The Two Halves of the Glass

Much has already been written about the Supreme Court’s ruling in Carter v. Canada (Attorney General), 2015 SCC 5, which holds that, at least in some circumstances, the state cannot prohibit a person from seeking assistance in order to end his or her life. At the CBA National Magazine’s blog, Yves Faguy has up a roundup of some of the reactions; Andrew Coyne had a skeptical take on the decision in the National Post; Emmet Marfarlane had a great post for Maclean’s; and there are others.  As a result, there is no point in a full summary-and-comment post from me. Instead, I will only outline two of the many possible ways of looking at the Supreme Court’s unanimous decision ― one optimistic, the other pessimistic.

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The optimistic take on Carter is that it is an excellent illustration of one important function of judicial review of legislation, which its opponents, such as Jeremy Waldron, tend to ignore: the correction of what we might call democratic process failures. Crudely, a market failure is a situation in which, for one of a variety of reasons, the market misallocates goods and services, for example by persistently failing to satisfy demand. Just as crudely, a government failure is a situation where, again for one of a variety of reasons, government regulation creates inefficiencies, including situations where the government persistently fails to regulate in a way that would be socially desirable. Similarly, what I mean by a democratic process failure is a persistent inability of that process to produce laws that majorities would agree with and find desirable.

The existence of a democratic process failure obviates, at least to some (substantial) extent, the “counter-majoritarian difficulty” which judicial review is often said to present. The difficulty is real when the laws being invalidated actually reflect majoritarian preferences. If they do not, however, then their invalidation by courts, can force democratic institutions to act in accordance with majoritarian preferences which they previously ignored. This is, arguably, what happened in Carter. As prof. Macfarlane points out,

[d]espite strong public opinion against an absolute ban on assisted suicide, Parliament and consecutive governments have long shied away from revisiting the issue. The deeply moral nature of the debate, and the complexity in crafting rules to permit anything less than an absolute ban, no doubt played a role in this inaction. However, the inescapable truth of the matter is clear: Political cowardice has played a key part in Parliament’s intransigence, and the only way the issue was going to get back on the policy agenda was for another case to reach the Supreme Court.

Indeed the Supreme Court, in Carter, alluded to this problem, pointing out that “[b]etween 1991 and 2010, the House of Commons and its committees debated no less than six private member’s bills seeking to decriminalize assisted suicide,” [6] none of which passed.

Seen from this angle, Carter is obviously a happy story, a win for democracy as well as for individual rights. Yet the democratic process failure view raises questions which we might not have thought through very well. (Or it least I, in my ignorance, am not aware of their being addressed.) For instance, how do we know that we are dealing with a democratic process failure, rather than a mere temporary misalignment between the voters’ preferences and legislation? Can we identify, in advance, areas in which the democratic process is (most) likely to fail? (Michael Pal argues, convincingly in my view, that the law of democracy is one such area. Are there others?) Or, if we seek to identify democratic process failures ex-post rather than ex-ante, how do we do that? Is the failure of a number of bills on a topic a sign that the democratic process is malfunctioning or simply that the majority does not, in fact, support changing the law? And then,  inevitably, there is the question of whether courts are able to identify democratic process failures successfully and objectively, especially in the absence of much of a theoretical framework.

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The institutional competence question brings me to the pessimistic take on Carter. The Supreme Court’s opinion can be seen as evidence that some of the predictions I made in commenting on the Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, about the dangers of what Kerri Froc would later describe as “the empirical turn in Charter jurisprudence,” are coming to pass. I worried, then, about the loss of transparency and accountability that would result from requiring appellate judges, including those of the Supreme Court itself, to defer to trial-level fact-finding, including in the area of “legislative facts” consisting largely of complex social science evidence. I wrote that

[t]rial decisions, even in important constitutional cases, attract less attention than appellate ones, especially those of the Supreme Court. … Yet under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.”

Carter is a perfect example of this tactic, which I called “judicial leading from behind.” The Supreme Court’s decision is dependent on the trial judge’s findings regarding the effects of the prohibition on assisted suicide ― not only its effects on the parties who brought the case (the traditional province of the trial judge), but also those other, more or less similarly situated, persons. It is also ― and, crucially ― dependent on the trial judge’s conclusion “that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error” [105]. These conclusions, in turn, are dependent on the trial judge’s study of the evidence put before her. But the Supreme Court barely refers to that evidence. It merely restates and endorses the trial judges findings, with little if any explanation of what evidence they are based on or why they are correct. As a result, the opinion reads as a long series of assertions more than an argument for the result it reaches.

Now I do not mean to suggest that the Court did not carefully consider the trial judge’s conclusions. My point is, to a considerable extent, about transparency. I am happy to assume that the Court did its work, but others may not be, and neither they nor I should have to take that on faith. And then, there is the question of whether the trial judge’s conclusions are, in fact, right. Again, I do not mean to suggest that they are not, but others ― Mr. Coyne, for instance ― disagree. Yet under the Supreme Court’s deferential approach, these conclusions could not be disturbed unless they are based on a “palpable and overriding error,” a high standard to meet in any case, and perhaps an impossible one when the evidence consists of inherently uncertain social science.

As I said in commenting on Bedford, the attraction of “leading from behind” is that it allows the Supreme Court to make its decisions look inevitable and unassailable. It seems to be an effective short-term tactic. Yet it is questionable as a long-term strategy. The less transparent judicial review appears to be; the more it looks like a dictation of the judges’ views rather than a rational argument for them; the less legitimate it will become. The Supreme Court is hoping that we will trust it indefinitely. But trust has to be earned and preserved. It cannot be taken for granted.

