Introduction
In informal conversations about Canada’s Charter of Rights and Freedoms, the word “mess” is liable to come up. Its critics might point to the despotic way Prime Minister Trudeau oversaw and forced through its drafting and passage, the somewhat chaotic process of revising its text, or the presence of the notwithstanding clause, which some commentators think is at odds with the rest of the document. Conservatives sometimes look back wistfully to when Canada supposedly had Parliamentary sovereignty, and the Supreme Court’s decisions could be overturned by the Judicial Committee of the Privy Council.[1]
This essay will take a different approach. It will propose that, like the American Constitution, the Treaty of Rome, and even the B.N.A. Act, the Charter should be interpreted through its preamble, which is a sort of commentary on the preamble to the B.N.A. Act. The 1867 preamble referred to Canada’s constitution being “similar” (but not identical) “in principles” to that of the United Kingdom. That constitution is based on the principles of the supremacy of Parliament and the rule of law. The 1982 preamble explains that Canada’s “similar…principles” are the supremacy of God and the rule of law. This language gives us a clue that the constitution it envisions most closely resembles the medieval English constitution, where checks and balances abounded and no government body (including Parliament) had final sovereignty. Under this system, unjust or unwise laws emanating from either the legislature or the courts have every opportunity of being overturned by another branch (which we will see to be the philosophical and constitutional meaning of “the rule of law”).
Following Joseph de Maistre’s philosophy of constitutional development, this paper will argue that the Charter represents a kind of Hegelian synthesis between British Parliamentary sovereignty and American judicial sovereignty and, in theory, avoids falling into either kind of absolutism.[2] The notwithstanding clause plays a large part in this. Recognizing that the constitutional reality in Canada does not conform to this model, it will conclude by advocating for an increased willingness to invoke section 33, but also for a convention to develop in which it is used primarily to defend personal and communal religious and cultural rights.
Part One: The Preamble to the Charter
THE RULE OF LAW
- The Nature of the Rule of Law
Perhaps surprisingly, to understand the rule of law, we need to understand how an individual person is “constituted” (to use an intentionally evocative word) by looking at a medieval philosophical debate between the Dominicans and Franciscans.
The Franciscans held that will controls the reason, while Dominicans like St. Thomas Aquinas maintained that reason precedes will. This is explained in explicitly political terms: reason rules (or should rule) over a person’s passions, desires, and appetites, and governs their choices and actions.[3] If a person lets passion and desire determine their actions rather than reason, they are acting irrationally, and an insurrection against the reigning intellect has occurred.[4] This is especially true in morality. Behaviour should be in accordance with conscience, which is not a strong moral feeling but the reason applying moral principles to human actions (hence con-science, “with knowledge”).[5]
Thus, we have Aquinas’ teaching on natural law morality. Natural law is often misunderstood and caricatured, but all it ultimately means is that morality is based on objective principles rooted in human nature which can be ascertained by reason. Although these principles are universal, the practical reason must apply them in specific concrete situations and is capable of making mistakes, just as the principles of mathematics are universal, objective, and accessible to reason, yet one can still make a mistake in applying them when trying to solve a math problem. The point of natural law theory is that to be moral is to be rational. To be reasonable is to be just.[6]
With this as background, consider Aquinas’ definition of positive law: “An ordinance of reason for the common good made by him who has care of the community and promulgated.”[7] In order to be a law, properly speaking, it must be made by the government (“him who has care of the community”), must be publicly known (“promulgated”), and be a rational ordinance with the good of the community as its goal. What this means is that, if a statute does not conform to reason–that is, to the natural law–it is, by definition, not a law. It is not binding on citizens. The shorthand for this is to say that “an unjust law is not a law”.
To put it another way: A society in which a government, or the majority of the population, can make whatever statutes they please is a society driven by will (that is, by the desire or appetite of the rulers) rather than reason. We often call this “arbitrary” or “dictatorial” rule. A society governed by laws is a society where the government cannot do whatever it pleases but must follow rules, and, for some, that is all that “the rule of law” means. Yet, in his posthumously published text on the rule of law, Lord Bingham argued that certain additional criteria, such as justice and respect for human rights, needed to be in place for the rule of law to be present in a society. If these are missing, the rule of law is absent, regardless of how scrupulously official statutes are observed. His idea of the rule of law is effectively a restatement of Aquinas.[8]
This “thick” or “substantive” approach to the rule of law, which was also held by the great English legal commentator William Blackstone,[9] is not necessarily a religious belief. Hugo Grotius, whose theorizing about natural law helped develop international law, is credited with saying that natural law is binding “even if God does not exist” (etsi Deus non daretur). Nevertheless, both Aquinas and Blackstone saw natural law as being the law of God, and tied its authority over positive law to God’s authority over humanity. For them, the rule of law is inseparable from the supremacy of God.[10] Subsequently, natural law theory lends itself to placing a high value on the contribution of religion to society, particularly in the way it criticizes–and thus serves as a correction to–unjust legislation.[11]
Natural law theory is rejected by legal positivists, who favour a “thin” or “proceduralist” account.[12] Despite his devout personal Catholicism, the late Justice Antonin Scalia of the U.S. Supreme Court also subscribed to this approach,[13] and was willing to argue to a group of Dominican priests that St. Thomas Aquinas had erred in saying an unjust law was not a true law.[14] For these thinkers, Aquinas’ definition should be trimmed down to simply “an ordinance of him who has care of the community and promulgated.” It need not be rational or just to be a law.
Legal positivism is a formidable school of thought and we cannot expect to answer it thoroughly here. However, three points should be noted.
