In Defence of Judicial Majorities

First of all, apologies for my silence of late. Partly, I just couldn’t find anything interesting to write about. Partly, I have been much more diligent about my dissertation-writing, and that hasn’t helped with the blogging. Actually, as I’m trying to finish a draft over the next couple of months, I’ll compensate by occasionally posting on some of the topics I write about, hoping they may be of at least some interest to my readers. Here goes.

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In a paper published last year, Jeremy Waldron asks: “why do bare majorities rule on courts?” Why is it that five judges prevail over four, for instance? The question, he points out, hasn’t been asked much, and indeed people tend simply to assume that majority voting among judges is somehow natural. It’s not, says prof. Waldron. In political theory, people are often asking why a majority of votes (whether among the electorate or among legislators) prevails over the minority. And we know of other decision-making procedures used by courts, too. A couple of States in the U.S. require supermajorities of their Supreme Courts to declare a statute unconstitutional, while civil law courts (such as the French Cour de cassation) ostensibly require their judges to be unanimous, although it seems clear enough that, behind the scenes, their judges do not necessarily reach unanimous agreement on every case, and vote when they do not. So what accounts for the common law courts’ normally using simple majority decision? Prof. Waldron examines four possible explanations, and finds all wanting.

The first is simply that allowing a simple majority to prevail is a relatively efficient way of settling disputes. That is true, says prof. Waldron, but it is not enough for a decision procedure to be efficient. After all, nobody would accept deciding cases by tossing a coin, which is even more efficient than a majority vote. This would not, prof. Waldron insists, be a legitimate decision procedure, no matter how efficient it is. Legitimacy requires “fairness” and “responsiveness” to the merits of the case the court is considering.

The second argument prof. Waldron examines addresses this concern about responsiveness to the merits. It is the claim, based on Condorcet’s jury theorem, that the majority of a panel is more likely to be right than the minority (and indeed that, as we progress in the court hierarchy and move towards larger panels, the likelihood of the majority’s being right increases). Prof. Waldron, however, is unpersuaded that the claim holds up not only for overwhelming majorities (an 8-to-1 vote, say), but also for “bare” ones ― notably, for 5-4 votes. Must we really believe that five judges are more likely to be right than four? Condorcet’s theorem says so, but “[t]here is something gimmicky about [this result],” says prof. Waldron; the theorem “is just arithmetic” and “has nothing to do with objective truth or right answers” (1716; emphasis in the original). Prof. Waldron’s concern seems to be that we cannot really know whether judges, although they are supposed to be experts, are more likely than not to get at a right answer, which is the necessary condition for the Condorcet theorem to work. Prof. Waldron points out that in politically charged matters, people tend to ascribe rather abysmal levels of expertise to the judges with whom they disagree, so that the theorem cannot make these judges’ decisions legitimate to them.

The third argument prof. Waldron considers addresses the demand that the decision procedure courts use be fair. In his view, it is not clear that elements of fairness that are often thought to justify majority decision-making in democratic contexts ― its neutrality as between the options presented, and its giving an equal weight to all the voters ― apply to judicial decision-making. Perhaps we shouldn’t want judicial decision-making to be neutral ― witness the supermajority requirements to invalidate legislation referred to earlier. And it’s not so clear that the votes of different judges are entitled to an equal weight, as the votes of different citizens are. Why aren’t more experienced judges entitled to more voting power, for instance? We seem to have just stipulated that the judges’ votes should be treated equally, and that stipulation, prof. Waldron suggests, is a weak argument for demanding that those on the losing side of close judicial votes put up with them.

Finally, prof. Waldron briefly examines a hybrid argument, according to which the judges’ equality suggests that the majority is more likely than the minority to be right. The judges of a court are equal, on this account, because they are all experts and all represent the law in the same way. But here again, prof. Waldron is skeptical “about the significance of a very narrow majority among Justices, to each of whom we have reason to defer.” (1725)

Prof. Waldron stresses that the point of his questioning is not “to embarrass defenders of judicial review” (1727) by calling into question the legitimacy of courts. On the contrary, he says,

[t]he fact that courts address matters of principle by voting tells us that there is nothing inherently inappropriate about these issues being decided in institutional contexts that are more notorious for their majoritarianism. (1727)

Voting is not something to be embarrassed about. It should be acknowledged, and integrated into our thinking about trying to resolve disagreements.

