Constitutional Supremacy and Judicial Reasoning.

• Author: Miller, Bradley W.

Introduction I. A Prologue to Constitutional Interpretation A. Theory of Coordinate Interpretation B. Interpretation/Construction Distinction II. Constitutional Interpretation: The Living Tree and Originalism Conclusion Introduction

Judicial reasoning often takes place in circumstances of uncertainty, where the past acts of law making that are to guide judgment--such as case law, statutes, and regulations--are underdetermined and leave open questions. The problem is often acute in constitutional adjudication, where the constitutional settlements formalized in constitutional texts may be only partial and stated at a high level of generality that perhaps papered over underlying disagreement.

Keeping the constitution supreme is a challenge in the difficult circumstances of incomplete constitutional settlement. Ascertaining what the constitution authorizes or requires, or what constraints it imposes, can be difficult even in the most favourable of epistemic circumstances. But where constitutional texts, particularly bills of rights, are crafted using vague and open-ended language, it falls to other institutions--in acts of legislative, executive, and judicial decision making--to further specify what these vaguely worded rights will mean in the particular, and how they will bear on daily life.

Courts play an important role here. They take the commitments that a political community has made through the constitution-making process, and use them to craft legal rules--or doctrines--that can be applied to particular disputes. After all, constitutions are not self-interpreting or self-applying. But some constitutional doctrines created by courts, in Canada and elsewhere, have proved especially prone to misapplication and provide unintentional support for an outsized role for the judiciary in making new constitutional commitments on behalf of the political community. Where lawyers, academics, and judges grow overly comfortable with these doctrines--through long acquaintance and acceptance--methodological weaknesses tend to be left unexamined or too readily excused. The remedy, I think, is careful engagement with competing ideas: holding our most familiar doctrines under the spotlight and justifying them. This is both a matter of carefully articulating how these doctrines function, and attending with equal care to the case against them.

There are several such doctrines in Canadian law. This paper examines one doctrine in Canadian constitutional law that has become close to constitutional bedrock and, perhaps as a consequence, receives less critical attention than is warranted. It is the practice of interpreting a constitutional or quasi-constitutional text as a "living tree". (1) It has an analogue in the living constitution jurisprudence of the English courts and the European Court of Human Rights (ECHR), though is in some ways distinct.

1. A Prologue to Constitutional Interpretation

   But before proceeding to consider the difficulties posed by living constitutionalism, it will help to first address two background concepts in constitutional theory, both related to the concept of a constitutional settlement. These are: (1) the theory of coordinate interpretation, and (2) the distinction between constitutional interpretation and constitutional construction.

   1. Theory of Coordinate Interpretation

      To begin, constitutions, whether primarily written or unwritten, are products of political settlements, whether by formal agreement reduced to a written text, or by more informal usage and convention. Written constitutions, in particular, are intended to be difficult to amend; they establish institutions, confer authority and limit it, and set rules, standards, and norms to guide legislative and adjudicative decision making. These settlements are intentionally placed beyond the reach of ordinary politics in order to provide a stable and lasting legal framework for common life.

      Like all law, a constitution is intended to guide the choices and actions of those subject to it. Law's subjects--not primarily lawyers or judges or governments, but persons and their associations--use the law to figure out what their obligations are, what proposed courses of action are open to them, and how to accomplish whatever changes in legal relations they set out to change. Like individuals, governments are also guided by law--most fundamentally, the constitution, which is a source of both government power and limits on that power.

      Judges arrive on the scene only much later, if at all, after some action has already been taken--a statute has been passed, some decision made--based on an understanding of what the constitution permits. That is, judicial review of legislation or executive action only occurs in response to some primary act of another branch of government: an act of law making or law applying that was, paradigmatically, conceived to further the common good in some respect. It would have been guided in some measure by an understanding of the constitution and the whole body of existing law. Judicial review of legislative and executive action for compliance with the constitution is, in this sense, secondary.

      Acts of legislation, in a mature and healthy democracy, proceed from background understandings of what legislative options are permitted, prohibited, or (in some instances) required by the constitution. This is the case, I submit, not only in those jurisdictions that formally require that parliament be provided with a report addressing the constitutionality of proposed legislation, but also in all cases where legislators legislate in good faith and for the common good. In legislating with a view to the common good, the conscientious legislator is not predicting--as a legal realist might--how a reviewing court might view the legislation. The legislator's analysis is conducted in the first person. The analysis may be informed by legal doctrines, but it is a matter of selecting means to achieve certain goals that are themselves selected because they further human goods held in common. The legislator makes an independent assessment of whether this series of means and ends is in anyway inconsistent with the constitution. (2)

      This is obviously the case where a legislature is applying multi-faceted and open-ended constitutional criteria to novel questions, but it is also the case where the legislature concludes that the court's current jurisprudence on what the constitution prohibits is, in some important respects, mistaken, or a wrong turn.

      Courts can take wrong turns. The practice of apex courts in overturning their own precedents is some evidence of that. And the nature of these wrong turns is not, usually, described as a matter of faulty legal reasoning or technique. Instead, these changes in direction are often explained as having been compelled or at least invited by more recent developments in the law, or the exigencies of new factual situations, including social change. (3) In such instances, the decision overturned is not expressly rejected as having been wrong at the time it was made, but that it is now normatively unsatisfying, given other legal commitments.

      Judicial review for constitutionality should never be mistaken for a mere technical exercise--as though courts engage in nothing more complicated or controversial than proofreading. Judicial review is an unavoidably normative exercise. (4) Although judges sometimes describe judicial review in technical, almost mechanical, terms, like "measuring a statute against the requirements of the constitution", constitutions--and particularly bills of rights--are not typically written in a manner that allows for purely technical reasoning. (5) Judicial statements that the constitution "compels" or "requires" particular results should therefore be read with some caution; this style of expression may inadvertently obscure the extent to which the matter in question remained open prior to judicial choice. Judges do not have access to some Archimedean point from which they can access the true content of the constitution that is unavailable to others.

      The idea that the legislature can legitimately disagree with judicially articulated constitutional doctrine, whether the perceived error is ancient or more recent, should not be controversial. The idea that the legislative, executive, and judicial branches of government have coordinate authority to interpret the constitution, and courts do not possess singular authority, is a long-standing principle of political theory. Although it is most strongly associated historically with Abraham Lincoln, (6) it has significant support in both contemporary practice and in the academy. (7) Canadian legislatures have periodically responded to judicial invalidation by re-enacting similar successor legislation, (8) which has been upheld by the courts on subsequent challenge. Furthermore, the Canadian Constitution also makes express institutional provision for one particular exercise of coordinate authority through the use of section 33 of the Canadian Charter of Rights and Freedoms, the so-called notwithstanding clause. (9) By invoking the notwithstanding clause when legislating, the federal Parliament and the provincial legislatures are thereby each provided with the express power to immunize legislation temporarily from judicial scrutiny as to compliance with several of the enumerated rights in the Charter.

   2. Interpretation/Construction Distinction

      The second brief meditation I want to offer is on a conceptual distinction familiar from English contract law, (10) and popularized in the constitutional context by American constitutional scholars Lawrence Solum," Keith Whittington, (12) and Randy Barnett. (13) This is the distinction between interpretation and construction. This is an extremely important concept, much overlooked, and provides the resources to resolve much superficial disagreement over the authority of judges to "change" the constitution.

      The...