UNWRITTEN CONSTITUTIONAL PRINCIPLES: THE CHALLENGE OF RECONCILING POLITICAL AND LEGAL CONSTITUTIONALISMS.

• Date: 01 December 2019
• Author: Leclair, Jean

Introduction

Th[e] power [of the United States' Supreme Court justices] is immense; but it is a power of opinion. They are omnipotent as long as the people consent to obey the law; they can do nothing once the people scorn the law. Now, the power of opinion is the most difficult one to exercise, because it is impossible to know its limits exactly. Often it is as dangerous to fall short, as to go beyond those limits. (1) On March 21 and 22, 2019, a symposium entitled "Unwritten Constitutional Norms and Principles: Contemporary Perspectives" was held at the Faculty of Law of the University of Ottawa. This special issue comprises five of the papers that were then presented. The organizers of the symposium, Vanessa MacDonnell and Se-shauna Wheatle, graciously asked me to participate, initially as a commentator, and subsequently, as the author of the foreword to this special issue.

How one envisages the unwritten constitution in general and unwritten constitutional principles (UCPs) in particular is deeply rooted in one's understanding of, and convictions about, both constitutionalism and democracy. Such understanding is also closely connected to what we as scholars believe to be the factors that trigger constitutional evolution--namely, speculative reason or political struggle, or both--and the role played by institutional actors in such evolution. And, most importantly, since a researcher's conceptual theorization, however abstract it may be, is always--if only implicitly--based on a certain anthropological premise, our understanding of UCPs is linked to the kind of individual citizen we wish a particular constitutional regime to foster.

The papers featured here are all intellectually stimulating, not only because of the thought and meticulousness with which they were written, but also because they cover most of the central issues raised by the conceptual nebula the "unwritten constitutional principles" have become. As I have written many papers on this subject, in both French (2) and English, (3) some of my own work is analyzed and criticized in this special issue.

My position as author of this foreword is therefore somewhat uncomfortable. On the one hand, I cannot simply recount and summarize these papers, for although they are all excellent pieces of scholarship, I at times strongly disagree with what some authors assert, and with the manner in which my own work is sometimes depicted. On the other hand, it would be unjust to criticize colleagues deprived of the full opportunity to respond.

I have therefore chosen the following strategy, one that does not require direct references to specific papers. This foreword will take the shape of a short essay. (4) In Part I of this text, I will delineate what exactly is controversial about UCPs. In Part II, I shall inquire into the role of speculative reason and political struggle in constitutional evolution. I will discuss how our emphasis, as legal scholars, on one over the other testifies to our understanding of democracy and constitutionalism, and therefore impacts the degree of latitude we are willing to afford to judges in recognizing and enforcing UCPs. Throughout, I will argue for a just equilibrium to be struck between legal and political constitutionalisms, and more particularly, for the cultivation of a measure of skepticism toward a judge's or a scholar's capacity to find the "best answer" to a question of law. The five papers comprising this special issue showcase most of the major arguments commonly invoked in favour of or in opposition to UCPs, and they all, in one way or another, address the issues I intend to examine. Consequently, although I will purposely avoid any explicit mention of the papers, "authors" in this essay must be understood not as a general reference to scholars having written about UCPs, but rather as alluding to some or all of the five authors featured in this special issue.

To conclude on this point, I must emphasize that this is not a contest. Even if the authors with whom I disagree were identified, (5) no great harm would follow. It would in no way mean that my position is better in absolute terms than theirs. In his famous lecture "Science as a Vocation," Max Weber contends that a teacher cannot decide for the student, but can tell her, "if you want such and such an end, then you must take into the bargain the subsidiary consequences which according to all experience will occur.... Figuratively speaking, you serve this god and you offend the other god when you decide to adhere to this position." (6) My aim is simply to seek to reveal which god we respectively serve when we subscribe to a particular understanding of UCPs.

1. Distinguishing Between the Unwritten Constitution and Unwritten Constitutional Principles

   UCPs have generated an extensive literature. I, along with others, have been identified as a staunch opponent of these principles. However, my objections have been largely exaggerated. I am partly at fault here. Chief Justice Lamer's lamentable instrumentalization of British and Canadian constitutional histories in the Judicial Remuneration Reference (7) still stands, according to me, as one of the most intellectually dishonest rationales ever devised by a Supreme Court justice. (8) My irritation at this travesty of history certainly lent a patina of ferocity to some passages of my paper "Canada's Unfathomable Unwritten Principles" (9) and to the one I co-authored with Professor Yves-Marie Morissette (as he then was), "L'independance judiciaire et la Cour supreme : reconstruction historique douteuse et theorie constitutionnelle de complaisance." (10) That said, rejecting the part is not equivalent to rejecting the whole. Those of us who found the Remuneration Reference unpalatable have never been wholly against UCPs; this would be a ludicrous stance to take for anyone even slightly knowledgeable in constitutional history.

   To begin with, UCPs must not be confused with the unwritten constitution, and more precisely, the common law constitution. The latter is generally understood as comprising common law rules designed to control administrative action, or as encompassing such common law methodological techniques as "the principle of legality"--providing for a restrictive interpretation of legislation infringing upon common law rights (such as the control and enjoyment of one's own property (11) or the need to establish the existence of mens rea in criminal matters (12)). A more ambitious definition also encompasses constitutionally enshrined common law rules, such as those regulating parliamentary privileges. (13) Finally, the unwritten constitution is sometimes defined as equivalent to the material as opposed to the formal constitution (14) (i.e., the whole panoply of norms and practices regulating and limiting state power, such as constitutional conventions).

   These understandings of the unwritten constitution are, for the most part, uncontroversial, since the unwritten rules to which they refer are either "democracy-promoting" (15) or "liberty-enhancing." Democracy-promoting rules require politicians to bear the political responsibility for their actions (principle of legality and constitutional conventions) and provide them with unhindered freedom of speech and debate (parliamentary privileges). Liberty-enhancing rules ensure that citizens' affairs will be dealt with according to law rather than whim (control of administrative action), that their property will not be arbitrarily encroached upon, and that only malevolent intent will lead to a deprivation of liberty. In addition, most of these rules do not stand in the way of the sovereignty of Parliament, as they impose only "manner and form" requirements.

   In truth, the controversy centres on the "structural" UCPs as understood in the Remuneration and Secession references. (16) So-called because they are part and parcel of our constitution's "internal architecture," and because, without them, the "constitutional structure" of our polity would be inconceivable. (17) UCPs, as understood in both these cases, refer to abstract legal principles identified and interpreted by courts, from which judges can deduce the existence of more specific rules. The latter can be implemented by judges and can lead, in some instances, to the invalidation of legislation. Reflecting the broader debate over UCPs, some authors of this issue are quite comfortable with the courts' exercise of such a power to create specific rules, whereas others--closer to my own opinion--are less so.

   Notwithstanding the controversy, many features of these principles are uncontroversial. Importantly, no one doubts that, as underlined by the Supreme Court in Secession, they "emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning." (18) Everyone also agrees that UCPs, as well as the legal obligations to which they give rise, may impose substantive limitations on government action:

   Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference ...), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. (19) Some of the purposes to which they can be applied also raise no problem. For instance, as one author suggests, they can, and in fact do, operate as ground rules or codes of good governance for both the executive and the legislative powers. Finally, I do not believe anyone would quarrel with what I wrote nineteen years ago: "[T]he legitimacy of invoking unwritten principles will depend on the purpose they serve...