Fixation Thesis in Anglo-Canadian Law

Larry Solum's "fixation thesis" was always considered obvious in Anglo-Canadian law. From Maxwell's Interpretation of Statutes:

It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendents with the cicumstances to which it had relation, as well as with the sense then attached to legislative expressions.

The fixation thesis was the source of the maxim contemporanea expositio est fortissima in lege. The contemporaneous exposition need not be legally binding. If Lord Coke thought a statute meant X, then that was evidence it meant X, even when legislative history could not be admitted for interpreting recent statutes.

The phrase "circumstances to which it had relation" might seem to indicate an "expected application" theory of meaning. However, the English courts only applied the contemporanea expositio principle to very old statutes (more than a century) for which it could reasonably be assumed that linguistic change in the semantics of words had taken place: Campbell College, Belfast v. Commissioner of Valuation for Northern Ireland, [1964] 1 W.L.R. 912 (H.L.) at p. 941. So the expected application of long ago was only relevant to the semantic/intensional meaning that could be inferred from it.

Interestingly, at a time when stare decisis was still considered absolute, it did not apply to mistaken statutory interpretations on constitutional grounds.

Is There a Future for Originalism in Canada?

Larry Solum has posted a lengthy paper defending "semantic originalism" as the way to interpret (but not construct!) a written constitution.

The upshot is that originalism is right, but doesn't matter nearly as much as everyone used to think.

As Solum tells it, semantic originalism involves four claims:

1. The fixation thesis. The semantic meaning of the constitution (what is says, not what it does) is fixed at the moment it is adopted. Linguistic change since 1867 does not change what the BNA Act means.

Importantly, this does not imply that change other than in the meanings of words since 1867 will make no difference in how constitutional cases will be decided.

2. The clause meaning thesis. What matters is not what the authors of the constitutional text intended, but what a competent reader at the time would understand. Competent readers might be the general public, politicians, lawyers or possibly different groups for different clauses.

3. The contribution thesis. The meaning of the Constitution has some effect on the law of the constitution. Not necessarily a big one, though.

4. The fidelity thesis. We ought to respect the law, including constitutional law, unless there is a good reason not to.

Let's take the facts of Edwards v. Canada, [1930] A.C. 124 (P.C.) to see how this plays out. The British North America Act, written in 1867, permitted the Governor General to name "qualified persons" to the Senate. In 1867, women, including peeresses in their own right, were under a legal disability from voting in Parliament.

The Privy Council decided that women could be Senators. It could have done so by referring to the meaning of "person" in 1930, by referring to a secret intention of John A. MacDonald to have women as senators, by deciding that the constitutional law had changed in the interim or by deciding that excluding women from the Senate was too unjust a law to obey. If you attended U. of T. law school, you would be forgiven to think that that is what they did, although of course, they didn't.

The Constitution makers in 1867 presumably thought this disability would continue. However, as the Privy Council decided, the term "person", if unqualified, included women. Even if it was taken more narrowly to include only individuals with legal capacity, by 1930, married women had such capacity and therefore had become "persons," although they would not have been sixty years earlier. The Privy Council was aware that if the BNA Act had used the phrase "qualified men", then it would clearly be saying that women could not be Senators, regardless of whether that was a just result.

Solum distinguishes between "constituional interpretation" (which derives the meaning of the text) and "constitutional construction" (which is what judges do when the meaning runs out. Most cases are decided at the construction stage.

Solum says that "constitutional construction" involves vagueness and pragmatics (meaning of utterance, rather than utterance-type). Here I would tend to disagree. Pragmatics about the constitutional utterance itself go to interpretation. We know that the "United States" means the United States of America because of whose constitution it is, just as we know that "I did it" refers to the Pithlord because of who said those words.

Where vagueness goes is more of a matter of choice, but vaguness definitely does not exhaust the post-interpretive issues of constitutional litigation. The issue in constitutional construction is not usually what side of a vague line a statute is on, but whether certain social/moral facts are true. Whether lethal injection is "cruel and unusual" turns on the social fact of whether there is a less painful method to kill people and the moral fact of whether killing people that way is cruel. Whether the Ocean Dumping Control Act interferes with property and civil rights within the province depends on whether ocean dumping is a trans-border externality that requires a regulatory scheme to address. Whether the pre-1988 abortion law is contrary to the principles of fundamental justice depends on whether the tribunals it set up were unbiased and reasonably speedy.

Solum's form of originalism may not matter very much north of the border. In the Candian case, since our most controversial constitutional provisions are just over 25 years old, there has not been any linguistic change for the fixation thesis to operate on. Almost none of the Charter decisions turn on the semantic meanings of the words.

The exception may be those provisions where the words arguably had a "term of art" meaning in 1982. The critical example was "principles of fundamental justice," which had acquired among lawyers a purely procedural meaning as a result of previous Supreme Court decisions. Unfortunately, in 1985 when this provision was considered, we did not have a sophisticated originalism up here, and the Canadian courts would have been naturally resistant to Reaganite terminology.

Why ask "What is Law?"

The debate between legal positivists and natural lawyers quickly become semantic. If you are so inclined, you can stipulate that "law" means "the occasions on which coercion is morally permissible/obligatory." Or you can say it refers to the social fact of how specialists in social practices like litigation and staute passing think. Each are perfectly sensible things to think about, and there is really no point in arguing about it: chacun à son gout. Study what you want.

So let's take the positivists preferred course, and study how legal specialists think. There's no doubt that they often refer to constitutive proclaimations of legal authorities. The law is X because Parliament or the Supreme Court said so. I can agree that it is X, even if I think it should be Y because the said bodies, however legally authoritative, are being morons.

But then you notice that Parliament, the Supreme Court, and everybody else will state the law in such a way that it needs everyday moral intuitions if we are going to apply it to physical events going on in the world. Contracts in Quebec and the US need to be interpreted in good faith. Statutes in Canada need to be seen as means to address some social mischief. Liability in negligence depends on whether the defendant acted reasonably.

And incorporating these moral intuitions into legal decision-making sometimes makes the law more, rather than less, predictible. The hardest thing to give an opinion about is how non-morally-inflected legal language will be interpreted. Most of us have a better idea what a jury or gut-based judge will think. So even on the dimension of certainty and respect for the will of the parties/legislature, which are the selling-points of positivism, we might be better off just incorporating moral intuitions into law.

