This post is by Andrew Bernstein.
No! I am not an academic nor was meant to be.
Am a mere practitioner, one that will do
To settle a dispute, argue an appeal or two
When advising clients, the law’s my tool.
Deferential, if it helps me sway the court
Argumentative, and (aspirationally) meticulous.
Case-building is my professional sport
Trying my hand at theory’s ridiculous!
But I’ll dip a toe into this pool.
(With apologies to T.S. Eliot and anyone who appreciates poetry)
Also, this is a blog post, so no footnotes or citations. Sorry!
As a lawyer whose most enduring interest for the last 30 years has been Canada’s constitutional arrangements, it gives me great pains to confess to you that I have concluded that constitutional law ruins everything. Or, perhaps put more judiciously, the kinds of debates that we have about constitutional interpretation are not especially instructive in dealing with other types of legal questions, such as statutory or common-law interpretation. There are many reasons for this, but the central one, in my view, has to do with the fact that while reasonable people may disagree on the outcome of a statutory interpretation, or a question of common law, those people will largely agree on the method of conducting those analyses. In constitutional interpretation, we don’t have consensus on “how” so it’s no wonder that the outcomes can be so radically different.
What are we really asking courts to do when we ask them to resolve a dispute? There are no doubt some high-minded theoretical answers to this (“do justice between the parties,” “ensure that capitalism is never threatened,” “enforce institutional sexism, racism, ageism, ableism and homophobia”) but from a practitioner’s perspective, the answer is actually straightforward: sort out the facts and apply a set of legal rules to those facts. Overwhelmingly those rules come from a variety of legal instruments, such as statutes, regulations, by-laws, and other “outputs” of political institutions such as Parliament, legislatures or municipal councils. If these institutions they don’t like the judicial interpretation of what they have passed, they can change the instrument accordingly. Moreover, these institutions are democratically elected, so if citizens do not agree with the laws that get made, they can replace them at the next election. Although this “feedback loop” suffers from many inefficiencies and obstacles in practice, it is essential to maintaining the concept of self-government by majority rule. What this means is that courts know what they are supposed to be doing when they interpret statutes: they look for legislative intention, as expressed by the words of the document. While courts are entitled to employ whatever clues they might be able to find in things like the legislative history, they appreciate that those clues must be used judiciously, as one speech by one MP does not a legislative intention make. And courts appreciate that the words of the document ultimately govern – although compliance is less than perfect, courts generally understand that they are not to circumvent the meaning of legislation with some kind of analysis based on the instrument’s supposed “purpose.”
While it is frequently accepted that the objective of statutory interpretation is to discern legislative intent, the question of why we would want to do so is not frequently interrogated. After all, while it may make eminent sense to give effect to a law that was passed a week ago, why would a self-governing people want to be governed by legislation that was passed by a legislature that is no longer in session? Perhaps by a different political party? The answer is partially pragmatic (it would be awfully cumbersome to have to re-enact every law each time a legislature was dissolved) but the real reason is the existence of the democratic feedback loop. Statutory interpretation operates on the presumption that, if no legislature has repealed or amended the statute, the people (as represented by the legislature) are content with it as it stands. In fact, this is the reason why no legislature can bind a future one to things like supermajority requirements. Because it is the people’s current intention – and not their past intention – that governs.
Constitutional law is designed to be immune to the democratic feedback loop. At least some aspects of the constitution are specifically intended to limit democratic institutions. The essence of that aspect of constitutionalism is the protection of vulnerable and/or minority groups from the potential for ill-treatment by the majority. Sometimes these protections take the role of institutional structures (such as federalism, regional representation in central institutions, and, according to some, a separation of powers) and other times they are specific guarantees of rights that specifically limit government action: freedom of expression, equality, or even “life, liberty and security of the person.” Cumulatively, this constitutional architecture is supposed to create a balance between self-government and limited government, ensuring that Canadians can govern ourselves, while not permitting the majority to oppress minorities.
