Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

* * *

Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

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I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

* * *

Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I am not I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.

Their Eminences

Commenting on the Supreme Court’s recent decision striking down a mandatory minimum sentence in R. v. Nur, 2015 SCC 15 in the National Post, John Ivison joins the list of commentators lamenting the Supreme Court’s “political” decision-making. The dissent by Justice Moldaver, joined by Justices Rothstein and Wagner, makes him say that

[w]hen three such eminent jurists … warn in such forceful terms that the Court has overstepped its bounds, we are in precarious constitutional territory.

Now Nur (on which I commented here) strikes me as a strange case from which to draw such alarmist conclusions. The majority and the dissent agree on the alleged dangers of guns and gun crime ― the statistics showing such to be rare and declining notwithstanding ― and that Parliament is entitled to impose harsh penalties on people who commit crimes of that sort. They also agree, however, that applying a three-year mandatory sentence to a person who commits a licensing-type infraction would be grossly disproportionate. They disagree on the best way of avoiding this unjust and unconstitutional result ― on the means, that is, not the ends. True, the dissent argues that its proposed means are more respectful of Parliament’s choices. But it is quite clear that if the dissenters did not think that the statute itself provided a way of avoiding the injustice that they, no less than the majority, are concerned about, they would have struck it down. It is worth noting that they do not advocate abandoning altogether the approach of using hypothetical cases to assess the constitutionality of mandatory minimum sentences, but only say that it should not be used when the statute makes it possible ― and, in their view, virtually certain ― that the mandatory minimum will not be imposed. In short, there is no great confrontation of constitutional philosophies here.

In any case, what I find even more puzzling is Mr. Ivison’s “three eminent jurists” phrase. It’s not that I think it doesn’t describe Justices Rothstein, Moldaver, and Wagner well. But weren’t there six eminent jurists on the other side of the case, disagreeing with them? It’s not that the majority must necessarily be right, of course. But when one says ― as I myself do often enough ― that the dissenters’ position is the better one, one should have a reason for this claim. And, at the risk of reading too much into Mr. Ivison’s words, they strike me as at least a hint that these three jurists were somehow more eminent, more deserving of our attention, than their colleagues. But why would that be?

Actually, there is a reason why someone concerned about the Supreme Court’s “politicization” and “overstepping its bounds” might find Justices Rothstein, Moldaver, and Wagner more “eminent” than their colleagues. They are the three who have arguably been the most likely to adopt a more deferential stance, or to refuse to go along with the Court’s expansive readings of the constitution. Thus Justice Rothstein castigated the majority’s broad reading of s. 96 of the Constitution Act, 1867 and reliance on the unwritten principle of the Rule of Law to strike down hearing fees in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. He also dissented from the constitutionalization of the right to collective bargaining in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 and, jointly with Justice Wagner, from that of the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. Justice Moldaver, for his part, wrote a forceful dissent in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, denouncing the majority’s invocation of Québec’s “social values.” Perhaps there are other cases too, but these are the ones that come to mind most readily.

Is it the case, then, that ― whether or not they are more “eminent” than their colleagues ―Justices Rothstein, Moldaver, and Wagner are some sort of a distinct, deferential or “restrained” faction on the Supreme Court? Hardly. Nur is, so far as I recall, the first time that they have been united in urging greater “respect” for legislative or governmental choices than their colleagues showed. In Trial Lawyers, Justice Moldaver was part of the majority, and probably an enthusiastic part, if his questions at the hearing are anything to go by. (Justice Wagner wasn’t part of the panel that heard the case.) Justice Wagner was part of the majorities in both l’Affaire Nadon and in the Mounted Police decision. Justice Rothstein is perhaps a more doubtful case, because he was recused in l’Affaire Nadon and not part of the panel in the Mounted Police and Saskatchewan Federation of Labour cases either. Would we have seen the Rothstein-Moldaver-Wagner alignment in the latter case if he had been? In any event, the three of them joined all of their colleagues in the “by the Court” judgment in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, which added “constitutional architecture,” whatever that is, to the ever-growing list of sources of constitutional law. That’s hardly the stuff of deep commitment to “judicial restraint” ― whatever that too may be.

One can certainly criticize the Supreme Court for going too far in its decisions, for stretching the bounds of the constitution and of its authority, for not respecting Parliament enough. And one can commend judges for blowing the whistle on their colleagues when they do this sort of thing. But so far as the Supreme Court of Canada is concerned, I remain of the view that it is best to make such criticisms on a case-by-case basis, and not as part of some grand narrative about “activism,” “politicization,” or something like that. Just like the eminent jurists who sit on that court are doing, in fact.

