This essay focuses on Paul Yowell’s recent argument against entrenching bills of rights, along with his ‘second-best’ case for institutionally reforming constitutional courts to resemble quasi-legislative bodies (i.e. Kelsenian courts). The essay argues that Yowell’s case against entrenchment relies on the premise that constitutional rights adjudication tends to collapse into proportionality analysis. This premise is questioned by exploring how alternative techniques of rights adjudication, such as originalism and H.L. Black’s textualism, could provide “internal constraints” against the judicial use of proportionality analysis. My claim is that the plausibility of such techniques qualifies Yowell’s case against entrenchment and casts his argument for reforming courts to resemble quasi-legislatures in the light of a reductio. The reductio is to a monitum, or warning against the judicial use of proportionality reasoning about rights and the need to explore techniques by which the judicial use of proportionality reasoning can be constrained. The essay first reviews Yowell’s arguments (II), then critiques his thesis that rights adjudication collapses into proportionality analysis (III), and concludes by evaluating how the possibility of legally constrained rights adjudication affects his central arguments (IV).
Proportionality's Ruductio Ad Monitum
Review of Constitutional Studies 23:2 2018
Articles and Book Chapters
On Dialogue and Domination in Constitutional Dialogue: Rights, Democracy, Institutions Geoffrey Sigalet, Grégoire Webber, Rosalind Dixon eds. (Cambridge University Press, 2019).
In this chapter I distinguish between forms of rights dialogue in relation to the different normative purposes dialogues can serve. The chapter evaluates what I call the ‘interrogative’, ‘interruptive’, and ‘constructive’ reasons for favouring dialogue between courts and legislatures in light of contemporary republican political theory. Dialogue might be valued as a means by which courts interrogatively distinguish justifiable reasons for legislatures to limit rights from unjustified infringements made in pursuit of certain objectives. A second reason dialogue could be valued is as a means of providing both a counter-majoritarian chance for courts to interrupt legislative processes or statutory schemes concerning rights, and a democratic chance for legislatures to deliberatively respond to such interruptions. A third reason for valuing dialogue is as a means by which courts and legislatures co-ordinately construct the legally indeterminate meaning of rights in a way that protects both rights and the democratic legitimacy of political decisions implicating rights. I argue that the republican conception of freedom from domination justifies constitutional construction as the ideal republican norm of dialogue between courts and legislatures concerning most rights.
The 'What' and the 'Why' of Constitutional Dialogue in Constitutional Dialogue: Rights, Democracy, Institutions Geoffrey Sigalet, Grégoire Webber, Rosalind Dixon eds. (Cambridge University Press, 2019).
The metaphor of 'dialogue' has been put to different descriptive and evaluative uses by constitutional and political theorists studying interactions between institutions concerning rights. It has also featured prominently in the opinions of courts and the rhetoric and deliberations of legislators. This introduction to Constitutional Dialogue: Rights, Democracy, Institutions (Cambridge University Press, 2019) argues that in order to understand 'what' dialogue is in different constitutional contexts, we must understand the various normative reasons 'why' the metaphor has been applied to different types of constitutional interactions. The introduction then surveys how the volume explores dialogue's democratic significance, examines its relevance to the functioning and design of constitutional institutions, and explains its significance from an international and transnational perspective.
American Rights Jurisprudence Through Canadian Eyes University of Pennsylvania Journal of Constitutional Law 23 (forthcoming)
The U.S. Supreme Court’s application of varying tiers of scrutiny to different constitutional rights has been widely criticized for severing rights from any clear connection with justice. One school of thought holds that this could be cured by importing or expanding the role for “proportionality analysis” in U.S. constitutional rights doctrines. American proponents of proportionality such as Jamal Greene, Vicki Jackson, and Supreme Court Justice Stephen Breyer have argued that U.S. courts could more transparently respect the connection between rights and justice by following the example of Canadian courts in reasoning about the proportionality of laws as “justified infringements” of rights. Furthermore, proportionality analysis, a kind of “intermediate scrutiny for all”, is thought to foster a more reasonable and democratic rights discourse. This article argues that proportionality analysis may not be the cure its American proponents hope for. Comparisons between American and Canadian constitutional rights cases suggest that proportionality style reasoning conceptually devalues and distorts the connection between rights and justice. In contrast, the alternative concept of rights as absolute relations of justice appears to more transparently value constitutional rights.
