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Constitutions as Living Trees: An Idiot Defends

Published online by Cambridge University Press:  20 July 2015

Wil Waluchow
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In this article, I defend Charters of Rights and the practices of judicial review to which they normally give rise against a number of objections one encounters in public and academic discourse, most notably in the work of Jeremy Waldron. In answering Waldron and his fellow critics, I develop a “living tree” or “common law” conception of Charters and show how it can be used successfully to answer their most powerful criticisms.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 18 , Issue 2 , July 2005 , pp. 207 - 247
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Copyright © Canadian Journal of Law and Jurisprudence 2005

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References

An earlier version of this paper was presented at the 2004 Analytic Legal Philosophy Conference at New York University Law School. I wish to thank the participants of that conference for their many helpful comments and suggestions.

1. Henceforth, I will refer to these latter individuals as “the Advocates,” with the understanding that this class of defenders includes a range of authors whose arguments for Charters are not all the same. Advocates within the philosophical literature include Dworkin, Rawls and Samuel Freeman. Those, like Waldron, who argue against practices of judicial review under Charters will be referred to as “the Critics,” with the same understanding applying.

2. Waldron, Jeremy, Law and Disagreement (Oxford: Oxford University Press, 1999) at 102.CrossRefGoogle Scholar

3. Ibid. at 295.

4. This indictment extends to Waldron’s own theory. The significance of this fact will be addressed below in Section VIII.

5. In Political Liberalism (New York: Columbia University Press, 1996)Google Scholar, Rawls writes that “the idea of reasonable disagreement involves an account of the sources, or causes, of disagreement between reasonable persons so defined. These sources I refer to as the burdens of judgment …. [They are] the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of political life” (55-56). The burdens of judgment include things like conflicting evidence, disagreements about the proper weighting of evidence, vague and indeterminate concepts and conceptions, differences in individual backgrounds that influence individual interpretation of evidence, and so on. These burdens can result in different judgments based on the same “evidence,” differing judgments which are nevertheless “compatible with those judging being fully reasonable” (58).

6. Charters can, of course, exist alongside other forms of government. But we will restrict ourselves to constitutional democracies such as one finds in Canada, the US, New Zealand, and the UK. I include the UK even though it is often said to contain no written constitution and Parliament is often said to be constitutionally unlimited. But it is clear that the UK has long recognized constitutional limits on Parliament; some of these are statutory in origin, while others have emerged as part of the common law or are matters of constitutional convention.

7. It is usually assumed that the form of judicial review under discussion is the strong American form. But there are alternatives. For example, in New Zealand courts rule on the constitutionality of legislation even though they are barred from striking it down. New Zealand Bill of Rights Act 1990, section 4 states: “No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—(a) [h]old any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) [d]ecline to apply any provision of the enactment—by reason only that the provision is inconsistent with any provision of this Bill of Rights.” Furthermore, section 7 provides for the Attorney-General to intervene in legislative debate to warn of a possible infringement of the Bill of Rights. “Where any Bill is introduced into the House of Representatives, the Attorney-General shall, (a) [i]n the case of a Government Bill, on the introduction of that Bill; or (b) [i]n any other case, as soon as practicable after the introduction of the Bill, bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.” (I owe these references to a paper (“Some Models of Dialogue between Judges and Legislators”) delivered by Waldron at a conference at the University of Western Ontario in September of 2003. In Canada, the legislative override included in Section 33 of The Constitution Act empowers Parliament or a provincial legislature to introduce, for a period of time and subject to renewal every five years, legislation which it acknowledges either infringes a right enshrined in the Charter of Rights and Freedoms, or is inconsistent with a judicial ruling—in the view of the legislature, an incorrect ruling—on what that right means or entails for legal purposes.

8. See Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar, Political Liberalism (New York: Columbia University Press, 1993)Google ScholarPubMed; Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977)Google ScholarPubMed, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985)Google Scholar, Law’s Empire (Cambridge, MA: Harvard University Press, 1986)Google Scholar, A Bill of Rights for Britain (London: Chatto and Windrus, 1990)Google ScholarPubMed, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996)Google Scholar; Freeman, Samuel, “Constitutional Democracy and the Legitimacy of Judicial Review” (1990) 9 L. & Phil. 9.Google Scholar

9. It is seldom noted that the real question in play is not whether we should, as responsible agents, be making our own decisions on the relevant matters, or assigning this task to judges. In a representative democracy, the question is to whom the task of deciding should be assigned: judges or elected representatives.