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I am not persuaded that the weaknesses that prof. Waldron sees in the arguments in favour of majoritarian decision-making by courts as serious as he suggests they are. His reasoning, it seems to me, is somewhat distorted by a focus on constitutional adjudication. The legal dispute that prof. Waldron seems to have in mind throughout his essay is a challenge, probably a rights-based challenge, to the constitutionality of a statute. But cases of this sort are, of course, a small minority, and they have some unusual features that distinguish them from much of the universe of justiciable disputes. Even if he is right that majority decision is a problematic mechanism for resolving constitutional controversies ― and, while his challenge is at its strongest there, I am not persuaded that he is ― it would not necessarily follow that it is similarly problematic for adjudication in general.

Now, I agree with prof. Waldron that efficiency alone does not justify the use of majority decision (or of any other decision-making formula) by courts. However, it is important be aware of the stakes here. Achieving super-majority consensus (or, a fortiori, unanimity) can be difficult. As I explained here, the price to pay may consist of opinions that are either extremely narrow or very vague and, either way, fail to adequately guide litigants and judges in future cases. And it may of course be impossible for judges to achieve the requisite degree of consensus even on those terms. This might not be a fatal problem for an intermediate appellate court, where the case could be remitted to a different panel, much like a case left unresolved by a hung jury is then adjudicated by a different one. But there is no s such solution (simple, but still quite costly for the parties!) available to a court of last resort where all the members hear every case. The only way for such a court is simply to silence the dissenters and hypocritically pretend that they do not exist, like the civilian courts may be doing.

This efficiency issue is directly connected to one of fairness. In the constitutional cases which Waldron seems mostly to have in mind, neutrality as between the possible outcomes might not be obviously necessary. There is at least an argument to be made that there is nothing wrong with the proposition that the impugned statute, being democratically enacted by a legislature, ought to stand unless its unconstitutionality can be demonstrated to the satisfaction of a super-majority of judges. (Actually, this argument might only make sense in the case of rights-based constitutional challenges. It is much less obvious why there ought to be a preference in favour of legislation enacted by one or the other democratically elected legislature in federalism-based disputes, or in favour of one or another democratically elected branch of government in separation of powers controversies.) But it is not at all clear why there ought to be an in-built preference for a given outcome in, say, ordinary civil litigation.

Prof. Waldron’s approach to fairness seems to more or less ignore the parties to the dispute which the court is asked to resolve. Perhaps we can question the equal authority or the “political equality” of that court’s judges. Prof. Waldron is surely right that this equality is a matter of stipulation. But what about the citizens who come before the court? Again, prof. Waldron may argue that a citizen is not the equal of a government that acts in the public interest ― though that proposition would be very controversial. But surely there is no reason to question the equality of the parties in ordinary private law disputes by telling one of them that he or she can only win by persuading a super-majority of the judges, while conversely the opponent need only persuade a blocking minority.

Focusing too much on constitutional cases may also be affecting prof. Waldron’s take on the issue of expertise. It way well be that the expertise of judges, and thus their ability to get the right answer in more than half the cases, required by the Condorcet theorem, is questionable when it comes to fundamental issues of rights. (I should note, though, that other strands in prof. Waldron’s work might seem to commit him to resist this claim. What I have in mind is his defence of a global judicial consensus on such issues as ius gentium. As my friend Maxime St-Hilaire suggests in a very interesting recent paper, it seems logical to suppose that judges should be experts in that.) However, must we push the cynicism about judges to other realms, including those in which they have long been developing the law, such as contract and tort? And if judges are really that incompetent, then their use of majority voting is really the least of our problems. We should probably put the courts out of business altogether, and certainly to put them out of the business of developing the law, at least until we are able to re-educate the judges to a minimal standard of competence. Indeed, this is exactly what prof. Waldron advocates doing with issues of rights. But I’m not sure that he is prepared to expand this approach much beyond the realm of constitutional law.

None of that might provide a very convincing answer to the person who disagrees with a five-to-four judicial decision. As an empirical matter, prof. Waldron is obviously right that such people will often not trust the competence of judges who rejected their claims. For that matter, they might not trust the competence of judges in near unanimous decisions either. I, for one, do not trust the competence of the judges of the Supreme Court of Canada when it comes to basic economics, even though they are in overwhelming agreement on the matter.

