Playing Favourites, Anniversary Edition

On the anniversary of the Constitution Act, 1982, a shout out to the provision restricting constitutional amendment

Today (Canadian time) is the anniversary of the signing by Queen Elizabeth II and entry into force of the Constitution Act, 1982. The government is celebrating, as are many constitutional aficionados, but ― with some honourable exceptions ― celebrations are focusing on one or two parts of the Act ― mostly the Canadian Charter of Rights and Freedoms, and to some extent s. 35, which protects aboriginal rights. The official statements of both the Prime Minister and the Minister of Justice only mention these provisions ― and not the other parts of the Constitution Act, 1982.

The tendency to play favourites with the constitution, which I have repeatedly criticized, notably in the context of the Court Challenges Programme (here and here) and with respect to the relative importance given to this year’s constitutional anniversaries, shows no sign of disappearing. Indeed I will contribute to it with this post, focusing on one provision of the Constitution Act, 1982. In my defence, it is a much-neglected one, both today and more generally.

This provision is subsection 52(3), which provides that “[a]mendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.” The authority in question is contained in Part V of the Constitution Act, 1982, which sets out the procedures for effecting various types of amendments.  Now, I have been sharply critical of Part V in the past ― I have argued that it was a “less-than-fully-legal mess” that in some circumstances failed to guide both the political actors to whom it was addressed and the courts to whom the political actors turned to clarify things. While I might have overstated certain points in that critique, I still think that it is fundamentally fair. The Constitution Act, 1982 is not perfect ― no law is, and least of all any law that emerged from a difficult compromise made necessary by the requirement to obtain super-majority consensus. But it is still, on that much we agree, part of “the supreme law of Canada”, as section 52(1) has it.

It is therefore incumbent on all constitutional actors ― Parliament, the executive, and courts alike ― to uphold this law. Even in those cases where the supreme law fails to fully guide their behaviour, they ought to act consistently with whatever guidance it does provide. And of course it does not always so fail. It is sometimes difficult to choose the right amending procedure among the six or more (depending on how you count the number of additional procedures created by section 47) outlined in Part V. But for many cases Part V is tolerably clear, and even when it is not, it does have the virtue of limiting the universe of possibilities from which the choice must be made. To repeat, if they are to comply with the principles of the Rule of Law and constitutionalism, all constitutional actors are bound to stay within these limits.

Unfortunately, Canadian constitutional actors ― and citizens, especially legal scholars ― are often inclined to disregard this obligation. Parliament enacted An Act respecting constitutional amendments ― the so-called regional veto law that in effect seeks to modify Part V of the Constitution Act, 1982 otherwise than with the clear terms of paragraph 41(e). Prior to the 2015 election, the federal executive was committed to a policy of abolishing the Senate by attrition, also in violation of what the Supreme Court had found were the requirements of Part V for abolition. (The then-official opposition was committed to a similar policy.) And of course the Supreme Court itself is fond of adding rights to the Charter by its own “constitutional benediction“, even though judicial invention is clearly not among the amending procedures listed in the Constitution Act, 1982.

Those who defend one or the other form of constitutional amendment in contravention to subsection 52(3) ― usually by the Supreme Court ― argue that the procedures listed in Part V are too difficult to comply with to effect necessary constitutional change. This amounts, of course, to an admission that there is no consensus about the necessity of the constitutional change in question ― and to a claim that a constitutional actor is authorized to change the constitution simply because it thinks the change is a good one, regardless of whether anyone else agrees. Yet this claim is incompatible with the Rule of Law. It allows a constitutional actor to put itself above the “supreme law of Canada”, and to become a law unto itself. Those who support such claims should be clear about their implications. In particular, they have no right to celebrate any part of the supreme law whose authority they ultimately deny.

Living under law is difficult. Constitutional celebrations usually serve as reminders of what constitutions make possible, and the reminder is a useful one. But we should acknowledge that, as all law, a constitution constrains in order to enable. If we seek to free ourselves from the constraints, we risk losing the possibilities. This is no less true of constraints on constitutional amendment as of those on the denial of our rights. Happy birthday, Constitution Act, 1982 ― and that includes you, subsection 52(3).

Still Playing Favourites

Despite its broader focus, the Court Challenges Program remains objectionable

The federal government has officially announced that it is bringing back the Court Challenges  Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights ― not only equality and language rights under the Canadian Charter of Rights and Freedoms and the Official Languages Act, but also those based on sections 2, 3, and 7 of the Charter (protecting, respectively, “fundamental freedoms” of religion, expression, and association; the right to vote; and the rights to life, liberty, and security of the person). Yet even with this broader focus, the program reflects a flawed and indeed disturbing approach to the constitution by the government.