10. Law and Disagreement, supra note 2 at 239.

11. Ibid. at 221.

12. Ibid. at 221-22.

13. Ibid. at 222.

14. Ibid. at 15. The sting of this insult was experienced by the many Americans who were utterly dismayed by the U.S. Supreme Court’s decision in Bush v. Gore.

15. Few philosophers endorse this objection; Waldron certainly does not. It is, however, often encountered in popular discourse and in some philosophical circles.

16. Law and Disagreement, supra note 2 at 244.

17. Ibid. at 268. I am going to run the risk of having Waldron think me an idiot by suggesting later that there is considerable truth in the Ulysses metaphor, despite deep disagreements about many of the concrete implications of Charter rights. Perhaps he will want to say that this only goes to show that there is considerable truth in the charge that Waluchow really is an idiot.

18. Freedom’s Law, supra note 8 at 34.

19. Law and Disagreement, supra note 2 at 294.

20. Ibid. at 295.

21. Dworkin, Freedom’s Law, supra note 8 at 345, cited by Waldron in Law and Disagreement, supra note 2 at 289.

22. Law and Disagreement, supra note 2 at 290.

23. Ibid.

24. Ibid.

25. Ibid. at 220.

26. Ibid.

27. Ibid. at 221.

28. See, for example, Raz, Joseph, “Disagreement in Politics” (1998) 43 Am. J. Juris CrossRefGoogle Scholar.; Christiano, Thomas, “Waldron on Law and Disagreement“ in (2000) 19 L. & Phil. 513 Google Scholar; Estlund, David, “ Waldron on Law and Disagreement “ (2000) 99:1 Phil. Stud. 111 CrossRefGoogle Scholar; and Kavanagh, Aileen, “Participation and Judicial Review: A Reply to Waldron” (2003) 22 L. & Phil. 451.Google Scholar

29. See Rubenfeld, Jed, “Legitimacy and Interpretation” in Alexander, Larry, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) at 194.Google Scholar

30. Think, for example, of a religious conversion, or how radical youths often turn out to be the among the most committed middle aged conservatives.

31. One might, for example, attempt to undermine the claim of radical dissensus. Alternatively, one might question the Hobbsean predator element of Waldron’s picture of Charters. Our concern to protect minorities from majority excesses need not be premised on such an unflattering picture of ourselves and the burdens of judgment and action under which we operate in public life. This is a point to which we will return in the final section.

32. Edwards v. A.-G. Canada [1930] A.C. 124.

33. See, e.g., A.-G. Que. v. Blaikie [1979] 2S.C.R. 1016, 1029 (language rights); A.-G. B.C. v. Canada Trust Co. [1980] 2 S.C.R. 466, 478 (powers of taxation); Law Society of Upper Canada v. Shapinker [1984] 1 S.C.R. 357, 365 (mobility rights). The idea of the constitution as a “living tree” is, of course, not unique to Canadian legal practice. Elsewhere the idea is ex Pressed in the-ories which speak of a constitution as a “living thing” or as capable of “organic growth.” For further exploration of the notion of a constitution as a living entity, see Kavanagh, Aileen, “The Idea of a Living Constitution” (2003) XVI Can. J. L. & Juris. 55 CrossRefGoogle Scholar; Sager, Laurence, “The Incorrigible Constitution” (1990) 65 N. Y. U. L. Rev. 893 Google Scholar; and Rehnquist, William, “The Notion of a Living Constitution” (1976) 54 Texas L. Rev. 693.Google Scholar

34. Edwards, supra note 32 at 136.

35. I say ‘hypothetical’ because Hart’s argument in no way rests on the historical claim that pre-legal societies ever did exist. Pre-legal society serves as an analytical device, not an historical reality.

36. One of the most thoughtful and illuminating discussions of this element of Hart’s thinking is found in Waldron’s “All We Like Sheep” (1999) XII Can. J. L. & Juris. 169.Google Scholar

37. Consider scenarios involving the use of rapidly changing technologies like the Internet. Or scenarios in which significant, individuating factors are likely to be present in most every case arising under a rule, e.g., situations involving the use of force in warding off perceived threats to person and property.

38. By ‘legislators’ I mean anyone charged with the responsibility of creating or developing a legal norm. This can include members of legislative assemblies, administrative bodies, or a court called upon to decide a case whose precedent-setting ratio decidendi might function as a legal norm.

39. The most developed and insightful analysis of this feature of general rules is Fred Schauer’s Playing by the Rules (Oxford: Clarendon Press, 1991).Google ScholarPubMed

40. This issue, and what it entails for our understanding of the nature of law, is one which has held centre stage in contemporary disputes among Inclusive and Exclusive Positivists.