But surely the fact that the losers might not accept the legitimacy of a decision procedure isn’t enough to conclude that it really is illegitimate. Prof. Waldron himself has little sympathy for those who reject the legitimacy of the decisions of bare majorities of legislatures and argue that such decisions cannot override their natural, or constitutional, rights. He is content to tell them that majority decision is the best we can do in politics, and to admonish them that “the imposition of the disadvantage on the minority by a majority decision is not necessarily tyrannical.” (1728) I’m not sure why something like that could not be said about a judicial decision. (Indeed, prof. Waldron does apply this reasoning to judicial decisions ― but he only addresses it to the dissenting judges.)

It thus seems to me that, at least when it comes to ordinary litigation, there very good reasons ― mostly fairness considerations, but perhaps also those of expertise ― to have courts decide cases by simple majority vote. These reasons may or may not be applicable in constitutional litigation, or at least in rights-based constitutional litigation. Prof. Waldron does, I think, show that we need to make the argument for the proposition that they are. Contrary, perhaps, to his intention, his essay thus adds an important element to his challenge to the legitimacy of judicial review of legislation; it does not, however, in my view, succeed at calling into question the legitimacy of the courts’ more conventional adjudication practices.

Hate Speech in Context

Exactly one year ago yesterday, a mosque in the Québec town of Saguenay was vandalized with what the vandals claimed was pig blood. The attack was clearly intended to show Muslims that they were not welcome in Saguenay (and perhaps in Québec generally), which is, according to Jeremy Waldron, precisely “the harm in hate speech” which criminal law can and ought to combat. Despite this, I argued at the time that “the harm is not in hate speech,” because an isolated incident of this sort does not send much of a message. What does, by contrast, is xenophobic discourse by politicians ― such as that which was used by members of Pauline Marois’ PQ government to justify Québec’s infamous “values Charter.” As I wrote then,

[b]ecause it comes from on high, [such discourse] does much more than a lone attack to tell minorities that they are not welcome in Québec, and to tell those who would exclude minorities from public life that they are not alone. But, because these messages are being sent by sophisticated, intelligent people, they look and sound nothing like the crude mosque attack. They would not, of course, qualify as hate speech by any standard …

A year on, the PQ has been thoroughly defeated at the polls, and Québec is a very different place as a result, as Jonathan Kay observes in an insightful column in the National Post. He notes that

[d]uring the 18-month Marois reign, even the most petty ethnic or linguistic dispute became grist for widespread anxiety and bitterness — because the PQ was desperate to seize on any pretext to fire up the nativists and separatists who comprised its core supporters.

As a result, many members of minority communities were considering leaving the province. As the zealots of “secularism” pontificated about the incompatibility of “ostentatious” religious symbols and “Québec values,”

the shrill nastiness of Ms. Marois and her administration seeped into the everyday life of ordinary Quebecers. On the subway, in restaurants, at gas stations, interactions between English and French, Jew and gentile, Muslim and non-Muslim, became more fraught.

Religious minorities in Québec were suffering precisely the harms prof. Waldron associates with hate speech ― a feeling of being unwelcome, of being second-class citizens, of having to hide their identities and beliefs. (Indeed, Mr. Kay points out that even members of the majority group who did not support the “values Charter” were made to feel these things to some extent, by being labelled as traitors of sorts.) But of course nothing that Ms. Marois or her henchmen said ever reached the threshold of “hate speech.” There was no need for that. We all understood what was going on.

Conversely, as Mr. Kay points out, now that there is a different government, which is not much interested in identity politics, attempts to re-ignite the toxic flames of linguistic wars, or even occasional outbursts of outright xenophobia (such as a notorious journalist’s anti-Semitic comments), are not having the same effect. Because they have no support among the authorities, they do not provoke anything like the same anxiety. Yet Mr. Kay is to point out that “the only reason that such kooks can be written off as ‘irrelevant’ is that Pauline Marois’ Parti Québécois got the boot in April’s provincial election.”

The story of Québec in the last year shows, I think, where prof. Waldron’s work on hate speech is right, and where it is mistaken. Prof. Waldron identifies an important preoccupation that members of a liberal, welcoming society should share: we should all seek

to provide assurance to all citizens, and particularly to members of vulnerable minorities, that they are and will be treated as members of society, endowed with rights and deserving concern and consideration.

