Thursday, June 28, 2007

US Constitutional Law in a Nutshell

You do what Kennedy thinks. If you can figure out what that is...

Update: I am actually not as down on Justice Kennedy as some. I think there is a coherent and laudable theme there.

The critical difference between US and Canadian constitutional law is not that rights are absolute in the Republic, but not in the Dominion. In both cases, the critical work occurs in deciding whether the governmental act is justified. And in both cases, there are basically two issues: (a) is the government act overinclusive or underinclusive; and (b) how seriously should the judicial system test the rationale for the law?

In the US, though, almost all the work is done under (b). If a law is to be subject to "strict scrutiny", it nearly always loses. If it is subject to "rational basis scrutiny", it nearly always wins. There are varying standards in Canada too, but they aren't as determinative. The government can get "deference" and lose, and it can receive no "deference" and win.

Kennedy's principal contribution is to make American constitutional law more Canadian in this respect. As Randy Barnett has noted, in Lawrence, he struck down sodomy laws without concluding that they attracted strict scrutiny. And a number of his 2007 decisions have the same quality. I think this is a good thing for a number of reasons. The one that may appeal to my originalist friends is that there is nothing in the Constitution about tiers of review.

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