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 If innovations are made, and criticized on account of departing from that historical reference, such criticism is originalist.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 .

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.

Unconstitutional

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.

(Un)conventional

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.

 

(Still) a Convention?

At his History News blog, Christopher Moore is arguing that “responsible government is not a ‘convention’.” In his view, the “basis of responsible government in Canada” is right there in the constitutional text ― specifically, in the provisions of the Constitution Act, 1867 that deal with money votes. Dale Smith replies in a post at his own blog, Routine Proceedings, pointing out that these provisions make “no mention of a PM, or cabinet,” reflecting the fact that these are indeed the creatures of “the unwritten conventions that we inherited from the UK.” Mr. Smith has the better of this particular debate ― but his insistence that responsible government is purely conventional overlooks sources of constitutional law other than the text.

Mr. Moore claims that “Section 54 of the Constitution Act, [1867] … sets out in plain language that only the cabinet can make and propose the raising and spending of money,” while “53 … bluntly states that only the House of Commons can give approval to the cabinet’s proposals for getting and spending.” He argues that “[s]ince getting and spending money covers everything a government does, these two sections make the government responsible to the Commons.” This is quite wrong.

First, the language of section 54 is anything but plain since, as Mr. Smith points out, it does not even mention the cabinet, and speaks of the Governor General instead. It convention that requires the Governor General to act on the cabinet’s advice. The constitutional text does not say that. Second, section 53 doesn’t say that “only the House of Commons can give approval” to money bills. It says that such bills must “originate in the House of Commons,” but they must, as all other bills, be approved by the Senate too. It is again convention that dictates that the Senate will not stand in the way of a money bill approved by the Commons. And third, one cannot simply equate the rules dealing with the passage of money bills with those of responsible government. For one thing, not only money bills are matters of confidence on which a cabinet will stand or fall ― so is the Speech from the Throne, and so can be other bills, if the government so chooses. And for another, there is no law of nature that says that money bills must be matters of confidence at all. In the United Kingdom, section 2 of the Fixed Term Parliaments Act 2011 means that they are not ― it takes a separate vote on a motion in prescribed terms for the House of Commons to express its lack of confidence in the government. It is, yet again, convention that (still) singles out votes on money bills as having a special constitutional importance in Canada. In short, while the text of the Constitution Act, 1867 was written with the conventions of responsible government in mind, it neither comes close to codifying them nor can otherwise be understood as “the basis of responsible government in Canada.”

That said, it is important to note, as Mr. Smith does not, that in Canada constitutional text is not all there is to constitutional law, and that it is possible ― and in my view likely ― that the rules of responsible government belong to that part of constitutional law which is not reflected in the text itself, and thus are not only conventional. In Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2, Justice Beetz suggested that

[i]t may very well be that the principle of responsible government could, to the extent that it depends on … important royal powers [which may be entrenched by the references to the ‘offices’ of the Governor General and the Lieutenant-Governor], be entrenched to a substantial extent. (46)

More recently, and more importantly, in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704,  the Supreme Court took the view that the (legal) constitution encompassed, among other things, an “architecture,” consisting of “[t]he assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another.” [26] An interference with that architecture, the Court opined, amounted to a constitutional amendment. Now, the conventions of responsible government are surely among “the assumptions that underlie the text” of the Constitution Act, 1867, which concern “the manner in which the constitutional provisions are intended to interact with one another.” The text says nothing about the Cabinet, the Prime Minister, votes of confidence, or the Senate’s deference on money bills. But it would not have been enacted in its existing form had the existence of these institutions and rules not been assumed and universally accepted.

This leads me to the conclusion that, although the rules of responsible government are of clearly conventional origin, and the constitutional only leaves room for them to operate (in addition to referring to them, obliquely, in the preamble), they are now entrenched and legal rules. This is not to say that they are, or ought to be, justiciable. Perhaps courts would hold to the orthodoxy, expressed in the Patriation Reference, [1981] 1 SCR 753, that “the remedy for a breach of a convention does not lie with the courts,” (882) though I am not certain that they would. Yet just as a modification to the assumptions regarding the respective roles of the House of Commons and Senate requires, according to the Reference re Senate Reform, a constitutional amendment with provincial consent because it modifies the constitutional architecture (a view which the Supreme Court said “is supported by the language” [64] of the Constitution’s amending formula), so I believe would a attempt to change the rules of responsible government, say by limiting the scope of what counts as a vote of non-confidence. This would, in my view, be the case quite apart from any interference with the vice-regal office, though this may play the same sort of supporting role that the constitutional text played in Reference re Senate Reform.

I’d like to make one additional observation, regarding Mr. Smith’s claim that while

Responsible Government can function without [political] parties … in a theoretical world with vampires and unicorns, … it will never happen in real life. … The practice of parties developed for a reason. Maintaining confidence without them is a fool’s errand.

The conventions of responsible government gelled in the United Kingdom in the 1830s. There already were political parties by then, and there had been for quite some time. However, these parties were looser and much less disciplined than those to which we are used now. And they were indeed rather less good at maintaining confidence in the cabinet. The strong, disciplined, and effective parties that we know now emerged gradually, in response not only to the need for maintaining confidence but also to the broadening of the franchise which had only begun in 1832, and continued over the following decades. So while we almost certainly need political parties of some sort in order to maintain an effective system of responsible government, these parties need not look and operate the way they do today.