Constitutional Law Theory

1. Constitutional Law Theory Constitutions and Charters of Rights

2. Constitution: Minimal Sense • one or more (secondary) rules or norms constituting, and defining the limits (if any) of, government authority • all states have constitutions in this sense • three forms of state power: legislative, executive, judicial • Rex’s regime has constitution in this sense • Constitutionally unlimited government; Westminster model

3. Constitutions: Rich Sense • constitutional limits on legislative, executive and judicial powers • Regina; must legislate on Wednesday; no religious legislation • The seeds of “constitutionalism”; constitutionally limited government • Constitutionalism: the powers of government can and ought to be limited

4. Constitutions: Rich Sense (cont’d) • Typically of three types: • a. scope(e.g., anything but religion) • b. mechanisms(e.g. formal declaration on Wednesday; Manitoba Language Rights case) • c. civil rights (rights of political morality; freedom of religion, freedom of expression, equality, etc.)

5. Thomas Hobbes &John Austin • constitutional limitation conceptually not possible • sovereign necessarily unlimited • consequence of command theory • Austin: “the people” are (unlimited) sovereign • Hart: incoherent; commander and commanded identical; X cannot command X; X cannot habitually obey X (The Concept of Law)

6. Sovereign versus Government • Sovereignty: supreme authority over some domain • Government: vehicle for exercise of sovereignty • limited government & unlimited sovereignty

7. Constitutional Limitation • more than one form • constitutional convention vs. constitutional law • convention not legally enforceable • SCC: just as important as constitutional law (Patriation case)

8. Constitutional Limitation, cont’d • Constitutional Conventions: GG cannot refuse Royal Assent to any bill passed by both Houses of Parliament; • PM must dissolve Parliament if vote of non-confidence; • GG appoints, as PM, leader of party with most seats in House (or who has the confidence of the House – coalitions possible)

9. Constitutional Limitation, cont’d • Patriation case • Provincial assent required for any action by Federal government which impinges on Provincial government powers? • SCC: No, as a matter of constitutional law; Yes, as a matter of constitutional convention • Trudeau government ‘patriation’ of BNA Act (with Charter attached) unconstitutional but not illegal ! • SCC: conventions just as important as law

10. Characteristic Features of Constitutionally Limited Gov’t • Conceptually required/necessary? vs • Practically required/necessary?

11. Entrenchment • Ordinary, non-constitutional law usually not entrenched • constitutions usually entrenched; more than ordinary act of legislation required for change; e.g., constitutional convention; provincial assent; national plebiscite: Canada’s amending formula

12. Entrenchment, cont’d • PART V • PROCEDURE FOR AMENDING CONSTITUTION OF CANADA • General procedure for amending Constitution of Canada • 38.(1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces. [the 7/50 formula]

13. Entrenchment, cont’d • Conceptuallynecessary? No: self-limitation possible; New Zealand; UK Human Rights Act • Ordinary Acts of Parliament; no formal entrenchment • However, serious political costs of repeal • So entrenched in practice? • Form of “quasi entrenchment”? • Constitutional Convention against repeal developing?

14. Entrenchment, cont’d • Practicallynecessary or desirable? Perhaps: Two reasons: • Stability: basic grounds rules for rough and tumble, day to day law and politics • Extra protection against abuse of power

15. Montesquieu & Separation of Powers • Separation of executive, legislative & judicial powers? • Conceptually necessary? • No; Rex and Regina combine powers • But how can X self-regulate? Does X not need, e.g., independent judiciary to ensure legislature (and executive) honour constitutional limitation? (Plato: “who guards the guardians?”)

16. Montesquieu & Separation of Powers, cont’d • cannot command oneself to observe limitations (Austin; Hobbes) • true, but commands ≠ rules • self-imposed rules – i.e., self-governance under rules – seem(s) possible • Waluchow’s politeness rule; kind-to-strangers rule; play golf twice a week rule

17. Montesquieu & Separation of Powers, cont’d • True, but freedom not to comply; freedom to change rule; freedom to “interpret” so as not to apply? • Normativefreedom versus de factofreedom • Hart: obligation versus obliged (?) • “Good faith requirement” to honour normative limitations

18. Montesquieu & Separation of Powers, cont’d • Practically necessary or desirable? Perhaps • Two reasons: • division of labour • control abuse and neglect (can’t always count of good faith requirement) • “checks and balances” (US)

19. “Writtenness” • Conceptuallynecessary? No • unwritten conventions; social rules • British constitution once said to be entirely unwritten; common law limitations • Practicallynecessary or desirable? • Three dimensions on which to compare written and unwritten rules • Identity • Resistance to change • Clarity

20. Writtenness, cont’d • But not all written rules better than all unwritten rules along three dimensions • Perhaps a tendency to be that way • Therefore, most constitutions take written form • Hence: Importance of theories of constitutional interpretation

21. Constitutional Interpretation and Constitutional Theories • Related to theory about nature and authority of constitutions • Relevant factors: • textual meaning • political and legal history • intention • moral/political theory

22. Fixed View • framework for law and politics fixed by historical acts and intentions of authors, “framers”, or those represented by the former • Focus on “original intentions,” or plain “original understanding/meaning”

23. Living Tree • Growth, adaptation; continuing authority dependent on justiceand/or consent of “people now” not “people then” • Emphasis on factors other than “original intent” or “understanding/meaning”

24. Fixed View 1: Original Understanding/Meaning • Interpret words as understood at moment of enactment • Appealing if authority of constitution derives from authority of framers • And/Or if one views constitution as device for protection against “arbitrary” political power, particularly arbitrary judicial power • Respects division of powers