But he goes wrong by identifying hate speech as the pressing threat to this objective, and criminal law as the means to address it. The harm, once again, is not in hate speech. What really undermines the assurance which prof. Waldron rightly says is important are not the extreme vituperations of a few kooks, but an embrace of a xenophobic discourse by the powerful, regardless of whether it raises to the level of hate speech. And because the category of speech that is problematic in this way if coming from the mouth of authority is much broader than that of hate speech, criminal law cannot be the solution. The problem is one of political morality, and the solution must be found in the same realm.

Blind Spots

In a new and fascinating paper, Jeremy Waldron asks why it is that Sir Isaiah Berlin, in his work on the Enlightenment, paid no attention to “one of the most important achievements of the European enlightenment” ― what prof. Waldron calls “Enlightenment constitutionalism.” The paper is a reflection not only on Berlin and the constitutional ideas of the late-17th – 18th century which he failed to pay attention to, but also, inevitably if only implicitly, on constitutionalism more broadly. It is also an occasion for us reflect on prof. Waldron’s own work.

Prof. Waldron defines Enlightenment constitutionalism as

a body of thought that emerged in the 18th century, but originated in England in the later decades of the 17th century, about forms of government and the structuring of the institutions of government to promote the common good, secure liberty, restrain monarchs, uphold the rule of law, and to make the attempt to establish popular government— representative, if not direct democracy—safe and practicable for a large modern republic. (3)

The thinkers he associates with it range from John Locke in England, to Montesquieu, Rousseau, and Siyès in France, to Jefferson, Madison, and Hamilton, in the United States, as well as others, including Kant (4). Enlightenment constitutionalism’s signal achievements, prof. Waldron says, were the republican constitutions of the United States and of revolutionary France. Berlin, says prof. Waldron, took no notice of this body of thought, even though he did write ― very critically ― about the Enlightenment, including some of the work of these same thinkers. Yet the “theme,” on which they all dwelt,

of structural intricacy and design of a constitution … has a massive bearing on the plausibility of Berlin’s well-known and destructive claim that the Enlightenment aspiration to remake society has been a philosophically misbegotten source of totalitarian hubris and terror. (7)

Prof. Waldron argues that although Enlightenment constitutionalism saw constitutional design a scientific endeavour, requiring a

deliberate disaggregation — in thought first and then insistently in practice — of government into separate organizations understood functionally. (11)

Its theorists and practitioners were well aware, he points out, of the weakness of human nature, and of the conflicting values and interests that people bring to the political arena. Far from trying, as Berlin accused them of doing, to fit the “crooked timber of humanity” into some ready-made mould, they looked for ways in which these weaknesses and conflicts could be checked, balanced, and ideally even made to serve the public good. Although, as prof. Waldron notes, “all this is presented as a project of deliberate design” (17), this design was not ― in his view ― the arrogant sort that purports to submit everything to a single-minded overarching vision:

 for the Americans, constitutional design though deliberate was understood to be untidy and pluralistic, setting out to house rather than reconcile the pursuit of competing and incommensurable values (19),

and the French shared this humble conception.

Prof. Waldron also observes that, in addition to its concern with the structure of government and the empowerment of citizens (and their representatives), Enlightenment constitutionalism was preoccupied with individual liberty and limits on the power of government. Yet strangely, for all his concern with liberty, Berlin paid no attention to that either. He was apparently not interested in “the institutional mechanisms that might secure the modicum of liberty he thought was ethically required for each person” (22), nor did he have anything intelligent to say about the relationship between the protection of liberty and democracy.

As for the reasons for blind sport of Berlin’s, prof. Waldron suggests that the least unflattering one is, in addition to his general “lack of interest in law and legal structures” (27), that Berlin’s “conception of the theory of politics, of political philosophy … was far more ethical in its character than political” (28). Berlin, in other words, cared much more about an individual’s relationship to the community than about the ways in which the community organizes itself.