Of course, we aren't always better off. People disagree about moral intuitions (although the extent to which this is true is probably exaggerated), and a big part of the point of law is to have a predictible way of resolving those differences. A natural lawyer would say that this fact is a major justification for authority. So just as looking at the actual practices of lawyers (as positivists recommend) provides partial support for natural law, looking at the moral justifications for coercion provides a basis for positive authority.

The difference is that the natural lawyer would say that authority is always limited by the reasons for it, and has less incentive to exaggerate the extent to which the actual legal system depends on command, rather than moral intuitions.

Anyway, if we actually concentrate on the way that a legal system does (or should) rely on each is a more interesting question than "what is law?"

"Preferences" and Constitutional Theories: Is "Adler's Axiom" Axiomatic?

Jonathan Adler makes what sounds like a motherhood point about constitutional law:

I would suggest that a reasonable threshold test of the seriousness of a given individual's avowed theory of constitutional interpretation is whether the theory produces any results to which the individual finds highly objectionable. If not, there may be reason to suspect that the theory is just a dressed up iteration of the individual's policy preferences.

In other words, your constitutional theory has to produce results you don't like: laws you hate being upheld, and laws you like being struck down.

That certainly sounds right. We don't want judges just striking down laws they disagree with, and upholding those they like. We might suspect that that is what is going on, but we don't like it. Indeed, the whole impetus for a constitutional theory is to somehow constrain judicial subjectivity, to allow constitutional law to escape the taint that it is just politics done by people in Santa Claus suits.

It isn't hard, in fact, to find constitutional positions which differ from the policy position the judge or the professor would prefer, but only with a naive view of what the policy issue is. Once we define the issue in the way a constitutional lawyer is likely to, then the gaps become trivial (and rightly so). Franck's examples of positions he is reluctantly forced to take by the constitution are actually bogus: given a wide enough view of the facts, he wouldn't really prefer those results after all.

Let me illustrate by way of anecdote. I recall a Question-and-Answer session with Justice Scalia of the US Supreme Court at law school a decade ago. He was arguing that his "faint hearted originalism" avoided judicial subjectivity. Someone asked him the obvious question of which decisions he had made that went against his view of how things should be. As a response, he gave the flag burning case, in which he had joined the decision that statutes banning desecration of US flags were unconstitutional. As a patriotic sort, Scalia said, he hated flag burning, but as a strict constitutionalist, he had to invalidate the law.

Everyone in the generally-unsympathetic-but-polite crowd gave him a pass on that one. Generation X Torontonians love their flag, but have no desire to jail the grumpy vets who might want to desecrate the Pearson Pennant, so there was broad approval of Scalia's stand here. But, as so often happens in real litigation, I got to thinking of a response after the event. Scalia hadn't necessarily given an example of a policy result of which he disapproved. No doubt he dislikes flag burning, but even on a policy level that would hardly be enough. The policy question is whether he thinks banning flags would do more harm than good, given America's commitment to free speech. And he undoubtedly would answer that question with a "yes". He'd still ban some speech, after all: I imagine laws against hiring contract killers would still be OK in Scalia's America.

Scalia would uphold an increase in the federal minimum wage, even though he disagreed with it. But that's not because the constitution made him do it: on the contrary, there is a perfectly sound argument that such a thing would extend beyond the boundaries of the Commerce Clause and offend the Fifth Amendment. He'd do so because he thinks the courts would do more harm than good if they got involved in economic matters -- a policy question, albeit one at a higher level of abstraction.

And the policy questions are at a higher level of abstraction on the other side too. David Souter voted as he did in upholding the expropriation of Mrs. Kelo's property not because he was profoundly supportive of New London's redevelopment scheme, but because he doesn't want the courts determining what "public use" is. That's a perfectly defensible institutional point: the courts are likely to be a lot worse and less legitimate when doing that than they would be in figuring out what "just compensation" amounts to. But greater deference to government on one phrase than another in the same clause in the constitution is surely justified -- if at all -- by the likely effects.

In Canadian jurisprudence -- especially before the Charter -- it was often said that the courts were uninterested in the wisdom of the legislation in determining whether it was rightly enacted by the federal or provincial legislature. Rightly so, but they should not have been (and weren't) uninterested in the wisdom of who to leave the issue with. It's easy to look at the words of the constitution and figure out that lighthouses are federal, but on more important issues, the question comes down to institutional policy.

So "Adler's axiom" only applies to those aspects of the constitution set out in specific detail: everyone has to agree that the US Constitution requires the President to be 35 and the Canadian constitution requires that PEI get four senators, regardless of whether either rule is a good idea. The provisions that generate litigation are the ones (almost) everyone agrees with because they are so vague ("equal protection", due process, principles of fundamental justice, free speech, yada, yada). Everyone likes them because for everyone they apply as the applier thinks a constitution should apply. If you are pro-life and don't think the democracy should override your principles, then "life, liberty and security of the person" means the fetus's life. If you are pro-choice and think likewise about majoritarianism, it means a woman's liberty to terminate a pregnancy and her security from an unwanted one. If you think Parliament should decide, then its decision is consistent with fundamental justice. No matter what, the constitution says what you prefer, because that was what it was designed to do.

What kind of claim is a statement of legal opinion?

Much of what lawyers do -- from the humblest articling student to the most conceited Supreme Court of Canada justice -- is making utterances of the form "In my opinion, the law prohibits/obliges/permits X."[1] The body of such utterances far exceeds judgments of the final court. Most are relied on without any litigation. A small group of those are tested by a trial court. A still smaller subset are tested on appeal, and the number that go to the SCC is in the low two digits per year.

Coming from an undergraduate background in academic philosophy (a.k.a. "useless wanking"), as an articling student, I idly wondered what kind of claim I was making when I made one of these utterances. I was inclined to divide the universe of propositions into positive statements of fact and normative statements of value (or theoretical and practical judgments, or isses and oughts.) Am I telling my clients certain social facts about what consequences will likely flow from what they want to do, or am I reasoning about what right requires?

