'Originalism’s Constitution' in G. Huscroft and B.W. Miller
(eds.), The Challenge of Originalism: Theories of Constitutional
Interpretation (New York: Cambridge University Press, 2011)
This essay seeks to explore originalism as something other than a theory of interpretation. This might strike one as odd. After all, if originalism is a theory of interpretation, how else might one seek to understand it? Yet, conceiving originalism as something other than a theory of interpretation may reveal insights that otherwise would remain beyond one’s immediate grasp. Recognising this potential, I reflect on how originalism can be understood, not as a theory of interpretation, but rather as a constitution. In short, the query explored is: What is an original constitution? What model of a constitution does originalism contemplate? Now, attempting to design an original constitution may suffer from the same contests facing any account of originalism. Different originalists make different commitments, and any attempt to select among them will be vulnerable to criticism. Despite differences between originalists, three commands and commitments can fairly be attributed to originalism without raising too much contest: the original constitution is written at the founding and changed only by the amendment procedure it sets out, is law insofar as it provides rule-like prescriptions, and occupies a delimited domain, leaving the rest to democratic activity. The model of an original constitution here elaborated seeks to provide a model of a fictional constitution that satisfies, perhaps to a fault, the key commitments and commands of originalism. It seeks to bring to light the commands and commitments originalism would have of us, and of constitutions.
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'Review of John P McCormick Machiavellian Democracy (Cambridge
University Press, 2011)’ (2011) 74 Modern Law Review 811-813
'Legal Reasoning and Bills of Rights' in R Ekins (ed)
Modern Challenges to the Rule of Law (Wellington: LexisNexis, 2011)
The ideal of the rule of law speaks differently to law-makers
and law-appliers. The judge, being the legal official tasked with the
application of law by the court, is not in the law-maker’s position of choosing
what, legally, ought to obtain, but rather is tasked with furthering, by
administering, what, legally, already obtains. This demarcation of
responsibilities rests on the ability of the law-maker to settle authoritatively
moral-political questions in such a way as to render possible the artificial
techne of legal reasoning. Bills of rights are unusual law-making acts insofar
as they deliberately fail to settle moral-political questions under law by
declining to specify the general right ‘P has the right to x’. How, then, have
judges sought to satisfy their law-applying role in relation to disputed claims
of rights? The approach shared by judges in Europe and much of the Commonwealth
is to interpret the open-ended rights of bills of rights to include nearly all
possible instances of conduct that could be related to the right, with the
consequence that nearly all legislation, including legislative specifications of
open-ended rights, infringes the bill of rights. In turn, the legality of
legislation turns on judicially-created standards of proportionality and
balancing, which lack the discipline afforded by technical legal reasoning. As a
consequence, judges have assumed the function of law-makers, with all of the
associated challenges to the rule of law when law-applying institutions make law
in the very moment the legal subject is before them.
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'What is a Political Constitution?' (with Graham Gee) (2010)
30 Oxford Journal of Legal Studies 273-299
The question—what is a political constitution?—might seem, at first blush, fairly innocuous. At one level, after all, the model of a political constitution seems fairly well settled, at least insofar as most political constitutionalists subscribe to a similar set of commitments, arguments and assumptions. At a second, more reflective level, however, there remains some doubt whether a political constitution purports to be a descriptive or normative account of a real world constitution, such as Britain’s. By exploring the idea of a political constitution as differently articulated by JAG Griffith, Adam Tomkins and Richard Bellamy, this essay explores why the normativity of a political constitution may be indistinct and ill-defined, and how compelling reasons for this indistinctness and ill-definition are to be found in the very idea of a political constitution itself. A political constitution is here conceived as a ‘model’ which supplies an explanatory framework within which to make sense of constitutional self-understandings. The discipline of thinking in terms of a ‘model’ opens up a critical space wherein there need not be some stark, all-encompassing choice between constitutional models, which, in turn, allows for more subtle understandings of Britain’s constitution as neither exclusively ‘political’ or ‘legal’.
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‘Review of Aileen Kavanagh, Constitutional Review under the
UK Human Rights Act (Cambridge University Press, 2009)’ (2010) 73 Modern
Law Review 887-893
‘Proportionality, Balancing, and the Cult of Constitutional
Rights’ Scholarship’ (2010) XXIII Canadian Journal of Law and Jurisprudence
179-202
Constitutional rights scholarship is anchored in the cult of proportionality and balancing. Despite the absence of reference to proportionality or balancing in most State constitutions or international conventions, scholars and judges alike have embraced a vocabulary of proportion, cost, weight, and balance. Drawing on the work of German scholar Robert Alexy and Canadian scholar David Beatty, this essay attempts to illustrate how the principle of proportionality conceals more than it reveals in rights-reasoning. By challenging the contemporary cult of practical reasoning over rights, the essay advocates a turn away from a methodology and vocabulary of proportionality in favour of a more direct struggle with political-moral rights-reasoning.
'The Unfulfilled Potential of the Court and Legislature
Dialogue' (2009) 42 Canadian Journal of Political Science 443-465
Constitutional scholarship has been exploring the
idea that the court and the legislature engage in a dialogue over
the meaning of the constitution. Yet, despite many contributions to
the idea of dialogue over the last decade, its potential remains
unfulfilled. The epistemological potential of dialogue remains
understudied, in part because the court continues to be viewed as
the supreme, if not also the sole, expounder of the constitution.