Difference in Deference

After the sad distraction of the repressive “Québec Values Charter” on which I spent the last week, it is time to return to my more customary business of constitutional law and theory. It will no doubt be very bad for the blog’s traffic, but very good for my mood. There is a good occasion for me to return to constitutional theory too, in the shape of this piece by Lincoln Caplan in the New Yorker. Mr. Caplan writes about the significance of what has “long been called the most important footnote in [U.S.] constitutional law” ― footnote four of the U.S. Supreme Court’s decision in United States v. Carolene Products, 304 U.S. 144 (1938).

In that footnote, Justice Stone (as he then was) articulated a theory of what might be described as modulated judicial review. In some cases ― notably those involving economic regulation ― Courts ought to defer to legislative judgment about its constitutionality. In others ― those involving rights ― judicial review should not be deferential. Justice Stone also suggested (albeit prefacing his suggestion by saying that it was “not necessary to consider [it] now,” a caveat which Mr. Caplan ignores, which does not strike me as great journalism), that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” as well as “statutes directed at … discrete and insular minorities” might also have to be approached with less deference than would otherwise be warranted.

As Mr. Caplan explains, these suggestions have been very influential in American constitutional thought, that of judges as well as of academics. Other theories of modulated judicial review, notably that elaborated by John Hart Ely in his classic Democracy and Distrust, which argued that judicial review should serve only to ensure the good functioning of the democratic process, built on it. A distinction between issues from which the courts would stay away, leaving them entirely to be settled by the political process, and those in which they could intervene, basically because the political process could not be relied on to function properly in these limited areas, promised to reconcile the undemocratic practice of judicial review of legislation with democratic ideals ― which is about as close as constitutional theory has to a holy grail.

Now, however, argues Mr. Caplan, the theory of judicial review developed in the Carolene Products footnote four and its progeny is being abandoned:

[w]atershed rulings of the Roberts Court, in particular, run flatly counter to footnote four: the Court has struck down voluntary school-integration plans, major campaign-finance regulations, and a critical provision of the Voting Rights Act, for example, in each case undermining rather than enhancing American democracy.

And with the logic of that footnote, gone is any justification of the legitimacy of what the U.S. Supreme Court is doing.

In past posts, I have myself suggested, very tentatively, something like a modulated approach to judicial review. Here, for instance, I wrote that

[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.

I have also said that courts might do well to be more deferential to legislatures on issues that were well-debated in the legislative process, as opposed to those which were unforeseen or ignored. However, as I also suggested here, to elaborate a sophisticated and workable theory of modulated judicial review will not be easy.

Mr. Caplan’s criticism of the recent decisions of the U.S. Supreme Court illustrates some of the difficulties which such theories must face. It is very difficult to agree not only on the on the categories of issues that warrant deferential judicial review, but also on which cases fall within each such category. And, since constitutional theory is inevitably shot through with politics (as I have argued here), it is difficult to resist the temptation to fiddle with these categories in order to suit one’s political agenda.

Thus, Mr. Caplan cites the invalidation of campaign-finance regulations as evidence of the abandonment of Carolene Products footnote four, but it actually fits not one, but two categories of cases listed in that footnote: the “specific prohibition of the Constitution” on laws “abridging the freedom of speech,” and also Justice Stone’s worry about legislation restricting the democratic process. Now Mr. Caplan probably thinks, and it is certainly arguable, that the regulations recently struck down by the U.S. Supreme Court did not infringe the First Amendment or otherwise impede the political process. But that is a view as to what the ultimate outcome of judicial scrutiny of these regulations ought to have been. One should recognize, I think, that campaign-finance regulation at least has the potential for restricting freedom of speech and impeding the democratic process, so that, on Mr. Caplan’s preferred theory of modulated judicial review, courts were fully justified not to defer to legislative judgments as to its constitutionality.

Or consider the case of affirmative action. Mr. Caplan begins his article by noting that Justice Ginsburg of the U.S. Supreme Court thinks that her colleagues’ newfound willingness to scrutinize it is evidence of their abandonment of Carolene Products footnote four. Affirmative action, after all, involves a majority conceding special advantages to minorities ― nothing wrong with that on the footnote’s logic. It’s when minorities are singled out for special burdens that we should worry. But is that so? Some people disadvantaged by affirmative action are themselves members of minority groups (notably Asian-Americans), minority groups that are smaller, though less disadvantaged, than those whom affirmative action benefits. It may well be the case that it is they who have trouble making their voice heard in the political process, thus justifying stricter judicial scrutiny of that process’s output. Furthermore, considered as individuals, the few people who actually lose out as a result of affirmative action programmes (i.e. those marginal applicants who would have got into the university or programme of their choice but for affirmative action preferences) are, arguably, a minority in their own right, even though they belong to an ethnic or cultural majority group. Carolene Products footnote four might protect them, after all.