Looking at this from the articling student's point-of-view, neither alternative sounds attractive. Most articling students -- because of their age, cohort and class -- think marijuana should be legalized. But if a client asks whether it is lawful to expand their product line to include THC brownies, they know that it isn't. On the other hand, ethical articling students also know that they are supposed to tell the client what the law requires, even if it is unlikely that the client would get caught for doing the opposite. But if we take Holmes' bad man theory of the law seriously, then an unlawful act that is never detected just is a lawful act. The Law Society will take a different view.

Or look at it from the justice of the final court's point-of-view. When they opine what the law is, they can't simply be stating a social fact about what will be enforced. Unless deciding one way would trigger a constitutional crisis with another or revolution, then whateve they decide will be enforced. However, at least in most cases, final court justices don't believe that they are supposed to just do whatever they think is right. There is some sense in which a final court could act lawlessly, and they accept this, at least in principle. Indeed, judges are never so comfortable as when they can say that the way they are ruling is contrary to their personal preference as to what the law should be.

In the end, I think a statement of legal opinion is a normative, not a positive, utterance. But it is a kind of normative utterance that gives more weight to authority than we moderns are inclined to do for other kind of practical judgments. The legal positivist is right to say that we are inclined to deduce a lot of legal rules this way:

(P1) X is authorized to proclaim the kind of rule Y;
(P2) X proclaimed rule Y;
(C) Therefore, rule Y.

But P1 is just as much a normative proposition as C. Legal positivists who imagine they have a value-free system miss this. P1 is therefore defeasible.[2] At some point, X may be exceeding its authority, and must be resisted.

Of course, any body of normative utterances can be described positively from the outside. This is what anthropologists try to do with their notorious "cultural relativism." But that's actual a difficult stance even for anthropologists to maintain, and obviously anthropologists -- to the extent they take their cultural relativism seriously -- are not supposed to participate in the development of the culture's normative thinking. Lawyers and judges are so expected, so they can't ultimately take that point-of-view.

I suppose that a revolutionary lawyer (i.e., one who denied the authority, but not the power, of the official sources of law) could be successful, but only in the way that a sociopath might be able to figure out how normal people will react morally. In each case, the outsider would have to simulate in his or her own mind how insiders think. In some way, though, the revolutionary lawyer's statement of legal opinion would be in bad faith, while those of a lawyer who would like to see the law in question changed, but accepts the overall system of authoritatively stating law, would not.

This sequence of thoughts leads me to a natural law perspective. I'll try to defend that next time I get the energy up for such abstract posts.



[1] I simplify. If you don't like it, take it up in the comments.
[2] OK, not quite "therefore."

Recycling

I want to recycle a couple of comments from this thread. Some, but probably not all, typos have been edited.

First, this one:

Would Dicey and Blackstone have agreed that there are “unwritten postulates that form the very foundation of the [British] Constitution”? Yes. Would they say these principles were binding on both Parliament and the courts? Yes. Would that imply that the courts could invalidate a statute passed by Parliament if the courts thought the statute contrary to those principles? No.

A rule can be binding on an agent either internally or externally. The Supreme Court is “bound” to apply a hierarchy of relevant legal sources when it decides a case. But if a litigant thinks they have failed to do so, she is out of luck — there is no other body that she can appeal to. They are not final because they are infallible — they are infallible because they are final.

If we are to have a closed system of positive law, at least one body must be final in this sense. In the British constitution, when it comes to the enactment of laws, that body is the Queen-in-Parliament. Blackstone and Dicey would both have insisted that the Queen-in-Parliament is obliged to follow the unwritten postulates of the constitution, but that obligation is internally binding. By enacting a statute, the Queen-in-Parliament is coming to a judgment that the statute is consistent with the unwritten constitution, and that judgment is not reviewable.

There is no point complaining about the existence of a body whose judgment is not reviewable. That’s just life. Either Parliament’s judgment is unreviewable or the final court of appeal’s judgment is unreviewable. For Dicey and Blackstone, it was preferable that the unreviewable body be Parliament.

Before Confederation, the same system applied to the colonies, except that imperial statutes were paramount over colonial ones. So the courts had the power to consider a colonial statute of no force and effect to the extent it conflicted with the imperial statute. That was the basis of judicial review under the BNA Act. It was, in principle, a corollary of the sovereignty of (the imperial) Parliament. Subject to the BNA Act, though, the federal and provincial legislatures are sovereign within their sphere. Again, they inherit unwritten postulates from Britain — but they are the final interpreter of how those postulates apply to new legislation. On the other hand (and especially once reservation and disallowance fall into disuse), the courts are the final interpreters of the imperial statutes which make up the written constitution.

The English courts have always referred to the unwritten constitution in interpreting legislation or disciplining executive action, and the Canadian courts followed them. It’s just that they accepted that their judgment of what the unwritten constitution might require was bound by the clear intent of Parliament, just as lower courts are bound by the precedents of higher courts.

Eventually we get to 1981-1982. In the Patriation Reference, 7 out of 9 judges made it perfectly clear that only the written constitution could legally restrict legislative sovereignty. The 1982 deal sets out exactly what texts count as the written constitution, and how they may be amended. As a critical part of the final deal, judicial review under much of the written constitution is subject to the notwithstanding clause. Unwritten principles continue to exist, but they play the role they have under the British and then Canadian constitution — used by the courts in statutory interpretation and administrative law, binding internally on the legislatures in making enactments.

Is the Manitoba Language Rights case inconsistent with this (I would argue universal) understanding? I don’t think so, because while it involved reference to the “rule of law” as a value, it did not purport to make it an independent basis for the courts to strike down any statutes.

On the other hand, the Provincial Court Judges case is revolutionary because it places the Court, rather than Parliament and the legislatures, as the final interpreter of the unwritten constitution. And it does so by confusing the issue of being internally bound by a rule and being externally bound by it. The Secession Reference compounds things by using “unwritten principles” to overturn the very amending formula set out in Part V.

And this one:

A practical lawyer might wonder whether there is any point criticizing decade-old precedents. I’d respond with T.S. Eliot’s observation that there are no lost causes because there are no gained ones. If we are in for a period of extended Conservative rule (and I suspect we are), we are going to have a different kind of judicial politics, more like that in the US. Partisan affiliation will become less important for patronage reasons, and more important for ideological reasons. Anyone who observes Canadian constitutional law will see waves of advance and retreat for the cause of judicial supremacy. The Motor Vehicle Act Reference is ultimately followed by Rodriguez (but then by Chaoulli). Oakes leads to Edward Books, Andrews to Law, and Provincial Court Judges’ Reference to Imperial Tobacco. Who knows what will happen with Christie? Whatever happens, the issue of the underlying legitimacy of Lamer’s coup is unlikely to die.

