooperative relationships between the UK Parliament and the devolved institutions, where there were overlapping legislative competences.  In each of the devolution settlements the UK Parliament has preserved its right to legislate on matters which are within the competence of the devolved legislature. [136]

However, from the outset, there was an expectation that, as a matter of convention, the UK Parliament “would not normally legislate with regard to devolved matters” without the consent of the affected devolved legislature. “That expectation has been fulfilled,” says the majority. [137] It has been embodied in “memoranda of understanding” between the UK government and devolved authorities, and more recently in a statutory provision, section 2 of the Scotland Act 2016, which “recognised” the convention.

For the Court, none of that meant that it could pronounce on the applicability of the Sewel Convention to the matter at hand ― that is to say, on whether the convention required the UK government to seek the devolved legislatures’ consent before seeking to withdraw from the EU ― or indeed to any other issue. That is because “[i]t is well established that the courts of law cannot enforce a political convention.” [141] The quoted at length from the various opinions in the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 SCR 753, finding there support for its view that the political and the legal are distinct realms, and that while courts “can recognise the operation of a political convention in the context of deciding a legal question …  they cannot give legal rulings on its operation or scope, because those matters are determined within the political world.” [146]

But why is there this impenetrable barrier between the legal and the political? The majority’s explanations are sparse, to put the matter rather generously. In addition to the quotations from the Patriation Reference, we are told that “[j]udges … are neither the parents nor the guardians of political conventions; they are merely observers”, [146] and directed to Colin Munro’s assertion that “the validity of conventions cannot be the subject of proceedings in a court of law” (“Laws and Conventions Distinguished” (1975) 91 Law Quarterly Review 218 at 228″).

Munro’s words, at least, have been flatly contradicted by events ― namely, by the Patriation Reference itself, as well as by the other cases in which the Supreme Court of Canada and other Canadian courts have pronounced on the “validity” of alleged conventions: notably Re: Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 SCR 793 (a.k.a. the Québec Veto Reference), Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 45, [2000] 2 SCR 409, and Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, [2001] 1 S.C.R. 470. Contrary to Munro’s assertion (and Dicey’s stated belief that conventions were matters of such exalted political importance that they were “too high” for mere lawyers ― a belief contradicted by his own magisterial treatment of the subject!), courts can deal with conventional questions.

Indeed, it seems to me that the Miller majority is less forthright about this than it really ought to have been. In introducing one of the quotations from the Patriation Reference, the majority describes it as being from “a dissenting judgment on one of the questions before the court”. [142] It does not say what question. So let me remind the reader: that’s the question of whether a convention prevented the federal government from seeking Patriation without provincial consent. The majority knows this, of course, and thinks it better not to be explicit.

Whatever the merits of this rhetorical approach, with Munro’s impossibility assertion out of the way, what is left is the Miller majority’s argument is the the claim that courts should not deal with conventions because, due to their political nature, the courts are not their “parents” or “guardians”. This echoes the position of the Patriation Reference‘s majority on the legal question that conventions are “political in inception” and thus by their “very nature” incapable of “legal enforcement”. (774-75) But this too, is not much of an argument. Statutes too are “political in inception”, yet courts enforce them ― as “guardians”, in the Miller majority’s terminology. Of course, conventions often look less like statutes than like common law rules, in that they lack a well-defined authoritative formulation ― though this is not true of the Sewel convention, which has been in fact authoritatively, if somewhat vaguely, stated for as long as it has existed. But even we take the analogy to common law rules, what is it that stops courts from being “parents”, or perhaps adoptive parents, to new common law rules into which conventions crystallize?

In the Patriation Reference, the legal question majority had to address this contention:

The leap from convention to law is explained almost as if there was a common law of constitutional law, but originating in political practice. That is simply not so. What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute. (784)

This response is bizarre, in that there obviously is a “common law of constitutional law”, including the rules on the Royal prerogative at issue in Miller, as the Patriation Reference majority well knew. Is the suggestion that that law did not “originate in political practice”? But what exactly did it “originate in”? Did the judges ― say Coke in the Case of Proclamations ― simply make it up, or pluck it out of thin air?