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So there you have it, a cautiously happy view of Carter and a brooding one. You can pick whatever half of the glass that most appeals to you. Or maybe even both.

Ignoramus et Ignorabimus

I have mentioned the problem of political ignorance a number of times on this blog, notably in connection with legislative inaction on access to justice. The idea ― which I have shamelessly borrowed wholesale from Ilya Somin (who explains it, for example, here) ― is that most people are ignorant about political matters writ (very) large ― about the way their country’s political system works, about the people running it and their policies, and also about the data that should figure in even the most basic political decisions. This is the case despite the fact that the relevant information is very easily available thanks to the internet, and much of it was already available through the traditional media. But, as prof. Somin argues, it is rational for a voter not to bother investing even a small amount of time and effort to acquire this information, since the odds of his or her knowledge making any sort of difference to the outcome of an election are infinitesimal.

This all sounds extremely shocking and cynical. It is certainly unpleasant. It would be nice if the wisdom of crowds were a thing. In Canada, I suspect that there’s an additional danger in thinking that this is all stuff for (and about) our ignorant American neighbours, and that we’re better than that. So the results of a multi-country study released by IPSOS-Mori are all the more sobering. We might indeed be (a little bit) less ignorant than the Americans; but the levels of Canadians’ ignorance about some basic facts are still depressing.

For example, the survey asked people how many people out of every 100 in their country were Muslim (none of the countries surveyed had a Muslim majority or even a significant minority). In Canada, the average answer was 20 ― but the true answer is 2. On this question, Canadians are actually among the most ignorant of the people surveyed, both in the absolute terms favoured by the survey’s authors (i.e. we overestimate the Muslim population by 18%) and in relative terms (i.e. we overestimate it by 10 times!) which seem a more relevant measure of ignorance to me ― though I’m no statistician and would welcome an explanation to the effect that this relative measure is actually silly. (In case that makes anyone feel better, in relative terms, Americans overestimate their Muslim population by 15 times, while in some Eastern European countries it is by 50 times!)

Similarly we are among the worst, at least in absolute terms, at stating the proportion of people in our country who are over 65 years old. The average Canadian answer was 39%. The true answer is 14%. (In relative terms the overestimation was actually quite similar across all the countries surveyed ― people just about everywhere seem to think the number of over-65s is two to three times what it is in reality; but the overestimation in Canada is still close to the upper end of that spectrum.)

Canadians do somewhat better, compared to others anyway, on the question concerning unemployment (“out of every 100 people of working age, how many do you think are unemployed and looking for work?”), but even here the results are nothing to be proud of. The correct answer here is 7 ― the average Canadian answer is 23. We overestimate unemployment by “only” three times ― way better than the Americans, who exaggerate it more than five-fold, or the South Koreans, who think it is eight times more than it really is in their country. But consider, for a moment, the average Canadian answer on its own terms. How do people even think that one person in four is employed? And that’s the average answer, by the way, probably meaning that quite a few said it was much higher. 23% is close to the number at which unemployment peaked during the Great Depression. Do people seriously think things are that bad ― or even worse? I am, honestly, flabbergasted ― and puzzled.

The answers to the unemployment question are not the only puzzling ones, I should say. Those for the over-65 one are too, for instance. How do people come to think that 2 out of 5 of their fellow citizens are seniors? Surely that’s not what they see around them, unless they live in nursing homes? Prof. Somin often cites, as an example of political ignorance, the extent to which people overestimate public spending on things like welfare and foreign aid (which is, unsurprisingly, very bad). But at least budget numbers are not something we deal with in our day-to-day experience. Shouldn’t we be able to guess, at least roughly, the number of over-65s just from what we see in the street? I guess even that’s too much to expect.

Prof. Somin’s normative takeaway from his study of political ignorance is that “smaller government is smarter” ― that we should want the government (and thus ignorant voters) to make fewer decisions for us, and let us get on with our lives, in which we are actually willing to expend a good deal of time and effort on acquiring information relevant to our decisions, because we know that these decisions will in fact matter. I, for one, find this a persuasive argument. You might not. But in any case, our political theories really must make an effort to account for the pervasive ignorance of even some basic and easily ascertainable facts under which most citizens exercise their right to vote. Ignorance isn’t going away. Universal education has not eradicated it; nor has the availability of free information on the internet. Considering that people hold beliefs in defiance of things they see every day with their own eyes, this is unsurprising. This is just very depressing.

UPDATE: Bobby Duffy, the managing director of the Social Research Institute at Ipsos MORI, ventures some explanations of the survey’s findings in a Guardian op-ed. Ilya Somin also comments on the IPSOS study over at the Volokh Conspiracy.

Neither Here Nor There

I have summarized the Supreme Court’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case, here. Over a furious dissent by Justice Rothstein, the Court held that while provinces can impose some hearing fees, the fees cannot constitutionally result in “undue hardship” on litigants, preventing them from asserting their legal claims. The Court found that the B.C. fees do not pass this test, and declared them unconstitutional. As I wrote in the conclusion of my earlier post, the majority’s reasons leave some important questions unanswered. They also rest on shaky foundations, which Justice Rothstein’s dissent exposes. Yet Justice Rothstein’s own arguments are even less persuasive than the majority’s.

Perhaps most significantly in practical terms, the majority’s reasons do a poor job of answering the question of what fee or fee and exemption structure is constitutionally acceptable. The threshold the majority sets out for the acceptability of hearing fees ― that they must not cause “undue hardship” to litigants or make them “sacrifice reasonable expenses” ― strikes me as quite vague.