41. Schauer, supra note 39 at 174. According to Schauer, all we need for a legal system to exist are “jurisdictional rules,” which empower authoritative decision-making by individuals who may or may not be bound (completely or to some degree) to decide according to pre-established legal rules. Weber’s “qadi legal system” is a conceptual possibility. Cf. Raz’s related suggestion that only norm-applying institutions are necessary for law.

42. The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 130–31.Google ScholarPubMed

43. See “ On Hart’s Way Out” (1998) 4 Legal Theory 46 Google Scholar and “Law, Morality, and the Guidance of Conduct” (2000) 6 Legal Theory 127.CrossRefGoogle Scholar

44. Riggs v. Palmer 115 N.Y. 506, 22 N.E. 188 (1889).

45. Again, think of Riggs, as well as the vast array of legal norms which make use of terms like “reasonable,” “fair” and so on.

46. A wide spread change in the understanding of a moral value can be described as a change in social circumstances. By the latter phrase I mean to exclude that kind of change. I have in mind factors like technological development, changes in the basic structure of the work place or the family unit, and so on.

47. Many Canadian courts have held that the opposite-sex requirement for civil marriage violates the equality guarantee enshrined in s. 15(1) of the Charter. As a result, same-sex marriages have generally come to be viewed as legal and have been regularly taking place in British Columbia, Ontario, Quebec the Yukon, Manitoba, Nova Scotia and Saskatchewan. See EGALE Canada Inc. v. Canada (Attorney General), (2003), 225 D.L.R. (4th) 472, 2003 BCCA 251; Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161 (C.A.); and Hendricks v. Q u é b e c (Procureur général), [2002] R.J.Q. 2506 (Sup. Ct.); Dunbar v. Yukon, [2004] Y.J. No. 61 (QL), 2004 YKSC 54, Vogel v. Canada (Attorney General), [2004] M.J. No. 418 (QL) (Q.B.), Boutilier v. Nova Scotia (Attorney General), [2004] N.S.J. No. 357 (QL) (S.C.), and N.W. v. Canada (Attorney General), [2004] S.J. No. 669 (QL), 2004 SKQB 434. In each of those instances, the Attorney General of Canada conceded that the common law definition of marriage was inconsistent with s. 15(1) of the Charter and was not justifiable under s. 1, and publicly adopted the position that the opposite-sex requirement for marriage was unconstitutional. In its recent Reference re Same-Sex Marriage, the Supreme Court of Canada declined to rule on the constitutionality of the opposite-sex requirement, ruling that the burden of establishing the requirements of marriage in Canada lies, at present, on the shoulders of Parliament—subject, of course, to Charter review should a test case later be brought to the Court for decision. See Reference re Same-Sex Marriage (2004) SCC 79.

48. And because of this they also threaten the ideals of democracy by artificially constraining “the people now” by entrenching decisions taken by “the people then.”

49. Law and Disagreement, supra note 2 at 221.

50. Schauer, supra note 39 at 179.

51. The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 135.Google Scholar

52. See Simpson, A.W.B., “The Common Law and Legal Theory” in Simpson, A.W.B., ed., Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon Press, 1973) at 77.Google Scholar Simpson’s major criticism is that it is wrong to view the common law as comprised of highly adaptable rules, a view to which, he thinks, Hart is led owing to his commitment to positivist legal theory and “the model of rules.”

53. Many who decry the history of recent Canadian Supreme Court’s decisions assert that the Courts have employed the Charter to rationalize what is, in reality, a naked “discretionary power grab.” This sort of complaint is often accompanied by appeal to many of the objections canvassed in Section II above: e.g., the threat of moral nihilism and the dangers inherent in rule by judicial elites putting themselves forward as Philosopher Kings. Dworkin’s theory of constitutional law has met with many similar objections, e.g., that his “moral reading” grants judges unbridled power to decide constitutional decisions according to their own moral lights, a power perhaps safe in the hands of Hercules, but dangerous in the hands of his lesser acolytes. Yet these criticisms either ignore or seriously underplay the dimension of “fit” in Dworkin’s account. See, for example, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985)Google Scholar where Dworkin writes: “… constitutional interpretation is disciplined, under the moral reading, by the requirement of constitutional integrity …. Judges may not read their own convictions into the Constitution. They may not read the abstract moral clauses as ex Pressing any particular moral judgment, no matter how much that judgment appeals to them, unless they find it consistent in principle with the structural design of the Constitution as a whole, and also with the dominant line of past constitutional interpretation by other judges”(10). They must seek an interpretation which “fits the broad story of America’s historical record …. Our constitution is law, and like all law it is anchored in history, practice and integrity”(11). Similar points apply if we conceive of Charters as embodying a common law jurisprudence of rights.

