New Paper: The Generation and Guardianship of Constitutional Principles
One of the first conferences I attended on my return to Canada in 2019 was organized by the Canadian Group for the Study of Parliament. I presented a paper entitled “The Generation and Guardianship of Constitutional Principles“, which I am pleased to say will feature in a special edition of the Revue générale de droit. I have posted the paper to SSRN:
There is a tendency, certainly amongst lawyers, to think that it is exclusively the role of the courts to develop or identify constitutional principles and then to guard them. When considering constitutional principles in the Canadian setting, judicial pronouncements (as in the Secession Reference) spring first to many lawyerly minds and it now seems quite clear that the Supreme Court of Canada sees itself as the guardian of these constitutional principles.
I will argue that the legislative process can also generate and guard important constitutional principles. Within Parliament, clerks and other players act as the guardians of these principles. Even before bills undergo the parliamentary scrutiny process, generation and guardianship of constitutional principles by non-judicial actors can be perceived. Legislative drafters act, in their iterative discussions with ministers, other civil servants and policy advisors, as guardians of principle, striving to strike a balance between the protection of constitutional fundamentals and the advancement of governmental policy goals.
These features of the legislative process undermine the notion that courts are central to the generation and guardianship of constitutional principles.
This is part of a larger project to which I hope to return in the coming years. You can download the paper here.
In the hope of whetting your appetite, here is the introduction:
There is a tendency, certainly amongst lawyers, to think that it is exclusively the role of the courts to develop or identify constitutional principles and then to guard them. Courts, as Ronald Dworkin memorably put it, are forums of “principle”, with matters of “policy” falling to the political branches of government. When considering constitutional principles in the Canadian setting, for instance, judicial pronouncements (as in the Secession Reference) spring first to many lawyerly minds and it now seems quite clear that the Supreme Court of Canada sees itself as the guardian of these constitutional principles. Much the same can be said of the United Kingdom.
Painting with deliberately broad strokes, I will illustrate in this paper, by particular reference to the United Kingdom and Canada (and occasional reference to Australia and Ireland) that the Westminster-style legislative process can also generate and guard important constitutional principles: participation, individual self-realization, electoral legitimacy and protection of regional interests. These principles are manifest in different ways – in constitutional provisions, constitutional conventions and internal procedures – and permeate the legislative process.
To begin with, the ordinary legislative process ensures participation in the law-making process and democratic deliberation outside the walls of Parliament. Variations of the ordinary legislative process also generate constitutional principles. Rigorous procedures for hybrid bills ensure that fundamental individual interests – especially property rights – are given as high a standard of protection as the legislative process can provide. The subordinate position of unelected upper chambers in relation to law-making (especially in relation to money bills) generates principles relating to the meaning of representative democracy and responsible government.
Within Parliament, clerks and other players act as the guardians of these principles. Even before bills undergo the parliamentary scrutiny process, generation and guardianship of constitutional principles by non-judicial actors can be perceived. The legislative drafting process has generated constitutional principles, such as non-retroactivity, a core component of most understandings of the rule of law. Legislative drafters act, in their iterative discussions with ministers, other civil servants and policy advisors, as guardians of principle, striving to strike a balance between the protection of constitutional fundamentals and the advancement of governmental policy goals.
These features of the legislative process undermine the notion that courts can claim the generation and guardianship of constitutional principles as their exclusive territory. In Part 1, I will discuss how courts can be seen as the generators and guardians of constitutional principles. In Part 2, I will discuss how the process of parliamentary scrutiny of legislation can be seen to generate and guard constitutional principles. In Part 3, I will describe the role of clerks and legislative drafters and discuss their role in the generation and guardianship of constitutional principles.