Anyway, in this country, we inherit the tradition of the United Empire Loyalists, and should not be afraid of being identified with lost causes.

I don’t think “incrementalism” and “originalism” are necessarily in conflict, since I think of both –at least in their defensible forms — as counsels of caution, rather than decision rules that will render determinate answers. I wouldn’t start with either, but with the question of the legitimacy of the judicial role. The need for judges arises out of the social need for a definite answer to legal conflicts. That’s the source of the obiter/ratio distinction, as well as of the virtue of incrementalism. Judges act with authority to the extent they say what is necessary to resolve a specific legal dispute. (References complicate things, but this is already too long for a comment, so I’m not going to pursue that point.) They should pick the narrowest (least controversial, least disruptive of settled expectations) grounds to fulfill this function. To the extent possible, they shouldn’t comment on anything else, but if they do, they are no longer acting within their authority.

Originalism, in a defensible sense, is just respect for the deal reached by the principals. Part of that deal, no doubt, was to give the courts a large amount of discretion and power. But a court misues its finality to seize more power than it was granted.

I suppose if time makes a revolutionary act a sufficiently settled part of the social order, it becomes pointless to oppose it. Most days, I have given up on trying to restore the Jacobite line, for example. I don’t think we are there yet with “unwritten principles.”

Power-Knowledge: Legal Academics and the Charter

In my previous post, I warned the Chief Justice --who is promoting the idea of educating Canadians about their constitution -- that there may be an inverse relationship between knowledge of the Charter and support for it. Andy makes this interesting comment in response:

My view has always been that the Charter was cooked up under pressure from legal academics who were envious of the starring role their colleagues played in U.S. political discourse. Having started law school in 1987, just as the first Supreme Court Charter decisions were being handed down (I can well remember the shrieks of joy when our crim prof walked into class bearing glad tidings about R v Morgentaler), I can attest to the palpable sense of excitement among the faculty that they could now zip through the legalistic "federalism/BNA Act" parts of the constitutional law course in a couple of months while spending the remaining six months on U.S. style Charter casuistry.

So are academic experts on constitutional law the skeptics or the vanguard of the "Court party"? Well, it depends.

Love it or hate it, it's certainly true that the Charter makes Canadian constitutional law courses more interesting. Pretty much anyone would rather talk about abortion and euthanasia than egg marketing boards and the taxation of potash. To the extent a legal academic thinks in terms of power and status outside the ivory tower, the Charter is a pretty tempting object of esteem. Mandel reports that a prominent feminist organization actually lobbied Peter Hogg about the contents of his chapter on equality rights in his ConLaw textbook. But then it is also more fun to attack judicial decisions than celebrate them. So where do people end up?

Legal academics are a curiously hybrid sub-profession. Traditionally, they considered themselves part of the legal profession, and, to the extent the profession likes them, they continue to have more access to power and occasional billing opportunities than most SSH academics could imagine. However, over time, status in the legal academic world has increasingly become based on the same considerations that exist in the rest of the university, rather than the kind of things the profession values. That's led to a lot of tension, and duplication of legal education by the profession.

The result is that legal academics are divided between those comfortable with Bay Street and Wellington Street, and those who are engaged in a different, more academic, status game. The former dominate the University of Toronto law school; the latter are a bit more common at Osgoode.

My own experience at U of T came half a decade after Andy's. I can confirm that all the professors there were plus royaliste que le roi in their support of aggressive judicial review under the Charter. They only differed in how much plus royaliste they were. Those most likely to actually become judges could understand why the Red Nine did not invalidate every law that was presented before them; the others not so much.

By the time I was there, the mood was a bit sourer than Andy recounts. The glory days of Singh and Morgentaler had passed -- we were clearly in the age of bronze. I have no idea what the mood is like now.

Postcript: In the course of researching this post, I found out that the University of Toronto law faculty have a blog. Unfortunately, it sucks.

Everyone's an intuitive lawyer

Or so argues John Mikhail.

Not everyone would take that as a compliment.

But what Mikhail means is that humans have a native jurisprudence module in their minds, strictly analogous to Noam Chomsky's universal grammar module.

The interesting thing from a lawyer's point-of-view is that -- if Mikhail is right -- legal codes could turn out to be a source of understanding of the human mind. We're not just quibbling over our client's liability -- we're on the forefront of neuroscience!

Bad Style and Bad Law

Via Larry Solum's excellent Legal Theory Blog, I found Paul Horwitz's 2000 article in the Osgood Hall Law Review entitled, "Law's Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law".

Horwitz's argument is that the style of judical writing makes a difference for the quality of law, particularly constitutional law. The typical judicial "opinion" (note to PH: in Canada, they are referred to as "reasons for judgment") takes an omniscient and dogmatic tone, states the obvious and irrelvant at length and sets out lots of "tests" and "hurdles" that rarely do much of the work of deciding the case. Horwitz not only thinks that this style is boring, but that it is also bad for the law, and although he doesn't make much of a case for his position, I tend to agree.

Instead, Horwitz would like to see a style of "open-textured minimalism." The Pithlord likes the minimalism part, but to the extent I understand what "open-textured" means (Socrates meets Solon, I suppose), I doubt that most judges are really up to the task. Judges are successful lawyers who have avoided creating powerful enemies-- intelligent and hard-working, usually, but not prophets. A few of them -- like Oliver Wendell Holmes or Richard Posner -- have original minds, but even these people are only acceptable as judges to the extetnt they suppress their most original ideas when on the bench.

Horwitz doesn't care for the Oakes test, and presumably would decry the Delgamuukw decision in which Lamer goes on and on at Russian novel length setting out impractical and many-stage tests, while never deciding any issue actually between the parties. So far, the Pithlord can add little more than "Amen" and "Hallelujah".