One is the problem of whether the concept of the rule of law is even tenable without natural law. The goal of the rule of law, as famously expressed by John Adams (paraphrasing Harrington), is “a government of laws and not of men.”[15] But if laws are merely human creations, would not all law-based societies be “governments of men”? Law can only transcend “men” if it is based in something transcendent.[16]
Secondly, the crimes of the Nazi regime and the justice of the Nuremberg trials rightly haunt any discussion of this topic. A familiar principle of justice states that a person cannot be held legally liable for breaking a law which was not in effect when they did the deed; nullum crimen et nulla poena sine lege. Yet, in Nuremberg, Nazi officials were tried for violating laws that were only drafted by foreign powers after the war was over. There was a serious question of how the defendants could justly be found guilty when they were “just following orders” and obeying German law as it stood when they undertook the offending actions. Different justifications have been proposed, but few of them are comforting or satisfying,[17] least of all Justice Scalia’s suggestion that the trials were justified because the Allies won the war–effectively an endorsement of might-makes-right.[18] If legal positivism is true, however desirable the Nuremberg trials were, it is hard not to see them as fundamentally unjust.
In the documentary The Accountant of Auschwitz (1:02:48-1:03:04), Alan Dershowitz gives what seems like the most honest justification of the Nuremberg trials in commenting on the legal culpability of Oskar Gröning:
“He was following orders, but he had to know at some level of consciousness that it can’t be legal to murder infants, babies, the elderly, to murder people who are his age now. He had to know that that was not only wrong, but, in some ultimate sense, illegal.”[19] (emphasis added)
“In some ultimate sense illegal” is another way of saying a positive law that violates natural (“ultimate”) law is not a true law. The Nuremberg trials were justified because natural law was binding on German people when the Nazi atrocities were occurring.[20]
Finally, whatever the merits of legal positivism may be, the fact is that Canada was not founded on principles recognizing a “thin” idea of the rule of law. French Canadians were steeped in manualist neo-Thomism and natural law theory, and English Canadian legal theory was steeped in Blackstone and his natural law philosophy.[21] The “rule of law”, for the early Canadians, would have been interpreted in the light of “the supremacy of God”.
In order not to make a lie out of the Charter’s preamble, we will interpret the Canadian constitution using natural law assumptions, since those are the ones which are implicitly but authoritatively invoked. Any “law” not rational and ordered towards the common good does not “rule”. This applies to judicially-created law just as much as it does to legislative statute.
THE SUPREMACY OF GOD
Aquinas’ definition of law requires that, along with being an ordinance of reason for the common good, it must be promulgated by “him who has care of the community”. This leads directly into how the government issues and implements positive laws, that is, into constitutionalism. A nation’s constitution is the rule of law behind its rule of law.
Going back to Aristotle, the word “constitution” has had at least two meanings. One is its neutral connotation as a description of a state’s civic arrangements (which we will call “descriptive constitutionalism”). The other is its positive connotation as a requirement for a just society (“prescriptive constitutionalism”). The expression “the supremacy of God” takes on a different connotation depending on what kind of constitutionalism we are talking about.
- Descriptive Constitutionalism
In one sense, a constitution is simply the governmental arrangement, delineating which officials are in charge of what sorts of legislation and how they go about passing it. Aristotle defined this sort of constitution (politeia) as being “the ordering of a state in respect of its various magistracies, and especially the magistracy that is supreme over all matters.”[22] As Aristotle goes on to note, even oligarchical and tyrannical systems are constitutions, by this metric.
Importantly, a constitution is a system, not a text. It precedes any sort of document called a “Constitution”.[23] We must pause over this key point to understand the thought of the important counter-revolutionary thinker, Count Joseph de Maistre (1753-1821). Maistre was in many ways the father of 19th century ultramontanism, the “throne-and-altar” Catholic traditionalist conservatism which held that the Church should govern society. His constitutional ideas are important, not only for their own merits, but because of how influential they were on the French Canadians milieu at the time of Confederation. There is even an allusion to his thought in the national anthem: “Amour sacré du trône et de l’autel…”[24] We must understand him to understand an important founding idea of our country.
Maistre wrote his 1809 Essay on the Generative Principle of Political Constitutions in response to the revolutionary political movements in France and the United States which set out to effectively build new constitutions from scratch. Maistre thought it was a gross mistake to think that humans create constitutions. He rejected the social contract thought of Rousseau and Locke, arguing that human agreement can never create a binding law but could only make a compact that lasts only as long as that agreement exists.[25] “Law is not properly law,” Maistre argues, “unless it emanates from a superior will.” [26]
Instead, constitutions are generated by circumstances beyond human control. They arise out of the history of communities which no person could predict or plan. As an example, Maistre offers the English constitution with its triple balance of powers. No one sat down and planned it out. It organically developed out of the confluence of different elements of English history.[27] It was recognized after the fact, not designed in advance.
There seems to be something to Maistre’s argument. Behind the Magna Carta was precedent, in both English legal-political history and in popular folklore, for seeing the monarch as subject to law.[28] We also cannot understand the Magna Carta apart from the widespread backlash against the murder of St. Thomas Becket, a hero of the Church’s liberties which are recognized in the Magna Carta’s first article.[29] All of this suggests that the Magna Carta was defending rights that were already recognized, not creating new ones. Conversely, most written constitutions have a lifespan of about 17 years. This is true even of constitutions which are considered models of institutional design and citizen participation, such as Thailand’s 1997 constitution, which was already being replaced in 2006.[30] Maistre seems to be correct in saying that a mixture of factors–including the religious beliefs of the citizenry[31]–are the matrix of a country’s constitution.
In explaining constitutions, Maistre draws an analogy to the Catholic Church. The Church is a living organism that already has its entire “constitution” in the form of its Gospel (Maistre stressed that Jesus did not write any legislation for His disciples), but as it goes through history, it develops that teaching for different circumstances and produces dogmatic documents to deal with specific heresies, though these new developments are always implicit in what was already given.[32] Maistre was following St. Vincent of Lerins, who used the image of the Church being a seed that grows and develops,[33] and anticipating Catholic thinkers like John Henry Newman, who also depicted the development of doctrine as a “living tree”.[34] The language from Edwards v Canada (AG) [1929] describing the Canadian constitution (which is carefully distinguished from the document called British North America Act 1867[35]) has this pedigree behind it.