All this is not to say that the U.S. Supreme Court’s rulings on these matters are right (or wrong). U.S. Constitutional law is, generally, not my concern here. My point is simply that applying a the Carolene Products footnote four version of a modulated theory of judicial review is very difficult. Further, I’m inclined to think that that’s not because it’s a particularly bad theory, though I don’t necessarily fully agree with it either. Rather, I suspect that similar difficulties are likely to arise in applying any modulated theory of judicial review. I still think that such theories might be an attractive response to wholesale criticism of judicial review such as Jeremy Waldron’s, but producing a satisfactory one will be very hard indeed.

A Purely Hypothetical Maiden

In one of my first posts, I wrote―referring to the suggestion in Stanislaw Lem’s The Cyberiad that there are “three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical, … all, one might say, nonexistent, but each nonexist[ing] in an entirely different way”―that “judicial activism is something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways.” As befits a dragon, that of constitutional theory is commonly regarded as threatening a maiden―judicial restraint. And, much like the dragon, the maiden is arguably non-existent, but in a variety of different ways, of which there are about as many as of the people who use the term “judicial restraint.” Still, some of these ways of nonexistence are more interesting than others.

One such is the description of judicial restraint in an op-ed by Gerard Kennedy (not to be confused with the eponymous politician!) published on the National Post’s website. Mr. Kennedy describes the Supreme Court’s decision on the rights of common-law spouses in Québec,  Quebec (Attorney General) v. A, 2013 SCC 5, about which I blogged here, as “a case study in judicial restraint,” which he defines as a “principled deference to legislative policy choices in matters involving the balancing of competing societal interests.” He points out that the legislative scheme challenged in that case was the product of serious legislative debate, not of accident, and that the legislature―unlike courts―is in a position to know the proportion of cases in which its application results in an injustice. And so, Mr. Kennedy concludes,

[r]easonable people may disagree about the appropriateness of how Quebec has drawn its legislative priorities. But that is a separate question from constitutionality. In cases where multiple societal interests are involved and have been considered by the legislature, courts should not lightly be declaring Charter violations.

In some cases, courts can and ought to strike down legislation or intervene against unconstitutional executive action: “when a matter is peculiarly within courts’ expertise, if other parties do not lose anything, if the decision was not carefully made in the first place, and/or if it was obviously based on improper considerations” or in the rare cases where “legislatures do adopt policy goals that are per se illegitimate.”

Otherwise, judges should remember that they

do not have a monopoly on constitutional wisdom. Constitutional ideals emerge through lived practice — lived practice that is not confined to courtrooms.

This is somewhat similar to a point I made here (and repeated in the post on A.):

[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.

And I think Mr. Kennedy is right to say that courts should be more reluctant to strike down legislation due to a problem that was considered in careful debate than when the alleged constitutional defect was not considered well or at all, pace Justice Abella who contended, in her dissent in A., that  “the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny” (par. 363).

But I don’t think that the label “judicial restraint” is very useful to this argument. It is a simplistic term, which masks what is really a rather complex approach, combining deference to legislatures in some categories of cases with a willingness to intervene in others. Indeed, there is even something paradoxical about this idea of judicial restraint. Constitutional text, after all, does not specify that courts are to approach some legislative choices more deferentially than others. On some understandings of constitutional theory, this would qualify this sort of “restraint” as “judicial activism,” or perhaps as its mirror image, the similarly illegitimate “judicial passivism.”

We would do well to abandon these labels, and get on with the real work of constitutional theory. Those of us who think that courts should modulate their approach to judicial review according to the nature of the allegedly unconstitutional state action and/or the amount of legislative consideration the issue received have many serious questions to answer. Exactly what sorts of issues call for deference to legislatures? What amount of debate, or what sort of legislative process entitles a legislative choice to deference? Does legislative debate, in order to trigger judicial deference, have to be couched in constitutional terms, or at least explicitly take the constitution into consideration? Can constitutionally-significant decisions by the executive branch command deference in the way some legislative decisions do, and if so, when? To what extent is our proposed approach consistent with the current practices of courts, and, to the extent we argue for changes to these practices, how can these changes best be implemented? And, of course, we must be ready to respond to criticism, both from those who, like Justice Abella, believe that there is no warrant for the courts to stand back in deference to a legislative consideration of a constitutional issue, and those who, like Jeremy Waldron, would say that our deferential instincts are not strong enough.  We owe it to those whom we hope to persuade, to our critics, and to ourselves to move beyond dragons and maidens, mythical, chimerical, hypothetical, or otherwise.