Before that, however, I must engage in some terminological and methodological throat clearing. What do I mean by constitutional principles? As Han-Ru Zhou has observed, “To most of us, our understanding of what a principle is has a persistent scent of ‘I know it when I see it’”. For present purposes, by a “principle” I mean a higher-order norm which justifies a given rule (which, in turn, can be found in a constitutional provision, a statute or piece of delegated legislation, a constitutional convention or simply. a practice). Here I am trading off the classic Dworkinian distinction between rules – with their all-or-nothing, hard-edged quality – and principles – characterized by weight. In this sense, a “principle” provides higher-order justificatory weight to a rule. As such, the principle might be manifest in different ways in different jurisdictions. By a “constitutional” principle, I mean a principle which inheres in a Constitution – that is to say, it is not a principle drawn from a fully developed moral or political theory). Lastly, the relationship between rules and principles is fluid: when I say that a particular rule “generates” a principle, I mean that the rule can be justified in terms of a principle which may well be a new principle rather than an existing principle. To the question “What comes first, the rule or the principle?” my answer (for present purposes) is “It depends”.
The constitutional principles I discuss in this article are as follows:
Participation:the ability of individuals to participate in decisional processes which interest or concern them;
Individual Self-Realization:the protection of individual interests which allow individuals to plan their affairs and to be treated with respect by officials;
Electoral legitimacy: ensuring that mandates won by those who have faced (and will again face) the judgement of the electorate are respected;
Federalism:the protection of regional interests and the autonomy of self-governing parts of a polity.
I will argue that the legislative process is capable (as is the judicial process) of generating and protecting such principles. Because my argument is directed at what the legislative process is capable of doing, it is unnecessary to provide any detailed justification for the constitutional principles I have identified. I ask the reader to take it as given that these are normatively desirable principles. Of course, in situations where these principles come into conflict, difficult questions arise about how to strike an appropriate balance between them; and where rules do not accurately instantiate these principles there may be a need to reform the rules or rethink the principles. Those are interesting issues. But they are for another article.
What do I mean by the “Westminster-style” process? I refer in this article to Australia, Canada and Ireland. These are several of the former dominions of the United Kingdom, in which parliamentary government and the common law have long been implanted. Of course, even “Westminster at Westminster is itself a movable feast”: the Westminster of today is not the Westminster of 2000, which itself was very different to the Westminster of 1900. Describing and analysing a moving target is, needless to say, a difficult task. Nonetheless, as Rhodes, Wanna and Weller explain, “Westminster” provides a useful focal point for study:
Westminster describes how government might be conceived and organized. It provides a set of beliefs and a shared inheritance that creates expectations, and hands down practices that guide and justify behaviour. The practices of Westminster systems have shown remarkable resilience, surviving under different regimes and in different circumstances across the world.
These beliefs and practices include “accepted conventions and rules; attitudes to authority and legitimacy; the accountable exercise of power; the representation of citizens; and various ways to govern and integrate regionalism”. Legislation is made by elected representatives and (sometimes) by unelected members of a second chamber, interpreted by an independent judiciary and given effect by a permanent civil service, independent agencies and front-line administrative decision-makers. As a result, the findings of many national studies will be “to some extent applicable to all legislatures”.
Let me again reiterate that I will paint in broad strokes in the pages that follow. Of course, not every judge sees the judicial role as constitutional guardianship. Sure, not every rule is backed by a justificatory principle. And, yes, political actors might not always provide optimal protection for constitutional principles. My purpose in putting pen to paper is simply to highlight what seems to me to be undeniable: the legislative process can generate constitutional principles, which political actors can guard. Just because something is a “constitutional” “principle” does not necessarily mean it is the exclusive preserve of lawyers.
 Han-Ru Zhou, “Legal Principles, Constitutional Principles, and Judicial Review” (2019) 67:4 Am J Comp L889 at 890.
 My focus is on legislative process, specifically. Legislation can also generate constitutional principles. But that is a topic for another day.
 See Statute of Westminster 1931 (UK), 22 & 23 Geo V, c 4, s 1.
 RAW Rhodes, John Wanna & Patrick Weller, Comparing Westminster (Oxford: Oxford University Press, 2009) at 3 [Comparing Westminster].
 Ibid at 3.
 Comparing Westminster,supra note 4at 3-4.
 Meg Russell & Daniel Gover, Legislation at Westminster (Oxford: Oxford University Press, 2018) at 260 [Russell & Gover].
 See the analysis in Dennis Baker, Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation (McGill-Queen’s University Press, Montreal and Kingston, 2010).
This content has been updated on September 14, 2021 at 14:38.