Maistre concludes that, since it is history rather than human ingenuity which creates constitutions, the true author of constitutions is God. This ties into his advocacy of temporal power for the Church, the ultramontanism which was so influential to the French Catholic population who co-founded Canada. But one need not be a theist to understand and sympathize with his basic point that constitutional development issues more from circumstances than from legislative will. This is true of all constitutions, good or bad.[36] “The supremacy of God” could be a Maistrean shorthand for this.
- Prescriptive Constitutionalism
The word “constitution” is also used to specifically describe an arrangement whereby power is separated, usually among Montesqieu’s familiar three branches. John Adams saw this separation as necessary for the rule of law to exist.[37] The usual reason given for why power should be separated is that doing so “prevents tyranny”. But this answer, in itself, is little better than a tautology. We need to look at it a little more closely in the light of what we have established about the meaning of the rule of law.
We have seen that the rule of law means that government’s will is constrained and controlled by reason, meaning that a statute that contradicts moral reason is not a true law. But what does this look like in practice? Even apologists for absolutism like Jean Bodin (The Six Books of the Republic, 1576) and Sir Robert Filmer (Patriarcha, 1680) affirmed that, while the absolute ruler is not bound to human laws, he is still subject to God’s laws. James I and Charles I, whose views of their own authority agreed with Filmer’s, believed they were still accountable to God.[38]
But if there is no legal mechanism for enforcing the ruler’s obedience to natural law, then it is not likely to make any difference in terms of how the commonwealth is governed. The citizenry may not appreciate the difference between a totalitarian who recognizes no higher morality than his own will and a totalitarian who pays lip service to natural law while violating it. Yes, a natural law theorist would say that a citizen is not bound to obey unjust laws and may actually bound to actively disobey them, but John Austin coldly points out that, if you break a law on the grounds that it violates natural law, the Court of Justice can refute your reasoning by hanging you.[39]
A desirable constitution, therefore, would make natural law effective by officially disallowing legislation that contradicts reason and the common good. Such a system we will call “prescriptive constitutionalism”. We can observe certain features about it.[40]
Firstly, natural law is a democratic idea. Morality is not the province of an exclusive priestly or philosopher caste, but is accessible to everyone with a rational nature–in other words, to all human beings.[41] Thus, in prescriptive constitutionalism, the whole people will be involved in passing laws, and the government derives its authority from the people generally.
However, given that the people can have their own wills and passions stirred up into unreason by demagoguery, an ideal government would not a pure democracy but would also contain more “sober” elements insulated from momentary mistakes of the masses. A prescriptive constitution is therefore a “mixed” constitution. And, since any of these branches could err in ruling justly (we have established that the practical reason can make mistakes about the application of justice), other branches would have the power to strike down their laws should they do so. This is roughly what Aquinas advocated for: a “political monarchy” which would contain both unelected and elected powers that would moderate each other and be ultimately accountable to the people, which could revoke its power if it became unjust.[42]
So far, so good. But there is a danger that looms over all constitutions. If one government power can veto another, and another can, in turn, veto it, we will eventually ascend the pyramid of authority until finally we come to an “unmoved mover” which can overturn other laws, but whose laws no one else can overturn. In other words, this branch–whether it consists of elected officials, hereditary aristocrats, or judges–would be effectively supreme over the rest of the government. We could call whichever branch this happens to be the sovereign, or, in John Austin’s language, the “uncommanded commander”.[43]
It is true that the sovereign in such a situation might officially be bound by the text of a constitution, but, if they have a carte blanche to interpret that text without anyone to contradict them, then we are in basically the same situation as Bodin’s absolutist leader who is nominally subject to the laws of God. An absolute leader can find ways to interpret any document in a way favourable to them.[44] The great mathematician Kurt Gödel, as he was fleeing the Nazis in his native Germany into the United States, claimed that he had found a loophole in the American constitution that would allow for a dictatorship.[45] A text which is subject to different interpretations is not, in itself, a protection. Thus, despite some separation of powers, we would be right back to the situation having an absolute ruler. This is such an easy trap to fall into that Filmer saw absolutism as inevitable: “We do but flatter our selves, if we hope ever to be governed without an arbitrary power.”[46]
Dramatic as the language may sound, the sovereign in such an arrangement legislatively has the unchecked power of God. This is what the German jurist and political philosopher Carl Schmitt drew attention to when he observed that all political concepts were secularized versions of theological concepts and that the sovereign (“he who determines the exception”, in Schmitt’s definition) is a kind of secular God. Given that Schmitt was the chief jurist for the Nazi regime, it is easy to see where this thinking leads.[47]
To avoid this absolutism, a mixed constitution should not only contain checks and balances but should be composed in such a way that no branch of government consistently has final, unchecked authority over the others. There should, as much as possible, be no final sovereign. In some constitutions, it is solely the legislature’s job to repeal unjust laws and create better ones; in others, the judiciary also has that power. But neither is infallible, and no criteria exists to determine which one is more likely to rule justly than the other[48] (which will likely vary based on the circumstances anyways[49]). Neither branch, therefore, should be absolutely sovereign over the other.
Jacques Maritain made a similar point to Schmitt, but from the opposite perspective. He criticized the idea of political sovereignty from a theological perspective on the grounds that sovereignty belongs to God alone.[50] Pierre Trudeau studied Maritain and other personalist philosophers,[51] so it is not unreasonable to see Maritain’s influence on the Charter, or to understand yet another dimension of “the supremacy of God” as being that the government should not have a clear, absolute sovereign standing in the place of God, but should spread power as much as possible among its different branches. The will of rulers will thereby be curbed by the rational superstructure of the constitution.