It also seems to have been formulated with only individual litigants in mind. But what about corporations? Not big corporations for which litigation is just another business expense, but small businesses ― say a convenience store engaged in a dispute with a supplier ― or non-profits? I suspect that to such litigants, the BC hearing fees can represent a significant expense, and perhaps a prohibitive one in some cases. But how will the “undue hardship” and “reasonable expenses” tests apply to them? Yet the majority’s rationale for finding some fees unconstitutional, which is that they interfere with the courts’ core jurisdiction and the Rule of Law, ought to apply to corporate litigants as well as to individual ones.

Most importantly, Justice Rothstein is right to point out that the majority’s pronouncements on the role that exemptions from fees can play in a constitutional hearing fees scheme are contradictory. As he explains, the majority says that “as a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees” (par. 48), while also saying that making litigants “come before the court, explain why they are indigent and beg the court to publicly acknowledge this status and excuse the payment of fees” (par. 60) can be demeaning and burdensome. Whether the exemption is framed in terms of “impoverishment” or “undue hardship” changes nothing to this fact; nor does it alleviate the majority’s “concern the exemption application itself may contribute to hardship” (par. 60). It is perhaps worth recalling that, as I noted at the time, at oral argument Justice Moldaver seemed convinced that an exemption regime was “unworkable.” The majority reasons (which Justice Moldaver signed on to!) do not really address this concern.

And then, there’s the question of whether a province could impose fees for hearings in provincial court (to which s. 96 of the Constitution Act, 1867, does not apply). Or, for that matter, in administrative tribunals. Now even British Columbia seems not to impose hearing fees in provincial courts, so this particular question might be purely academic but, at least in theory, anchoring the protection of access to adjudicative fora in s. 96, as the majority does, seems to suggest that access to other adjudicators ― which, no less than superior courts, even if under their supervision, engage in the determination of private and public law rights of individuals ― is not protected.

Beyond these practical worries, which may end up generating yet more costly and time-consuming litigation if British Columbia or some other province imposes fees coupled with an “undue hardship” exemption, the majority’s reasons are theoretically weak. Section 96 is a very dubious ground on which to rest a conclusion that hearing fees are unconstitutional. Justice Rothstein is quite right that the fees do not “limit the type of powers [s. 96 courts] may exercise.” They do not, in other words, interfere with these courts’ jurisdiction as it had been understood in the s. 96 jurisprudence, which has always been concerned with the removal of types of cases (e.g. judicial review of administrative tribunals) from the superior courts’ purview. The fact that courts may have fewer litigants able or willing to go before them cannot, in itself, be an interference with their jurisdiction. (If it were, a great many rules encouraging litigants to settle their dispute or to use alternative dispute-resolution mechanisms would be unconstitutional too.) As I have argued before, “the real issue [with the hearing fees] is not that the courts are being interfered with, but that individual litigants are.”

In the post just quoted, I argued that the Court should resolve the case on that ground, because hearing fees have the effect of preventing litigants from asserting their legal rights, which legislatures cannot abrogate, if at all, without clearly stating their intent to do so ― something the hearing fees do not do. So I am happy that the majority discusses the rule of law, even though it does not make that principle the main ground for its decision, and doesn’t go as far as the I would have liked. The majority is right that there cannot be a Rule of Law if people cannot assert their rights in court, and that “[i]f people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law” (par. 40). To my mind, that ― rather than s. 96 of the Constitution Act, 1867 ― is the key to resolving “the fundamental issue of principle” regarding the constitutionality of hearing fees, all the more since there is already a line of cases, culminating in Air Canada v. B.C. (A.G.), [1986] 2 S.C.R. 539, standing for the proposition that legislatures or governments cannot indirectly deny citizens’ constitutional rights by preventing them from asserting them in court. Unfortunately, the majority does not mention this jurisprudence (which was also ignored by the parties and the interveners). Instead, it tries to link the Rule of Law to s. 96, but the connection seems to me awkward and unconvincing.

It is, perhaps, an attempt to rebut Justice Rothstein’s criticisms, though the majority opinion never addresses his dissent directly. But while I share Justice Rothstein’s skepticism at the majority’s reading of s. 96, I think that his brutal attack on its reliance on the Rule of Law misses the mark. Justice Rothstein argues that an unwritten principle, especially one so “vague and fundamentally disputed” (par. 100) as the Rule of Law, cannot justify striking down laws on the basis of their content. But it’s not the substance of a law that is at issue with the hearing fees ― it’s the fact that litigants will be unable to assert or defend their rights under any law, whatever its content. In Jeremy Waldron’s terminology, the conception of the Rule of Law that is at issue here is neither a substantive nor a formal one (both of which the Supreme Court had rejected in the past), but a procedural one. Justice Rothstein, in my view, has no answer to the majority’s point that allowing hearing fees to prevent people from defending their legal rights places the government above the law, which the Court had already said would be a Rule of Law problem.

More generally, Justice Rothstein’s approach to constitutional interpretation is unconvincing. His position is an absolutist one ― since hearing fees are not prohibited by the constitutional text, they are permissible, whatever their consequences. Yet even the B.C. government did not take that view and accepted, at oral argument, that in the absence of a suitable exemption, fees could create a constitutional problem. Justice Rothstein’s paeans to democracy mask the fact that the fees are imposed by the rules of court, not by legislation actually enacted by elected representatives of the people. They also ignore the problem of near-total ignorance of access to justice issues by the electorate, which I describe here.