As I wrote in a post for the CBA National Magazine’s blog last year, we should question the government’s decision to prioritize the enforcement of some parts of the constitution over others. I noted that the government does have a special statutory mandate, under the Official Languages Act, to promote the recognition of both official languages and, especially, the vitality of minority linguistic communities throughout the country ― but of course a court challenges programme is only one of a myriad ways in which this might be done. And there is certainly no mandate to promote some Charter rights in particular. Why are, for instance, the due process rights protected by sections 8-14 of the Charter left out? Nor is there any reason, to promote the respect of Charter rights but not that of other constitutional provisions, such as those pertaining to the division of powers.

The choice of priorities for the Court Challenges Program is symbolic, and as I wrote last year

the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, “the supreme law of Canada,” which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism.

The government’s public statements today only confirm my impression. The Prime Minister has tweeted that the Court Challenges Program “will help protect the language & equality rights of all Canadians” ― singling out the rights targeted by the old versions of the programme, and omitting even those added by the one announced today. Meanwhile, the Justice Minister brags about “reinstating the Court Challenges Program as we celebrate #Charter35 to show our commitment to human rights and the rule of law” ― without any mention of, you know, that other anniversary we are also celebrating this year, which someone committed to the Rule of Law might also want to notice.

I have other objections to the Court Challenges Program too ― notably, to the fact that it funds challenges not only against federal laws, but also provincial ones, which strikes me as disloyal behaviour for a partner in the federation. If provinces want to pay people to challenge their own laws, they do can do it on their own ― but they should have the choice. And of course, it is doubtful that such a program is really the most effective way for the federal government to uphold the Rule of Law. Giving teeth to its internal reviews of proposed legislation for Charter and Canadian Bill of Rights compliance might be one good place to start instead; there are others as well.

But as the program is first and foremost symbolic, and in light of the Prime Minister’s and the Justice Minister’s statements, my objection to the program’s symbolism, to its playing favourites with the constitution which the government ought to respect in its entirety, is perhaps the most important one. Although plenty of people in legal academia (including Grégoire Weber, who is currently an adviser to the Justice Minister) and the bar have praised the return of the Court Challenges Program, I have not seen a response to my objections. It’s not that I am entitled to have my objections responded to, of course ― but I would be very happy to publish a guest-post if anyone cares to do it. Any takers?

Abusus Non Tollit Usum

Should judges refrain from accusing their colleagues of acting illegitimately?

In a recent conversation, my friend and sometime guest here Maxime St-Hilaire argued that judges should refrain from accusing their colleagues of having overstepped the bounds of the judicial role, or otherwise acted illegitimately ― which they are mostly, although not exclusively, apt to do in dissenting opinions. Prof. St-Hilaire is especially opposed specifically to the use of the labels of “activism” and “restraint” to advance such criticism. Having long argued that these are unhelpful, muddy concepts, I agree with him to this extent. And I agree that accusations of illegitimate behaviour should not be levelled lightly, and that those who make them risk being exposed as hypocrites. However, I disagree with the point of principle: in my view, it is not inappropriate for a judge to claim that a colleague’s opinion not only misinterprets the law, but amounts to the sort of decision-making that is not open to judges acting within the confines of their constitutional role.

Prof. St-Hilaire has two reasons for his position. First, he believes that philosophizing is not part of the judicial job description. Second, he thinks that accusations of illegitimacy undermine the courts’ authority generally and judicial review of legislation specifically, and ultimately the Rule of Law itself. In my view, this is not so. Committing philosophy, as it were, is an inextricable part of the judges’ job. The scope of judicial authority is contestable and contested, and these contests are very much a part of the business of law, and not only a theoretical debate external to it. As for the Rule of Law, in my view, it does not depend on the courts presenting a united front despite existing disagreements among their members.

It is tempting to say that the controversies about the nature of law, its relationship to morality, and the proper role of the judge in respect of both law and morality, which excite the minds of legal academics, ought to be of no concern to sitting judges. Indeed, some legal academics advocate this view as a means of escaping the (admittedly often stale and always abstruse) debates about legal positivism and anti-positivism. But a judge’s theory of law matters in some cases. It matters that in the Patriation Reference, [1981] 1 SCR 753,  a majority of the Supreme Court adhered to a legal theory that I have described in a forthcoming piece as “pusilanimous positivism ― which simultaneously insists that any rules of law that are not enacted, whose existence cannot seriously be denied, must have been made by judges, and that judges have no mandate to engage in such law-making”. Had they adhered to a different legal theory, they could have recognized the legal status of constitutional convention, or given effect to constitutional principles as Justices Martland and Ritchie would have. Conversely, if the Court remained wedded to the legal theory the majority embraced in the Patriation Reference, then its opinions in Re Manitoba Language Rights, [1985] 1 SCR 721Reference re Secession of Quebec, [1998] 2 SCR 217, and perhaps most significantly Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 and its progeny, which were also based on the idea that principles, and not just posited rules, were part of the law of the constitution, would have been quite different.

