constitutional law theory constitutions and charters of rights 9/12/20151

Constitutional Law Constitutional Law TheoryTheory

Constitutions and Charters of Constitutions and Charters of RightsRights

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Constitution: Minimal Constitution: Minimal SenseSense • one or more (secondary) rules or norms one or more (secondary) rules or norms

constituting, and defining the limits (if constituting, and defining the limits (if any) of, government authorityany) of, government authority

• all states have constitutions in this senseall states have constitutions in this sense• three forms of state power: legislative, three forms of state power: legislative,

executive, judicialexecutive, judicial• Rex’s regime has constitution in this Rex’s regime has constitution in this

sensesense• Constitutionally unlimited government; Constitutionally unlimited government;

Westminster modelWestminster model

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Constitutions: Rich Constitutions: Rich SenseSense • constitutional limits on legislative, constitutional limits on legislative,

executive and judicial powersexecutive and judicial powers• Regina; must legislate on Wednesday; Regina; must legislate on Wednesday;

no religious legislationno religious legislation• The seeds of “constitutionalism”The seeds of “constitutionalism”;;

constitutionally limited governmentconstitutionally limited government• ConstitutionalismConstitutionalism: : the powers of the powers of

government can and ought to be government can and ought to be limitedlimited

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Constitutions: Rich SenseConstitutions: Rich Sense (cont’d)(cont’d)

• Typically of three types:Typically of three types:

• a. a. scopescope (e.g., anything but religion)(e.g., anything but religion)

• b. b. mechanismsmechanisms (e.g. formal declaration(e.g. formal declaration

on Wednesday; on Wednesday; Manitoba Language RightsManitoba Language Rights

case)case)

• c. c. civil rightscivil rights (rights of political morality; (rights of political morality;

freedom of religion, freedom of expression, freedom of religion, freedom of expression,

equality, etc.)equality, etc.)

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Thomas Hobbes &Thomas Hobbes &John AustinJohn Austin

• constitutional limitation conceptually not constitutional limitation conceptually not possiblepossible

• sovereign necessarily unlimitedsovereign necessarily unlimited

• consequence of command theoryconsequence of command theory

• Austin: “the people” are (unlimited) sovereignAustin: “the people” are (unlimited) sovereign

• Hart: incoherent; commander and Hart: incoherent; commander and commanded identical; X cannot command X; commanded identical; X cannot command X; X cannot habitually obey X (X cannot habitually obey X (The Concept of The Concept of LawLaw))

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Sovereign versus Sovereign versus GovernmentGovernment

• SovereigntySovereignty: : supreme authority supreme authority over some domainover some domain

• GovernmentGovernment : : vehicle for exercise vehicle for exercise of of

sovereigntysovereignty

• limited government & unlimited limited government & unlimited sovereigntysovereignty

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Constitutional LimitationConstitutional Limitation

• more than one formmore than one form

• constitutional constitutional conventionconvention vs. vs. constitutional constitutional lawlaw

• convention not legally enforceableconvention not legally enforceable

• SCC: just as important as SCC: just as important as constitutional law (constitutional law (PatriationPatriation case) case)

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Constitutional Limitation, Constitutional Limitation, cont’dcont’d

• Constitutional ConventionsConstitutional Conventions: : GG cannot GG cannot refuse Royal Assent to any bill passed by refuse Royal Assent to any bill passed by both Houses of Parliament; both Houses of Parliament;

• PM must dissolve Parliament if vote of PM must dissolve Parliament if vote of non-confidence; non-confidence;

• GG appoints, as PM, leader of party with GG appoints, as PM, leader of party with most seats in House (or who has the most seats in House (or who has the confidence of the House – coalitions confidence of the House – coalitions possible)possible)

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Constitutional Limitation, Constitutional Limitation, cont’dcont’d

• PatriationPatriation case case• Provincial assent required for any action Provincial assent required for any action

by Federal government which impinges on by Federal government which impinges on Provincial government powers?Provincial government powers?

• SCC: No, as a matter of constitutional law; SCC: No, as a matter of constitutional law; Yes, as a matter of constitutional Yes, as a matter of constitutional conventionconvention

• Trudeau government ‘patriation’ of BNA Trudeau government ‘patriation’ of BNA Act (with Charter attached) Act (with Charter attached) unconstitutional but not illegal !unconstitutional but not illegal !