The majority, at least, ends up in the right place, more or less, although its reasons leave a lot to be desired from a theoretical standpoint and fail to answer many important practical questions. Justice Rothstein makes some important points in criticizing them, but his critique ultimately fails.

Not So Super Majorities

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

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

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

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

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

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

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

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

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

Precedent and Democracy

“Long-standing” precedent is generally regarded as more authoritative than one of recent vintage. But there is reason to question that assumption, too. The more ancient a rule, the more likely it is that the reasons that made it sensible or good (whatever one’s criteria for the goodness of legal rules!) at the time it crystallized or was laid down no longer hold true. In the extreme case, we are left with the situation that Oliver Wendell Holmes famously decried in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897):

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

So which sort of precedent deserves greater deference ― old or new? One consideration that tends to be missing from the debates about the authoritativeness of precedent ― even though it is a popular argument in the broader debate about the authoritativeness and legitimacy of “judge-made” (or, to borrow a less loaded term from Lon Fuller, “adjudicative”) law ― is legislative acquiescence.

It is often said that adjudicative law is democratically legitimate because, even though the courts in whose decisions it is set out are not in a meaningful sense democratic, legislatures could change the rules of adjudicative law that they do not like. Their failure to act is regarded as a sign of consent to the rules set out by courts, a democratic confirmation, albeit a tacit one, of the suitability of these rules for the community. Now, the acquiescence thesis does not strike me as entirely plausible, because the mass of case law is such that legislatures seem to me not very likely to be aware of all of its developments, still less to have the opportunity to respond to them in a timely fashion. But there is at least some truth to it, even if not enough to make it the conclusive argument for the legitimacy of adjudicative law its many proponents think it.

If we accept the acquiescence thesis, it would seem that long-standing precedents do have more authority than recent ones. The older a precedent, the more plausible the claim that the legislature has acquiesced to it.  The longer a precedent has been around, and especially the more subsequent judicial decisions have relied on it (admittedly, not necessarily a perfectly correlated fact), the more likely it seems that the legislature will become aware of it. People who stand to be affected by it and who are unhappy about the situation will, presumably, at least try to interest the legislature in their plight. And, given enough time, the legislature might respond.

But now, consider a somewhat stronger version of the acquiescence thesis. This stronger version holds that legislatures do not merely acquiesce to the rules of adjudicative law, but actually, albeit again implicitly, delegate rule-making responsibilities to courts, in more or less the same way  as they delegate such responsibilities to the executive branch of government. Again, I do not find this an entirely persuasive claim; I’m not sure that legislative silence on a certain point can really be taken as an invitation for the courts to deal with it rather than a merely lack of attention or even a deliberate decision not to regulate. Still, again, the delegation thesis is at least sometimes true. Legislatures do enact very general, even vague, statutes which they expect the courts to elaborate into more detailed regulatory schemes. And perhaps legislatures have in fact a more general expectation that if a problem arises with the law, the courts will deal with it ― it is hard to tell.

But if, or to the extent, that the delegation thesis is true, the courts should be quite proactive in responding to changing social conditions. They should then also be more suspicious of, rather than more deferential to, older precedents. The reasons that justified the precedent may have disappeared with the changes in society, the growth of our knowledge (scientific, economic, etc.), or even the development of other areas of the law.

Note, by the way, that the acquiescence and the delegation thesis are actually very close. The latter is only a mildly stronger version of the former. Indeed the delegation thesis depends on the acquiescence thesis for whatever normative validity it might have. If the legislature is not actually in a position to review and either consent to or revise adjudicative law, then it seems quite wrong for it to delegate legislative power to courts. (Though it might still be wrong for it do it even if the acquiescence thesis holds ― a point for a separate post, perhaps.) The difference between acquiescence and delegation seems to be only a matter of perspective: does the legislature consider the work of courts beforehand or retrospectively? In fact, to the extent the legislature does consider adjudicative law at all, it seems plausible that it does both, looking at what courts have done on an issue in the past and at what they might do in the future.

And yet, when it comes to the effect of time on authority of a precedent, the acquiescence and the delegation thesis seem to suggest opposite conclusions. I am not sure what to make of all this.

Federalism, Democracy, Same-Sex Marriage

It’s about time I got back to blogging. (Well, it was about time about two weeks ago, but… ) And there is surely no easier way to do so, though there are probably better ones, than to jump on the U.S. Supreme Court’s same-sex marriage cases bandwagon. Especially if one can do so in a self-satisfied way.

As everybody and their dog already know, in United States v. Windsor, the Court declared unconstitutional the misnamed Defense of Marriage Act (DOMA), by which Congress refused to acknowledge the same-sex marriages legally performed or recognized pursuant to laws of States. Dissenting, Justice Scalia wrote that “[t]his case … the power of our people to govern themselves,” (p. 1 of Justice Scalia’s opinion) and that the majority’s decision disregarded and diminished this power to install its own “black-robed supremacy” (3). The many such remarks in Justice Scalia’s opinion prompted the following tweet from Jeremy Waldron:

Now this is very interesting. Prof. Waldron, after all, is a staunch, albeit, unlike Justice Scalia, polite, opponent of “black-robed supremacy” over the will of the people. Indeed, I have argued that his arguments against judicial review of legislation and Justice Scalia’s in favour of limiting judicial review to the enforcement of the original meaning of the constitution are very similar, and that, if anything, “Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way ― fainthearted Waldronians.”

