AuthorOliver, Peter C.
PositionUnwritten Constitutional Norms and Principles: Contemporary Perspectives

Introduction I. Basic Rules Regarding Preambles and Constitutional Interpretation in the British Constitutional Tradition A. Preambles and Statutory Interpretation B. "A Constitution Similar in Principle to That of the United Kingdom " from a Nineteenth-Century Perspective 1. The Queen, Prime Minister, Cabinet, and the System of Responsible Government 2. Sovereignty of Parliament and die Protection of Rights by Means of the Common Law 3. The Law and Custom of Parliament 4. A Common Denominator or Dominant Theme? II. The Privy Council, the Supreme Court of Canada, and the Preamble Prior to 1982 A. Interpretive Method 1. Traditional or Orthodox Method 2. More Radical Uses of die Preamble 3. The Traditional or Orthodox Method Reasserted B. Meaning or Substantive Content of a "Constitution Similar in Principle to That of the United Kingdom" Before 1982 1. Responsible Government and Sovereignty of Parliament 2. Implied Bill of Rights 3. Separation of Powers and die Independence of die Judiciary C. Is "a Constitution Similar in Principle to That of the United Kingdom" frozen at 1867, or Is It Ambulatory? The View Pre-1982 III. The Supreme Court of Canada and the Preamble Post-1982 A. Interpretive Method 1. The, Manitoba Reference 2. New Brunswick Broadcasting 3. Provincial Judges Reference 4. The Secession Reference 5. Refining die Post-1982 Approach B. Meaning or Substantive Content of a "Constitution Similar in Principle to That ot the United Kingdom " After 1982 1. Division of Powers 2. The Legal and Institutional Structure of Parliamentary Democracy a. The Rule of Law b. Constitutional Democracy i. Parliamentary Institutions and the Constitutionalization of Parliamentary Privilege ii. The Interdependence of Representative Democracy and Freedom of Speech 3. Judicial Independence 4. Other Arguments Grounded in the Preamble C. Is "a Constitution Similar in Principle to That of the United Kingdom" frozen at 1867, or Is It Ambulatory? The View Post-1982 IV. Choosing Between or Reconciling the Pre- and Post-1982 Approaches to the 1867 Preamble: A Sustainable Jurisprudence A. The Vulnerabilities of Political Constitutionalism B. Preferring Legal Constitutionalism? C Reflective Equilibrium D. Questioning Full Faith in Principles F A Sustainable Jurisprudence F. Incommensurable Principles and Reconciling Approaches G. Principles and Constitutional Conventions Conclusion Introduction

In recent years, unwritten constitutional principles have often found their place in Canadian constitutional law via their supposed foothold in the part of the preamble to the Constitution Act, 1867 that refers to "a Constitution similar in Principle to that of the United Kingdom". Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble. In this article, I look through almost 150 years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time.

It turns out that in the years immediately before and after 1867, the relevant part of the preamble largely referred to what we now call political constitutionalism, (1) or the idea that constitutional questions should generally be resolved by democratically elected institutions. Concepts such as parliamentary sovereignty, parliamentary privilege, and the many constitutional conventions that filled out the essentially uncodified Constitution were manifestations of this political constitutionalism. Therefore, as a historical matter, it appears mistaken to suggest that the preamble was an "invitation" to courts to fill "gaps" (2) in the Constitution, in the manner suggested by the Supreme Court of Canada in the 1990s. And, as it happens, for the first 125 years of Confederation, the preamble was used in a more constitutionally orthodox fashion--that is, as an aid to, interpretation.

How has it come to be that the preamble is now associated with legal constitutionalism, or the idea that constitutional questions should be resolved--and gaps filled--by courts? If the Supreme Court of Canada's purported textual justification for this gap-filling tendency (the 1867 preamble) is not very convincing, then are there better justifications available? I propose a reading of the preamble and constitutional principles that is attentive to text, case law, principle, and an evolving Canadian context--what might be called a "sustainable jurisprudence." (3) Before considering my own reading, I describe other, more familiar options. Even if the preamble is not a convincing justification for the Court's gap-filling role, other jurisprudential developments since 1982 might be said to serve.