This sounds great in theory, but immediately creates a dilemma: who gets to decide on the limits of “limited government?” Someone has to, and (if the constitution is going to be effective at curbing democratic excess) it has to be a different “someone” than the majoritarian institutions that actually do the governing. And although there are different models around the world, in Canada (like our American neighbours), we entrust that job to the Courts. This is not an uncontroversial decision, for a number of reasons. First, it is not clear that courts are institutionally well-suited to the job, with their adversarial model of fact-finding and decision-making. Second, courts are presided over by judges, who are just (as Justice Stratas recently said) lawyers who have received a judicial commission. There is no reason to think they are especially well suited to weighing the interests that a complex society needs to achieve an ideal balance between, for example, liberty and security, or equality and religious freedom. Third, judges are famously unrepresentative: they are whiter, richer, more male, more Christian, older and more conservative than the population. Nowhere is this more apparent than the apex of judicial decision-making, the Supreme Court of Canada, which got its first female judge in the 1980s and has never had an indigenous or any type of non-white judge or a judge from the LGBTQ community. Eighty five of Canada’s ninety Supreme Court judges have been Christian, the other 5 have been Jewish. No Muslims, Hindus, Sikhs, or even (admitted) atheists . Nevertheless, these 9 judges get to make significant decisions that have a major impact on social policy. Since the Charter was enacted, the Supreme Court has had a major role in liberalizing access to abortion, permitting medical assistance in dying, liberalizing prostitution laws, freeing access to cannabis, prohibiting the death penalty, enhancing public employees’ right to strike, and many other social policy decisions that were different from the democratic choices made by legislatures. In Canada, most decisions to strike down legislation have tilted towards the liberal side of the political spectrum, but there have also been decisions (most infamously, relating to private health care in Quebec) that tilt more towards the conservative side. This is not inherent to the process of adjudicating rights: the United States Supreme Court has grown increasingly conservative in the last 20 years, striking down liberal legislation relating to campaign finance, voting rights, and only yesterday striking down pandemic limitations on gatherings in houses of worship.
The combination of anti-democratic process and anti-democratic outcomes that constitutional adjudication creates has been subject of concern and criticism since judicial review was created in Marbury v. Madison. This, in turn, has led to the development of theories that are designed to constrain judicial decision-making. While some of this may be results-oriented, at its core, the goal of all “court-constraining theories” of constitutional interpretation is to give constitutional decision-making a touchstone by which decisions can be evaluated. Readers of this blog will no doubt be familiar with these theories, such as textualism, or public-meaning originalism, which stand in contrast to what is sometimes referred to as “living tree constitutionalism” or (in Leonid’s catchy turn of phrase “constitutionalism from the cave”). While I will undoubtedly not do them justice, the “touchstone theories” posit that the meaning of constitutional rights are more-or-less fixed (although may need to be applied in novel situations) and it’s the job of the courts to find and apply those fixed meanings, while “living tree constitutionalism” allows the meaning of these rights to evolve over time, and it’s the job of the courts to decide when and how to permit that evolution to take place.
To use an over-simplified example, imagine a constitutional guarantee of “equality,” which (it is agreed) was understood to mean “equality of opportunity” at the time it was enacted. And imagine that 40 years later, it is established that the historical and systemic disadvantages suffered by certain groups means that merely providing equal opportunity proves insufficient to providing those groups with a fair outcome. Touchstone constitutionalists could suggest that although what constitutes “equality of opportunity” may have to change to meet changing social circumstances, but does not permit courts to go further and use the constitutional guarantee of “equality” to impose equality of outcomes. Living tree constitutionalists could posit that the guarantee of equality was intended to ensure that people do not suffer disadvantage because of their immutable characteristics, and if we now recognize that this can only be done by providing equality of outcome, then this is what courts should do.
What’s important to appreciate is that our protagonists on both sides are not disagreeing just on the outcome. They are disagreeing on the fundamental nature of the exercise. Touchstone constitutionalists believes that the courts’ job is essentially to be the “seeker” in a game of hide and seek, while the living tree constitutionalists believe that the courts are playing Jenga, carefully removing blocks from the bottom and building the tower ever higher, with its ultimate height limited only by how far they can reach.
Who is right and who is wrong in this debate? No one and everyone. In fact, as I read Mark’s post to which I am (ostensibly) responding, I understand his plea to be not that touchstones – regardless of how old they may be – are normatively a fantastic way to adjudicate modern problems but rather that the alternative to touchstones is anarchy (or Kritarchy), and that has to be worse. Similarly, critics of touchstone constitutionalism are concerned about being forever bound by the past, without providing a particularly good explanation of what could or should reasonably replace it without ultimately resorting to the idea that we have to trust our judges to make good decision. This of course, begs the question “if we are relying on someone’s judgment, why is it the judges and not the people’s through their democratically elected representatives?”