54. I have neither the space (nor the legal competence) to argue this point, but it would appear as though Charter adjudication in the United States and Canada are, in fact, modeled on the common law. As Schauer notes in a review essay, “I sneak in a constitutional example only to remind the reader that American constitutional adjudication in the Supreme Court seems a central case of common law methodology.” Schauer, F., “Is the Common Law Law?” (1989) 77 Cal. L. Rev. at 455 CrossRefGoogle Scholar (a review of Eisenberg, Melvin, The Nature of the Common Law (Cambridge, MA: Harvard University Press, 1988)).Google Scholar

55. This is not to say, of course, that there are not other options as well. Dworkin’s constitutional theory, which might well be a variation of the common law conception, is yet another possibility.

56. Law and Disagreement, supra note 2 at 221.

57. Ibid.

58. Many positivists, particularly Jules Coleman, have spent considerable time and effort attempting to determine how much disagreement is compatible with the existence of conventional rules or understandings. But wherever the limit is set, it’s pretty clear that a disagreement “which goes all the way down” goes well beyond it. See Coleman’s The Practice of Principle (Oxford: Oxford University Press, 2001)Google Scholar at esp. Lectures 7 and 8.

59. I attempt to develop a conception of the “community’s constitutional morality” which can serve as the source of the norms invoked by a Charter in “From Pre-Legal Society to Constitutional Morality”, presented at the IVR conference in August, 2003 in Lund, Sweden. Draft copy available from the author.

60. For instance, some in Canada believe that the “right to property” should have been included in the Canadian Charter of Rights and Freedoms (as it now is in the Chinese constitution). Few, if any, believe, that the Charter is, for this reason, illegitimate.

61. On this see Joseph Raz, “On the Authority and Interpretation of Constitutions” in Constitutionalism: Philosophical Foundations, supra note 29 especially at 171-74. As Raz observes, “Constitutions, at least old ones, do not derive their authority from the authority of their authors. But there is no need to worry as to the source of their authority. They are self-validating. They are valid just because they are there, enshrined in the practices of their countries…. A most important qualification should be added …As long as they remain within the boundaries set by moral principles.…“(173). Raz adds a further important qualification: that this conclusion follows only “if morality underdetermines the principles concerning the form of government and the content of individual rights enshrined in constitutions.” This “underdetermination thesis” is one to which both Raz and I subscribe and with which even a natural lawyer like Aquinas would, I suspect, be in agreement. Recall his theory of “determination of common notions.” Summa Theologica, Question XCV (Human Law), 2nd Article (Whether Every Human Law is Derived from the Natural Law).

62. Even the House of Lords, in its infamous “Practice Statement” formally rejected the practice of considering itself absolutely bound by its previous decisions.

63. Strauss, David A., “Common Law Constitutional Interpretation” (1996) 63 U. Chi. L. Rev. 877 at 896-97. Note the appeal to humility in the face of limited knowledge implicit in Strauss’s characterization, a humility which is part and parcel of the living tree, common law theory of Charters for which this paper argues.CrossRefGoogle Scholar

64. Law and Disagreement, supra note 2 at 221.

65. Ibid. at 290.

66. Paraphrasing the Charter of Rights and Freedom at sec. 7.

67. For example, we will be inclined to reject various forms of interpretive strategy, such as orig-inalism, which presuppose fixed pre-commitments.

68. Of course the symbolism can prove hollow if the political, legal and social cultures of the society in question fail to reflect the norms formally ex Pressed in their Charter. And there is nothing to rule out the possibility of a society without a Charter possessing a strong culture of respecting the rights typically included in written Charters. The former Soviet Union is often cited as an example of the former, the UK an example of the latter. The only claim I make here, is that within the context of a culture of rights recognition, the powerful symbolism of a Charter can enhance that practice.

69. And even if judicial review is chosen, there is, once again, no reason why it has to be a form which provides the judiciary with final say on all questions raised by the Charter of Rights and Freedoms Law. Canada’s section 33 “notwithstanding” or override clause, for example, allows Parliament sometimes to substitute its own judgment for that of the Courts.

70. This realism also underpins his critique of a range of other authors, including Dworkin, Freeman, and those who champion the ideals of “deliberative democracy” and “consensus politics.”