To be sure, one can be concerned that judges are not very good legal philosophers. Some legal theories ― notably Ronald Dworkin’s ― assume that they are, but this is probably a mistake. There is simply no particularly good reason to think that judges are good philosophers. But then, they are also not very good economists, political scientists, geneticists, and much else besides. A snarky person might add that they are all too often not very good lawyers, either. But judges still have to engage with these various disciplines on occasion ― especially, although certainly not only, in constitutional cases ― and they must then do it as best they can. Whether or not judges are candid about this does not change the underlying reality that these other disciplines bear on, and sometimes are decisive to, the courts’ resolution of the disputes that come before them ― and there is, surely, a great deal to be said for judicial candour.

But assuming that judicial candour is good, can there be too much of a good thing? Prof. St-Hilaire thinks so. For him (and for many others who agree with him) the contemporary understanding of the Rule of Law principle encompasses judicial review of legislation. Arguments to the effect that a court has acted illegitimately in exercising its power of judicial review legislation undermine the authority of judicial review generally, and criticism that calls the legitimacy of judicial review into question undermines the Rule of Law itself. Accordingly, judges of all people should refrain from it. (Prof. St-Hilaire is not opposed to this sort of arguments being made by academics or journalists, presumably because they do not have the same responsibilities to the Rule of Law.)

In my view, by contrast, judicial review is not an inherent part of the Rule of Law, but only one possible means to secure the Rule of Law requirement (naïve though it may be) that public authority be exercised in accordance with the law. Indeed judicial review must itself be exercised in accordance with the law ― notably, constitutional text, but also other relevant legal rules, whether or not they have entrenched constitutional status. When a court acts without legal justification, it acts every bit as illegitimately (as well as illegally) as the executive or the legislature in like circumstances. It follows that the power of judicial review can itself become destructive of the Rule of Law if used for purposes other than ensuring that the executive and the legislature stay within the bounds of their authority. If, for example, a court uses its power of judicial review to attempt to bring about the just society, then it is not upholding the Rule of Law at all. It is indulging its members’ preferences, in the same way as government that knowingly secures the enactment of unconstitutional legislation, but in a manner that is all the more pernicious because it claims the authority and respect due to law.

It seems to me that, if they see this happening in a decision made by their colleagues, judges can ― and even should ― speak out. For very good reason, judges are not accountable for their exercise of their powers, except in the limited but still very important sense of having to give reasons for (most of) their decisions. Among other benefits, reason-giving exposes judges to scrutiny and criticism, starting with scrutiny and criticism by their colleagues who, in the common law tradition, have generally (the occasional resistance of some Chief Justices notwithstanding) been allowed to publish dissenting or concurring opinions.The possibility of criticism, starting with criticism in a separate opinion, is the only check on the power of a judicial majority in a case, beyond the restraint that individual conscience may or may not impose. So this check should be applied vigorously in order to ensure that the judicial power, and especially the power of judicial review, is exercised so as to further, not to undermine, the Rule of Law. As the Rule of Law’s first line of defence, dissenting judges must undertake, not shirk, this responsibility.

Of course, as I wrote here not long ago, those who criticize judges, including other judges, should do so “without resorting to taunts, insults, and sloganeering”. Accusations of “activism”, unless elaborated and supported by argument, amount to sloganeering at best. But as I wrote in that post,

[i]f we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law.

Sure, “juristocracy” or “gouvernement des juges” can be used as taunts and empty slogans ― and are so used by people who do not for a second care for the Rule of Law. But as the Romans put it, abusus non tollit usum. That something can be abused does not mean that it should not be used properly.

Powerless Law

Timothy Endicott’s challenging views on law and the constraint of public power

Last week, I had the good fortune of attending the 2016 Robin Cooke lecture, delivered by Timothy Endicott. Professor Endicott’s talk, entitled “Lawful Power” was very thought-provoking, so I’ll try to summarize it here, based on the notes I took, and offer some thoughts of my own. Fittingly for a lecture named after a judge who mused about the existence of “common law rights [that] lie so deep that even Parliament cannot override them”, and a past edition of which saw Chief Justice McLachlin assert that courts can and sometimes should invoke unwritten constitutional principles, which she described as a form “modern natural law”, to invalidate legislation, prof. Endicott’s lecture explored the limits of law and government power. It too asserted the existence of “lawful powers” which many others would deny. However, it attributed such powers not only, indeed not so much, to the judiciary, but also, especially, to the Crown.