The Pithlord gets crankier when Horwitz reveals what he thinks of as skookum judicializing. Horwitz is a big fan of the Secession Reference, in which the Court held that Quebec couldn't unilaterally separate, but that a "clear majority on a clear question" would trigger a duty to negotiate the terms of secession. By Lamer-era standards, the decision is a model of clarity and pith. And the underlying political tradeoff is defensible. However, it seems to me that this case shows a bit of a weakness in the Horwitz approach, since the style cannot hide the substantive trickery of the decision. Our Constitution has a detailed set of provisions for its own amendment. Referenda, whether clear or opaque, have no role in those provisions. Legally, the question the Court was asked in 1997 wasn't hard at all: Quebec couldn't secede (except through revolution) unless at least the federal Parliament and six other provinces agreed, and there is no legal requirement for those other entities to consider a Quebec referendum at all.

Whatever its stylistic merits, then, the Secession Reference was lawless. That strikes me as the bigger point.

Technical note: The University of Montreal website with Supreme Court of Canada decisions seems a bit wacky right now, so I haven't tried to hyperlink the decisions referred to. I may get around to it someday.

Habermas on whether we can have genuine religious pluralism

Long-time readers of this site will recall my fascination with George Grant's conviction that there could be only one public religion in any state. Grant thereby opposed Rawls's optimism that deep religious pluralism could co-exist in a liberal society. Grant thought it perfectly possible that the "religion of progress" could conquer Christianity and turn it in to a more-or-less tolerated private hobby, but not that the two could live together.

Rawls thought everyone could live happily, just so long as the religious always justified their political ideas in secular terms. As Atrios put it, "[A]s long as it stays away from policy I really don't care what people believe or choose to worship."

The trouble is that no believer is going to accept this proviso. In effect, Rawls is either asking the religious not to be motivated by their most fundamental convictions, or to put up justifications that are disingenuous. If that's what's necessary to allow for deep religious pluralism, then it doesn't seem to have much of a shot.

Jurgen Habermas recognizes this criticism of Rawls. According to the German, for religion to co-exist with secularism requires something of a transformation of both religion and secularism.

The first transformation is to religion. As it ceases to be the unquestioned background belief of everyone, and is challenged by science and liberalism, believers are forced to undergo a critical, reflective attitude towards their own traditions. That is, in effect, what theology is, although Habermas further requires that theology somehow diffuse down to the ordinary believer.

However, Habermas argues that the secular must undergo a similar process. This is not merely a question of being respectful to other people's convictions. Rather, it is a realization of how contingent the secular liberal's own ground is:

"As long as secular citizens are convinced that religious traditions and religious communities are to a certain extent archaic relics of pre-modern societies that continue to exist in the present, they will understand freedom of religion as the cultural version of the conservation of a species in danger of becoming extinct. From their viewpoint, religion no longer has any intrinsic justification to exist. And the principle of the separation of state and church can for them only have the lacist meaning of sparing indifference. In the secularist reading, we can envisage that, in the long run, religious views will inevitably melt under the sun of scientific criticism and that religious communities will not be able to withstand the pressures of some unstoppable cultural and social modernization. Citizens who adopt such an epistemic stance toward religion can obviously no longer be expected to take religious contributions to contentious political issues seriously ..."

But this Dawkinsian state of secularist innocence cannot survive confrontation with the stubbornness of religious belief.

[T]he insight by secular citizens that they live in a post-secular society that is epistemically adjusted to the continued existence of religious communities first requires a change in mentality that is no less cognitively exacting than the adaptation of religious awareness to the challenges of an ever more secularized environment.

Both these exacting cognitive processes can be refused. The believer can retreat into fundamentalism. We know about that.

The secularist who refuses the exacting cognitive process Habermas demands? What does he or she do?

Well, one response is extreme Islamophobia, the "liberalism of fools". Of course, while there, common cause ends up being made with fundamentalist of the other Abrahamic religions. It all gets messy, as Christopher Hitchens will no doubt inform us all when he finally sobers up.

Another response is that of the Eschaton commenter. There are many good reasons to dislike the Bush administration, but part of the rage -- it must be admitted -- comes from the fact that Bush's electoral victories make it impossible to imagine America trending blissfully towards European levels of secularism. Not that the Europeans are really that secular, as opposed to post-Christian.

Habermas concludes with the thought that the co-existence of a religious and a secular tradition is not a matter of normative argument, but of the actual history of particular religious and particular secular traditions. There is no great optimism there that all religious traditions (or even any of them) will find a workable accommodation, or that all secular traditions are capable of responding to the religions that will try.

Update: This Brad De Long thread shows that even highly intelligent and thoughtful liberals can be absurd when it comes to religion. De Long links to a dumb post by P.Z. Meyers in response to Terry Eagleton's evisceration of Richard Dawkins, in which Meyers claims that theologians are dishonest. A fellow by the name of Kent argues agains De Long, earning himself a disenvowellment, the label "troll" and the question "What makes you think you know something about theology?" Turns out "Kent" has a Ph.D. in the subject. Oops.

I'd note that this is from one of the most thoughtful and academic voices in the left blogosphere.

One Bad Argument on Abortion

Well, there are a lot of them. But the one I want to take on is Scott Lemieux's. He says that those who would make abortion illegal but do not support serious criminal sanctions against the woman seeking the abortion are in a contradiction, at least if they accept that women have the same moral agency as men.

In one of his comments threads, I argued that this didn't work against abortion opponents who think of abortion as morally wrong, but not as wrong as infanticide, as most do. Other commenters made similar points at greater length.

In fact, most of us combine the following views about something:

*X is wrong.

*X should be legally suppressed.

*Not everyone involved in X should be subject to criminal sanction.

For example, I suspect most Democrats believe that American employers hiring illegal aliens are doing something wrong, and that there should be some legal consequences, while opposing criminal sanctions against the illegal aliens. They are hardly thereby denying moral agency to undocumented Hispanic workers.

There are a lot of prudential and moral reasons that a person might oppose criminal sanctions against women seeking abortions, even if they thought the law should step in more often (my own position) or even all the time (not my position).

Update: Scott responds here.

It's tricky defending views you don't hold, especially on issues it is possible to lose friends over. I'm not a pro-lifer, but I don't think the position of wanting to suppress abortion without criminalizing women who seek them is inconsistent. In addition to the relatively abstract issue of whether a particular argument is a good one or not, there is the problem that seeking to furhter polarize people's opinions on abortion on the grounds of "logic" may not have good consequences.