But prof. Waldron’s tweet points at a complexity that is often missed in debates about democracy and judicial review ― including, unfortunately, in his own work on this subject. These debates tend to focus on rights-based judicial review ― courts deciding the extent of citizens’ rights and of the governments’ ability to limit them. Judicial review is then usually presented, both by its detractors and by its more or less enthusiastic supporters, as a clash between the people’s representatives, between democracy and “black-robed supremacy.” But not all judicial review is of that sort.

In federations, judicial review can be based not (only) on rights, but also on the distribution of powers between federal and regional legislatures. The question such cases raise is not (only) whether a legislature had the power to enact the challenged law, but which legislature (if any) had that power. Such cases are not simply clashes between the will of the people and that of judges. They involve competition between the will of the people of the nation and that of a State, province, Land, etc., arbitrated by judges. To describe such cases as being only about judicial and popular or legislative supremacy is to miss this clash of two popular wills.

As Porf. Waldron points out, Justice Scalia’s vituperations neglect the fact that DOMA was enacted to override (or, at the time, to prevent the expression of) the will state citizenries that wanted or felt bound to recognize the equal validity of same-sex marriages. It was democratically enacted by representatives of a people, to be sure, but it was also, as Prof. Waldron puts it,” a usurping insult to democracy.”

It is, then, unsurprising that federalism was a key element of the Windsor majority’s reasoning, as Rick Pildes, Ilya Somin, and Randy Barnett, among others, explain. Windsor, I think, is a great illustration of why federalism-based judicial review is justified whatever one thinks of the philosophical problems afflicting its rights-based cousin ― it protects democracy from insulting usurpation. I know that prof. Waldron was not persuaded when I put an extended version of the foregoing argument to him in a version of this paper, originally written for a class that he co-taught (and which has since benefited from his always thoughtful comments). Now I wonder if he is on the way to changing his mind. If he is not yet, he should be.

Sauter sans parachute

Les députés québécois qui quittent l’Assemblée nationale, que ce soit par une démission, suite à une défaite électorale ou en ne se représentant pas à une élection, ont droit à ce qu’on appelle, dans le monde des affaires, un parachute doré ― une « allocation de transition » équivalant à deux mois de salaire par année passée à l’Assemblée nationale, jusqu’à concurrence de l’équivalent d’un salaire annuel, tel que décrété par les arts. 12 et 13 de la  Loi sur les conditions de travail et le régime de retraite des membres de l’Assemblée nationale, L.R.Q., c C-52.1. Or, selon ce que rapporte Radio-Canada, le gouvernement du Québec propose de changer les conditions d’éligibilité à cette allocation, pour y rendre inadmissibles les députés qui démissionnent en cours de mandat, sauf ceux dont la démission est causée par des raisons de santé ou familiales, confirmées comme telles par le commissaire à l’éthique de l’Assemblée nationale. Ceux qui sont tentés de sauter devraient le faire sans parachute.  C’est une mauvaise idée, qui ne fera rien pour avancer son but déclaré, celui de « rétablir la confiance et combattre le cynisme » envers le système politique. En fait, si elle est adoptée, cette mesure aura des effets pervers facilement prévisibles qui seront probablement  plus grand que tout bénéfice dont on pourrait en retirer.

Ce n’est pas la première fois que ce gouvernement propose des solutions ineptes au problème, réel ou apparent, du désengagement, voire du mépris, des citoyens envers la politique. Il y a quelques mois, c’est aux députés transfuges, qui changent d’allégeance partisane en cours de mandat, qu’il s’attaquait ― une proposition que j’avais décrit comme une mauvaise solution en quête de problème. Plus tôt, et avec l’accord des autres partis politiques, c’étaient les dons aux partis politiques supérieurs à 100$ qu’il a interdits, une interdiction à mon avis inconstitutionnelle, et susceptible de faire plus de mal que de bien. Ce que tous ces projets ont en commun, c’est qu’ils font abstraction, au nom d’un certain idéal de pureté politique, des effets que leur mise en oeuvre aura en réalité.

L’objectif de la modification proposée aux règles d’éligibilité à l’allocation de transition est de forcer les députés à terminer un mandat pour lequel ils ont été élus. Selon Radio-Canada, Bernard Drainville, le ministre responsable de ce projet (comme des autres que je viens de mentionner) croit qu’ « [u]n élu qui choisit de son plein gré de démissionner en cours de mandat ne respecte pas le contrat moral qu’il a pris avec ses électeurs ». Or, de toute évidence, les électeurs n’en veulent pas particulièrement à de tels élus. Comme le soulignait aussi Radio-Can, je crois, dans une de ses émissions aujourd’hui, la chef du parti de M. Drainville, Pauline Marois, avait démissionné en 2006, disant que « le coeur n’y [était] plus ». Ça ne l’a pas empêchée d’être ré-élue en 2007, et éventuellement de devenir première ministre.  Le contrat moral dont M. Drainville parle existe-t-il vraiment? C’est au mieux incertain, et il y a de bonnes raisons de croire que même si tel est le cas, il n’est pas assez fort pour que son renforcement change grand chose à la perception qu’ont les citoyens de la politique.