The 1980s happened to coincide with the growing influence of the ideas of Ronald Dworkin, according to which "hard cases" (including gaps in the text of the Constitution) can and should be filled with interpretations based in principle and political morality. This approach, and approaches like it, apparently obviate any need to find a foothold in the preamble. Therefore, by way of a first example, when a century's worth of unilingual Manitoba laws were deemed to violate the constitutional text in the Manitoba Reference of 1985, (4) the Supreme Court used other countries' constitutional experience and the principle of the rule of law to inform its bold use of suspended invalidity, delaying the effects of its opinion until the laws could be brought into compliance. (5) While it is true that "the rule of law" formed part of the UK constitution and could be identified via the preamble, nothing like this sort of muscular deployment of the principle could be grounded in the United Kingdom's more restrained tradition of judicial power. A deeper jurisprudential movement seemed to explain this and subsequent cases, including the Supreme Court's well-known Secession Reference decision of 1998. (6)

If the jurisprudential approach of Dworkin and his successors--and the related tradition of common law constitutionalism--had truly taken hold in the 1980s and 1990s, then it would have been hard to see where the courts' brief stopped in the name of deciding hard cases or filling gaps. And yet the courts clearly began to perceive limits to how far they could go in reasoning from principles. I explore the possible jurisprudential foundations for the courts' evolving approach to principles (and what is often referred to as common law constitutionalism).

As Mark Walters has identified, (7) Dworkin's earliest writing on constitutional reasoning spoke of a process of "reflective equilibrium"--a sort of "back and forth," on Dworkin's account, between the underlying principles, on the one hand, and the ongoing intuitions about how to realize those principles as represented by the common law, on the other hand. (8) In a later rendition, Dworkin set out this account using the compelling analogy of the chain novel, according to which each new chapter is based on a judge's best reading of the chapters that have come before. (9) Dworkin's model had the advantage, formally speaking, of confining the judges' tools to rules, principles, and even morality developed in the past and applied in the present. So many of our legal instincts tell us that this is the proper way for law to work. The problem with Dworkin's version of reflective equilibrium is that, by confining itself in this way, it risked becoming less relevant and less effective in the future in the society to which it was meant to apply. Laws and legal systems, unlike chain novels, have to be relevant, effective, and sustainable in the real world, otherwise the promise of the rule of law cannot be realized. (10)

Another version of reflective equilibrium in hard cases (a more sustainable version, I argue here) imagines a back and forth not just between principles and the intuitions represented in prior cases, but also between principles and the actual context in which they must play out. This version of reflective equilibrium is expressly rejected by Dworkin, (11) probably because it opens up lawmaking in hard cases to accusations of non-legal policy-making. I argue that the application of general principles in hard cases is always a matter of judgement, (12) in its more traditional sense of wisdom or statecraft. In this version, taking the factual context seriously is not just desirable; it is essential to the law's future effectiveness, its sustainability. And, as counterintuitive as it might sound to those of us with a traditional legal education, those who care about the rule of law should be just as concerned with this forward-looking, judgement-based aspect of law as with its more familiar past-focused aspect.

At this point, it is usually (and rightly) said that judges are far from infallible (not to mention unelected) assessors of the broader factual context into which law plays out. It does not follow, however, that with their limited abilities to assess in mind, judges should always leave the law as it is. To do nothing can be as "activist" as to do something in any particular hard case. (13) What good judges generally do in hard cases is to take a measured step (14) in what seems to them to be the best direction, taking into account such rules and principles as exist, and such consideration of the context into which their decision will play out as their experience and counsels' pleadings allow. (15) Without suggesting that Canadian courts always employ this jurisprudential method, I do think that what I call a sustainable jurisprudence points to some important elements in the current Canadian attempt to balance political and legal constitutionalism.

If this reading and analysis are correct, then Canadian courts have not simply moved from dominant political constitutionalism of 1867-1982 to dominant legal constitutionalism from 1982 onward. Instead, Canadian courts are moving toward an important compromise between the values...

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