 * * *

Prof. Endicott’s headline claim that is public bodies can exercise power for the purposes for which it exists, regardless of whether the law specifically authorizes them to exercise this particular power. They all ― not only the Crown, but especially the Crown ― enjoy a form of prerogative, which prof. Endicott insists, following Locke, is not a “right to do wrong”, as many in the United Kingdom (and, I would add, elsewhere) believe, but rather a right to do good without a rule to justify the good deed. Focusing on the exercise of Crown prerogative to trigger the procedures leading to the United Kingdom’s exit from the European Union, prof. Endicott argues that it is within the purpose for which the foreign affairs prerogative exists, and thus lawful. The enactment of legislation, which those challenging to the use of the prerogative claim is necessary to grant the Crown these powers, would not add to the UK’s being ruled by law.

The trouble, prof. Endicott says, is that very few people in the United Kingdom’s history ― other than John Locke, perhaps Blackstone, and, less auspiciously, Charles I ― have much “thought about what the executive power was for”. Indeed, people’s thinking about what the executive branch is is distorted. In prof. Endicott’s view, the executive in Westminster systems it is very much a democratic and accountable one ― as least as much as, if not more than, Parliament itself. “The United Kingdom is not actually a kingdom”, he says, and the prerogative is not in a real sense a royal one. It is, by convention, exercised by the Cabinet, which is more concerned about the next election than individual members of Parliament. It is thus dangerous not to think of the Prime Minister as the people’s representative ― only if we recall that this is what she is can we think clearly about the scope of the powers she ought to be able to wield. Ultimately, in prof. Endicott’s view, it is impossible to exhaustively define the powers that public bodies will need to exercise in advance. If the executive’s prerogative power were abolished, it would need to be replaced by a very wide-ranging delegation. From a Rule of Law perspective, would that improve matters? As things stand though, the executive’s prerogative powers simply have no identifiable source ― they certainly do not arise from the common law: it is not judges that made the prerogative, but the prerogative that first made the judges.

Shifting from the executive to the legislative power, prof. Endicott argues that  Parliament’s powers too are effectively a form of prerogative ― an ability to act for the public good within bounds that are undefined and cannot be defined except by reference to the purpose of this power. Parliamentary sovereignty doesn’t mean that Parliament is entitled to enact any law (as the orthodox view has it). Parliament could not, for instance, repeal the Canada Act 1982 (which renounced legislative authority over Canada); and judges, such as (the future) Lord Cooke, have suggested the existence of substantive limits on legislative power. The better way to understand Parliament’s legislative power is that it is not “an absolute power, but an unspecific one”. Parliament itself determines its scope, and neither the courts nor anyone else can interfere with these determinations. Importantly, this rule is not (contrary to what some of the judges in R (Jackson) v Attorney-General, a.k.a. the Fox-Hunting Case, have suggested) of the judges’ making, nor is it for judges’ to do with as they please ― as a matter of law, at any rate.

Turning to the judiciary, prof. Endicott notes that courts have the power to change the law ― they can overrule precedent for instance ― but not in just any way. For example, a court could not abolish mens rea requirements in criminal law. Until the 16th, maybe even the 17th century, courts did not claim the power to interpret legislation. They have asserted this power, and it is generally accepted now, but it has no source that we could be point to. Nor is it clear what is the source of the judicial power to resolve cases when the law is not clear. Like those of the executive and of Parliament, the courts’ powers are unspecific, and prof. Endicott says, nothing would be gained by attempting to specify and circumscribe these powers in advance.

Prof. Endicott concludes from this that we should acknowledge as lawful powers of public bodies those that the law should recognize them as having, instead of obsessing about defining these powers in advance. To be sure, we should be skeptical of government power; but in order to be healthy, our skepticism of the executive branch cannot overtake that of Parliament, the courts, and indeed the voters. Trusting the latter but not the former does not make for a balanced constitution. In the end, it is not the constitution that will save us from “nightmare scenarios”, but “a political culture” such that these scenarios are “genuinely not on the table”.

 * * *

There is a lot to think about here. In an understated manner, prof. Endicott points to some very inconvenient truths for those who care about the Rule of Law. At the same time, his own framework is arguably too optimistic, and one would like to think that an alternative is possible.

Prof. Endicott is right, I am afraid, that a meaningful comprehensive prospective definition of the legal powers of all public authorities is impossible. This is perhaps most obviously so with the courts, for the reasons prof. Endicott outlines. His argument on this point is reminiscent of HLA Hart’s insistence, in The Concept of Law, that

when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules, they get their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success. (2nd ed; 153)

