ATHENS V ONTARIO: WHAT CAN THE FIRST DEMOCRACY TEACH US ABOUT JUDICIAL REVIEW?

• Author: Golding, Corbin William

I INTRODUCTION II WHERE WE ARE: UNWRITTEN PRINCIPLES IN TORONTO V ONTARIO A. The Facts and History of the Case B. The Supreme Court's Majority Opinion C. The Supreme Court's Dissenting Opinion D. The Benefit of Hindsight III WHERE WE HAVE BEEN: JUDICIAL REVIEW IN ANCIENT ATHENS A. An Overview of Athenian Democracy and Constitutionalism B. Positivism and Principles In Athenian Judicial Review C. A Graphe Against Ontario IV WHERE WE COULD BE: MODERN LESSONS FROM ANCIENT JUDICIAL REVIEW A. Fundamental Structures B. Democracy and Constitutionalism V CONCLUSION I INTRODUCTION

"Unwritten constitutional principles cannot in themselves ground a declaration of invalidity under s. 52(1) of the Constitution Act, 1982." (1) "I shall vote according to the laws and decrees of the Athenian people and the Council of the Five Hundred, but concerning things about which there are no laws, I shall decide to the best of my judgment, neither with favour nor enmity... I swear these things by Zeus, by Apollo, by Demeter. May there be many blessings on me if I keep my oath, but if I break it may there be destruction on me and my family." (2) In the summer of 2018, the City of Toronto was gripped by a constitutional crisis. In the midst of a municipal election, the Government of Ontario passed legislation "radically redrawing [the] electoral boundaries" of Toronto's ward structure, (3) reducing the number of City Counsel wards from forty-seven to twenty-five. (4) Hundreds of active candidates and ongoing campaigns were disrupted as they struggled to reorganize to the new political geography, (5) while millions of Torontonians were forced to re-evaluate old affiliations and forsake communal ties. (6) To many, it seemed that the new, democratically elected provincial government (7) was antagonistic to the proper functioning of democracy in the city. (8) And although the plain text of the Constitution Act, 1867 (9) granted the provincial government full authority over municipalities to enact legislation such as this, (10) many questioned whether laws that seemed to attack the very democratic foundation of our constitutional structure should nevertheless be invalid. (11) Cannot the underlying, unwritten ethos of democracy negate a law that would seek to destroy that ethos?

Twenty-four hundred years prior, the world's first democracy in Athens, Greece, was asking itself very similar questions. (12) In the summer of 353 BCE, Athens was gripped by its own constitutional paradox when the city's body of highest laws was supplemented by a new statute proposed by a self-serving rogue named Timocrates. (13) Like the legislation facing Toronto in 2018, the law of Timocrates facially complied with the written text of the Athenian constitution, despite not appearing to fit with the city's ancestral democratic fabric. Yet there the law sat, in black and white--or, more accurately, carved in limestone--as if daring the Athenians to challenge it. However, as part of the supreme law of the state, adopted and ratified by the sovereign people, how could anyone attack it and still maintain the very substance of the democracy which depended on the constitution for its legitimacy, safety, and stability?

Perhaps unsurprisingly, Athenian and Canadian law responded very differently to these similar crises, despite our shared democratic heritage. Separated as we are by time, culture, language, and politics, our uses for and reliance upon unwritten principles that might supplement our written constitutional laws are understandably distinct--yet reconcilable. Although the Supreme Court of Canada's decision in Toronto (City) v Ontario (Attorney General) (14) has largely foreclosed the freestanding efficacy of unwritten constitutional principles in judicial review of legislation, there is still much that we might learn from our Greek political ancestors, especially in a time of growing concern over governments trespassing into territory beyond the constitutional text. Like us, the Athenians had a supreme law code that governed the functioning of their state, and with which all lesser laws--written or unwritten--had to comply. (15) Like us, the Athenians "worried about how to reconcile commitment to the rule of law and constitutionalism with democratic sovereignty." (16) And like us, the Athenians conducted this delicate balancing and reconciliation through a form of legislative judicial review, which could result in declaring democratically enacted laws invalid because of a failure to comply with the requirements of the constitution. (17) Unlike us, however, the Athenians did not bifurcate the legislative and judicial branches of government, so the same citizens who enacted a law could later review its constitutional compliance, thereby avoiding "one of the central criticisms of [Canadian] judicial review, namely that it is undemocratic." (18)

