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Conference Report–Symposium on “Politics and the Constitution”, University of Ottawa Faculty of Law

Anthony Robert Sangiuliano (JD, MA, BA), Student-at-Law, Ministry of the Attorney General for Ontario, Constitutional Law Branch

On 10 July 2015, the Public Law Group of the University of Ottawa Faculty of Law and the Younger Comparativists Committee of the American Society of Comparative Law jointly sponsored a Symposium on “Politics and the Constitution” at the University of Ottawa. The Symposium was co-convened by Vanessa MacDonnell and Michael Pal (Ottawa) and Richard Albert (Boston College and Chair of the Younger Comparativists Committee). The aim of the Symposium was to feature presentations of six draft papers written by emerging scholars who conduct research at the intersection of political studies and constitutional law. As the former Executive Editor of the Osgoode Hall Law Journal, and as an aspiring constitutional law scholar, I was fortunate to be invited by MacDonnell and Albert to participate in the Symposium. I am pleased to report that the Symposium’s interdisciplinary and state-of-the-art mandate produced a rich and engaging atmosphere of trail-blazing legal and social scientific scholarship.

Ran Hirschl delivered the keynote address for the Symposium midway through. In his 2014 monograph Comparative Matters: The Renaissance of Comparative Constitutional Law, he has explained the need for constitutional studies to extend beyond the disciplinary boundary of doctrinal analysis and into the realm of political science. (Click here for a synopsis of the book that I wrote for Osgoode Hall Law Journal). In his keynote, Hirschl expanded on his written reflections on the methodological foundations of comparative constitutional law. His contention was that the method of constitutional law scholarship that one traditionally finds in law faculties focuses on analyzing the jurisprudence interpreting the rights provisions of constitutions in different countries. Yet, for Hirschl, this approach can threaten to blind legal scholars to how constitutions, constitutional court judges, and constitutional jurisprudence interact with the broader context in which these phenomena are situated. Because it seldom inquires into such interaction, the traditional approach can overlook how political actors engage the constitution as part of the dynamics of democratic life (for example, in order to negotiate federalism or advance policy) and how constitutional law both shapes and reflects the social and cultural values of a polity. At the Symposium, Hirschl suggested that the remedy for this state of affairs is for constitutional law scholarship to draw upon the insights of neighbouring disciplines, particularly political science. By doing so, scholars can expand their analytical toolboxes to incorporate statistical analysis, case-selection principles, and causal prediction into their research to answer questions about law and politics that traditional comparative research often neglects to ask. The research of the participants at the Symposium ably took up challenge of engaging politics studies that Hirschl has effectively set down—a point that Hirschl himself noted during his keynote.

MacDonnell began the first session by presenting her paper, “The New Parliamentary Sovereignty”. She argued that a Dicyean conception of unlimited parliamentary sovereignty is not applicable to the Canadian socio-political context. The existence of the Canadian Charter of Rights and Freedoms entails that constitutional rights create a framework and define the parameters within which legislatures exercise sovereign decision-making power. However, it also entails that the idea of parliamentary sovereignty retains some explanatory relevance in contemporary Canadian political culture. If legislatures exercise sovereign power in accordance with rights, the judiciary is more likely to defer to legislative initiatives. The intensity of judicial review decreases as parliamentary responsiveness to rights increases. The picture of Canadian political culture that this new version of parliamentary sovereignty depicts is one where courts and legislatures act as partners in the project of democratic governance against the background of constitutional rights. In her commentary on the paper, Ann Chaplin (Department of Justice, Canada) asked whether this picture depicts less of a partnership between courts and legislatures and more of a relationship of unequal power. If, in order to earn sovereignty, legislatures must earn courts’ respect and deference by governing in accordance with rights, one might conclude that parties are not equals, but, rather, that legislatures are subordinate to courts.