With legislatures, it is tempting to think that the matter is different. To be sure, the constitutions of the United Kingdom and New Zealand do not seek to set out the scope of the “lawful powers” of their Parliaments in advance in any meaningful way. (New Zealand’s Constitution Act 1986 provides, in s 15(1), that “[t]he Parliament of New Zealand continues to have full power to make laws”, which rather proves prof. Endicott’s point about the futility of vague delegations of power.) But other constitutions, like those of Canada and the United States ― especially the latter ― seek to define the legitimate scope of legislative power, by specifying both the ends to which it can be used in the provisions relative to the federal division of power, and substantive limits on rights-protecting constitutional provisions. Yet any attempt to define legislative power in advance must allow for legislative responses to currently unforeseen circumstances; hence the vague residual powers such as the states’ police power in the United States, or Parliament’s “peace, order, and good government” power in Canada. As for substantive rights-protecting limits, they are necessarily incomplete. They might prevent legislatures from killing all blue-eyed babies, to give a classic example from discussions of Parliamentary sovereignty, but usually have nothing to say about, say, the imposition of confiscatory tax rates, and any number of other forms of iniquity or stupidity. To some substantial extent, Canadian and American legislatures too are entitled to define the scope of their own law-making powers.

The notion that “government in all its actions is bound by rules fixed and announced beforehand” ― FA Hayek’s definition of the Rule of Law itself ― might thus be naïve. Yet might not it be applicable to “government” in a narrow sense ― that is to say, to the executive? Here, I would desperately like to part ways with prof. Endicott. He is right to insist that we should not trust Parliament, the courts, and the voters even as we distrust the executive. I do not trust them either. But the executive is, arguably, somewhat different from the other powers of the state, to say nothing of the electorate: it can interfere with citizens much more readily than Parliament or the courts.

Enactments and judicial decisions (and for that matter at least some administrative ones, suggesting that we perhaps should not speak and think of “the executive” as a whole, but of its multitudinous components) are only made following certain procedures. Legislation must be implemented, and its implementation can often be challenged in court. Judicial process (and, again, often administrative process too) allows directly affected parties to participate, and sometimes to appeal. Even the constitutionality of legislation can sometimes be challenged. In short, there is a certain distance, a certain buffer zone, between the exercise of the government’s legislative or judicial power and the citizen.

By contrast, there is no such buffer zone between a citizen and a policeman pointing a gun on him; or a citizen and government agent reading tapping her phone, or reading her intercepted emails. Sure, there might be after-the-fact remedies against abuses of executive power ― often better remedies than those against abuse of judicial and especially legislative power. But the abuse, in many cases, has already occurred, and can at best be compensated, not undone. This, it seems to me, is a good reason for wanting to treat executive power differently, and confine it ― or at least some of its manifestations ― within limits set out in advance , so as, to come back to Hayek, “make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge”.

 * * *

Prof. Endicott struck a rather optimistic tone, arguing that we can embrace, and need not fear, public powers acting for the greater good, without rules. Yet for me, his thesis is a pessimistic if not an altogether dystopian one ― it is a thesis not so much about “lawful power” as about the law’s powerlessness to constrain public authority. But however much we might dislike this vision, I think prof. Endicott’s argument is a very challenging one. It may well mean that we have to re-think our views of the Rule of Law to at least some extent. It encourages us to reflect on the nature and purpose of public powers, and especially of the executive power, and on the strength of the latter’s claims to legitimacy independent of that of Parliament. (On this last point, I wonder if prof. Endicott’s argument is affected by the Fixed-Term Parliaments Act in the United Kingdom.) The best, and certainly the most interesting, thinkers are not ones one agrees with all the time; they those disagreeing with whom forces us to re-examine our views and to sharpen them, because complacency in the face of their challenge is not an option. Prof. Endicott is one of them.

 

Sub Lege

I often criticize judges, on this blog and elsewhere. I think it is very important that people who exercise power over citizens be subject to criticism whenever they exercise it unwisely or, worse, recklessly, and still more when they abuse or overstep the powers given them. While the media can, more or less, be counted on to criticize legislators and bureaucrats, from time to time anyway, criticizing judges is difficult, because this criticism has to be informed by technical knowledge and skills, which few journalists possess (though there are worthy exceptions). This means that it is especially important for lawyers, including academic lawyers such as myself, to be the judiciary’s critics. And precisely because I am an unabashed critic of the judiciary that I think I need to do so something that might be outside the scope of my normal blogging.

I want to express my dismay, my horror even, at the way in which judges have been treated in much of the British Press in response to the High Court’s ruling that legislation is necessary before the United Kingdom’s government can formally initiate the process of withdrawing the UK from the European Union. The Guardian has collected the front-page reactions: “Who do you think you are?” “The judges versus the people” “ENEMIES OF THE PEOPLE“. A paper “helpfully” noted that one of the (very distinguished) members of the panel that heard that case is gay. Another is apparently just as suspicious by virtue of his wealth. This is shocking, vile stuff.