To address Scott's challenge, I can think of a couple of reasons that a pro-lifer might think criminal sanctions inappropriate:

*Criminalizing something much of a society thinks is permissible is often a mistake, even if that part of society is mistaken about the moral issue. That's basically my view of spanking. I might support criminalizing it if there was a social consensus against it, but I hardly want to drag ordinary parents away to jail when such a consensus doesn't exist.

*Many women seeking abortions do so under conditions of economic or social duress. This would be even more true if abortion was legally unavailable. A person opposed to the legality of abortion could regard this as mitigative, even if not justificatory.

Is there a Convention against the use of the Notwithstanding Clause?

I've argued before that if we are going to have a notwithstanding clause with continued popular legitimacy, it needs to import a super-majority requirement, so that overriding a Charter decision isn't just routine.

Commenter BKN asks whether there is not a "constitutional convention" against the use of the notwithstanding clause. He also suggests that the Court is too smart politically to ever strike down legislation so popular that a super-majority could be summoned against it.

One response on the political savviness of the courts is that the Court has struck down a number of laws which Parliament simply reenacted, sometimes without much of an attempt to address the court decision, and the court has usually just accepted this. One example that comes to mind is the "drunkenness" defence, struck down in Daviault: see Kent Roach's article on this phenomenon here. As long as courts react this way, then the override becomes unnecessary.

Has a political convention emerged against the use of the notwithstanding clause, no matter the circumstances? I tend to think the last federal election disposes of that idea. Martin got no real bump from proposing to do away with the notwithstanding clause for the federal government. Harper defended it effectively.

The genuine difficulty is that the notwithstanding clause can only coexist with judicial review if its use is at least somewhat exceptional. I think the best way to underline that it is exceptional, while legitimizing its more frequent use, is to add a super-majority requirement.

We Take Requests: Overriding Correct Court Decisions

In the comments, BKN asks what I think of the Sharpe decision and the "drawings and diaries" exception the Court cut out of the crime of possessing child pornography. I said that I thought the decision was right, but it wouldn't bother me at all if it was overruled by the use of the notwithstanding clause. BKN, reasonably enough, wants me to explain myself.

I honestly don't see a contradiction. Courts, at their best, rely on evidence. Legislatures don't need to. Once we decide to enshrine "freedom of expression" in the Constitution, then a court -- at minimum -- has to require the government to provide some evidence of why it has curtailed some expression, no matter how vile. If the only reason is the vileness, especially if the people who would find it vile aren't exposed to it, then the court probably should not accept that as a sufficient reason. After all, that would pretty much always work as a reason.

So the government would have to show that the decriminalization of this material increases the risk of abuse. I don't really know what I'm talking about here, but my understanding is that this is difficult to do. It's a whole different story if the material uses real kids (in which case it is itself abuse) or is passed around.

In the absence of evidence for the basis of the limitation on expression (which everyone admits that the law was), a court shouldn't uphold it.

Parliament, though, doesn't need to think this way. Its actions do not necessarily require evidence of efficacy, but just the consensus of the community that these actions should be taken. The 1982 Constitution allows Parliament both to limit expression when it has sufficient grounds and to override expression -- even without sufficient grounds -- if it is prepared to take the political step of invoking the notwithstanding clause.

One unfortunate byproduct of the fact that a simple majority is all that is required to invoke the notwithstanding clause is that it is difficult for its use to remain exceptional, but still politically possible. That's a flaw in the 1982 design. Ideally, Parliament would occasionally (but not too often) override court decisions. If I could make one change, I'd require a supermajority for the use of "notwithstanding": paradoxically, that would make it more likely, which I think would be a good thing.

Free Speech Rights Absolute: Right Not to Be Detained Without Cause and Tortured Nonexistent

Here is a good example of the bizarre priorities of "libertarian" legalists like Eugene Volokh. Mr. Volokh thinks it should be unconstitutional to prohibit picketing at funerals. But detaining and "coercively interrogating" anyone the President says is an "unlawful combatant," without court review of any kind, is fine.

In my view, anyone picketing a funeral should not expect the assistance of the law of assault and battery. Surely, the state can prevent such an offence to human decency. But it says something amazing about the "libertarian" mind that they will oppose the most common sense of regulations of their favourite freedoms, while winking at genuine tyranny.

"Libertarian" Law Professors: Evaluating Unchecked Executive Power to Torture is Haaaard!

If I recall correctly, a few years back, Barbie(TM) was subject to an enormous amount of criticism for suggesting that math is hard. I always thought this unfair. The Pithlord is not afraid to admit that he sometimes finds topology and complex analysis a bit counter-intuitive, and he doesn't see why a blonde plastic doll shouldn't be allowed to exchange her frank views on the subject with her admirers -- many of whom, I suspect, agreed with her.

But the Pithlord is a bit dismayed that the brilliant "libertarian" legal minds at the Volokh Conspiracy think that the issues raised in the Military Commissions Bill are beyond their ken.

In this post Orin Kerr, an expert in privacy and search law, modestly expresses "an appropriate awareness of [his] limitations." This modesty, however becoming, seems inappropriate. Kerr obviously has strong views about how much judicial scrutiny should be given to entering people's houses, tapping their phones and so on. Complicated stuff, but I bet the answer is more than none.

Eugene Volokh exceeds even Professor Kerr in modesty. Volokh is a highly-regarded free speech expert, if a bit absolutist for my taste. Apparently, the complete absence of judicial supervision of executive detainment and interrogation is too tricky for his intellect.

Codswallop.

A Challenge to the Legal Profession

Via Lindsay Beyerstein, take a look at this interview with Dr. Steven Miles, a bioethicist who has been immersing himself in the details of torture in Iraq and Guantanamo. Beyerstein points to Dr. Miles' point that beheadings against Western nationals began after the Abu Ghraib photos came out.

I want to take note of Dr. Miles' challenge to the legal profession:

A complaint for unprofessional conduct was filed with the California Medical Board against a Guantanamo physician. The Board refused to process the complaint. This kind of accountability is important. I get asked this question a lot by lawyers who, by the way have done nothing with regard to the lawyers who wrote the policy memoranda which led the U.S. to evade the Geneva conventions. When are the lawyers going to bring Yoo, Delahunty, Gonzales, et al., before the Bar to answer for their malfeasance?