We therefore have a definition of “him who has the care of the community” and of a prescriptive constitution, which, like reason in the individual, curbs, suppresses, or redirects the will and impulses of the state in accordance with natural law. With that in mind, we will consider what this looked like in the Middle Ages.
Part Two: Examples of Constitutions
- Idealtyp: The Medieval English Constitution (Sub Deo et Lege)
It is probably anachronistic to speak of the medieval constitution as a unity, since (as Maistre described) it grew and developed over the centuries. Some of the cases we will cite come from shortly before 1688 and reflect trends that would eventually lead to the modern English constitution. Nevertheless, there are common threads that run throughout it, and we will take those as representative of the overall shape of the English polity of the Middle Ages.
Whether or not Aquinas ever visited England,[52] the medieval English constitution largely fulfilled his ideal of a mixed constitution. This is not an outrageous claim when one reads the early constitutional theorist Sir John Fortescue, whose 1543 treatise Commendation of the Laws of England clearly acknowledges that its political categories from Aquinas.[53] Fortescue calls the constitution a “regal political government” because it combines a monarchy with a recognition that the entire commonwealth must be involved in government:[54] The king “cannot alter the laws, or make new ones, without the express consent of the whole kingdom in Parliament assembled.”[55]
Students of the medieval constitution are sometimes frustrated at how elusive it can be to pin down who exactly was sovereign. Henry de Bracton’s The Laws and Customs of England (c. 1260) is a perfect example of this. In one breath, he can say that “the king has no equal within his realm…nor a fortiori a superior, because he would then be subject to those subjected to him”,[56] and in another can write that “the king has a superior, namely, God…[and] also his curia, namely, the earls and barons, because if he is without bridle, that is, without law, they ought to put the bridle on him…”[57] But this nebulousness is a feature rather than a bug. By leaving it ambiguous who has final authority, the medieval constitution effectively prevented anyone from laying an unqualified claim to it.
What was universally understood was that the king was sub Deo et lege, “under God and the law”. As Bracton put it, “The king must not be under man but under God and under the law, because the law makes the king…there is no rex without a lex.”[58] The maxim sub Deo et lege was picked up three centuries later by the Chief Justice of the Common Pleas, Sir Edward Coke, who officiated over several important cases establishing the limits of government power. Sub Deo et lege’s similarity to the Charter preamble’s recognition of “the supremacy of God and the rule of law” is too strong to ignore. In other words, the medieval constitution shows us what “under God and law” actually means.
All political authority was understood to come from God because it was based in the crown, which was bestowed by God onto the monarch through the Church, which performed the coronation. The anointing that conformed the king to Christ was a quasi-sacramental ritual.[59] At that moment, the king was also mystically united to the whole people, and the body politic became his second body. He now governed in union with his subjects, and, if he lost the support of his subjects, he would effectively lose his crown.[60] The fact that he could not legislate without the representatives of the people in Parliament was an expression of this divinely-ordained requirement.
The crown had, as Montesquieu noted, three powers: Executive, legislative, and judicial. The executive powers were exercised by the king in the form of his individual prerogative powers. The legislative powers were exercised by Parliament acting in the king’s name. The judicial powers were exercised by the king’s courts. Although they all derived from the crown, this did not mean the king, in his person, controlled all of them; quite the opposite.
The king’s courts (the Common Bench and King’s Bench) developed and applied the common law. Common law was consciously intended to be a concrete application of God’s natural laws, as revealed and interpreted through the Christian religion.[61] Because these courts were often a source of justice for the poor in their disputes with the rich, the king was seen as an advocate of the marginalized against the powerful, a status that Hilaire Belloc calls “popular monarchy”.[62] However, the Case of Prohibitions [1607] established that the king himself had no power to create common law, though he was bound by it.
Parliament had the sole authority to legislate; the king could not pass statutes without it. As we have seen, this was recognized by Fortescue as early as 1543[63] and was upheld by Coke in the Case of Proclamations [1610]. However, Fortescue added that Parliament only legislates when the king summons it, which he can do or not do as he sees fit, though his coronation oath binds him to summon Parliament as often as justice requires it.[64] Furthermore, the king had the authority to withhold royal assent from Parliament’s proposed laws if he deemed them unreasonable, a prerogative he was often willing to exercise. In lieu of a Parliament, he could still use his royal prerogative to govern (as Charles I did for the eleven years of Personal Rule). That being said, the king could not raise taxes–or an army–without Parliamentary legislation, and the longer he would go without summoning them or appeasing their requests, the worse off it would be for him.
Although Parliament could create statutory law, the common courts could strike down Parliamentary legislation if they saw it as “against common right and reason, or repugnant, or impossible to be performed”, as established in Dr. Bonham’s Case [1610]. In that sense, the courts were “above” the legislature, because natural law was above positive law.[65]
Although the king could not create common or statutory law, he was bound to obey both, as well as his own charters. If he violated the law, he was to be “bridled”.[66] If the king did something illegal, he could not personally be arrested, but his officials and those close to him could be. One well-known, albeit probably apocryphal, story tells how William Gascoigne, Chief Justice of England, imprisoned and berated Prince Henry V for his debauchery and disrespect, a testimony to how seriously the rule of law was taken.[67]
While the king could not violate common law, the king had prerogative powers which common law could not touch. This was established in the Five Knights Case, or Darnell’s Case [1627], where the court admitted it was powerless to stop Charles I from extra-judicially imprisoning knights who refused to pay forced loans that the king was imposing.[68] Prerogative powers could not be curbed by common law, but they could be limited by Parliamentary legislation.[69] In response to Darnell’s Case, the Parliament submitted a Petition of Right in 1628, and while the king resisted initially, he recognized his need for their support in the Thirty Years War and reluctantly ratified the document.