• SCC: conventions just as important as lawSCC: conventions just as important as law

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Characteristic Features of Characteristic Features of Constitutionally Limited Constitutionally Limited

Gov’tGov’t

•ConceptuallyConceptually required/necessary?required/necessary?

vsvs

•PracticallyPractically required/necessary? required/necessary?

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EntrenchmentEntrenchment

• Ordinary, non-constitutional law Ordinary, non-constitutional law usually not entrenchedusually not entrenched

• constitutions usually entrenched; constitutions usually entrenched; more than ordinary act of legislation more than ordinary act of legislation required for change; e.g., required for change; e.g., constitutional convention; provincial constitutional convention; provincial assent; national plebiscite: Canada’s assent; national plebiscite: Canada’s amending formula amending formula

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Entrenchment, cont’dEntrenchment, cont’d

• PART VPART V• PROCEDURE FOR AMENDING CONSTITUTION OF CANADAPROCEDURE FOR AMENDING CONSTITUTION OF CANADA• General procedure for amending Constitution of Canada• 38. (1) An amendment to the Constitution of Canada may (1) An amendment to the Constitution of Canada may

be made by proclamation issued by the Governor General be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by under the Great Seal of Canada where so authorized by

(a)(a) resolutions of the Senate and House of Commons; and resolutions of the Senate and House of Commons; and (b)(b) resolutions of the legislative assemblies of at least two- resolutions of the legislative assemblies of at least two-

thirds of the provinces that have, in the aggregate, thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty according to the then latest general census, at least fifty per cent of the population of all the provinces. [the 7/50 per cent of the population of all the provinces. [the 7/50 formula]formula]

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http://laws.justice.gc.ca/fr/const/9.html#codesc:7-bo-ga:l_V-se:38

http://laws.justice.gc.ca/fr/const/9.html#codesc:7-bo-ga:l_V-se:38


• ConceptuallyConceptually necessary? No: self-limitation necessary? No: self-limitation possible; New Zealand; UK Human Rights Actpossible; New Zealand; UK Human Rights Act

• Ordinary Acts of Parliament; no formal Ordinary Acts of Parliament; no formal entrenchmententrenchment

• However, serious political costs of repealHowever, serious political costs of repeal• So entrenched in practice?So entrenched in practice?• Form of “quasi entrenchment”?Form of “quasi entrenchment”?• Constitutional Convention against repeal Constitutional Convention against repeal

developing?developing?

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• PracticallyPractically necessary or desirable? necessary or desirable? Perhaps: Two reasons:Perhaps: Two reasons:

– Stability: basic grounds rules for rough Stability: basic grounds rules for rough and tumble, day to day law and politicsand tumble, day to day law and politics

– Extra protection against abuse of powerExtra protection against abuse of power

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Montesquieu & Montesquieu & Separation of PowersSeparation of Powers

• Separation of executive, legislative & Separation of executive, legislative & judicial powers?judicial powers?

• ConceptuallyConceptually necessary? necessary? • No; Rex and Regina combine powersNo; Rex and Regina combine powers• But how can X self-regulate? Does X But how can X self-regulate? Does X

not need, e.g., independent judiciary not need, e.g., independent judiciary to ensure legislature (and executive) to ensure legislature (and executive) honour constitutional limitation? honour constitutional limitation? (Plato: “who guards the guardians?”)(Plato: “who guards the guardians?”)

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Montesquieu & Montesquieu & Separation of Powers, Separation of Powers,

cont’dcont’d• cannot command oneself to observe cannot command oneself to observe

limitations (Austin; Hobbes)limitations (Austin; Hobbes)

• true, but commands ≠ rulestrue, but commands ≠ rules

• self-imposed rules – i.e., self-governance self-imposed rules – i.e., self-governance under rules – seem(s) possibleunder rules – seem(s) possible

• Waluchow’s politeness rule; kind-to-Waluchow’s politeness rule; kind-to-strangers rule; play golf twice a week strangers rule; play golf twice a week rulerule

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cont’dcont’d• True, but freedom True, but freedom not to complynot to comply; ;

freedom to freedom to changechange rule; freedom to rule; freedom to “interpret” “interpret” so as not to apply?so as not to apply?

• NormativeNormative freedom versus freedom versus de factode facto freedomfreedom

• Hart: obligation versus obliged (?)Hart: obligation versus obliged (?)

• ““Good faith requirement”Good faith requirement” to to honour normative limitationshonour normative limitations

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cont’dcont’d• PracticallyPractically necessary or desirable? necessary or desirable?