Whatever the view of the Patriation Reference majority, the Miller majority is not entitled to its predecessor’s claim that “[w]hat is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute.” Its decision on the main issue in the case rests in part on its view that “[i]t would be inconsistent with long-standing and fundamental principle for … a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone,” without Parliamentary authorization. [81] This principle is not, needless to say, to be found “in imperative constitutional text or statute”. Longstanding or not, it is a view of “what is desirable as a political limitation” ― and, according to the Miller majority, it does “translate into a legal limitation” on the UK government’s powers. (To be clear: this is not the entire basis for the majority’s decision; but it is a important part of its reasoning.)

The belief that there is a fundamental difference in the nature of legal and conventional constitutional rules never rested on much of anything other than the assertions of scholars and, eventually, courts that have uncritically followed these scholars. The distinctions that they have attempted to draw between law and convention do not involve material differences.  Ironically, the Miller majority’s own reasons strongly suggest as much. When it considers the effect of the “recognition” of the Sewel convention by the Scotland Act 2016, it concludes by incorporating it into statute,

the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention. [148]

This seems to me to acknowledge that the source of a rule ― statute or convention, or in another case the common law ― is less material than “the nature of the content” [148] of that rule. Some rules, whether ostensibly legal or conventional, do not let themselves to judicial interpretation or enforcement. (Whether it is the case that the Sewel convention is such a rule is a separate question which I will not try answering here.) But other rules do lend themselves to judicial interpretation or enforcement ― and for them too, it should not matter whether these are ostensibly legal or conventional rules. The question the court ought to have asked itself is whether the rule is suitable for judicial application ― not whether it is law or convention.

My views on the distinction, or lack thereof, between law and convention (which I have sought to explain at greater length in my paper “Towards a Jurisprudence of Constitutional Conventions”, (2011) 11 OUCLJ 29, and briefly in a forthcoming piece in the Supreme Court Law Review) are, I am well aware, rather heretical. Yet to me the conventional thinking on the issue of constitutional conventions, and conventional arguments for distinguishing them from legal rules, are simply not convincing.


Thoughts on the constitutionality of the new Supreme Court appointments process

In my last post, I argued that the process for appointing Supreme Court judges announced by the federal government last week is not a positive development. It will neither increase the transparency of the appointments nor de-politicize them, while creating an illusion of having done so. In this post post, I turn to the separate question of whether this process is constitutional. Two issues are relevant here. One is the government’s insistence that all future judges be bilingual. The other is the possibility that it will disregard the convention of regional representation on the Supreme Court, which requires the next appointment to come from Atlantic Canada.

* * *

I have argued here that in light of the Supreme Court’s opinion in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433 legislation requiring judges to be bilingual would be unconstitutional. Kate Glover has reached the same conclusion, albeit on the basis of a rather different reasoning, in a guest-post here. (I should note however that others, notably Sébastien Grammond, disagree with this view.) At the same time, it is quite clear that the government is entitled to make a policy choice to privilege certain criteria for appointing judges. After all, even a stated commitment to only appoint meritorious or excellent judges is an addition to the bare-bones constitutional requirements that l’Affaire Nadon froze in place. It would be well within the Prime Minister’s discretion to only appoint bilingual judges, and even to say that he would only appoint bilingual judges. (It would, I have argued, be an unwise thing to do, but that’s another question.)

The constitutional issue, then, is whether the government’s announcements amount to an attempt to modify the law governing the appointment of Supreme Court judges, which in my view would be unconstitutional, or are merely a policy statement, which would not be. I am inclined to think  that so long as the bilingualism criterion remains essentially a policy directive, found in nothing more law-like than press releases and mandate letters, it does not stray into unconstitutionality, despite the contrary suggestions of some others, such as Matthew Hennigar and Dennis Baker in a very informative roundtable discussion published by Maclean’s. The difference between their conclusion that the Prime Minister is (in prof. Hennigar’s words) “courting a constitutional challenge” and mine may be due to the fact that they approach the issue by asking whether the bilingualism requirement is formal (and therefore constitutionally questionable) or informal (and therefore permissible). In my view, it is better to think in terms of the legal or extra-legal nature of the requirement, rather than in terms of its formality, because the underlying concern is with the integrity of constitutional rules, not their expression. Still, my views on this are tentative, and I am open to being shown that they are in error.