Ce qui est certain, par contre, c’est que forcer des députés à compléter leur mandat aura des effets pervers. On souligne, par exemple, que ça empêcherait un député de démissionner pour céder son siège au chef de son parti si celui-ci n’est pas membre de l’Assemblée nationale, une pratique assez courante (et à laquelle le Parti libéral du Québec pourrait vouloir ou devoir recourir, son nouveau chef, Philippe Couillard, n’étant pas député). De façon tout aussi néfaste, cela inciterait un député empêtré dans des problèmes éthiques, voire accusé au criminel, à s’accrocher à son siège plutôt que de démissionner et le céder à un autre, qui serait susceptible de mieux représenter les électeurs. Et plus généralement, les citoyens ne seraient pas bien servis par un député dont le coeur, comme celui de Mme. Marois à l’époque, n’y est plus, et qui ne se pointe à l’Assemblée nationale que pour pouvoir éventuellement percevoir son allocation. La réforme prônée par M. Drainville aurait pourtant pour effet probable de créer de tels zombies.

Elle est donc, comme celles qui l’ont précédée, inutile et même dangereuse. En fait, ce qui, selon moi, cause le désengagement, voire le cynisme des citoyens envers la chose publique, ce ne sont pas tant les transfuges, les démissionnaires, ni même l’argent en politique, mais plutôt la perception commune que les politiciens se préoccupent de problèmes fort différents de ceux qui concernent les citoyens. Les réformes de M. Drainville ne font rien pour changer cette perception ― elles la confirment.

Mauvaise solution en quête de problème

Les transfuges politiques, les députés qui, en cours de mandat quittent le parti politique sous la bannière duquel ils ont été élus pour en rejoindre un autre, ne sont pas très populaires. Dans la mère-patrie de notre système parlementaire, on les appelle “rats” (d’un sens familier de to rat, « trahir »). Le fait que de grands parlementaires, dont Winston Churchill, aient fait le coup n’y change rien. Aujourd’hui, La Presse rapporte que le gouvernement québécois travaille à l’élaboration d’un projet de loi qui restreindrait cette pratique impopulaire. Un député

ne pourr[ait] pas quitter [son] parti au profit d’un autre sans retourner devant leurs électeurs, selon un scénario envisagé.

Un député aurait toutefois toujours le loisir de tourner le dos à sa formation politique sans en référer à ses électeurs pour aller siéger comme indépendant.

On peut se poser deux questions face à ce projet. Est-il constitutionnel? Et est-il une bonne idée?

Selon moi, la proposition, telle que rapportée dans le passage cité ci-haut, est constitutionnelle. L’article 45 de la Loi constitutionnelle de 1982  confère aux législatures provinciales la compétence de « modifier la constitution de sa province », sous réserve d’une interdiction de toucher à la charge du lieutenant-gouverneur. Le sens de cette disposition, ou plutôt de celle qui l’a précédée, le paragraphe 92(1) de la Loi constitutionnelle de 1867, a été précisé par le juge Beetz, pour le compte de la majorité de la Cour suprême, dans l’arrêt Le procureur général de l’Ontario c. SEFPO, [1987] 2 R.C.S. 2.

[U]ne disposition peut généralement être considérée comme une modification de la constitution d’une province lorsqu’elle porte sur le fonctionnement d’un organe du gouvernement de la province, pourvu qu’elle ne soit pas par ailleurs intangible parce qu’indivisiblement liée à la mise en oeuvre du principe fédéral ou à une condition fondamentale de l’union et pourvu évidemment qu’elle ne soit pas [liée à la charge du lieutenant-gouverneur ou celle de la reine]. (p. 40)

Une règle qui modifie les conditions auxquelles un député occupe son poste et celle auxquelles des élections (partielles) doivent être tenues « porte sur le fonctionnement d’un organe du gouvernement de la province », en l’occurrence la législature. La législature a donc compétence pour adopter une telle règle, dans la mesure où elle ne touche ni au principe fédéral, ni à une condition fondamentale de l’union canadienne, ni à la monarchie. La règle envisagée par le gouvernement du Québec ne fait rien de tel. Une autre limite possible au pouvoir de la législature d’amender la constitution provinciale identifiée, en obiter, par le juge Beetz, le principe du gouvernement responsable, n’est pas en cause non plus.

L’autre disposition constitutionnelle pertinente, c’est l’article 3 de la Charte canadienne des droits et libertés. En apparence, il ne garantit que le droit de voter et de se porter candidat à une élection. Cependant, la Cour suprême l’a interprété, notamment dans le Renvoi : Circonscriptions électorales provinciales (Sask.), [1991] 2 R.C.S. 158, et dans l’arrêt Figueroa c. Canada (Procureur général), 2003 CSC 37, [2003] 1 R.C.S. 912, comme protégeant le droit d’un électeur à une « représentation effective ». Sans me lancer ici dans une analyse complète, je ne crois pas que l’exigence qu’un élu se présente à une élection partielle avant de siéger avec un parti différent empêche la représentation effective des électeurs. Il est vrai qu’en principe, dans notre système électoral, on élit un député, et non un parti. C’est le député, et non un parti, qui représente d’abord les électeurs. Cependant, la règle proposée permet aux électeurs de réélire leur représentant. Elle ne les prive donc pas de représentation. Cependant, en pratique, comme la majorité de la Cour suprême l’a reconnu dans Figueroa,

les partis politiques jouent un rôle si important dans notre système démocratique que le choix d’un candidat par certains électeurs s’appuie en grande partie, sinon exclusivement, sur l’identité du parti auquel il appartient (par. 56).

Pour ces électeurs-là, la règle proposée améliore l’effectivité de leur représentation. C’est d’ailleurs son but.