PerhapsPerhaps

• Two reasons: Two reasons: – division of labourdivision of labour– control abuse and neglect (can’t always control abuse and neglect (can’t always

count of good faith requirement)count of good faith requirement)– ““checks and balances” (US)checks and balances” (US)

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““Writtenness”Writtenness”

• ConceptuallyConceptually necessary? Nonecessary? No• unwritten conventions; social rulesunwritten conventions; social rules• British constitution once said to be entirely British constitution once said to be entirely

unwritten; common law limitationsunwritten; common law limitations• PracticallyPractically necessary or desirable?necessary or desirable?• Three dimensions on which to compare Three dimensions on which to compare

written and unwritten ruleswritten and unwritten rules– IdentityIdentity– Resistance to changeResistance to change– ClarityClarity

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Writtenness, cont’dWrittenness, cont’d

• But not all written rules better than all But not all written rules better than all unwritten rules along three unwritten rules along three dimensionsdimensions

• Perhaps a tendency to be that wayPerhaps a tendency to be that way

• Therefore, most constitutions take Therefore, most constitutions take written formwritten form

• Hence: Importance of theories of Hence: Importance of theories of constitutional interpretationconstitutional interpretation

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Constitutional Constitutional Interpretation and Interpretation and

Constitutional TheoriesConstitutional Theories • Related to theory about nature and Related to theory about nature and

authority of constitutionsauthority of constitutions

• Relevant factors: Relevant factors: – textual meaningtextual meaning– political and legal historypolitical and legal history – intentionintention – moral/political theorymoral/political theory

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Fixed ViewFixed View

• framework for law and politics fixed framework for law and politics fixed by by historical acts and intentions historical acts and intentions of of authors, “framers”, or those authors, “framers”, or those represented by the formerrepresented by the former

• Focus on “original intentions,” or Focus on “original intentions,” or plain “original plain “original understanding/meaning”understanding/meaning”

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Living TreeLiving Tree

• Growth, adaptation; continuing Growth, adaptation; continuing authority dependent on authority dependent on justicejustice and/or and/or consentconsent of of ““people nowpeople now”” not not ““people thenpeople then””

• Emphasis on factors other than Emphasis on factors other than “original intent” or “original intent” or “understanding/meaning”“understanding/meaning”

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Fixed View 1: Original Fixed View 1: Original Understanding/MeaningUnderstanding/Meaning

• Interpret words as understood at moment Interpret words as understood at moment of enactmentof enactment

• Appealing if authority of constitution Appealing if authority of constitution derives from authority of framersderives from authority of framers

• And/OrAnd/Or if one views constitution as if one views constitution as device for protection against “arbitrary” device for protection against “arbitrary” political power, particularly political power, particularly arbitrary arbitrary judicial powerjudicial power

• Respects division of powersRespects division of powers

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Fixed View 1: Original Fixed View 1: Original Understanding/Meaning, Understanding/Meaning,

cont’dcont’d• Founders or authors deal with/settle Founders or authors deal with/settle

controversial moral/political questionscontroversial moral/political questions

• Judges discover and implement Judges discover and implement controversial decisions made by others; controversial decisions made by others; objective, factual matter; no moral/political objective, factual matter; no moral/political controversies in interpretationcontroversies in interpretation

• Interpreters must remain within “four Interpreters must remain within “four corners” of documentcorners” of document

• ““Strict Construction” Strict Construction”

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cont’dcont’dDifficultiesDifficulties1.1.Ascertaining original understanding Ascertaining original understanding

often difficult – especially with often difficult – especially with abstract, evaluative terms, e.g. abstract, evaluative terms, e.g. equalityequality– Judge must appeal to own moral/political Judge must appeal to own moral/political

convictionsconvictions– Dworkin/Rawls/Gallie: Dworkin/Rawls/Gallie: “essentially “essentially

contested concepts”contested concepts”; conceptions; conceptions

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cont’dcont’d2.2. Meanings and social circumstances Meanings and social circumstances

change; increased knowledge; better change; increased knowledge; better moral theories; better moral theories; better “understandings” of equality, freedom, “understandings” of equality, freedom, fundamental justice, etc.fundamental justice, etc.