This essay aims to examine these similarities and distinctions. In doing so, it seeks to explore how the unique Athenian approach to judicial review can inform our own understandings of constitutional law after Toronto by shedding light on potential, practicable resolutions to the apparently irreconcilable legal philosophies that are currently employed by our courts when reviewing legislation. Indeed, this essay will investigate how the Athenians harmonized a positivist and naturalist conception of their constitution--without ever prioritizing one method over the other--and harnessed the courts and the legislative assembly alike to the service of the democracy's long-term interests. Further, it will argue that this seemingly contradictory Athenian philosophy regarding a constitution's written text and its unwritten principles can valuably inform how we think about our own Constitution, conduct of judicial review, and democracy. In short, as its subtitle indicates, this essay will attempt to answer the question: What can the first democracy teach us about judicial review?

Yet, even before doing so, we must confront the inevitable rebuttal to this question, namely: "Why should the first democracy teach us about judicial review?" Even if the classical Athenians had anything important or relevant to say, why ever should we concern ourselves with the constitutional musings of a people so distant and different--temporally, culturally, politically, linguistically, and even morally--from ourselves?

The answer, of course, is that we may learn something vital about our own democracy and constitutionalism by critically comparing ourselves to those who have come before us. By examining our modern democracy in light of the experiences of the world's first, we might better prepare ourselves to face our inevitable future constitutional crises, especially those which could not have been contemplated when Toronto was decided. In a word, we may learn something that the ancients knew, but that we in modern Canada have forgotten--if we ever truly knew it in the first place. By rejecting what Josiah Ober terms cultural chauvinism, (19) and what C.S. Lewis called "chronological snobbery[--]the uncritical acceptance of the intellectual climate of our own age and the assumption that whatever has gone out of date is on that count discredited" (20)--we may discover that a seemingly ancient and antiquated form of judicial review can contribute a great deal to the ongoing discussion surrounding the type of society we might hope for and work toward. Indeed, as Federica Carugati argues, "[s]tudying the ancient past--a world in which our actions have no bearing--ought to free us, if not from ideological constraints, at least from the fear of 'getting it wrong.'" (21) Democratic Athens is an "unparalleled laboratory for theorists of democracy and law," (22) and one in which we can explore not just another legal system's successes and failings, but also our own, without worrying about the constitutional consequences of real-world experimentation.

With this lofty goal in mind, this essay will proceed in four subsequent parts oriented around where we are, where we have been, and where we could be in terms of democratic judicial review as inspired by our political ancestors. Part II explores the present situation of unwritten constitutional principles in Canadian judicial review. The primary locus of this exploration will be the majority and minority opinions in Toronto, though an extensive sampling of contemporary scholarship on these topics is engaged with in the footnotes as well. Following this discussion, we examine, with the benefit of hindsight, whether the result in Toronto could have been expected, and, more importantly, what to expect for unwritten principles in the future.

Part III provides a conceptual overview of the Athenian democracy and its form of constitutionalism. This will be followed by a closer investigation of how the city conducted judicial review of legislation, with a particular focus on how the law of Timocrates, described at the beginning of this work, was attacked using the Athenians' written and unwritten constitution. Then, armed with a fulsome understanding of the Athenian method of judicial review, we shall attempt an experimental prosecution of the Ontario legislation behind Toronto's constitutional crisis to determine if the first democracy's form of judicial review would have rendered a different outcome in the case, and for what reasons.

Part IV tackles the main question of this essay, and considers what this ancient system of judicial review can teach us today. This will primarily be done by exploring how underlying constitutional principles can be understood as structurally supporting interpretive guides and examining how we might use the Athenian method of harnessing judicial review in the service of democracy. Finally, Part V concludes with a summary of our investigation and some thoughts to spur further study in this fruitful field.

II WHERE WE ARE: UNWRITTEN PRINCIPLES IN TORONTO V ONTARIO

1. THE FACTS...