* * *

The matter of the regional representation convention is more clear-cut. The government’s initial statements simply ignored the convention altogether. Then, the Prime Minister’s mandate letter to the Chairperson of the Advisory Board that will supply him with a shortlist of potential appointees asked her to “consider the custom of regional representation on the Court as being one of the factors to be taken into consideration.” But a constitutional convention is not a mere custom. It is a mandatory rule of the constitution, not just a factor to be taken into consideration among others. Violating it means acting unconstitutionally.

This point needs to be emphasized, because more than a few commentators seem to believe that an appointment in violation of the convention of regional representation would not be unconstitutional, because it would not be illegal or attract a judicial sanction. (Paul Daly’s dismissal of the convention as “fluid,” and a rule that can be tinkered with at will because it is not legal is sadly representative of this attitude.) I will return to the question of judicial sanction in a moment. But first, it is sadly necessary to remind those who think that ignoring conventions is a relatively trivial matter, that this has never been the position even those jurists who, following A.V. Dicey, insisted that courts could not enforce conventions. In the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, the Supreme Court explained that

important parts of the constitution of Canada … are nowhere to be found in the law of the constitution. For instance it is a fundamental requirement of the constitution that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. But fundamental as it is, this requirement of the constitution does not form part of the law of the constitution. (877-78; emphasis mine)

These important, even fundamental, constitutional requirements, or ― as the Court also described them ― “essential rules of the constitution” (878) are conventions. The Diceyan view, which was also that of the Supreme Court in the Patriation Reference, is that constitutional conventions and constitutional law together make up the constitution. In the Patriation Reference, the Court observed that in some cases, a breach of convention “could be regarded as tantamount to a coup d’état.” (882) Of course, the breach of the convention of regional representation would not rise to that level of unconstitutionality, but it would still amount to unconstitutional action by the government, much like Pierre Trudeau’s attempt at unilateral patriation of the constitution would have been unconstitutional, although not illegal.

At Emmett Macfarlane’s urging, I will grant that the Advisory Board might take the convention more seriously than the government seems to want it to, or that the Prime Minister might yet see the folly of breaking it. The intervention of the CBA president Janet Fuhrer, who is “urg[ing]” the Prime Minister “to amend the mandate of the Advisory Board … to ensure that the Atlantic Canada vacancy is filled by a meritorious candidate from that region” is encouraging in this regard, although it is disappointing to see Ms. Fuhrer hedging her language and referring to “the longstanding custom or constitutional convention of regional representation.” The re-classification of convention into custom denigrates it and suggests that it is not binding on the Prime Minister. For the purpose of passing a political judgment on his actions, it really does not matter whether the constitutional rules he is prepared to breach are classified as being convention or law.

Now, this classification does matter for a court passing a legal judgment on the constitutionality of the government’s actions ― or at least it does so on the Diceyan view. I have argued in the past, and still believe, that this view is mistaken as a matter of legal philosophy. That is, of course, irrelevant. But there is now reason to question whether the Diceyan view is still valid in Canada as a matter of positive law. For one thing, as we know from the Patriation Reference itself, Canadian courts consider themselves free to express their views on conventions in the context of reference proceedings. It would be enough for a provincial government to refer the issue to its court of appeal for the convention of regional representation to be fair judicial game. Moreover, lower courts have already pronounced on constitutional conventions in the context of ordinary litigation (notably in Conacher v. Canada (Prime Minister), 2009 FC 920, [2010] 3 FCR 411, aff’d in Conacher v. Canada (Prime Minister), 2010 FCA 131, [2011] 4 FCR 22) though the Supreme Court has not yet had an opportunity to do so.