So, in short: The executive could not legislate without the legislature; the legislature was subordinate to the judiciary; the judiciary was powerless before the executive, but the executive could be limited by the legislature (if it so assented). Who, then, is sovereign? Arguably the king, but only very precariously.
We might be uncomfortable with the power the king was capable of wielding, and the Civil War that broke out two years after the end of Charles’ Personal Rule might indicate that the constitution as it stood was fundamentally flawed. However, the king’s sovereignty was heavily impeded, giving him every incentive to cooperate with Parliament. It was not a perfect system, and probably was not sustainable, but it offers a kind of ideal.[70] Moreover, the king’s independent executive powers served as a check on both the legislature and the judiciary and kept either from becoming sovereign. In the wake of this system, legislative and judicial sovereignty are exactly what developed.
- Thesis: The Modern British Constitution (Parliamentary Sovereignty)
The medieval English constitution was broken when certain kings strained too hard against their bridles and strove for an absolute rule. But the new constitution of 1688 did not correct the problem of royal absolutism by going back to the former system of checks and balances to ensure the rule of law. Instead, it replaced one absolutism with another. The absolute rule of the monarch was replaced with the absolute rule of Parliament.[71]
Nominally, sovereignty resides in the king or queen in Parliament. But, since 1708, the monarch has not withheld royal assent from a bill, regardless of how unjust or irrational that monarch might personally think that it was. The monarch, although supposedly ordained by God to rule, is no check on Parliament.
Nor can the courts be a real check on Parliament. The common law still exists as an independent source of law, but it no longer has the power over legislation that Dr. Bonham’s Case ascribed to it.[72] The situation has reversed: now Parliament can swiftly and effortlessly overrule common law. This is exactly what happened in 2008, when R v Davis upheld the longstanding common law requirement that a defendant has the right to face his or her accusers, forcing three prosecution witnesses to reveal their identities in a murder trial. The Davis ruling proved so widely unpopular that, a breezy 33 days later (not a great deal of time for sober reflection), Parliament passed the Criminal Evidence (Witness Anonymity) Act 2008.
Therefore, neither the divinely-ordained monarch nor the courts applying natural law can put a check on Parliament.[73] In his magisterial work on the British constitution, A.V. Dicey famously said that the “two principles which pervade the law of the constitution” were the rule of law and the sovereignty of Parliament.[74] From Bracton and Coke’s maxim, “law” is retained, but “God” is replaced by the legislature. Parliament now stands in the place of God.[75]
For our purposes, we will identify two major concerns about Parliamentary sovereignty.
One is whether or not Parliamentary sovereignty is possible. While the legislature is supposed to be a check on the executive, a kind of “executive sovereignty” seems to develop all too frequently; witness the futility of most backbencher bills, the fact that Cabinet sets Parliament’s agenda, the phenomenon of whips enforcing party discipline, and so on. Conversely, we have the question of whether the sovereignty of Parliament is sui generis or whether it is a creation of the courts. There are good reasons to suppose that the latter is the case and that the courts create and determine the parameters of Parliamentary sovereignty. Lord Justice Laws, for example, has proposed that there are a class of “constitutional statutes” (such as the Magna Carta) which Parliament cannot overrule by implied repeal.[76] The Supreme Court striking down Boris Johnson’s attempt to prorogue Parliament in order to uphold Parliamentary sovereignty also suggests that the judiciary creates and regulates the parameters of Parliamentary sovereignty,[77] often as a way to prevent executive sovereignty.[78]
But more worrying for our purposes is the fact that no check exists on Parliament should they pass an unjust law. Sir Leslie Stephens notoriously stated that the legislature is “omnipotent in the sense that it can make whatever laws it pleases” and that, “If a legislature decided that all blue-eyed babies should be murdered,” protecting these babies would be illegal.[79] Lord Hoffmann stated that if the text of an unjust law is ambiguous, the courts can interpret it in a more just way,[80] but, in that case, Parliament could easily pass another similar statute with clearer language, and the courts would be powerless to stop it. “Constitutional statutes” like the Human Rights Act 1998 are, at best, a speed bump against unjust legislation.
Stephens thought that the people themselves would be a check on Parliament legislating unjustly. Unfortunately, this only seems to be true where a strong majority feel a sense of moral outrage at an unjust law. Minorities are often left vulnerable to unjust laws, as when Canada’s Electoral Franchise Act 1885 denied Chinese Canadians the right to vote and the Dominions Elections Act 1920 denied the federal franchise to ethnic groups who had already been denied the right to vote by their provinces. [81]
There is a tension in Blackstone’s thought between his belief in natural law and his adherence to Parliamentary sovereignty. He recognized that Parliament’s statutes are only true laws if they are just, but, if they are unjust, there is no legal remedy.[82] He admitted that “if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it,” since any attempt to do so would be “to set the judicial power above that of the legislature, which would be subversive of government” (which, as we will see, is exactly what happened in the United States). The only recourse in the case of unjust laws was that individual consciences are not bound to follow them. The tension remains unresolved, and it boiled over in the colonies.[83]
III. Antithesis: The American Constitution (Judicial Sovereignty)
It is well known that, despite their reputation as radicals, the American Revolutionaries were actually laying claim to their traditional rights as Englishmen when they protested being taxed without representation. But there was another critique of the British government at play in the Revolution: a rejection of Parliamentary sovereignty, which the Revolutionaries saw as being just as absolutist as any tyrannical king.[84]
Natural law was a motivating belief for many of the Revolutionaries (as reflected in the oft-quoted opening lines of the Declaration of Independence[85]) and they sought a constitution where the legislature would be thwarted if it tried to pass unjust laws. George Mason, for example, had successfully argued in Robin v Hardaway [1772] that “all acts of legislature apparently contrary to natural right and justice are, in our laws, and must be in the nature of things, considered as void.” Mason went on to write the Virginia Declaration of Rights, which was the basis of the U.S. Bill of Rights. In return, the increasingly positivist British derided the Americans for pretending that they lived “in an original state of true Indian innocence” where the laws of nature reigned. Natural law, for them, could not be a limit on Parliament’s omnipotence to legislate about taxation.[86]
To try to improve their situation, the Colonists initially tried to revive the medieval arrangement where the king was a check on Parliament. Figures like John Adams and Alexander Hamilton, taking a Tory line about how unfortunate it was that the king’s powers had diminished, argued that the colonies were under His Majesty, not Parliament, and appealed to the king to exercise his stagnant royal veto power to overrule the unjust statutes afflicting the American colonies.[87] In this sense, a strong strain of the American Revolution was an ultra-conservative throwback to the Middle Ages, and when the Constitution was written, it was not a simple translation of the British constitutional model, as is sometimes implied, but was intended to more closely copy the medieval arrangement, whereby unjust laws could be abolished.
