Roncarelli's green card: the role of citizenship in Randian constitutionalism.

• Author: Lewans, Matthew
• Position: Canadian Supreme Court Justice Ivan C. Rand

This article investigates the distinct character of Randian constitutionalism and how it may have been inspired by American discourse on constitutional values. More specifically, the author examines how Justice Rand's brand of constitutionalism is distinguishable from the more dominant strain of Diceyan constitutionalism that was prominent among Canadian jurists during the twentieth century. The author argues that the difference between Randian and Diceyan constitutionalism can be explained largely by the central role that "citizenship" played in Justice Rand's understanding of the Canadian constitutional order.

The author further argues that Justice Rand did not invent his conception of citizenship, but borrowed it from American constitutional jurisprudence regarding the Fourteenth Amendment to the Constitution of the United States. Accordingly, Justice Rand's opinion in Roncarelli and other cases shows how his constitutional vision was shaped by a series of strong dissenting opinions concerning the now-defunct Privileges or Immunities Clause in the Fourteenth Amendment. By doing so, Justice Rand sought to install in Canadian public law the same fundamental principles of equality and non-discrimination that the American Congress intended to establish by adopting the Fourteenth Amendment.

Cet article etudie le caractere distinct du eonstitutionnalisme randien et examine comment il a pu etre inspire du discours americain sur les valeurs constitutionnelles. Plus precisement, l'auteur examine les distinctions entre les approches constitutionnelles randienne et diceyenne, cette derniere etant proeminente parmi les juristes canadiens du vingtieme siecle. L'auteur soutient que la difference entre les constitutionnalismes randien et diceyen s'explique en grande partie par l'importance qu'accordait le juge Rand a la citoyennete dans sa eoneeption de l'ordre constitutionnel canadien.

L'auteur fait aussi valoir que le juge Rand n'a pas invente sa vision de la citoyennete, mais l'a plutot empruntee a la jurisprudence constitutionnelle americaine traitant du Quatorzieme amendement de la Constitution des Etats-Unis. Par eonsequent, l'opinion du juge Rand dans Roncarelli et dans d'autres affaires montre comment sa vision constitutionnelle a ete influencee par une serie d'opinions dissidentes relatives a l'ancienne clause > du Quatorzieme amendement. Le juge Rand cherchait atum a meorporer au ch'oit public canadien les memes principes fondamentaux d'egalite et de non-discrimination que le Congres amerieain avait voulu etablir en adoptant le Quatorzieme amendement.

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Introduction I. The Constitutional Significance of Citizenship II. A Brief History of American Citizenship III. The Role of Citizenship in Randian Constitutionalism Conclusion: The Legacy of Randian Constitutionalism There was here not only revocation of the existing permit but a declaration of a future, definitive disqualification of the appellant to obtain one: it was to be "forever". This purports to divest his citizenship status of its incident of membership in the class of those of the public to whom such a privilege could be extended. Under the statutory language here, that is not competent to the Commission and afortiori to the government or the respondent.

Justice Rand (1)

Introduction

Roncarelli v. Duplessis is rightly celebrated as a landmark decision of the Supreme Court of Canada. Part of that celebrated status is a function of the historical context of the case; part of it is a function of the cause of action that the Court invoked to award Frank Roncarelli $33,123.53 in damages for abuse of public power. But for the most part, Roncarelli owes its landmark status to Justice Rand's distinctive brand of constitutionalism, which he used to justify judicial redress for what was an egregious abuse of executive discretion.