This is, as I said in the beginning (unnecessarily so, since it is true of everything prof. Waldron writes) fascinating stuff. I do, however, have some misgivings about it. One question is whether it is quite fair to associate the theoretical project of Enlightenment constitutionalism as well as its practical incarnation in America, which were indeed concerned with checking, balancing, and dividing power, with the French revolutionary constitution-making, which spectacularly failed to do so, not least precisely because it failed to learn the lesson of Enlightenment constitutionalism. As Lord Acton put it in his brilliant Lectures on the French Revolution (available here for e-readers),

[t]he errors that ruined their enterprise may be reduced to one. Having put the nation in the place of the Crown, they invested it with the same unlicensed power, raising no security and no remedy against oppression from below, assuming, or believing, that a government truly representing the people could do no wrong. They acted as if authority, duly constituted, requires no check, and as if no barriers are needed against the nation. (199)

I also wonder whether the theorists and practitioners of Enlightenment constitutionalism were really as modest as prof. Waldron insists they were. (As an aside, I wonder whether this passage in prof. Waldron’s article is an attempt to rebut not only Berlin, but also Hayek, the great critic of design and immodesty.) Certainly the framers of the U.S. Constitution could be smug, as Alexander Hamilton was in The Federalist no. 68, where he wrote that “if the manner of [the election of the President] not be perfect, it is at least excellent.” Ironically, and perhaps revealingly, this “excellent” scheme of indirect rather than popular election was entirely undone by the development of a political morality more democratic than what the framers were comfortable with ― within just a few decades.

These are just quibbles. The broader point I would like to venture is that prof. Waldron’s take on Enlightenment constitutionalism might be vulnerable to a critique similar to the one he levels at Berlin: that his personal understanding of his subject leads him to miss something really important about. Arguably, the most important innovations of Enlightenment constitutionalism are federalism and judicial review of legislation. Separation of powers and bicameralism, after all, already existed, in 17th century England. Yet prof. Waldron’s tribute to Enlightenment constitutionalism says very little about either. He barely mentions “the complex relation of state to federal arrangements” (11) and

the question that exercised Madison and both his friends and opponents in the American ratification process—about what good “parchment barriers” could do, and whether the frontiers of freedom were better secured by the structural principles of a constitution than  by a dedicated bill of rights (22).

John Marshall, rightly or wrongly, gets no mention in his list of Enlightenment constitutionalists. To avoid extending this already long post too much, suffice it to say that these are important legacies of Enlightenment constitutionalism ― and, if Lord Acton is right, perhaps also the differences between the constitutional experiment which succeeded, that of the United States, and the one that failed, that of France ― and that a discussion of the subject which does not mention them seems incomplete. But, of course, prof. Waldron has always been more interested in how democratic power ought to be structured than in how it ought to be limited. This is his vision of constitutional theory ― and, much like Berlin’s vision of political theory, it results in a lack of interest in some of the crucial aspects of the phenomenon he studies.

Of course, to say that a scholar has a blind spot is a compliment more than a criticism. Most of us have “seeing spots” ― we only notice a few things here and there. Geniuses like Berlin and Waldron see almost everything, and it is against this impressive background that the blind spots are noticeable.

UPDATE: A made an idiotic typo in the post’s title, which I have now rectified.

The Harm Is Not in Hate Speech

I wanted to come back to the sad events of last weekend, when a mosque in Saguenay, in Québec, was smeared with, purportedly, pig blood, and angry letters were sent both to the mosque and to the local Radio-Canada station, demanding that Muslims “assimilate or go home.” As Radio-Canda reported, police are considering charges, both for vandalism and for hate speech ― though they’d have to find those who did it first. (I don’t think I’ve seen any good news on that front.) The community leaders, however, stress that this is an outlying incident, and that the town, or the province, should not be judged by it. Fair enough. But, as others point out, the current climate in Québec, with the government’s proposal, to be finally unveiled on Monday, of a “Charter of Québec Values” stressing secularism ― or, more accurately, suppressing much visible expression of non-Christian religious beliefs while preserving, under the label of “cultural heritage,” Christian symbols such as the crucifix which Maurice Duplessis had hung in the National Assembly ― is a context which we cannot ignore when thinking about the significance of the attack on the mosque.

There is always a danger in trying to link a single crime to some wrong, real or perceived, in the society at large, as people are too often tempted to do in response, say, to mass shootings. However, when a crime seems to have a political purpose, such a link probably ought to exist, if only in the mind of the criminal. This is not to say that society in general or some individual politicians to whose decisions the criminal is reacting have caused or are directly responsible for the crime. Without more, it also does not mean that they have done anything wrong. No one committed any wrong that could have justified FLQ terrorism for instance, though it obviously was a response to the political situation of the late 1960s Québec. But, quite clearly, sometimes politicians do contribute to creating a social climate in which certain sorts of crimes become more likely, even without calling for or even directly encouraging their commission. An obvious current example is Russia, where the enactment homophobic legislation is coinciding with a rise in brutal anti-gay violence.