Le seul problème constitutionnel possible que je voie, c’est qu’en augmentant les difficultés auxquelles un aspirant-transfuge doit faire face, la règle proposée donne un pouvoir plus grand aux partis sur leurs députés. Selon moi, c’est un problème, et j’y reviendrai en parlant du bien-fondé de cette mesure. Cependant, il faut bien reconnaître que les partis ont toutes sortes d’autres moyens de contrôler leurs députés. Le renforcement du contrôle qui va résulter de la règle proposée sera, en comparaison, assez peu important. De plus, le députés ont toujours l’option de quitter leur parti pour siéger comme indépendants. Leur présence à l’Assemblée nationale, et leur capacité de représenter leurs commettants, n’est donc pas à la merci des dirigeants de leur parti. C’est pourquoi je ne crois pas que les tribunaux interviendraient pour corriger la situation.

L’exigence qu’un député passe par une élection partielle avant de changer de parti en cours de mandat n’est donc pas inconstitutionnelle. Ce n’en est pas moins une mauvaise idée. L’accroissement du pouvoir des partis qui va en résulter sera peut-être mineur, mais c’est tout de même un pas dans la mauvaise direction. Je crois que le pouvoir des partis sur les députés, qui résulte en une partisannerie et une rigidité excessives dans nos législatures, est une cause bien plus importante du « cynisme des citoyens » envers les institutions politiques, que Bernard Drainville, l’auteur de la proposition, déplore et dit vouloir contrecarrer, que les rares changements de partis en cours de mandat. C’est là un jugement politique que les tribunaux seront probablement réticents à porter, et avec raison, mais en tant que citoyens, nous sommes libres de le faire.

Par ailleurs, il est incertain si l’adoption de règle telle que rapportée par La Presse serait efficace. Si un député qui veut changer de parti demeure libre de siéger comme indépendant, rien ne l’empêche de coordonner ses activités et ses votes avec le parti avec lequel il souhaite maintenant s’aligner. De plus, il n’est pas clair si un député pourrait rejoindre un autre parti après avoir siégé un temps comme indépendant (chose que Lucien Bouchard a fait après avoir quitté le Parti progressiste-conservateur en 1990). Tout dépendrait  du libellé exact de la loi.

Quoi qu’il en soit, forcer les transfuges à passer par une élection partielle demeure une mauvaise solution à un problème qui n’en est pas vraiment un. Les électeurs ont déjà la possibilité de porter un jugement sur un transfuge, lors de la prochaine élection générale, si le transfuge n’a pas trop peur de ce jugement pour s’y présenter. À cet égard, le système fonctionne fort bien.

The Course of Human Events

David R. Johnson and David Post have published a fascinating essay, “Governing Online Spaces: Virtual Representation,” at the Volokh Conspiracy, arguing that Facebook ought to move towards becoming something like a representative democracy. While various attempts at regulating Facebook and other online services and communities from the outside are a frequent topic of discussion, including, for example, here and here, Mr. Johnson and prof. Post raise a different, albeit related issue, that of internal governance.

At present, Facebook’s relationship with its users is akin to that of a “benevolent dictator[],” or perhaps an enlightened absolute monarch, a sort of digital Frederick the Great, with his subjects. That relationship is governed by the Terms of Service (TOS) that users must accept in order to use Facebook. And the company reserves the right to change those Terms of Service at will. As the law now stands, it is entitled to do so. But, say Mr. Johnson and Prof. Post, this is  wrong as a matter of principle. The principles of “self governance and self-determination” mean

that all users have a right to participate in the processes through which the rules by which they will be bound are made.  This principle is today widely accepted throughout the civilized world when applied to formal law-making processes, and we believe it applies with equal force to the new forms of TOS-based rule-making now emerging on the Net.

Market discipline―the threat of users leaving Facebook in favour of a competitor―is not enough, because the cost to the user of doing so is unusually high, due both to the users having “invested substantial amounts of time and effort in organizing their own experience at the site” and to network effects.

But attempts to have users provide input on Facebook’s Terms of Service have not been very successful. Most users simply cannot be bothered to engage in this sort of self-governance; others are ignorant or otherwise incompetent; but even the small portion of users who are willing and able to contribute something useful to Facebook’s governance comprises way too many people to engage in meaningful deliberation. Mr. Johnson and Prof. Post propose to get around these problems by setting up a system of representation. Instead of users engaging in governance directly, they would

be given the ability to grant a proxy to anyone who has volunteered to act on his/her behalf in policy discussions with Facebook management. These proxy grants could be made, revoked, or changed at any time, at the convenience of the user. Those seeking proxies would presumably announce their general views, proposals, platforms, and positions. Anyone receiving some minimum number of proxies would be entitled to participate in discussions with management — and their views would presumably carry more or less weight depending upon the number of users they could claim to represent.

This mechanism of virtual representation would, Mr. Johnson and Prof. Post argue, have several benefits. Those seeking and obtaining proxies―the representatives in a virtual democracy―would be people with the motivation and, one expects, the knowledge seriously to participate in Facebook’s governance. Representation sidelines extremists and gives power to the moderate voices and the silent majority ignored by direct democracy. At the same time, it gives Facebook the means of knowing how users feel about what it does and what it proposes to do differently in the future, which is handy for keeping them happy and avoiding having them rebel and desert to a competitor.

The proposal is not―”yet”―for a full-scale virtual democracy.  Mr. Johnson and Prof. Post accept that Facebook will retain something like a monarchical veto over the demands of its users’ representatives. Still, it is pretty radical―and pretty compelling. By all means, read it in full.

As Mr. Johnson and prof. Post recognize, “there are many unanswered questions.” Many of those concern the details of the virtual mixed constitution (to borrow a term from 18th-century political philosophy) that they are proposing, and the details of its implementation. But here’s another question, at which their discussion hints without quite reaching it.