The article then turns to the prospective institutional effects of proportionality in the American context. A rough sketch shows that the concept of courts allowing the state to proportionality override rights appears to be as scattered across different American doctrines and tiers of scrutiny as the concept of specifying the scope of rights as absolute. The mixed record of proportionality in U.S. rights doctrines recommends drawing comparisons to Canada, where proportionality is employed under a uniform doctrine. Comparing the effects of proportionality in the U.S. and Canada indicates that this approach institutionally disrupts the democratic settlement of rights disagreements in three ways. First, proportionality analysis appears to inflate the number of rights conflicts and intensify the rhetoric of those seeking to vindicate them. Second, in many cases proportionality undermines the classic justification for entrenching rights in law and subjecting them to independent judicial review by allowing rights to be overridden according to the moral reasoning of judges. Third, hopes that proportionality might lead to more democratic dialogues negotiating the meaning of rights between courts and legislatures should be checked by how the use of proportionality analysis by Canadian courts has discouraged legislative responsibility for constructing rights. Interestingly, at least one prominent American example (Employment Division v. Smith and the Religious Freedom Restoration Act) suggests that treating rights as absolute trumps can encourage legislative responsibility for constructing the scope of rights.
Dialogue and Distrust: John Hart Ely and the Canadian Charter International Journal of Constitutional Law 19(2) (forthcoming).
John Hart Ely’s process theory of judicial review has had an influence on constitutions across the globe. This article explores and evaluates Ely’s influence on the drafting and development of the 1982 Canadian Charter of Rights and Freedoms. The article first outlines the rudimentary elements of Ely’s theory of judicial review (II), then how Ely’s explicit influence on the development of Charter has mostly been limited to the context of section 15 equality rights (III). But Ely’s influence has been more extensive in the way scholars have sought to understand the Charter. The third section of this article shows how Ely has had an impact on Patrick Monahan’s theory of judicial review under the Charter, and in Rosalind Dixon’s process theory of dialogue. The article concludes by arguing that although Ely’s concerns remain relevant in the Canadian context, there are two reasons to be skeptical of using Ely’s theory to understanding Charter rights (IV): the first reason is that the Charter features substantive rights that do not seem to be reducible to protections for participation in the political process; the second reason is that process based dialogue theory appears to be insufficiently distrusting of courts.
Justice(s) Out of Office: Principles for Former Judges Queen's Law Journal (forthcoming) (co-authored with Marc Mancini).
In the wake of the SNC-Lavalin scandal, a debate has broken out about how to regulate the professional legal conduct of Canadian judges once they retire from office. The entanglement of four former Supreme Court Justices in the violation of the Conflict of Interest Act and the attempted circumvention of prosecutorial independence by Justin Trudeau’s Prime Minister’s Office has led some to argue in favour of a complete prohibition on all professional legal activities by former judges. Others have defended the lack of such restrictions, citing the contribution former judges make to the public interest by practicing law. In this article we argue that these arguments have so far failed to address how the deeper principles of Canadian constitutionalism relate to the question of allowing former judges to practice law. We think the fundamental principles engaged by this question are democracy and the Rule of Law. We argue that together these principles require that former judges be prohibited from practicing in matters of constitutional and administrative law, but allowed to work in all other areas of law not directly implicating decisions they made on the bench. Our policy recommendations are for the provincial and territorial law societies to enact prohibitions on former judges practicing constitutional and administrative law, and for the law societies to establish broad exemptions for former judges to practice other types of law in cases not directly related to cases they adjudicated on the bench.