The situation in Québec right now is, I am afraid, not dissimilar. Much of recent talk of “Québec values” and “secularism” and even, alas, “male-female equality” is code for expressing, in terms that are intended to be acceptable in and indeed appealing to polite society, a barely disguised hostility to those who look and think differently from the majority ― above all, religious Muslims. Instead of trying to convince the people insecure at the prospect of social change that Québec will not be different for looking different, the government is fanning the flames by embracing this language. And so, although I fully believe that Québec’s Premier is sincere in her denunciation of the mosque attack, the policies of her government give heart to those who think like the attack’s perpetrators, and tell those against whom the attack was directed that they are not welcome here. Even assuming that this is not these policies’ intent, it is their foreseeable effect.

And this brings me to the legal point pf this post. I wrote at great length last fall about Jeremy Waldron’s book on The Harm in Hate Speech. As I explained here, the core of Prof. Waldron’s argument “that hate speech must be prohibited in order to provide assurance to all citizens, and particularly to members of vulnerable minorities, that they are and will be treated as members of society, endowed with rights and deserving concern and consideration.” Although the society’s laws might, objectively considered, be egalitarian and welcoming, visible expressions of hatred and contempt undermine the promise of these laws, and must be banned. I also wrote that I was not persuaded by prof. Waldron’s claims. Now the attack on the mosque in Saguenay, and the letters that accompanied it, seem to be a perfect illustration of the sort of thing that worries prof. Waldron ― a visible manifestation of hatred obviously intended to tell its victims that they are they are at best, second-class citizens, and indeed not welcome at all in the society, whatever our other laws might say. Was I wrong to disagree with prof. Waldron? I still do not think so. As the reaction of the local community leaders shows, they are not particularly worried about what they know is an isolated act. It is not that which seriously undermines the assurance of their equal citizenship.

The talk surrounding the forthcoming Charter of Québec Values is a different matter. Because it comes from on high, it does much more than a lone attack to tell minorities that they are not welcome in Québec, and to tell those who would exclude minorities from public life that they are not alone. But, because these messages are being sent by sophisticated, intelligent people, they look and sound nothing like the crude mosque attack. They would not, of course, qualify as hate speech by any standard, including that proposed by prof. Waldron.

My point, of course, is not that we ought to change the law so as to allow us to drag the members of the Québec government before the criminal courts. It would not be possible to word the law in a way that would not prevent all sorts of legitimate debates and create massive chilling effects. Nor should we even try. Bad ideas ― including bad ideas that would relegate some of our fellow-citizens to the margins of society ― ought, if at all possible, be defeated politically. But that is not to say that such ideas, even if they eventually are defeated, are harmless. Yet the harm about which prof. Waldron worries is not so much in hate speech. It is, to a much greater extent, in the polite-sounding pronouncements of the the cynics who try to use an undercurrent of bigotry and hatred to their electoral advantage.

Federalism, Democracy, Same-Sex Marriage

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

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

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

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

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

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

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

Looking Back

Rule of Law theorists invariaby insist that legislation must be prospective ― that the law must be changed, if changed it must be, for the future only and not for the past. But a thoughtful opinion delivered last week by Justice MacDonnell of the Superior Court of Ontario shows that sometimes at least, things are more complicated, and Rule of Law values might actually counsel against applying the requirement of prospectivity too rigidly.

The decision in question is R. v. Pandurevic, 2013 ONSC 2978. It arose out of an application by an accused for a clarification on whether the instruction that would be given to the jury regarding the defence of self-defence that he intended to advance would be based on the self-defence provisions of the Criminal Code that prevailed at the time he allegedly committed his offence or on an amended provision that was enacted between the time of the alleged offence and that of the trial. It is worth noting that, unusually, it was the accused who was pushing for the new provision to be applied ― and thus to be given retroactive effect, in violation of the usual understanding of requirements of the Rule of Law, ― while the government was arguing for prospectivity.