Then, there’s the possibility that that the Supreme Court has transformed at least some constitutional conventions into legal rules when it invoked the notion of a “constitutional architecture” in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704. My view, at least, is that that’s exactly what the Court did, but this is a controversial claim, and I have no room to develop, much less to defend, it here. (I will try to do that in a paper I am due to write in the coming months, and I will try to blog about it as I do so.) Even if I am right, however, there remains the further question of which conventions are part of the constitutional architecture, and in particular whether that of regional representation is. In a very interesting post at the CBA National Magazine’s blog, Jennifer Taylor has argued that it is. She may well be right, but I need to think a bit more about this before I am sure.

* * *

Important though it is, the legal issue should not distract us from the constitutional one. Constitutionally (and legally), the Prime Minister is in my tentative view free to adopt a (misguided) policy of only appointing bilingual judges to the Supreme Court, and to ask his advisers to counsel him accordingly. But, constitutionally (whether or not legally) the Prime Minister is not free to deprive Atlantic Canada (or any other region) of its representation on the Supreme Court. The appointment of a judge from outside Atlantic Canada would be unconstitutional, regardless of whether it would be illegal (though it might be), and of whether or not courts could say so (though they could).

That the Prime Minister should be open to engaging in such behaviour makes it clear that ― rather like his predecessor ― he does not consider himself bound by the constitution, or at least those parts of the constitution that he thinks he might get away with ignoring. For this reason, I find the many expressions of support for the Prime Minister’s plan quite dispiriting. They give the impression that the scrutiny which the legal community rightly applied to the previous government’s cavalier approach to the constitution was as much the result of opposition to that particular administration as of a sincere belief in constitutionalism. And it would be very sad indeed if that impression were justified.


No, constitutional conventions cannot stop free trade within Canada

I didn’t write about the “Free the Beer” decision, R. v. Comeau, 2016 NBPC 3, when it came out this spring. It took me a very long time to read, and others beat me to it ― notably Benjamin Oliphant, to whose excellent analysis over at Policy Options Perspectives there is not much to add. There is one specific point, however, which concerns a pet peeve of mine, and which I do not think others have addressed, which in my mind justifies my doing so here, however belatedly. The point in question is the government’s argument that a constitutional convention meant that section 121 of the Constitution Act, 1867 ought not to be invoked to strike down legislation erecting barriers to inter-provincial trade.

Justice LeBlanc rejected this argument, just as he rejected the rest of the Crown’s submissions on his way to concluding that New Brunswick’s rules prohibiting the importation of alcohol from other provinces are unconstitutional because contrary to section 121. But although there is much to like about his decision overall, I think there is a bit more to say about this particular point than he did.

The Crown claimed, on the basis of an expert report by a political scientist, that the ever-evolving Canadian federalism had developed in such a way that

governments, rather than the courts, have taken on the lion’s share of responsibility for the management of the federation. This is accomplished in part by the courts’ recognition of constitutional conventions and by a judicious deferral to governments to maintain the balance of powers. [153]

One of the conventions in question is, according to the Crown’s expert, the “disuse” [169] of section 121:

governments do not use section 121 to challenge the protectionist policies of other governments. As such perhaps a convention has formed whereby section 121 is effectively rendered inoperative. [171]

The expert, moreover, saw section 121 as a sort of spent transitional provision, arguing that it is rather a convention that prevents the imposition of customs duties at provincial borders.

Justice LeBlanc responded by pointing out, quite rightly, that

[o]nce the Supreme Court of Canada strictly interpreted section 121 [in Gold Seal Ltd. v. Alberta (Attorney-General), (1921), 62 S.C.R. 424, as applying only] to custom duties, there was in reality nowhere else for the section to go. It strictly prohibited custom duties and nothing else. Its disuse became merely a matter of practice or custom. It was not possible for the section to be interpreted in any way to come to the aid of any other governmental policy or strategy.