Like the U.K., the U.S. has a lower and an upper house to legislate,[88] and it has a monarch in the person of the president.[89] However, this monarch effectively has the power to deny royal assent: The presidential veto allows him to strike down laws he deems imprudent. However, to prevent sovereignty from clustering too much around the elected monarch, the Congress can overrule that veto if a two-thirds majority of both the House and the Senate vote so to do. That being said, Congress had only overridden the presidential veto 7% of the time in American history.[90] In practice, sovereignty is hardly clustering around the legislature, either, and if Congress is able to override the presidential veto, it is only because a substantial majority of its democratically elected members who are accountable to their voters agree on it, which accords with the natural law understanding of prescriptive constitutionalism in which the entire population governs itself.
Moreover, after amendments, the Constitution enshrined a Bill of Rights to which statutes had to conform. Marbury v Madison [1803] established that the Supreme Court can strike down legislation and some executive actions (including executive orders), for not conforming to the Constitution, a reinstatement of sorts of the principles of Dr. Bonham’s Case.[91] Some have claimed that Marbury v Madison [1803] did not reflect the intention of the Founding Fathers, or that the usual interpretation of it is mistaken; to this, we simply refer back to Maistre.
So far, it seems like the American system has effectively reinstated the medieval English constitution. But there is an apparently small difference that makes a great impact.
In the medieval system, the king both appointed and removed judges at his pleasure, and would replace any judges who, in Belloc’s words, “used [their] power in opposition to the king,” or, we could say, used them politically.[92] In contrast, the Constitution states that justices of the Supreme Court can only be impeached for failing to observe “good behavior” (Article 3, Section 1) and no other mechanism for removing them exists. This may seem like an improvement over a monarch’s power to dismiss at will, but it led to an unintended side effect.
“Brutus”, one of the anonymous anti-Federalist authors, warned that the Supreme Court would become sovereign under the U.S. Constitution, since “[t]he legislature must be controlled by the constitution,” and the justices “will determine, according to what appears to them, the reason and spirit of the constitution.” Should they make a mistake, “there is no power provided in the constitution” to correct this.[93] “There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.”[94] Alexander Hamilton did not share these concerns, infamously predicting that the judiciary would be “the least dangerous [branch] to the political rights of the Constitution” and “beyond comparison the weakest of the three departments of power.”[95] History has vindicated Brutus and shamed Hamilton on this point.
The Supreme Court can effectively overrule any law from either the president or the legislature based on moral evaluation of the justices.[96] Nominally, they are bound by the text of the Constitution, but, texts being subject to different interpretations, justices are capable of wringing nearly any reading they want out of its language. A clear example is the conceptual legerdemain of turning “due process” into “substantive due process” and thereby discovering a right to abortion in the Constitution.[97] We should remember that, etymologically, the word “arbitrary” relates to the role of judges, who can be just as arbitrary as any other ruler. Even if a justice could be removed, their rulings would still stand and set a stare decisis precedent.
Unlike in the medieval system, where the courts had supremacy with regard to legislation but were curbed by the executive, SCOTUS’ moral judgments are unchecked by either of the other two branches, making it effectively supreme and enabling it to make sweeping changes to American society beyond what even the most self-important medieval king could ever dream of. The only way to affect the court is to tweak it every few years when a justice dies or retires, and because SCOTUS’ powers are so sweeping, citizens often vote in elections with an eye towards Supreme Court appointments, since, contra Hamilton, who a president appoints to the bench is likely to be far more important in the long run than any policy he or she happens to adopt.
Maistre had warned against hubristic attempts to consciously create constitutions, and singled out Thomas Paine’s (to Maistre, laughable) desire for a “constitution” one could carry in one’s pocket.[98] The unintended constitutional arrangement that came out of the American founding seems to vindicate his jeremiads. Maistre’s warning should always be with us: Any conscious attempt to return to the exact structure of the medieval constitution is likely doomed to fail. With that reminder, we turn to Canada.
- The First Attempt at Canadian Constitutionalism (The B.N.A. Act)
Canada, broadly speaking, was founded by ultramontanist French Catholics and English-speaking heirs to high-church Anglican Loyalists who had made treaties with the First Nations people.[99] Even though not all the Fathers of Confederation shared the faintly theocratic views of their Loyalist predecessors, who looked disdainfully on the perceived destructive individualism and insubordination of the American Revolutionaries,[100] a “Tory touch” has been recognized in the Canadian founding.[101] There was generally a desire for a more communitarian society where the Church had a more prominent social role, as had existed in Upper and Lower Canada (witness the clergy reserves). Thus, the British North America Act 1867 (henceforth the B.N.A. Act) protected group rights and religious rights, such as the rights of publicly-funded religious (“separate”) schools in section 93.