For dialogue's potential to be realized, the legislature should be
acknowledged as a co-ordinate actor in expounding constitutional
meaning and both court and legislature should assume a disposition
for dialogue.
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'Introduction: La fin de Oakes?' (with L.B. Tremblay) in L.B. Tremblay
and G.C.N. Webber (eds.), The Limitation of Charter Rights: Critical Essays
on R. v. Oakes (Montreal: Thémis, 2009)
Twenty years after the Supreme Court of Canada's famous
decision in R. v. Oakes (1986) interpreting the limitation clause of the
Canadian Charter of Rights and Freedoms, the meaning, role, and normative
foundation of the analysis for justifying the limits of constitutional rights
remain controversial. The critical essays in this volume interrogate the central
question raised by this limitation clause: what general conditions must be
satisfied before a constitutional right's limit constitutes a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society?
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'La disposition limitative de la Charte canadienne : une invitation à définir
les droits et libertés aux contours indéterminés' in L.B. Tremblay and G.C.N.
Webber (eds.), The Limitation of Charter Rights: Critical Essays on R. v.
Oakes (Montreal: Thémis, 2009)
This essay challenges the received approach to the limitation of rights in
Canada, arguing that the Supreme Court's jurisprudence has strayed from the path
set by the Canadian Charter's limitation clause. The Supreme Court
employs the key words 'infringement', 'impairment', 'breach', and 'violation' to
trigger a proportionality analysis, with the consequence that the limitation
clause analysis is looked upon with suspicion as a defence for the infringement
of constitutional rights. Yet, the limitation clause speaks of a right's limit,
which is synonymous with its 'boundary', 'demarcation', and 'border', suggesting
that a limitation clause serves as a gateway for specifying and defining
indeterminate rights. This understanding allows for rights to be situated
within, rather than opposed to, a free and democratic society. In this way, the
legislature's acts become a source for the definition of rights rather than
their violation and all rights become candidates for being absolute.
'Expounding Constitutional Scholarship' (2009) 25 Constitutional Commentary
171-188
Review of Grant Huscroft (ed) Expounding the Constitution:
Essays in Constitutional Theory (Cambridge: Cambridge University Press,
2008)
'The Promise of Canada's Official Languages Declaration' (2008) 39 Supreme Court
Law Review (2d) 131-170
The Canadian Charter of Rights and Freedoms guarantees
that French and English are the official languages of Canada and have equality
of status and equal rights and privileges as to their use in all institutions of
the Parliament and government of Canada. The Supreme Court of Canada would
appear to see little potential in the affirmation of Canada’s official
languages. Several commentators agree, dismissing the guarantee as no more than
symbolic. A different reading is proposed here, embracing the promise of
official bilingualism in Canada and outlining some of the consequences that
follow from Canada's constitutional commitment to the declaration of two
official languages.
A shorter version was published as ‘The Promise of Canada’s
Declaration of Official Languages’ (2006) 46 Revista de Llengua i
Dret 241-274.
'A Confused Court: Equivocations on Recognizing Same-Sex Marriage in South
Africa' (with G. Gee) (2006) 69 Modern Law Review 831-842
'Legal Lawlessness and the Rule of Law' (2005) 31 Queen's Law Journal 121-147
Following the Supreme Court of Canada's decision in R. v.
Shirose, Parliament enacted section 25.1 of the Criminal Code, creating a
general law enforcement justification that allows designated officials to break
the law to better enforce it. Parliament’s scheme of sanctioning unlawful
behaviour amounts to 'legal lawlessness' which fails to respect the rule of law,
specifically the conceptions of legality (the principle that all State action
must be grounded in a legal source) and legal equality (the principle that no
one is above the law.
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'Same-Sex Marriage in Canada: Contributions from the Courts, the Executive, and
Parliament' (with G. Gee) (2005) 16 King's College Law Journal 132-143
'L'utilisation de la procédure de l’avis consultatif devant la Cour suprême du
Canada : Essai de typologie' (with F. Chevrette) (2003) 82 Canadian Bar
Review 757-780
The reference (or advisory opinion) procedure has been the
subject of many studies, many of which emphasize its alleged procedural
weaknesses. The present article, distinguishing itself from the foregoing
approach, examines the types of problems and questions submitted by reference to
the Supreme Court since its creation in 1875. The Supreme Court has rendered
approximately 140 advisory opinions, here classified into five categories. It
becomes apparent that the procedure has made a contribution, sometimes
overlooked by opponents.
Grégoire Webber
In matters of rights, constitutions tend to avoid settling controversies. With
few exceptions, rights are formulated in open-ended language, seeking consensus
on an abstraction without purporting to resolve the many moral-political
questions implicated by rights. The resulting view has been that rights extend
everywhere but are everywhere infringed by legislation seeking to resolve the
very moral-political questions the constitution seeks to avoid. The Negotiable
Constitution challenges this view. Arguing that underspecified rights call for
greater specification, Grégoire C. N. Webber draws on limitation clauses common
to most bills of rights to develop a new understanding of the relationship
between rights and legislation. The legislature is situated as a key
constitutional actor tasked with completing the specification of constitutional
rights. In turn, because the constitutional project is incomplete with regards
to rights, it is open to being re-negotiated by legislation struggling with the
very moral-political questions left underdetermined at the constitutional level.