Suppose Facebook reorganizes itself into a self-governing polity of some sort, whether with a mixed constitution or a truly democratic one. What effect would this have on its dealings with those who wish to govern it from the outside? Mr. Johnson and prof. Post write that “Facebook’s compliance with the clearly expressed will of the online polity would also surely help to keep real-space regulators at bay.” But what if it doesn’t? Not all of those regulators, after all, care a whole lot for democracy, and even if they do, their democratic constituents are citizens of local polities, not of a global one. Could this global democratic polity fight back? Could its members

dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them?

Mr. Johnson and Prof. Post allude to Alexander Hamilton and James Madison as their inspiration. But what about Thomas Jefferson?

Judicial Independence, Freedom, and Duty

Judicial independence is a familiar idea, though it is also a difficult one, in more than one sense. Difficult to accept, on the one hand, because independence from political, and ultimately electoral, control seats uneasily with our notions of democracy in which political power (which judges exercise, since they make their decisions in the name of the community) must spring from and be answerable to the voters. Difficult to work out, on the other hand, because even if we agree that, democratic qualms notwithstanding, that judicial independence is a good and important thing, we are bound to disagree about what, exactly it means or requires. To what extent can the executive be involved in the administration of the courts? Can the legislature lower the judges’ salaries along with those of all civil servants? Can it fail to raise these salaries for some prolonged period of time? People, and polities, committed to judicial independence as a principle can give different answers to these questions.

There is also a more profound difficulty with judicial independence, as Fabien Gélinas points out in a short and very interesting paper. (Full disclosure: prof. Gélinas taught me constitutional law at McGill, and I worked for him as a research assistant on several projects on judicial independence, among others, though not on this one.) As prof. Gélinas says, there some confusion not only over what judicial independence is, but also over what it is for. In fact, he argues, it has two distinct purposes. One is to ensure the impartiality of ordinary adjudication. Judges need to be independent and secure in order to avoid situations where they will have or will be seen as having an interest in the case before them. No one ought to be the judge in his own case. Nemo judex in propria causa. (As prof. Gélinas observes, the maxim, in this form, is not actually Roman―he traces it to Lord Coke. The Roman law had rules to the same effect, but neither as general nor as pithy.) The second purpose of judicial independence is to guarantee that the judiciary will, along with the legislature and the executive, have what Madison called “a will of its own”, an ability to stand up to the other branches of government. Prof. Gélinas says that this is peculiarly important in the modern state, where citizens recognize the possibility that the executive, and even the legislature, will abuse their power, and must be kept in check, particularly by means of judicial review of legislation. If courts are to expose and resist the abuses of the “political branches”, they must be, and be seen to be, impartial not only as between private litigants, but also between private litigants and the government itself.

This is interesting, but I think it does not go far enough.  The focus on judicial review is unjustified. The political branches are not just involved in litigation against citizens in cases involving claims that a statute is unconstitutional. Much more frequently, citizens challenge the legality of executive, rather than the constitutionality of legislative, action, and in such cases too the judiciary must be independent in order to adjudicate impartially. But notice too that we are still speaking of impartiality here―albeit between citizen and state rather than between two citizens. I think that the second purpose of judicial independence, one that arguably goes beyond impartiality, is to avoid situations where judges become instruments of state policy, as administrative agencies can be. Even where the state is not involved in litigation, it might still want, for policy reasons, the case to come out a certain way. Depending on its political preferences, a government might like courts to favour, say, employees over employers in unjust dismissal cases, or corporate defendants over plaintiffs in product liability cases. Judicial independence is means to make sure that if a cabinet minister in such a government picks up the phone, rings the Chief Justice, and tells her about the government’s preference for these outcomes, the the Chief Justice will tell him to go to hell―and that she will not suffer for it.

Of course, the legislature can, subject to the constitution, change the law to, say, make proof of liability for a defective product easier, or to expand the definition of what constitutes just cause for dismissing an employee. But it must do so publicly, after at least a modicum of parliamentary debate, and usually prospectively, so that those affected by the change will have time to prepare for it. A change in the law is also more difficult to reverse than a change in policy, so it is less lightly to be undertaken lightly, as a matter of temporary convenience. Judicial independence does not stop the government from acting―but it forces it to act transparently, democratically and, perhaps, for good reasons rather than on a whim.

The independence of the judiciary gives judges an extraordinary freedom. Nobody can force an independent judge to decide a case one way rather than another. (Appellate courts have some control over lower-court judges of course, because the latter do not like having their decisions reversed―but they will take the chance sometimes.) They can act in ways that are deeply unpopular and retain their positions. This is precisely what is worrying about judicial independence from a democratic perspective (though if what I said in the previous paragraph is right, judicial independence is also, in some ways, democracy-enhancing). But it is worth asking ourselves what it is exactly that judges are free to do.

The somewhat paradoxical, but reassuring answer is that, by and large, judges are free simply to do their duty. This is not to deny the existence of judicial discretion in hard cases. But even in those cases,  the judge has and keenly feels a duty to decide the case, according to what the law requires, or at least to a rule that fits with the law as it stands, after having respectfully listened to the parties and taken their arguments into account, and to give the reasons for his decision. A judge who is not independent―a judge, for example, who takes orders from the government, or who worries about being confirmed in his job by the legislature, or who is underpaid and seeks to ingratiate himself with a powerful litigant―is not free to do his judicial duty.