I do not feel confident enough to comment on the merits of the High Court’s ruling, but there appears to be quite a strong case ― made for instance by John Finnis and other experts for the Judicial Power Project, as well as by Adam Tomkins ― for the proposition that the Court erred. That’s beside the point ― except insofar as these arguments, some of them quite forceful, remind us that it is possible to criticize judicial decisions without resorting to taunts, insults, and sloganeering. Whether or not the High Court rendered the right decision, it decided the case before it in accordance with its understanding of the law and of its own constitutional role. The argument implicit in the tabloids’ headlines is that the court had to decide otherwise ― having no regard to the law, but only to the supposed will of the people. But that would be a culpable dereliction of duty; that would make judges act like politicians in robes; that would make their unelected, unaccountable status grounds for criticism.

But perhaps trying to discern an argument amidst that fury is already too generous. Look at the words they use. Enemies of the people! In modern history, the phrase was apparently first popularized by Robespierre. In case anyone is wondering what life under the Jacobins was like, they should read Dame Hilary Mantel’s A Place of Greater Safety, which succeeds remarkably at creating an atmosphere of all-encompassing, pervasive fear. That same atmosphere was also characteristic of the other period in history where “enemy of the people” was a label used by power to justify mass murder ― Stalin’s purges. This is the heritage which the English press now claims. Land of hope and glory, mother of the free!

Criticizing courts is necessary if we are to hold on to the inevitably precarious proposition that there is a law apart from what the courts say the law is; that there can be a Rule of Law and not merely a rule of judges. If we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law. But if we are to have a government of laws not of men, then even the most revered men and women ― which in a democracy means the voters ― cannot stand above the law.

A final historical parallel, perhaps more exact although of greater antiquity, is in order. When in 1607 the King of England thought that he could substitute his own judgment for that of the law, his Chief Justice would not let him:

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King ought not to be under any man but under God and the law].

Like once their king, the people of England ― or at least the demagogues who would speak for them ― may be offended by being “under the law”. But ― as the examples of the Jacobins and the Bolsheviks remind us ― it is the law that protects them in safety and peace. One has every right to insist that judges too keep to the law. But it is lunacy ― suicidal lunacy ― to wish to with to throw off the law’s protection under the pretense of throwing off its shackles.

A Judge Unbound

The Prime Minister has at last named his choice to fill the vacancy left on the Supreme Court by the retirement of Justice Thomas Cromwell. It is Justice Malcolm Rowe, now at the Newfoundland and Labrador Court of Appeal. For all the concern ― of the Prime Minister’s and his government’s own making ― about whether he would be prepared to breach the convention of regional representation on the Supreme Court in the service of an identitarian quest to appoint, say, an aboriginal woman, Justice Rowe’s appointment will, on the surface, be an unremarkable one. The convention stands undisturbed ― and perhaps stronger thanks to having been affirmed by a unanimous resolution of the House of Commons ― and the Court gets yet another successful and well-connected white male member. (Justice Rowe will be the first Newfoundlander to sit on the Supreme Court, however, so his appointment is groundbreaking in that way ― a step forward for old-fashioned regional diversity, if not for the contemporary demographic sort. Justice Rowe, who was born in 1953, is also relatively old ― among his new colleagues, only Justice Moldaver was older when he was appointed to the Supreme Court; many were substantially younger.)

Justice Rowe’s appointment is noteworthy, however, because of his views on his new job ― disclosed by the government as part of a questionnaire that he, as well as others who applied, had to complete in order to be considered. There are other interesting nuggets there, which others have highlighted. There’s Justice Rowe’s assertion that he was in fact the author of an opinion ostensibly signed by his court (see “Synopsis 2” in Part 7 of the Questionnaire); there’s the fact, highlighted by Dave Snow on Twitter, that he took a French immersion course just before applying, suggesting that his French might be rather rusty, at best; there’s a rather turgid writing style, though it is perhaps unfair to judge a man’s prose by the way in which he filled out a form. But let me focus on Justice Rowe’s ideas about judging and, especially, the Supreme Court. These ideas are, to me, concerning if not disqualifying.

Justice Rowe states that “[t]he Supreme Court is not, primarily, a court of correction,” which is certainly true, so far as it goes. He is right to say that “[t]hrough the leave to appeal process, the Court chooses areas of the law in which it wishes to make a definitive statement.” But his conclusion ― that “the Supreme Court judges ordinarily make law, rather than simply applying it” ― is still remarkable. It is worth recalling, though admittedly Justice Rowe is not the only person who does not, that as John Austin pointed out in The Province of Jurisprudence Determined, the phrase “judge made law” was itself made up, by Jeremy Bentham, and was intended as “disrespectful and therefore,” Austin thought, “injudicious.” More importantly, the idea that judges ― those of the Supreme Court anyway ― usually “make make law rather than simply applying it” suggests that Justice Rowe will not feel bound by the constraints that precedent and statutory and constitutional text are thought to impose on judges, including those of the highest courts. The view is not exactly original ― as I noted elsewhere, Chief Justice McLachlin has expressed her own sympathy for it ― but it is disconcerting nonetheless. For the Rule of Law to exist, courts, like other government institutions, ought to be bound by the law. If judges feel that they can simply make the law up, indeed that this is what they are expected to do, the Rule of Law is not long for this world.