3.3. Why should “people now” be tied to Why should “people now” be tied to moral understandings of “people moral understandings of “people then”?then”?– ““Dead hand of the past”Dead hand of the past”

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Fixed View 2: Original Fixed View 2: Original IntentIntent

• Meaning fixed by/discovered in Meaning fixed by/discovered in original intentions of authors/framersoriginal intentions of authors/framers

• Historical/factualHistorical/factual investigation; no investigation; no controversial moral/political choices controversial moral/political choices required to interpretrequired to interpret

• Controversial moral/political choices Controversial moral/political choices already made by authors/foundersalready made by authors/founders

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Fixed View 2: Original Fixed View 2: Original IntentIntent

DifficultiesDifficulties

1.1.Difficult to ascertain intentions – Difficult to ascertain intentions – Whose intentions? What if conflict Whose intentions? What if conflict among intentions?among intentions?

2.2.Level of generality Level of generality can vary; which can vary; which one(s) appropriate??one(s) appropriate??

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Fixed View 2: Original Fixed View 2: Original Intent, cont’dIntent, cont’d

• Range from Range from particular applicationsparticular applications (e.g. hanging not cruel and unusual (e.g. hanging not cruel and unusual punishment; drawing and quartering punishment; drawing and quartering is) tois) to general goalsgeneral goals or or objectivesobjectives (e.g. safety, retribution, deterrence, (e.g. safety, retribution, deterrence, general welfare, etc.)general welfare, etc.)

• Choice of “intention” may depend on Choice of “intention” may depend on controversial moral/political choicecontroversial moral/political choice

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Fixed View 3: Hypothetical Fixed View 3: Hypothetical IntentIntent

• Response to (some) problems in original Response to (some) problems in original intent theoryintent theory

ProblemsProblems1.1. Originally intended applications may Originally intended applications may

seem absurd or highly undesirable in light seem absurd or highly undesirable in light of current knowledge/social of current knowledge/social circumstancescircumstances

2.2.New applications – e.g. free expression; New applications – e.g. free expression; porn and hate speech on internet; privacy porn and hate speech on internet; privacy and internetand internet

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Fixed View 3: Hypothetical Fixed View 3: Hypothetical Intent, cont’dIntent, cont’d

• Asks Asks “What would authors/founders have “What would authors/founders have intended intended if if theythey knew what we know now?”knew what we know now?”

• Put ourselves in their shoesPut ourselves in their shoes

• Bear in mind (a) their intended goals and Bear in mind (a) their intended goals and values; (b) analogies between new cases values; (b) analogies between new cases and originally intended applications. Then and originally intended applications. Then (c) determine what is required in new case (c) determine what is required in new case not contemplated by authors/foundersnot contemplated by authors/founders

• Original meaning guide to original intentionsOriginal meaning guide to original intentions

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Fixed View 3: Hypothetical Fixed View 3: Hypothetical Intent, cont’dIntent, cont’d

DifficultiesDifficulties1.1.Assumes identification of consistent set of Assumes identification of consistent set of

values, goals and applicationsvalues, goals and applications2.2.Asking Asking counterfactual question counterfactual question to which to which

there may be no uniquely correct answerthere may be no uniquely correct answer3.3.If no uniquely correct answer, then choice If no uniquely correct answer, then choice

necessary – on moral/political grounds?necessary – on moral/political grounds?4.4.No longer neutral, factual decision No longer neutral, factual decision

making?making?

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Dworkin’s Interpretive Dworkin’s Interpretive TheoryTheory

• Fixed view rejectedFixed view rejected

• Original intentions and Original intentions and understandings (meaning) useful but understandings (meaning) useful but not dispositivenot dispositive

• Law more than rules explicitly Law more than rules explicitly adopted and authoritative decisions adopted and authoritative decisions actually made; more than settled, actually made; more than settled, agreed “positive law”agreed “positive law”

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Dworkin’s Interpretive Dworkin’s Interpretive Theory, cont’dTheory, cont’d

• Law consists also of (controversial) Law consists also of (controversial) principles of political morality that principles of political morality that provide uniquely best explanation provide uniquely best explanation and justification – i.e. “constructive and justification – i.e. “constructive interpretation” of settled, positive interpretation” of settled, positive lawlaw

• LawLaw = Settled Law + underlying, = Settled Law + underlying, implicit principles of political moralityimplicit principles of political morality

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• Underlying PrinciplesUnderlying Principles: : those which those which provide bestprovide best explanationexplanation and moral and moral justificationjustification – interpretation – of – interpretation – of settled lawsettled law

• IntegrityIntegrity: : enforcing and extending enforcing and extending (same) underlying principles to new (same) underlying principles to new casescases

• ““Law as Integrity”Law as Integrity”• Community of principleCommunity of principle

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• General theory of constructive General theory of constructive interpretationinterpretation

• Interpretation that ascribes most Interpretation that ascribes most valuevalue (e.g., moral or aesthetic) to (e.g., moral or aesthetic) to object of interpretationobject of interpretation

• Interpreters attempting to make the Interpreters attempting to make the object of interpretation object of interpretation ““the best that the best that it can be”it can be”

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• purpose of interpretation in all purpose of interpretation in all domains (art, morality, law, etc.)domains (art, morality, law, etc.)