In other words, Supreme Court precedent limited the scope of section 121 ― though it certainly did not abolish it, so that it is fanciful to claim that a constitutional convention has been doing the work that this provision has always done ― and it is for that reason that it was no longer invoked. That is true, so far as it goes, and it is understandable that a judge would say no more in the course of an opinion that is already quite long enough. But, as I noted above, there is more to say here.

It is worth pointing out that the Crown’s reliance on constitutional conventions in the course of an argument is a pretty remarkable thing. On an orthodox view, constitutional conventions are not enforceable by courts. The Crown analogized section 121 to the provisions of the Constitution Act, 1867 that enable the Governor General (acting on the advice of the federal government, of course) to disallow provincial legislation, which are rendered inoperative by a constitutional convention. Yet the Supreme Court expressed the view, in Reference re The Power of the Governor General in Council to Disallow Provincial Legislation and the Power of Reservation of a Lieutenant-Governor of a Province, [1938] S.C.R. 71, that these provisions were valid an in force as a matter of law. Similarly, in the Patriation Reference the Supreme Court said that conventions were not legal rules. So any attempt to invoke conventions as a sword rather than a shield (arguing that a claim should not be entertained because it asks the court to enforce conventions) faces an uphill battle, and indeed seems pretty desperate. It is telling, I think, that the Crown chose to make such an argument in Comeau.

Now, my own opinion is that the orthodox view that there is a sharp distinction between conventions and law is unfounded. Fabien Gélinas and I have suggested that, at least, conventions should inform the interpretation of the provisions of the written constitution. In a paper called “Towards a Jurisprudence of Constitutional Conventions”, (2011) 11:1 OUCLJ 29, I went further and argued that courts could actually treat conventions the way they treat common law constitutional rules, subject to justiciability concerns. While it is far from obvious that courts would endorse either of these approaches, and not very clear that the Crown in Comeau made much of an argument to show that they ought to, let’s assume that the court would have been bound to take a relevant convention into account in one way or another. Of course the question is whether there is such a convention here. Justice LeBlanc’s reasons suggest that the answer is “no.” But they ― understandably ― do not go into any detail on this point. A closer look shows that the Crown’s argument is completely off-base.

All constitutional conventions limit or eliminate he discretion that political actors seem to enjoy pursuant to other constitutional rules. For example, the law of the constitution leaves the sovereign with the choice to assent or not to bills that have passed the House of Commons and the Senate, but convention eliminates this discretion. The sovereign must assent. Geography does not figure among the criteria which the Supreme Court Act provides for the appointment of Supreme Court judges, other than those from Québec, but convention reduces the government’s discretion as to the advice it gives the Governor General by supplying additional geographic requirements.

What about the alleged convention here? The Crown’s expert points out that governments have refrained from suing each other on the basis of section 121. But even if that forbearance could be said to have acquired the status of a conventional rule, this convention could apply to governments ― the political actors whose behaviour contributed to the alleged rule’s emergence ― and only to governments. Not to citizens. To repeat, conventions stipulate how political actors exercise discretion. They do not dictate the behaviour of citizens. So while a convention may in effect nullify constitutional provisions that only empowers a political actor, such as those dealing with the disallowance power, they cannot “render[] inoperative” provisions that confer rights on citizens.

The Crown’s argument assumes, without even attempting to demonstrate, that section 121 is a provision that only concerns governments. But the assumption is unwarranted, and indeed galling. Constitutional provisions limiting the power of governments, such as section 121, exist in order to preserve the liberty of the citizens. In Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, Chief Justice Rinfret wrote that even if Parliament and the legislatures agree to modify the constitutional division of powers by resorting to delegation, they cannot do so, because

[t]he constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. (34)

As the Chief Justice pointed out,

[i]t is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92. (34)

But another part of that protection, of course, is that when the constitution removes a legislative power from both Parliament and the provinces, neither can arrogate such a power to itself, even with the connivance of the other. This is true of the power of constitutional amendment, for instance, and of the violation of Charter rights. And it is equally true of section 121. Were a court to accept to Crown’s (un)conventional argument to the contrary, it would transform the Canadian constitution from protection of the citizens’ freedom into a plaything for governments intent on limiting that freedom.