Now, in the very next paragraph, Justice Rowe says that ― unlike in common law adjudication ― “the role of judges concerning the interpretation of statutes … is to give effect to the will of the legislature.” But of course a substantial part of the Supreme Court’s work does in fact involve interpretation of statutes ― whether of the Criminal Code, the Income Tax Act, or of other legislation. At best, then, Justice Rowe’s previous statement about judges as law-makers is thoughtless, or reflects a certain confusion about what it is that the Supreme Court does. (It may well be that this is what’s going on here: as prof. Snow has observed, Justice Rowe is simply wrong to claim that “[r]elatively few recent cases deal with the division of powers.”) At worst, he is deliberately saying one thing and its opposite, the better to justify any approach he might be pleased to take in a given case. As Benjamin Oliphant has pointed out, this is indeed something of a tendency in Justice Rowe’s answers ― and also in the jurisprudence of the Court which he is about to join.

Justice Rowe’s view of the Supreme Court’s place in the Canadian constitutional framework is, ultimately, the smugly self-assured one that is prevalent in the Canadian legal community. Judges make law ― especially, it would seem, constitutional law, where Justice Rowe sees room for reviewing the Privy Council’s division of powers jurisprudence (though he does not explain on what issues), while the plebs (including, presumably, its representatives in Parliament) gladly and wisely accepts the pronouncements of the patres iudices: “Canadians,” Justice Rowe informs us, “have come to accept and embrace this enhanced role for judges. The wisdom and well-founded principles that have informed this role in the jurisprudence of the Supreme Court reflect favourably on our country.” Some might even find Justice Rowe’s frankness in stating these views refreshing in comparison with the balls-and-strikes boilerplate future members of the U.S. Supreme Court are now generally expected to spout. Yet to me, a judiciary that is no more bound by a sense of modesty than it is by the law itself is a distressing prospect. Considering that the Prime Minister and his advisers seem to be comfortable with it, I may have to get used to it too.

Constraint and Candour

The case for a constrained judiciary ― but also candour about adjudication

At the website of Advocates for the Rule of Law (ARL), Asher Honickman has posted a reply to my post here on “How to Do Constitutional Adjudication” (which was itself a reply to some of his arguments in a previous ARL essay making “The Case for a Constrained Approach to Section 7” of the Canadian Charter of Rights and Freedoms). I would like to respond, focusing mostly on what I have been referring to as “democratic process failures” and their relevance to constitutional adjudication. I think that Mr. Honickman mis-characterizes my arguments on this point, but perhaps that’s because they were not clear enough to begin with.

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First, though, a note on what is, as I know from conversation, a persistent but perhaps unimportant disagreement between Mr. Honickman and me. I wrote that

law generally, and constitutional law in particular, contains an ineradicable moral and ideological element, so that there is nothing wrong with perceiving judges as being ― in part ― moral agents and political actors. [Moreover], the Charter‘s text itself makes it inevitable that that judges will be making decisions touching on morality and politics.

Mr. Honickman responds by conceding that “[t]he judge can no more divorce herself from her subjective experiences, beliefs and values than can the historian, the economist, or the physician,” but arguing that “it does not follow that judges should embrace their fallibility.” He wants judges to be “constrained by a ‘rule of law’ culture” that will limit, if not altogether remove, the negative consequences of the judges’ inability to be entirely objective.

I have no quarrel with this, but think this misses the point I was trying to make, which is that moral values and ideology are not just something that judges bring into the law because they are fallible, but something it is built into the law ― perhaps into the very concept of law. Mr. Honickman’s example is a telling one: history, economics, and medicine are supposed to be amoral. They describe the world and suggest ways to change it, but whatever values their practitioners bring to their craft are external to the disciplines themselves. Law is different. It has, Lon Fuller argued, an “internal morality.” It is, Jeremy Waldron says, inherently protective of human dignity. The Rule of Law, which Mr. Honickman wants judges to uphold, is itself a moral concept. (This view is not universal ― Joseph Raz, in particular, famously challenged it. But I find it quite persuasive.)

What I meant, then, when I wrote that law is necessarily moral and ideological was not only, and not so much, that judges will inevitably fail to avoid bringing their subjective values into their work ― though they will, and I agree with Mr. Honickman that this is regrettable. What I meant is that even when judges perform their work to perfection and only apply such principles as can be readily inferred from the constitutional text (the Rule of Law, federalism, and democracy, say) and many of the text’s explicit guarantees (I mentioned freedom of religion, equality, and protection against unreasonable search and seizure), they are already engaged in a moral and ideological endeavour. The proper response to the unreconstructed Marxist or the social justice warrior who dismisses the Rule of Law and the rest of it as bourgeois ideology is not to say that it’s not, but to admit that it is, and that you will keep sticking to that ideology because it helps prevent Gulags instead of building them. That said, in practice, little turns on the difference between these two responses.