Sadly, despite its attempted traditionalism, we must admit that the constitution of the B.N.A. Act, far from restoring checks and balances, instead contained the absolutizing dangers of both the British and the American constitutions.
On the one hand, its adaptation of the Westminster parliamentary system brought with it the tendency towards executive sovereignty, and, in the Canadian context, the sovereignty of the federal executive specifically. The complaints about how tyrannically Trudeau oversaw the genesis of the Charter inadvertently reveal this: With his majority government, Canada’s Parliamentary system permitted him and his cabinet to behave autocratically without any checks to slow them down.
The lieutenant governor of a province, representing the reigning monarch, has, according to section 90 of the B.N.A. Act, reserve powers to either refuse royal assent or to reserve it. The right of outright refusal seems like a restoration of the medieval royal veto, and was used 38 times between 1870 and 1945. However, this was normally done on the advice of the provincial cabinet (executive sovereignty again). Its final use was in 1945, when Lt. Gov. Bradford LePage of Prince Edward Island refused assent to a modification to the province’s prohibition legislation based on his moral convictions about alcohol. His term having expired anyhow, he was promptly replaced. However, the Supreme Court of P.E.I. did subsequently find that the amended statute was not binding law since it never did receive royal assent.[102] This was the last time royal assent was outright refused.
The lieutenant governor also has the prerogative to reserve legislation and refer it up to the governor general-in-council, who can then disallow that act under instructions from the federal cabinet. Much like the provincial veto, this was not uncommon (federal disallowance occurred 112 times between 1867 and 1943) until a lieutenant-governor acted on their own initiative. In 1961, Saskatchewan Lt. Gov. Frank Bastedo deemed the CCF’s Act to Provide for the Alteration of Certain Mineral Contracts not to be in the public interest and reserved assent from it without the advice of the federal government (which promptly issued an order-in-council granting royal assent). This was so controversial that there was talk of abolishing the office of lieutenant governor after this.[103] As with refusal, reservation stopped being used as soon as a lieutenant governor exercised their own discretion in using it rather than taking orders from the cabinet, although Alberta NDP leader Rachel Notley did make an unsuccessful appeal to Lt. Gov. Lois Mitchell to refuse assent to Bill 22 in 2019.[104]
Nor has the viceroy been an effective curb on corrupt or ineffective governments. Although in 1878 Quebec’s Lt. Gov. Luc Letellier de St-Just dismissed the government simply because he deemed them incompetent, despite them holding a majority in the legislative assembly, since the King-Byng affair of 1926, the monarch’s representative has been subordinate to the executive in matters relating to the status of the legislature.[105]
Further, as in the U.K., Canada’s model of “Parliamentary sovereignty” was equally vulnerable to the risk of judicial supremacy. Decades before the U.K.’s Supreme Court suggested it had the authority to recognize “constitutional statutes”, Canada’s Supreme Court acknowledged a class of legislation as being “quasi-constitutional”, which were not subject to the doctrine of implied repeal and could only be repealed by explicit language setting out so to do. An example of this was the Canadian Bill of Rights 1960.[106] But there was an even bigger opening for judicial supremacy to flow in through.
In his previously mentioned work on the British constitution, A.V. Dicey remarked that the preamble to the B.N.A. Act was inaccurate when it said it was establishing “a Constitution similar in Principle to that of the United Kingdom”. Dicey wanly suggested that the Act should have said “States” instead of “Kingdom”. Although the Fathers of Confederation may have expected that granting the federal Parliament so much power would avoid the necessity of going to the courts to interpret the Constitution, the “futility” of this “hope…is proved by the existence of two thick volumes of reports filled with cases on the constitutionality of legislative enactments…In Canada, as in the United States, the Courts inevitably become the interpreters of the Constitution.”[107] The phenomenon of Supreme Court justices (who, like their American counterparts, cannot be removed so long as they observe “good behaviour”[108]) is not a phenomenon that began with the Charter.
Consider the Supreme Court of Canada case Reference Re Alberta Statutes [1938]. The Alberta Social Credit government had passed the Accurate News and Information Act, which required newspapers to print government rebuttals to critical articles and to publicly name their sources, moves which were widely seen as restricting the freedom of the press. The B.N.A. Act does not contain any explicit protection of the freedom of expression. However, the Court struck down the legislation. Its reasoning, as expressed by Duff CJ, was that the preamble of the B.N.A. Act envisions a constitution “similar in principles to the United Kingdom.” In the U.K., Parliament “work[s] under the influence of public opinion and public discussion”, which would be impaired by the legislation. Therefore, the statute was unconstitutional.[109]
Some might see this as a rather imaginative construction of the preamble. Nevertheless, this is an example of courts ruling based on the so-called “implied bill of rights” which they had discovered in the Canadian constitution. A standard this fluid is at least as conducive to judicial activism as vague “Charter values” are. Whatever advantages Canadian society and jurisprudence may have had in the past, they were no less susceptible to judicial overreach and even judicial sovereignty.
- Synthesis: The Second Attempt at Canadian Constitutionalism (The Charter)
Pierre Trudeau’s original vision of patriation, and the role of the Charter of Rights and Freedoms within it, would have been a full “Americanizing” the country. That this spirit was latent can be seen in how Trudeau had prepared a plan to declare independence from the U.K. if his patriation request was rejected.[110] Unlike the American federation, however, this new constitution was not going to arise from the consent of local states, but would be imposed from above by the federal government.
When Trudeau submitted his patriation request to the U.K. Parliament, he did so without the support of most of the provinces. The concerned British government asked the Select Committee on Foreign Affairs, chaired by Sir Anthony Kershaw, to review the constitutionality of such a unilateral request. Natural law philosopher John Finnis was appointed “special adviser” to the committee.