71. Law and Disagreement, supra note 2 at 30.

72. Ibid. at 32.

73. Christiano, supra note 28 at 520. Advocates, such as Freeman and Dworkin, presumably have reasonable arguments to the effect that simple majoritarianism is inconsistent with democracy. Waldron of course disagrees, but surely he is not willing to say that the views of Freeman and Dworkin are “unreasonable.” At this stage it is worth remembering Waldron’s claim, supra note 20 that “We seem, then, to be in a bind. It looks as though it is disagreement all the way down, so far as constitutional choice is concerned …. [W]e cannot use a results-driven test, because we disagree about which results would count in favour of and which against a given decision-procedure.… [W]e cannot appeal to any procedural criterion either, since procedural questions are at the very nub of the disagreements we are talking about.”

74. I say re-evaluate since, as Waldron notes, there is nothing in the nature of majoritarian, legislative processes which suggests that legislators do not themselves often evaluate their proposed legislative measures to ensure that they do not violate constitutionally entrenched moral rights. Notice further that there is nothing in the thoughts being developed here which presupposes the self-image of a Hobbsean predator. There is nothing amiss in the idea of morally responsible holders of rights recognizing their own burdens of judgment, and welcoming the possibility of assigning the power to review their decisions to a body of persons less encumbered by those particular burdens. There is nothing at all unflattering, or contrary to the legacy of human rights theory, in this alternative picture.

75. But again, one should be careful not to push this point too far, as evidenced by the decision in Bush v. Gore.

76. Christiano, supra note 28 at 520-21.

77. Ibid. at 521.

78. Dworkin, Freedom’s Law, supra note 8 at 17.

79. There might also be a parallel between Waldron’s position and the claim that if there is no moral truth, then we ought to allow each individual to decide questions of personal morality according to his own moral lights. Under such conditions, it is sometimes said, no one has the moral right to impose his own views on anyone else. Of course, if there is no moral truth, then there is no sound moral basis for this latter claim. Likewise, if we cannot agree on issues of political morality, then presumably one of the issues upon which we cannot agree is the question whether we should, as a matter of sound political morality, allow the people affected by public decisions to decide for themselves. If we cannot agree on issues of political morality, then presumably there is no sound basis for this particular moral claim either.

80. See Law and Disagreement, supra note 2 at ch. 6.

81. Dworkin, Freedom’s Law, supra note 8 at 34.

82. In Canada many House members are now facing this kind of dilemma on the issue of same-sex marriages.

83. Ditto.

84. A glaring example of this situation is legislation governing the rights of inmates to vote in elections. Courts and legislators who affirm such democratic rights for prisoners are often pilloried in the Press and in public discourse.

85. For example, these factors are relevant in determining which groups, including those whose voice may have been overwhelmed or marginalized in public discourse and legislative debates, are to be granted intervener status in Charter cases. This raises yet another respect in which the deci-sional contexts of judge and legislator are often relevantly different: for a variety of reasons, minority voices are often unheard or ignored in legislative contexts. Courts are often the best, indeed only, institutional forum in which those voices can successfully be heard and the ex Pressed interests considered and given due measure.

86. The phrase was first introduced by Raz. See, e.g., “Authority, Law and Morality” (1985) 68 The Monist at 295.CrossRefGoogle Scholar

87. Of relevance here is the fact that legislatures, for similar reasons, frequently create and empower (the unelected) members of administrative bodies to enact, interpret and apply specific rules on their behalf. One can easily conceive judges as serving an analogous role. Indeed, this is the role theorists often have in mind when they refer to judicial discretion as representing a kind of delegated, “quasi-legislative” power.

88. Dworkin, A Matter of Principle, supra note 8 at 30. Emphasis added.

89. Dworkin, Freedom’s Law, supra note 8 at 30-31.

90. Ibid. at 31. Much of the argument would turn on complex empirical questions which are well beyond the scope of this paper.

91. The idea of partnership is worth stressing when considering the role of judges in constitutionally limited democracies. Far too often judges who strike down or otherwise change legislation on moral grounds specified in a Charter are criticized for claiming superior authority over legislatures. But this need not be so. The role of legislating general rules (whose moral consequences are sometimes unforeseeable) is fully compatible with the role (served by another body) of deciding what must be done in unforeseeable cases of potential conflict with the norms of constitutional morality. Seen in this light, judges and legislators are not—at least not always—in competition with each other over who has the better moral vision. On the contrary, they can each contribute, in their own unique ways, and from their own unique perspectives and contexts of decision, to the achievement of a morally sensitive and enlightened rule of law.