Neither profession is likely to act soon. However, Bush is not going to be in power forever. This is definitely one to put in the calendar for 2015.

Rhetorical Choices: The "War" on Terror and Revolution from Above

The fifth anniversary of the attacks is an obvious, almost inevitable, hook for a blog post. Pushed by fred s., I want to talk about the key political/strategic/legal question arising from the attacks: is the conflict that al Qaeda unleashed that sunny New York day a "war" or a crime-suppression effort?

I didn't always think this question was important. Back in 2001-2002, the "war" talk seemed to me to be basically a way of reaffirming how seriously America and its allies were taking the conflict. Anyway, there clearly was a need to make war against the Taliban to deprive al Qaeda of its state sponsor. Those who argued that we needed to deal with bin Laden and his minions as criminals struck me as partly right, but not sufficiently serious about the scope of the conflict. It was only after the Axis-of-Evil speech and the Bush administration position on the extra-legal status of Guantanamo bay that I realized that the war/crime distinction was an important one after all.

In general, those with state power tend to want to deny the status of war opponent to those without it. The British state called the Provos criminals; the Provos were the ones who insisted they were warriors. The official of the regime referring to revolutionaries as "bandits" is a figure of cliché.

There are obvious strategic reasons for this. A criminal is just an anti-social menace. An enemy army, on the other hand, is presumptively legitimate. You can make a treaty with an enemy army, but only a plea bargain with a criminal.

So there was something slightly odd about the Bush administration's immediate preference for a "war" model. You would think that the status quo superpower would be highly reluctant to dignify a ragtag group of murderous religious fanatics with the distinction previously held by the mighty USSR. After all, the West at the time was very reluctant to promote the Bolsheviks from a group of bandits and adventurers temporarily in control of Petrograd to a state enemy.

There seem to have been two rationales for this choice. The first arises out of the common law criminal justice system, as augmented by the Warren court. There would be some understandable reluctance to let 99 al Qaeda go free rather than incarcerate one innocent person, as recommended by Blackstone. But could not an alternative, less procedurally robust criminal law system be devised? That seems to be where the US will finally go now. Most legal systems have had special procedures for insurrectionaries and terrorists.

Another appealing idea was to mobilize the people -- something democracies tend to do in those wars that are not mere colonial skirmishes. Operationally, Afghanistan and Iraq *have* been colonial skirmishes, and the idea of mobilizing the population conflicted with the greater imperative of keeping the economy on track. The result was a system of passive mobilization -- orange alerts, etc. I wouldn't go so far as to say that this was always a purely political fraud. But there was a contradiction at the heart of it. In reality, Islamic terrorism (without nuclear weapons) is a relatively minor problem -- the risk cannot be eliminated altogether, but when a small portion of the resources at the command of the American state are mobilized against it, the point of diminishing returns is quickly reached. The cost of genuine mobilization would be staggering, and the benefits small.

But even though the rational response was pretty limited, something had to be done that was commensurate with the shock of the original attack.

The program seized upon -- social revolution of the Islamic world from without and from above -- could be considered big enough, since even the resources of the United States cannot possibly accomplish it. It seems odd in two ways:

First, because it is hard to understand why the status quo power wants to make radical transformations. I have no answer to this dilemma, although it does seem that, in general in human history, 'revolutions from above' are more common than those from below. If you have power, you want to accomplish things with it.

Second, the objectives of the revolution were contradictory: simultaneously to make the Islamic world more bourgeois while making the West less so. It was not just a matter of making the Islamic world "democratic" (a word that is less about a system of majority rule and more about a civilization of risk-minimization and economic growth).

Those who called for this revolution wanted to bring some of the hard, masculine virtues they saw in the attackers to the people (especially, the men) that were the products of democracy. From Fukuyama, we learn that they really feared the "last man", the final, perfect product of the risk society. They wanted to toughen him up. But they wanted to do it by selling him on perfect security and by somehow transforming the Muslim fanatic into the post-modern consumer.

So where are we now? No one really still believes that the revolution-from-above will work. America, as a world power, will soon have to turn its attention to how it minimizes its losses. The forward momentum of liberalism from 1989 will be slowed, maybe reversed. On the other hand, Islamism has no prospect of being itself a world power, the way that Communism did. The technology of mass death gets cheaper, better and more accessible every year. I suspect that nuclear non-proliferation is dead, and will be accepted as such by everybody by 2010. The logic of war becoming more dangerous but less likely will probably continue until the unlikely happens.

The best we can do is plug away, case by case, at building legal institutions. And criticizing the ones we've got, of course.

Original Meanings: Blakeney on the Charter

As Scott Lemieux justly reminded me, not all critics of judicial power are on the right. In Canada, the first really far-reaching academic critique of Charter jurisprudence was from Michael Mandel, a Marxist at Osgoode. The conservative Calgary gang (Knopff, Morton, Flanagan) have been pretty good about admitting that they have largely trodden Mandel's ground. (There are parallels in the US with Mark Tushnet and arguably John Hart Ely -- going back further, the legal realists were basically on the left and all about demystifying judical power).

In Canada, we have the paradoxical circumstance that a left-wing judicial-review skeptic, Allan Blakeney, was a major source of the 1982 Constitutional settlement. The notwithstanding clause, the lack of entrenched property rights, aboriginal and treaty rights -- all were mainly his doing. Other living framers of the settlement -- Roy McMurtry and Barry Strayer -- are in the intermediate appellate courts. A few are dead. Most are retired and give little thought to constitutional law. Blakeney's still thinking about it, and isn't happy (turn to p. 8 of the pdf). Since we don't get to interview Madison about what he thinks of the Rehnquist court, and since such interviews would doubtless be interesting no matter what your view of originalism, I hope my American readers will be patient with a discussion of Blakeney's role and current opinionating.

Blakeney was able to play such a critical role despite leading a small province (he was premier of Saskatchewan), partly out of sheer interest, and partly because he was a median player. As a pro-legislative-supremacy somewhat-provincialist social democrat, he and Roy Romanow, his attorney general, were able to talk along a number of dimensions. (According to Romanow's book, Chrétien talked to McMurtry, AG for pro-Charter but Tory Ontario, who talked to Romanow, who could get BC and Nova Scotia on board, and by talking to Blakeney, could get to Lougheed of anti-Charter Alberta, who could talk to Lyon and Levesque. You can see why Canadians might have more appreciation of Lebanese politics than most Americans. But we can't be too superior: that last link didn't work out in the end.)