25. Fixed View 1: Original Understanding/Meaning, cont’d • Founders or authors deal with/settle controversial moral/political questions • Judges discover and implement controversial decisions made by others; objective, factual matter; no moral/political controversies in interpretation • Interpreters must remain within “four corners” of document • “Strict Construction”

26. Fixed View 1: Original Understanding/Meaning, cont’d Difficulties • Ascertaining original understanding often difficult – especially with abstract, evaluative terms, e.g. equality • Judge must appeal to own moral/political convictions • Dworkin/Rawls/Gallie: “essentially contested concepts”; conceptions

27. Fixed View 1: Original Understanding/Meaning, cont’d • Meanings and social circumstances change; increased knowledge; better moral theories; better “understandings” of equality, freedom, fundamental justice, etc. • Why should “people now” be tied to moral understandings of “people then”? • “Dead hand of the past”

28. Fixed View 2: Original Intent • Meaning fixed by/discovered in original intentions of authors/framers • Historical/factual investigation; no controversial moral/political choices required to interpret • Controversial moral/political choices already made by authors/founders

29. Fixed View 2: Original Intent Difficulties • Difficult to ascertain intentions – Whose intentions? What if conflict among intentions? • Level of generality can vary; which one(s) appropriate??

30. Fixed View 2: Original Intent, cont’d • Range from particular applications (e.g. hanging not cruel and unusual punishment; drawing and quartering is) togeneral goals or objectives (e.g. safety, retribution, deterrence, general welfare, etc.) • Choice of “intention” may depend on controversial moral/political choice

31. Fixed View 3: Hypothetical Intent • Response to (some) problems in original intent theory Problems • Originally intended applications may seem absurd or highly undesirable in light of current knowledge/social circumstances • New applications – e.g. free expression; porn and hate speech on internet; privacy and internet

32. Fixed View 3: Hypothetical Intent, cont’d • Asks “What would authors/founders have intended if theyknew what we know now?” • Put ourselves in their shoes • Bear in mind (a) their intended goals and values; (b) analogies between new cases and originally intended applications. Then (c) determine what is required in new case not contemplated by authors/founders • Original meaning guide to original intentions

33. Fixed View 3: Hypothetical Intent, cont’d Difficulties • Assumes identification of consistent set of values, goals and applications • Asking counterfactual question to which there may be no uniquely correct answer • If no uniquely correct answer, then choice necessary – on moral/political grounds? • No longer neutral, factual decision making?

34. Dworkin’s Interpretive Theory • Fixed view rejected • Original intentions and understandings (meaning) useful but not dispositive • Law more than rules explicitly adopted and authoritative decisions actually made; more than settled, agreed “positive law”

35. Dworkin’s Interpretive Theory, cont’d • Law consists also of (controversial) principles of political morality that provide uniquely best explanation and justification – i.e. “constructive interpretation” of settled, positive law • Law = Settled Law + underlying, implicit principles of political morality

36. Dworkin’s Interpretive Theory, cont’d • Underlying Principles: those which provide bestexplanationand moral justification – interpretation – of settled law • Integrity: enforcing and extending (same) underlying principles to new cases • “Law as Integrity” • Community of principle

37. Dworkin’s Interpretive Theory, cont’d • General theory of constructive interpretation • Interpretation that ascribes most value (e.g., moral or aesthetic) to object of interpretation • Interpreters attempting to make the object of interpretation “the best that it can be”

38. Dworkin’s Interpretive Theory, cont’d • purpose of interpretation in all domains (art, morality, law, etc.) • How to discover “best theory (interpretation) of the law”?

39. Dworkin’s Interpretive Theory, cont’d • Theories ranked along Two Dimensions • Fit(actually explains existing, settled law) • minimum threshold; mistakes • Moral Justification : on interpreter’s own best theory of political morality

40. Dworkin’s Interpretive Theory, cont’d • Two Questions • 1. Which theories surpass minimum threshold of fit? • 2. Which of the theories passing minimum threshold contains the morally best principles? • Always a “uniquely best interpretation” provides a right answer to a legal question • Right Answer Thesis • Hercules’ Soundest Theory of the Law

41. Dworkin’s Interpretive Theory, cont’d Implications • Historical intentions and understandings do not fix meaning of abstract constitutional provisions; conceptsversus conceptions • Interpretation requires same moral/political decision making that, on fixed views, only properly undertaken by authors/founders

42. Dworkin’s Interpretive Theory, cont’d • Contemporary judges “partners” with framers in developing appropriate limits to government power; developing better conceptions of essentially contested concepts (justice, equality, liberty, etc.) • “dialogue theory”??

43. Dworkin’s Interpretive Theory, cont’d Difficulties • No right answers? • Judges not philosopher kings/Herculean theorists? • Judge’s engage in moral reasoning to decide what should be non-moral, interpretive questions?

44. Dworkin’s Interpretive Theory, cont’d • Judges “constructing” not “interpreting” constitution • Separation of powers? • Undemocratic?

45. Critical Theory • Rejects fixed views and Dworkinian constructive interpretations • Appeal to original intent/understanding and Hercules’ best theory/interpretation illusory • Deep and abiding indeterminacy • Smokescreen for oppressive political forces at play

46. Critical Theory • Best interpretation whatever dominant group(s) say(s) it is • Original intentions/understandings chosen on basis of personal advantage or partisan moral/political views • Variety of versions; Critical Legal Studies, Marxist legal theory, feminist legal theory

47. Critical Theory • Theory that charters limit arbitrary government power, promote civil rights and protect minorities from majorities is nothing but a myth – and harmfulone at that • Remedies? Overhaul of system, or work within system to bring about change (more democratic accountability; more representative judiciary, use Charter to promote equality), etc.