What am I saying? I’m saying that the “touchstone vs. tree” debate is actually a normative question, that people like to dress up as one that has an objectively ascertainable answer. But in truth, where you stand on this will really depend on your own personal value system, as informed by your own experiences. If you value predictability and stability, and/or the idea of judges making decisions about what is right, fair or socially appropriate is offensive to you, you may be inclined towards touchstone constitutionalism. If you value substantive outcomes, and see the judicial role as guaranteeing and enforcing rights as they evolve, you will be inclined towards the living tree. Of course, this is to some degree all a false dichotomy. There are many places available between either end of this spectrum and everyone ultimately ends up tends towards one of the more central positions. For example, it is difficult to find anyone who seriously doubts the correctness of Brown v. Board of Education, even though there’s at least an argument that certain touchstones informing the meaning of equal protection in the United States’ 14th amendment contemplated segregation. On the other hand, no matter how alive one’s tree might be, respect for a system of precedent is necessary if you are going to continue to call what you are doing “law” as opposed to policymaking by an unaccountable institution that has only faint markings of democratic accountability.
So why does constitutional law ruin everything? As I see it, is that this unresolvable dilemma in constitutional law has a tendency to bring its enormous baggage to other areas, and leave it there. But it’s not clear that these oversized duffles filled with decades of counter-majoritarian sentiment are really going to assist what I would consider to be the very different exercise of statutory interpretation (I’m well aware of the argument that the constitution is just an uber-statute and should be interpreted accordingly, but that’s really just an argument for touchstone constitutionalism so I will conveniently ignore it). Why? Because unlike in constitutional interpretation, we have broad consensus on how to go about the exercise of statutory interpretation entails: it entails trying to determine what the legislature intended by the text that it enacted. And although this exercise can be difficult at times, and reasonable (and unreasonable) people can often disagree, they are disagreeing on the outcome and not the process. No one truly suggests that the courts should play Jenga when interpreting statutes; they are always the seeker in a game of hide-and-seek, using well-understood tools and rules. Of late, we have been describing those as “text, context and purpose” but long before that catch phrase existed, we had the lawyer’s toolbox of logic, common sense, experience, and approximately 400 years of common-law jurisprudence on canons of statutory construction (well-defended by Leonid in his recent post). It’s true that these rules are convoluted and it’s not always straightforward to apply them. Some judges and courts give more weight to (for example) the purpose of statute and the presumption against absurdity, while others might be more interested in the intricacies of grammatical structure. But these are matters of emphasis, and the degree of variation relatively modest. In fact, there is a pretty strong consensus, at least among Canadian courts, about how the exercise of statutory interpretation ought to be conducted, and, in the main, it is done with amazing regularity.
OK so we have covered the constitution (where there is no agreement on the game, much less the rules) and statutes (where everyone is singing from the same hymnbook). What remains is common law, and it is probably the strangest of all these creatures because it is, by necessity, hide-and-seek but what you are looking for is Jenga blocks. There is, of course, an important touchstone courts and judges look to: precedent. But if you stretch far back enough, the touchstone itself has no touchstone other than “what judges think is best.” In many ways, it’s “law from the cave” but the cave is extremely old, dark, and you probably can’t see the exit, so you are stuck inside unless or until the legislature “rescues” you and replaces the common law rules. This leads to a fascinating problem: because it’s based on precedent, common law derives its authority from consistency. But because it’s judge-made, judges feel relatively free to remake it in appropriate circumstances. In many ways, it’s the worst of both theoretical worlds: it is bound by (some may say stuck in) the past and also readily changeable by judges. But somehow it works anyway, and with much fewer lamentations from the theorists who worry about either of these things (excluding, of course, administrative law, which by unwritten constitutional principle must be comprehensively re-written every ten years to keep a group of frustrated practitioners on their toes).
So in short, I endorse Mark’s sentiment that we need neutral principles in adjudication. But I disagree that they are in short supply. We have neutral principles in statutory interpretation, and they work as well as any system that is administered by a few hundred people across the country possibly could. We have essentially one neutral governing principle in common law analysis, which is “mostly follow precedent.” So what we are really talking about is constitutional law, where the debate between the touchstone cops and the living tree arborists is essentially unresolvable because when you scrape to the bottom it asks “what do you value in a legal system” and it’s no surprise that there isn’t universal agreement on this. But there is a strong consensus on how to engage in interpretation outside the constitutional context, and we should not let the constitutional disagreements obscure that.
In other words, constitutional law ruins everything. But I told you that at the beginning.