In the second session, Albert presented “Temporal Limitations in Constitutional Amendment, a paper on the concept of time in constitutional amendment rules. For Albert, formal amendment rules can prioritize different kinds of values by fragmenting amending power across time. He was concerned only with one type of temporal amendment rules, namely, deliberation requirements. These impose minimum or maximum periods of time after or before which amendment proposals must be ratified in order to take effect. He claimed that the decision whether to include these requirements in constitutional design may force polities to ratify amendment proposals on an intra-generational basis, within a short period of time, or permit ratifications to be made on an inter-generational basis, after a long period of time. Intra-generational deliberation requirements may promote representativeness in the adoption of constitutional amendments by ensuring contemporaneity between an amendment and the deliberating polity that is attempting to reach a constitutional consensus. But they may permit amendments to be made in the heat of irrational deliberation conditions, such as emergencies. Inter-generational requirements may allow a constitutional consensus to gestate over time so as to better reflect the considered judgements of the constitutional community. But they may allow for the subsequent ratification of long-forgotten proposals in a way that undermines an amendment’s representativeness. In his commentary, Warren Newman (Department of Justice, Canada) suggested that we also must consider how a power to revoke an amendment proposal or ratification would interact with temporal limitations on amendments or constitute a new form of temporal limitation. Questions also arose as to the role of socio-political context in the decision of whether to adopt temporal limitations in amendment rules, and in particular whether it is possible to make a recommendation as to whether to adopt such rules in the abstract and without considering their context.

Kate Glover presented “The Supreme Court in Canada’s Constitutional Order” in the third session. Her paper challenged the dominant narrative about the Supreme Court of Canada’s roles and features. According to that narrative, the Court has assumed a constitutionally necessary status, unifying Canada’s bijural common law and civil law legal systems as the apex court and final arbiter of all legal disputes in Canada, particularly constitutional disputes. Glover argued that the Court’s bijural self-understanding ignores other legal traditions in Canada, such as the indigenous legal tradition. Moreover, the view of the Court as an apex entity ignores the Court’s interaction with and often-deferential attitude towards other entities, such as legislatures, lower courts, and administrative tribunals. And the view of the Court as a resolver of constitutional disputes ignores the Court’s agonistic role of leaving some such disputes in tension and open to resolution by other actors. For Glover, by exposing the gaps in the Court’s dominant narrative, we can reimagine the Court’s roles and features. To see the Court’s agonistic dimension allows us to theorize how extrajudicial actors engage constitutional disputes. To abandon the exclusively bijural view of the Court provides a means to advocate for indigenous representation among the Justices. And to see that the Court is not the final arbiter of all legal disputes can raise awareness of the problem of access to justice through the judicial system. Mathen gave the commentary for the paper. She reminded the participants to reflect on how in recent self-portraits the Supreme Court has commented on the inevitability of its rise to the apex of the Canadian legal system and what implications this sense of inevitability might have for the Court’s dominant narrative. She also asked how the process of referring constitutional questions to the Court in Canada might affect the narrative. Others queried the underlying political motivation for the Court’s description of itself as constitutionally necessary, suggesting that this motivation has to do with political self-preservation in response to a Conservative government that has been willing to act confrontationally with the Court in the past.

After Hirchl’s keynote, Pal presented “The Emerging Right to Impartial Election Administration.” He distinguished between two models of electoral management bodies (EMBs), that is, entities that administer democratic elections: EMBs that are created by statute without constitutionally-entrenched independence and impartiality, as they are in Canada, and EMBs whose independence and impartiality are guaranteed in a nation’s constitution as a kind of “fourth branch” of government, as they are in Mexico, Costa Rica, India, and South Africa. He argued that the fourth branch model is preferable, principally because of the ever-present danger of partisan political manipulation of election rules under the statutory model of EMBs. But for Pal there are other dangers associated with the fourth branch model. For example, one question requiring attention is how much detail to include in the constitutional guarantees of EMBs independence and the election rules the EMBs administer. If too little detail is included, and left to filled out by ordinary legislation, the balance of the structure created to buttress citizens’ voting rights is subject to partisan interference. Nevertheless, Pal maintained that with an adequate amount of detail coupled with a strong judicial presence to ensure EMBs’ independence, the fourth branch model offers a viable alternative to the statutory model. In his commentary, Mark Walters (Queen’s) probed the theoretical underpinnings of the fourth branch model using a series of questions: Would the essentially managerial role of EMBs be sufficient to qualify them as a bona fide new branch of government on par with the other, more established branches? For that matter, what makes for a branch of government? Walters suggested that we should avoid a superficial approach and decide whether to characterize a branch in terms of its function or its prima facie separation from other branches. A separate cluster of questions concerned the specific need for a fourth branch of government. Walters suggested that if there were a sufficiently strong democratic culture in place in a polity, we might be entitled to assume that politicians would not manipulate election rules and EMBs, rendering the constitutional entrenchment of EMBs irrelevant. A positive constitutional obligation on other branches of government to assist EMBs and maintain their integrity might support the same conclusion.