• How to discover “best theory How to discover “best theory (interpretation) of the law”?(interpretation) of the law”?

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• Theories ranked along Two Theories ranked along Two DimensionsDimensions

• FitFit (actually explains existing, settled (actually explains existing, settled law)law)

• minimum threshold; mistakesminimum threshold; mistakes

• Moral JustificationMoral Justification : on interpreter’s : on interpreter’s own best theory of political moralityown best theory of political morality

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• Two QuestionsTwo Questions• 1. Which theories surpass minimum 1. Which theories surpass minimum

threshold of fit?threshold of fit?• 2. Which of the theories passing minimum 2. Which of the theories passing minimum

threshold contains the morally best threshold contains the morally best principles?principles?

• Always a “uniquely best interpretation” Always a “uniquely best interpretation” provides a right answer to a legal questionprovides a right answer to a legal question

• Right Answer ThesisRight Answer Thesis• Hercules’ Soundest Theory of the LawHercules’ Soundest Theory of the Law

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ImplicationsImplications1.1. Historical intentions and understandings Historical intentions and understandings

do not fix meaning of abstract do not fix meaning of abstract constitutional provisions; constitutional provisions; conceptsconcepts versus versus conceptionsconceptions

1.1.Interpretation requires Interpretation requires same same moral/political decision making moral/political decision making that, on that, on fixed views, only properly undertaken by fixed views, only properly undertaken by authors/foundersauthors/founders

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3.3. Contemporary judges Contemporary judges “partners”“partners” with with framers in developing appropriate framers in developing appropriate limits to government power; limits to government power; developing better conceptions of developing better conceptions of essentially contested concepts essentially contested concepts (justice, equality, liberty, etc.)(justice, equality, liberty, etc.)

• ““dialogue theory”??dialogue theory”??

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DifficultiesDifficulties

1.1.No right answers?No right answers?

2.2.Judges not philosopher Judges not philosopher kings/Herculean theorists?kings/Herculean theorists?

3.3.Judge’s engage in moral reasoning Judge’s engage in moral reasoning to decide what should be non-moral, to decide what should be non-moral, interpretive questions?interpretive questions?

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4.4.Judges “constructing” not Judges “constructing” not “interpreting” constitution“interpreting” constitution

5.5.Separation of powers?Separation of powers?

6.6.Undemocratic?Undemocratic?

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Critical TheoryCritical Theory

• Rejects fixed views and Dworkinian Rejects fixed views and Dworkinian constructive interpretationsconstructive interpretations

• Appeal to original Appeal to original intent/understanding and Hercules’ intent/understanding and Hercules’ best theory/interpretation illusorybest theory/interpretation illusory

• Deep and abiding indeterminacyDeep and abiding indeterminacy• Smokescreen for oppressive political Smokescreen for oppressive political

forces at playforces at play

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• Best interpretation whatever dominant Best interpretation whatever dominant group(s) say(s) it isgroup(s) say(s) it is

• Original intentions/understandings Original intentions/understandings chosen on basis of personal advantage chosen on basis of personal advantage or partisan moral/political viewsor partisan moral/political views

• Variety of versions; Critical Legal Variety of versions; Critical Legal Studies, Marxist legal theory, feminist Studies, Marxist legal theory, feminist legal theorylegal theory

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• Theory that charters limit arbitrary Theory that charters limit arbitrary government power, promote civil rights and government power, promote civil rights and protect minorities from majorities is nothing protect minorities from majorities is nothing but a but a mythmyth – and – and harmfulharmful one at thatone at that

• Remedies? Overhaul of system, or work Remedies? Overhaul of system, or work within system to bring about change (more within system to bring about change (more democratic accountability; more democratic accountability; more representative judiciary, use Charter to representative judiciary, use Charter to promote equality), etc. promote equality), etc.

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constitutional law theory constitutions and charters of rights 9/12/20151

Documents

government sovereignty

government authority

powers of government

constitutional law convention

exercise of government

domain government

form constitutional

unlimited sovereign