Up until 1982, Canada had no constitutionally-entrenched bill of rights -- the British principle of legislative supremacy prevailed subject to a federal division of powers. The only reason that a law could be unconstituional was that the wrong level of government had enacted it. It was unconstitutional for the Alberta legislature to ban press criticism of the government's economic policies, but only because that was something only the Federal parliament could do.

In fact, the principle of judicial review rested on the ultimate legislative supremacy of the Westminister Parliament. Canada's constitutional documents, as imperial legislation, were paramount to its ordinary domestic enactments. The awkward part of this was that amendments to the Constitution had to be accomplished in London -- very embarrassing after Canada became independent in 1931, but we were unable to agree to any better way of doing business. And so matters remained until 1981-2, when the monomania of Pierre Trudeau interfered with this way of doing business.

Trudeau decided that Canada must have a domestic amending formula and a written constitutional bill of rights. But he had no strong views about what must be in the bill of rights, other than provisions about mobility and language. The federal NDP strongly supported Trudeau's project, but its only Premier, Blakeney, was not so sure. Ambivalence provided a certain amount of power -- Blakeney got both what was most important to Saskatchewan parochially (confirmation of its jurisdiction over its resources and an amending formula that did not give it lesser status as originally proposed by Trudeau), but also a framework that reflected his perspective. The first draft of the Charter was a product of Justice Canada, the Joint Commons/Senate committee and progressive interest groups, but the final edit owes a lot to Blakeney.

From the interview, it is clear that Blakeney is concerned about the SCC's constitutionalization of commercial speech and "substantive due process," and wishes politicians would use the notwithstanding clause more. He is scathing about the Provincial Court Judges Reference and the Chaoulli decision. He is pleased with how the Charter has improved equality for gays and lesbians and reformed criminal procedure, while stating some ambivalence on both abortion and aboriginal rights jurisprudence.

Blakeney's interesting on the subject of original intent. Asked how much it should matter to ongoing judicial interpretation what the politicians who agreed to the Charter thought they were doing, Blakeney replies:

Quite a bit at first, and decreasingly over time. We are all in favour of treating the Constitution as a "living tree." But I don't think it is right for the courts to decide that they don't like the tree we planted, dig it up and transplant another species. The speed with which the Court renounced what the politicians, and I would argue, the public, thought it meant was astounding.

Blakeney was speaking very shortly after the Chaoulli decision inserting the courts into the debate about two-tiered Medicare, and is obviously enraged by it. Like many of the Court's legally controversial decisions, it has found a certain amount of favour with the public (thus putting a critique relying too heavily on democracy in some difficulty -- Blakeney has the same difficulty dealing with the political convention in English Canada against use of the "notwithstanding clause").

The Originalist Fork

Marcus of Washington Syndrome, in a response to Jack Balkin's new article (which I promise to read and comment on, but you've heard those promises before, I know), sets out the dilemma of originalism with great pith and no little substance here.

In short, to the extent we identify meaning with expected application, originalism would result in terrible things. To the extent we separate meaning and expected application, originalism has no force at all. If we seriously tried to apply "liberty" as the Framers would have applied it, we would provoke social revolution. If we say the meaning of "liberty" does not change when we apply it differently (which makes sense to me), then originalism provides no solution to the problem of judicial discretion.

Personally, I accept the "separate meaning from expected application" side of the fork. In Canada, at least, no one really wants the other side of the fork, since that involves trying to read the mind of Jean Chréien circa 1981, not a task anyone ever thought would be rewarding. But that means I have to find some other basis for avoiding judicial tyranny.

Update: Looking further at Marcus's blog, it seems he has been advancing these sensible ideas and distinctions for some time. I guess the point that originalism and the living constitution are perfectly compatible has been out there in the law school world for some time, since I can't really recall where I picked it up. I do recall reading Scalia in A Matter of Interpretation accepting Dworkin's distinction between semantic intent and whatever-he-called-the-bad-kind-of-intent, and realizing that the game was up.

An Empire? US? What do you mean?

Rob Farley is decidedly unimpressed with Niall Ferguson's Colossus.

Personally, I didn't hate it as much (although I'm also not convinced). People with actual expertise tend to hate "bigthink" book by people outside their area. But it is a necessary genre, in light of how specialized academic work necessarily has become. Those of us who pontificate on the Internet can hardly get too snooty about fact-checked books.

Still, "bigthink" requires some level of logic, and Farley points out that Ferguson's central thesis -- America is an Empire, and it's a good thing too -- depends fairly crucially on what you mean by "empire." If it just means economic and political influence, then the thesis becomes a "provocative" way of saying America is a really important country. Farley also makes a pretty good point when he suggests Ferguson has an oddly Leninist idea of imperialism, even though he presumably doesn't buy the whole concept of surplus value which makes Lenin/Hobson's theory work. (That theory, in turn, can't survive the elementary point that a consensual transaction generates wealth for both parties to it.)

To some extent, we can just stipulate our definitions: as long as we don't define Rome and Britannia out of the Empire business, we can choose concepts that may keep Athens and the US in or out.

One thing I like about Ferguson, in comparison with the standard American commentator indignantly denying that his country has an empire, is that he knows enough about the British empire to realize that it (and for that matter the Romans) did not eliminate or try to eliminate all self-government for its colonies. He doesn't have a straw Empire in mind. On the other hand, he still needs to do some work to avoid equating influence and imperialism.

To me, the most straightforward definition of Empire centres around sovereignty. You could start with an idealized Weberian sovereign state -- it possesses a monopoly of coercive authority within a defined boundary. Federalism splits that idealized sovereignty in a symmetrical way. Empire, on the other hand, leaves the homeland fully sovereign, but also exercising some jurisdictions in the colonies (without necessarily exercising all of them).

There are types of coercive force that are reserved, in the contemporary world, to the US. There are also forms of sovereignty that only the US can really claim. Much of the liberal Euro-Canadian agenda is to transform these powers into something a bit more federal (at least within the "West") -- much of the Bush agenda is to resist this transformation.