Justice MacDonnell sided with the accused, holding that Parliament, even though it did not say it in so many words, must have intended the new self-defence provisions to be used in all trials after their coming into force, including where this meant retroactive application. Although courts normally presume Parliament to have no such intent, this presumption can be rebutted, and, said Justice MacDonnell, was rebutted in this case.

One reason for this holding was the fact that the old law was, as Justice MacDonnell put it, “the subject of uniformly withering criticism from law reformers, academics and all levels of the Canadian judiciary for more than 30 years” (par. 10). It was generally agreed to be incomprehensible and incoherent, “little more than a source of bewilderment and confusion to the jury” (par. 13) in the words of Justice Moldaver, then at the Ontario Court of Appeal. Courts and academics had been asking for reform for close to 30 years. Now that Parliament had, at last, heeded their calls, the implementation of much-needed reforms should not be delayed.

Another important, and somewhat related, consideration was that the new self-defence provision is, in Justice MacDonnell’s view, really only ‘new’ in inverted commas. In reality it distills and captures such general principles as can be found in the jurisprudence that developed around the ‘old’ provisions.

The last reason invoked by Justice MacDonnell, related to the previous one, was that to the extent that the new self-defence provisions have changed the law, they have done so in favour of the accused. They did not deprive anyone of a vested right, as legislation which courts in past cases refused to apply retroactively typically had. This suggested that the usual presumption against giving legislation retroactive effect did not apply with as much force as in these cases, because the main (although not the only) reason for the presumption is fairness, and no unfairness results from applying to a party rules that are as or more favourable than those that would normally have applied to his actions.

That principle has indeed long been recognized, and it is usually accepted that retroactive laws that confer a benefit are much less disturbing from a Rule of Law standpoint than impose or increase a punishment or a burden. However, Jeremy Waldron has pushed back against this intuition in a very interesting paper, arguing that fairness, especially in the narrow sense of “fair warning,” is not all there is to the matter. (Justice MacDonnell recognized this, observing that “the presumption against the retrospective or retroactive application of legislation affecting substantive rights is not only based on considerations of fairness – concerns for stability, certainty and predictability would remain relevant even if fairness were factored out of the analysis” (par. 35).) Prof. Waldron argues that, for one thing, fairness must be understood more broadly, so that while a retroactive law that benefits the person to whom it is directly applied is not unfair to that person, it is potentially unfair to others. And, quite apart from fairness, we should also worry about the effect of retroactive legislation on the authority of law as a whole. Knowing that a legal rule can be changed retroactively diminishes the authority of legal rules, regardless of whether the retrospective change is beneficial or punitive.

These arguments are applicable to Pandurevic. In particular, we might argue that, if Justice MacDonnell is right that the new self-defence provision is as much or more favourable to the accused than the old ones, then applying it to his case is “unfair” to his victim, and that this is not an immaterial consideration even though the victim is not a party to the criminal trial in which Mr. Pandurevic is accused. It is perhaps too bad that Justice MacDonnell’s reasons do not address this question.

On the other hand, Justice MacDonnell points to considerations that, although perhaps not very common, arguably make this a proper case in which to depart from the usually sound intuition in favour of prospectivity. The “mischief” which the law which he decides to apply retroactively is meant to cure isn’t just a matter of policy (or, worse, as in the case that prompted prof. Waldron’s article, partisan advantage). It is a failure of the Rule of Law itself. The Rule of Law ideal requires laws to be not only prospective but, just as importantly, clear, accessible, and coherent. It also requires them to be enforced consistently. If Justice MacDonnell’s assessment of the old law of self-defence is correct ― it at least seems supported by a good deal of authority, though I am utterly ignorant in this area and cannot be sure ― then this law failed to meet the requirements of the Rule of Law to a considerable extent. So Justice MacDonnell had to choose not between violating the requirements Rule of Law or not, but between different ways of breaching them. I am inclined to think that he picked the right poison.

Legislation should normally look to and act on the future. But the law itself always looks both forward and back, and not only to past actions of persons, but to its own past. If what it sees in its past is cringe-worthy,  it is appropriate for the law to change retrospectively.

What Sort of Rules Are in a Constitution?

