Constitutionalizing Procedure

• Author: Ed Morgan
• Profession: Associate Professor, University of Toronto, Faculty of Law
• Pages: 1-26

Constitutionalizing

Procedure

Ed

Morgan*

Chico

[playing

piano]:

I

can't

think

of

the

ending.

Groucho:

That's

funny.

I

can't

think

of

anything

else.1

A.

CONSTITUTIONAL

PORTRAITS

It

is

common wisdom among scholars

of the

field

that

constitutional

law

is a

descriptive,

if not a

prescriptive conversation about

the

most basic

features

of the

society

to

which

it

pertains.2 Whether

the

signposts

of

constitutional text

and

interpretation

are

described

as

directly linked

to

*

Associate

Professor,

University

of

Toronto,

Faculty

of

Law.

1

Marx

Brothers,

Animal

Crackers

(Paramount Pictures, 1930).

2 P.

Hogg,

Constitutional

Law

of

Canada

(Scarborough, ON.: Carswell, 1999)

at 1,

quoting R.I. Cheffins & R.N. Tucker, The Constitutional Process in Canada, 2d

ed.

(Toronto: McGraw-Hill Ryerson, 1976)

at 4,

describing constitution

as "a

mirror

reflecting

the

national soul";

L.

Tribe,

American

Constitutional

Law,

2d

ed.

(Mineola,

N.Y.:

Foundation Press, 1988)

at 1,

describing "historically dis-

continuous

composition"

of

constitutional

law as a

product

of

society's com-

promises.

1

2

Ed

Morgan

certain social practices,3

or are

thought

of as

functional safeguards

against

the

unchecked operation

of

political processes,4

or,

indeed,

are

seen

as

wedded

to

pre-existing rights

of

individuals

as

against each

other,5

the

connection

to

political

life

and

social history

is

typically por-

trayed

as a

thick one. Constitutional law, anthropologist Claude

Lévi-

Strauss would

no

doubt explain,

is a

long

way

down

the

evolutionary

road

from

the

earliest understandings

of

interpretive regimes

in

which

signs

appear significant

despite

no one

knowing what

it is

that they sig-

nify.6

Presumably, therefore, when

one

sees

the

constitutionalization

3

See,

e.g.,

R.

Dworkin,

Law's Empire

(Cambridge,

Mass.:

Belknap

Press, 1986),

justifying

constitutional adjudication

as a

form

of

interpretation giving integri-

ty

to

social practices.

In

Canada,

see P.

Weiler, "The Charter

at

Work:

Reflections

on the

Constitutionalizing

of

Labour

and

Employment Law"

(1990)

40

U.T.L.J.

117,

identifying social attitudes

as

linked

to

constitutional

interpretations;

J.

Fudge

& H.

Glasbeek, "The Politics

of

Rights:

A

Politics with

Little

Class"

(1992)

1

Soc.

& L.

Stud.

45,

linking constitutional interpretation

to

the

politics

of

class struggle;

and A.

Hutchinson,

Waiting

for

Coraf:

A

Critique

of

Laws

and

Rights

(Toronto: University

of

Toronto Press, 1995), describing consti-

tutional

law as a

script

for

social participation.

4

See,

e.g.,

J.H. Ely,

Democracy

and

Distrust

(Cambridge, Mass.: Harvard

University

Press, 1980), describing constitutionally entrenched

and

judicially

enforced

distrust

of

legislative

and

executive branches

of

government.

In

Canada,

see W.

Tarnapolsky,

"The Evolution

of

Judicial Attitudes,"

in K.

Mahoney

& S.

Martin,

eds.,

Equality

and

Judicial Neutrality

(Toronto: Carswell,

1987)

at

378;

L.

Weinrib, "The Supreme Court

of

Canada

and

Section

One of

the

Charter" (1988)

10

Supreme Court L.R. 469, discussing

the

movement

from

common

law to

constitutional protection

of

rights;

and L.

Weinrib, "Learning

to

Live

With

the

Override" (1990)

35

McGill L.J.

541,

describing constitutional

rights

as

counter-majoritarian

protections.

5

See,

e.g.,

R.

Dworkin,

Taking Rights Seriously

(London: Duckworth, 1977), link-

ing

constitutional rights

to

private

law

rights

of

contract, tort,

and

property.

In

Canada,

see A.

Brudner, "What

are

Reasonable Limits

to

Equality Rights?"

(1986)

64

Can.

Bar

Rev. 469, tracing constitutional equality rights

to

natural

law

theory;

M.

Gold,

"A

Principled Approach

to

Equality

Rights:

A

Preliminary Inquiry" (1982)

4

Supreme Court L.R.

131,

postulating objectively

knowable

answers

to

questions

of

constitutional interpretation;

and D.

Beatty,

Constitutional

Law in

Theory

and

Practice

(Toronto: University

of

Toronto

Press,

1995)

at

15-17,

48-52,

describing "proportionality

and

rationality principles"

as the

"inner logic"

of

constitutional

law

and,

consequently,

all

legal

relations.

6 See G.

Deleuze

& F.

Guattari,

A

Thousand Plateaus: Capitalism

and

Schizophrenia,

trans.

B.

Massumi, (Minneapolis: University

of

Minnesota

Press,

1987)

at

112,

quoting

C.

Levi-Strauss,

"Introduction

a

1'oeuvre

de

Marcel

Mauss,"

in M.

Mauss,

ed.,

Sociologie

et

anthropologie

(Paris: Presses

universitaires

de

France,

1973)

at

48^9.