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Coming back to the issue of democratic process failures, my contention was not ― as it seems to me that Mr. Honickman took it to be ― that these provide a self-standing ground for judicial intervention, regardless of constitutional text or doctrine. The text, in particular, remains the overarching limit on judicial power, the law to which this power is subordinate. Doctrine is a more complicated case, and perhaps the ground of some disagreement between Mr. Honickman and me, because I would favour a somewhat less stringent approach to stare decisis than he might prefer. Still, I share Mr. Honickman’s belief in the importance of constraint.

My reference to democratic process failures ― as well as that to pervasive political ignorance ― was specifically in response to Mr. Honickman’s insistence that the legislatures’ ability to resolve moral issues means that judges do not need to do so. Legislatures, I argued, will often fail to address moral issues, or will address them in ways that have little to do with the voters’ preferences or interests, and much to do with those of the legislators. The point is not that courts have a roving commission to find out and correct cases when this occurs, but that they should not hesitate to make moral judgments ― when authorized or required to do so by the constitutional text (and doctrine) ― under the pretext that the legislatures will take care of this.

I originally spoke of democratic process failure in my comment on Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, where the Supreme Court held that a blanket prohibition on medically-assisted suicide was inconsistent with section 7 of the Charter. Although there were problems with the way the Supreme Court articulated that decision, its interpretation of section 7 was at least plausible ― and in my view correct ― in light of the constitutional text and the doctrine as it had developed in the years since the Court first answered that question in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. The point of my discussion of democratic process failure was to address concerns about the “counter-majoritarian difficulty” said to be inherent in judicial review. Because of such failures, it is not the case that judicial review is always counter-majoritarian (though of course it often is).

This example shows that any court empowered to review the constitutionality of legislation is ipso facto “empowered to correct ‘democratic process failures,'” ― and thus that Mr. Honickman need not worry that such correction “will necessarily be ‘instrumentalist,’ finding and affirming rights that are not supported by the Charter itself, but which, in the judges’ view, make for good social policy.” To repeat, the Charter‘s provisions remain the source of the court’s authority and at the same time the constraint on this authority, while democratic process failure is the reason for which that authority is invoked. Accordingly, when faced with what it thinks is a democratic process failure, the Court’s role is not to figure out the preferences of a majority ― which, as Mr. Honickman correctly points out, may not be determinate ― but simply to do the usual judicial task and invalidate the impugned statute or government decision if it is contrary to the constitution. At most, the presence of a failure obviates the case, if any, for judicial deference to the other branches of government.

I agree with Mr. Honickman that the questions that I raised about democratic process failures ― most basically, how do we know, and how can a court know, that one has occurred ― are difficult to answer, though it’s not clear to me that there can be “no objective standard” to help in the enterprise. But this difficulty does not undermine the case for judicial intervention, because, and so long as, that intervention is justified on another ground ― namely that of inconsistency between the government’s action and the constitution. Whether a democratic process failure has occurred might influence the deference that the court ought to show the government’s decision-making process, but the basic propriety of judicial intervention does not turn on the answer to this question.

Ultimately, Mr. Honickman and I might be disagreeing less about the judicial role than about democratic theory. Where I see “persistent inability of the democratic process to produce laws that majorities would agree with and find desirable,” Mr. Honickman sees “legislatures [that] do not base their decisions on the polls at any given time and look instead to the national interest.” The fact, which he acknowledges, that a passionate (or, I would add, strongly self-interested) and well-organized minority can prevail over the majority is not a bad thing in his view ― and, I suppose, fully consistent with the national interest. Even if democracy malfunctions, we should recall that it is “the worst system except for all the others” and correct its “imperfections … from within.” To me, this sounds like saying that because a free market is better than any alternative, we should not bother trying to correct market failures and hope that the market will correct itself, or that because government is necessary, our only response to government failure should be to improve regulatory mechanisms, instead of privatizing and deregulating. A few people accept the former argument, and many the latter, but to me, both seem fallacious. Democracy is indeed better than the alternatives, but if its shortcomings can be mitigated by means external to its normal processes ― such as judicial review ― then so much the better.

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I share Mr. Honickman’s concerns about judges exercising their power without the constraints of constitutional text and legal doctrine. However, I do not think that the proper response to these concerns is to say that judges ought to be entirely non-ideological, and that they should leave matters of moral judgment to the legislative process, however flawed that process is. Like Mr. Honickman, I believe that judges should be enforcing constitutional rules, but I do not mind acknowledging the moral and ideological dimensions of many of these rules as well as the shortcomings of democracy, which judicial review can help remedy.