Randian constitutionalism is intriguing because it is distinguishable from the strain of Diceyan constitutionalism that typified Canadian administrative law for the better part of the twentieth century. Diceyan constitutionalism is marked by its preoccupation with a formal separation of powers between the legislature and the judiciary, and its controversial assertion that there is no room for administrative law within the constitutional order. According to Dicey, the rule of law is maintained so long as the legislature has exclusive law-making authority, the judiciary has exclusive law-interpreting authority, and the executive is confined to implementing the law established by the legislature and determined by the judiciary. In other words, the Diceyan constitution is maintained so long as this analytical division of labour between legal institutions is preserved and judges have the last word on questions concerning legal interpretation. (2)

By contrast, Justice Rand's constitutional model, which is outlined in Roncarelli and some of his other judgments, (3) outlines an approach to judicial review that is both more and less ambitious than its Dicevan counterpart. Justice Rand's approach is more ambitious because it elucidates a more complex set of political values which in turn, complicate our understanding of the constitutional relationships between legal institutions; but it is less ambitious, because it recognizes that judges should respect or defer to administrative decisions in ways that Diceyan constitutionalism does not. Mullan nicely summarizes the nuances of Randian constitutionalism when he writes:

On the one hand, [Justice Rand] was clearly a judge who expected rectitude of those holding public office and, in particular, respect for the civil liberties of individuals. However, at the same time, he was always cognisant of the reasons for the creation of administrative tribunals and of the necessity for recognizing their expertise and role in working out their own policies as well as their desire to function efficiently and effectively. (4) Thus, it seems that Dicey would agree with Justice Rand's statement in Roncarelli that "there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption." (5) But whereas Dicey famously declared that the French notion of droit administratif was utterly incompatible with the rule of law, Justice Rand recognized that the judiciary ought to respect administrative decisions so long as they are "consonant with a rational appreciation of the situation presented" (6) and "within any rational compass" of the legislative framework. (7)

In this paper, I will investigate the inspiration behind Randian constitutionalism, but I will not conduct an examination of Justice Rand's views on curial deference toward administrative decisions, since his discussion of that particular theme is underdeveloped in his judicial opinions. (8) Instead, I will examine how Justice Rand's conception of "citizenship" helps explain the normative character of his constitutional model. I will argue that a deeper understanding of Justice Rand's conception of citizenship, which is front and centre in Roncarelli, helps explain the distinctive qualities of Randian constitutionalism. I will further argue that Justice Rand did not invent his conception of citizenship; he rather lifted it from early American jurisprudence regarding the Fourteenth Amendment to the Constitution of the United States. More specifically, Justice Rand's opinion in Roncarelli and other cases show how his constitutional vision was shaped by a series of strong dissenting opinions concerning the now-defunct Privileges or Immunities Clause of the Fourteenth Amendment. By doing so, Justice Rand sought to install in Canadian public law the same fundamental principles of equality and non-discrimination that the Thirty-ninth Congress intended to provide through the Fourteenth Amendment, but which were given short shrift by a majority of the Supreme Court of the United States in its early decisions regarding that constitutional provision.

1. The Constitutional Significance of Citizenship

   The concept of citizenship is one of the most important and complex ideas in political theory. It has its roots in classical political philosophy and figures prominently in discussions regarding the foundations of the city state in ancient Greece. (9) Citizens are persons who are recognized as full members of a particular political community, and it is generally assumed that genuine recognition of citizenship is something of great value. As Judith Shklar puts it, "[t]o be less than a full citizen is at the very least to approach the dreaded condition of a slave. To be a second-class citizen is to suffer derogation and the loss of respectable standing." (10) Thus, recognition of citizenship has significant normative content because it asserts that citizens cannot be treated as mere means toward political ends and political authorities have a duty to treat citizens with consideration and respect. In this regard it is telling that some of the most offensive forms of political repression in the modern era--slavery, apartheid, and the Holocaust--all involved overt government policies that attempted to strip people of their citizenship before subjecting them to profound mistreatment. However, as Roncarelli shows, government action may undermine someone's rights as a citizen without engaging in such gross forms of abuse.

   The idea of citizenship is also complex because although it is closely associated with the political value of equality, that association can be conceived in a variety of different ways. The relationship between citizenship and equality is apparent in T.H. Marshall's famous analysis of the concept in his essay, "Citizenship and Social Class":

   Citizenship is a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is endowed. There is no...