In the fifth session, Cristina Fasone (EUI) presented “Political Constitutionalism and the Downside Effect of Obstructionism on Legislatures.” Fasone argued that the theory of political constitutionalism cannot account for legislatures’ inability to perform their constitutional functions due to obstructionist tactics. Political constitutionalism is the theory that courts are less effective and legitimate than legislatures in protecting democratic principles and that constitutional engagement by legislators tends to promote public democratic debate more effectively than does judicial review. But Fasone emphasized that legislatures have constitutional functions other than acting as forums for democratic debate—they must pass laws, adopt a budget, and scrutinize and confirm executive decisions. The problem is that, although minority factions within the legislature have rights to question majority decisions, set up committees of inquiry, and have time reserved to debate their priorities, they can be placed in a position to obstruct the legislature’s overall decision-making capacities. They can adopt obstructionist tactics to disrupt the legislative functioning, such as filibustering or unconstrained use of constitutional amendment powers. Fasone urged that the recourse for those concerned by legislative obstructionism is to design procedural rules that restrict obstructionist tactics through binding legal rules enforceable by courts. The ensuing discussion of Fasone’s paper, led by commentator Peter Carver (Alberta and Board Chair of the Review of Constitutional Studies), featured a debate about the merits of political obstructionism in Canada given the degree of obstructionism present in Canadian legislatures. Carver made the point that obstructionism is relatively rare in Canada, while others questioned whether the concept of political obstructionism is in fact normatively undesirable. A different aspect of the discussion focused on the potential worry that if binding legal rules enforceable by courts are enacted to restrict obstructionist tactics, the ability to resort to the courts to enforce these rules would itself turn into simply a new form of obstruction that would further cripple legislatures’ ability to perform their constitutional functions.

In the sixth and final session, Timothy Kuhner presented his paper, “Plutocracy, Constitutionalism, and Mixed Systems: The Ideological Underpinnings of Comparative Political Finance.” Kuhner’s presentation began with a detailed, social scientific investigation of the mechanics of campaign financing in the American democratic system. He traced the historical, social, and economic origins of the current plutocratic state of that system, whereby those citizens with greater wealth are given a greater ability to influence the democratic process through campaign financing. Kuhner pointed out that this plutocratic state is deeply problematic in the United States, given the high degree of economic inequality in that country. He then argued that the Supreme Court of the United States has played a crucial role in shaping and advancing the ideology behind the political and social movement towards plutocracy. The Supreme Court, according to Kuhner, has, in its decisions on election financing and freedom of speech restrictions, essentially channelled the free-market efficiency, neo-liberal thought of Milton Friedman as the underlying ideology of plutocracy. The American approach contrasts with approaches adopted in Canada, the European Union, and Germany, which emphasize an egalitarian model of election campaign financing that favours greater restrictions on financing by the wealthy and avoids the Milton-esque plutocratic ideology. Kuhner stated that his broader project was to analyze this comparative egalitarian approach to campaign financing to develop an alternative to contend with the American plutocratic approach. The discussion on the paper by the participants brought back to the fore the methodological issues of comparative constitutional law mentioned by Hirschl in his keynote. The commentator, Adam Dodek (Ottawa), noted that Kuhner’s combination of historiographical, economical, and political research into the pathologies of campaign financing in the United States was just the sort of interdisciplinary methodology urged by Hirschl. Both Dodek and others suggested that to engage in this kind of interdisciplinary inquiry, it is crucial to first fix a purpose for such inquiry and determine which disciplinary tools to rely upon in order to best achieve that purpose.

Revised versions of the papers presented at the Symposium “Politics and the Constitution” will be published in a forthcoming issue of the Review of Constitutional Studies.

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Published on July 20, 2015
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