A very interesting post about constitutionalism by C.J. Peters on his new MODblog makes a couple of claims that is worth addressing at some length. Constitutional law, prof. Peters suggests, consists of “legal rules that are both entrenched and secondary” (his emphasis).  “Secondary” rules refers to H.L.A. Hart’s category for rules that, unlike “primary” rules which impose duties to do or not to do something, do not directly impose duties but rather specify in various ways how primary rules are to be created, changed, and ascertained. I think both of prof. Peters’ claims are overstated. Constitutional rules are not necessarily entrenched, nor are they always secondary rules. I will leave the first claim to a separate post, probably tomorrow, and take up the second one here.

Prof. Peters writes that in contrast primary rules “that govern people’s everyday conduct,”

[r]ules about who makes law and how (e.g., bicameralism in Congress, the division of power between the federal and state governments) are examples of secondary rules; so are rules about whether and to what extent the government can regulate areas of conduct like speech and religion.  These secondary rules don’t directly apply to the conduct of most people living their everyday lives.  Instead, they govern the making and content of the primary legal rules that apply to everyday conduct.  Most constitutional provisions are examples of secondary legal rules.  (The only current exception in the U.S. Constitution is section 1 of the Thirteenth Amendment, which directly prohibits private actors from practicing  “slavery [or] involuntary servitude.”)

This might get the distinction between primary and secondary rules, as defined by Hart in The Concept of Law somewhat wrong. The fact that a rule governs “people’s everyday conduct” isn’t relevant―plenty of primary rules apply in very narrow circumstances or to very few people. The key point is not whether a rule applies to “everyday conduct” but whether it creates duties or powers (81). So Hart classifies rules governing the formation of contracts as secondary, not primary, as prof. Peters does.

In any case, prof. Peters is not alone in saying that constitutional rules are secondary rules because they govern the way in which other rules come into existence. Jeremy Waldron takes the same view in a paper called “Are Constitutional Norms Legal Norms?“.

I think that’s not quite right. Some constitutional rules certainly are secondary rules. Prof. Peters’ example of bicameralism is a good one. So are arguably, for example, rules of both the US and the Canadian constitutions that create or allow the creation of federal courts. But the case of some other rules is more complicated.

I start with constitutional rules that are not generally recognized, albeit mistakenly in my opinion, as legal―constitutional conventions. Let me quote at some length from a paper I have published, “Towards a Jurisprudence of Constitutional Conventions”, 11 O.U.C.L.J. 29:

Jeremy Waldron argues [in the paper linked to above] that conventions are secondary rules … His main example is the rule (which I will refer to as R1) that the monarch must assent to Bills that have passed both Houses of Parliament. R1, he writes, ‘is plainly not a primary rule of the British legal system, since it operates to structure the creation of law.’ [1706] But notice the way in which R1 does so operate. Before R1 came into being, the old legal rule (R0) provided that the monarch may, in her discretion, give or withhold assent to a Bill passed by the Houses of Parliament. R0 was plainly a power-conferring rule; it made the monarch an active agent in the creation of law by Parliament. R1 deprived her of that role. It does not confer any power on the monarch but on the contrary denies a power that would exist in its absence and imposes a strict duty specifying how the monarch is to behave. At most, we could say (borrowing an expression from Canadian constitutional law) that the distinction between primary and secondary rules is not always categorical, and that some rules, such as R1, have a ‘double aspect’—they can appear, from different perspectives, either primary or secondary. (Similarly, the prohibition on fraud can be seen either (as it is in criminal law) as a primary rule, a duty not to deceive, or (as it is in contract law) as part of the rules specifying the conditions of the formation of a valid contract, which Hart repeatedly provides as an example of power-conferring, secondary rules.) (31)

I think that the same could be said of many other constitutional rules, including those which are incontrovertibly legal. To return to prof. Peters’ example, the rules that divide power between federal and state or provincial legislatures impose duties on legislators not to act in certain ways (i.e. not to legislate ultra vires). So do rights-protecting constitutional provisions. The opening of the First Amendment of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”; emphasis mine) makes this especially clear.

These rules structure the way laws are made―at least federalism rules do; I’m not sure that this is a very apt description of rights-protecting provisions, which do not define or structure how laws are made, but rather limit what content the laws can have. But as importantly (in the case of federalism provisions) or more importantly (in the case of rights provisions) they tell legislators and officials in the executive branch of government what to do and what not to do. They are thus primary rules, or at least have a “double aspect” and are both secondary and primary rules.