The Kershaw Reports determined that the U.K. Parliament should only accept a federally spearheaded constitutional change if it “accords with the wishes of the Canadian people as a federally structured community”, that is to say, if it has “at least that degree of Provincial concurrence (expressed by governments, legislatures or referendum majorities) which would be required for a post-patriation amendment affecting the federal structure in a similar way.” Finnis would later note that this was simply a restatement of what Aquinas and Fortescue said about how the “whole kingdom” should be involved in its own governance.[111] This is important, because it lends credence to the idea that we should use a natural law hermeneutic to interpret the constitution which came about from this process.
When this finding was supported by a similar ruling by the Supreme Court of Canada asserting a conventional convention that there should be a substantial amount of provincial consent for a constitutional change,[112] Trudeau was forced by political necessity to negotiate with the provinces in order to get the Charter passed. In November 1981, a conference with the premiers was held in Ottawa. In the course of the discussions, Alberta Premier Peter Lougheed suggested that the Charter include a provision from the Canadian Bill of Rights 1960: a “notwithstanding clause” which would allow the legislature to pass laws “notwithstanding” contrary provisions in the Charter (or, at least, “contrary” as interpreted by the courts). This found its way into a three page proposal submitted by the Newfoundland delegation. In the evening of November 4, Jean Chrétien held the legendary (and perhaps mythologized) “Kitchen Accord” where he agreed to the inclusion of the notwithstanding clause. The provinces agreed to support the Charter, which now contained the fateful section 33.[113]
Opponents of the clause, like the perennially perturbed Andrew Coyne, contemptuously describe this a grubby compromise rather than a high-minded expression of philosophical principles. But Maistre should have taught us that we should not put our trust in aloof political thinkers spinning constitutional systems from their armchairs. In fact, out of this political sausage-making, and seemingly by accident, a fascinating and unique constitutional arrangement has developed.[114] Consider the checks and balances that exist in the Charter’s system.
On the one hand, we have a Westminster-style Parliament; the legislature (though often in practice the executive) initially seems sovereign. On the other hand, the courts have a Bonham-esque ability to strike down legislation they deem immoral by using familiar tricks of judicial creativity in interpreting Charter rights.[115] To that extent, the judiciary seems sovereign, and it is with regard to the interpretation of certain rights (democratic, mobility, language, and education rights, all of which are a bar against the tyranny of the majority[116]). However, in other areas, which relate more obviously to moral judgment (those found in sections 2 and 7-15), the government can in turn veto the judicial veto by invoking section 33. We seem to be back at Parliamentary sovereignty, except that this veto exists on a razor’s edge. Unlike most legislation, which operates until it is repealed by later legislation, the contested statute is only protected for five years, the length of a legislative session (section 4), after which point the clause must be invoked again. If the government has lost the confidence of the legislature (and the electorate) by then, and the new government does not re-apply the clause, the Court’s veto snaps back into operation.
The judiciary has a kind of sovereignty in certain limited areas, and, if Parliamentary sovereignty exists in other realms, it is even more precarious than the king’s sovereignty in the Middle Ages, lasting only as long as it commands the democratic support of its people and not a moment longer. This is perfectly consistent with section 1, which “guarantees the rights and freedoms set out [herein] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis added).
On paper, the Charter has blundered into a system of checks and balances that is not only more effective than America’s constitution, but is perhaps even more balanced than the medieval constitution. No one has unchallenged sovereignty here; circumstances beyond anyone’s control (but ultimately determined by the electorate) effectively determine who will have final say in a legislative conflict. Seeds from both the British and American constitutions, buried in the soil of Canadian history, here blossom into something new. We have, in both a descriptive and prescriptive constitutional sense, the supremacy of God. Maistre would smile with vindicated satisfaction.
Conclusion
The system we have identified from the text of the Charter is obviously not what we observe in Canadian society today. There is a widespread stigma against invoking the notwithstanding clause, based largely on the misapprehension that section 33 gives the government a pass from having to follow the rest of the constitution.
Peter Hogg’s “dialogue” theory defends this status quo by making the argument that, when legislation is struck down for violating the Charter, legislatures usually go on to pass similar laws that achieve the same effect but without the offending provisions. The courts do not thwart the legislature’s intention, Hogg argues; they just ensure that it is implemented in a constitutional way.[117] But calling this a “dialogue” is an odd use of language. The Vatican can officially censure a theologian; that theologican can then adjust his teaching so that it matches official doctrine, even though it is substantially the same as what he taught before.[118] But it would be odd to call this a “dialogue”. One party is obviously giving the other party binding instructions, not chatting with them.[119] Moreover, in a dialogue, each party is theoretically able to learn something from the other, but, in Hogg’s model, the courts are the Magisterium, not a conversation partner. Yet the legislature can sometimes be a better constitutional interpreter than the courts.
Take the recent ruling by the Queen’s Bench of Saskatchewan that non-Catholic students do not have a right to government funding to attend separate schools. The ruling clearly evinces a belief that the constitutional protection of Catholic schools is outdated, and it therefore concocts a way to kneecap and possibly end Catholic schools as a way of getting around the constitution.[120] By invoking the notwithstanding clause to nullify this ruling, the government of Saskatchewan is being more consistent with the constitution than the court. Here, the notwithstanding clause upholds the spirit of the constitution rather than undermining it.
This essay has argued that statutes and rulings should be judged against the standard of natural law. Natural law, in turn, comes to us interpreted and explained by different religious groups, in various wisdom traditions, and through many philosophical schools. Our need to learn from these communities–whether they call the natural law the Logos, the Dharma, or the Tao–is the best justification for Canada’s policy of multiculturalism.[121] But the expansion of law in the modern state is a perennial threat to their autonomy,[122] as it has been since the medieval Church clashed with absolutist kings. The courts sometimes protect their rights from the government, but the notwithstanding clause allows the government to protect them from the courts.[123]
Obviously, not every use (or threatened use) of the clause has been of this nature. Quebec has used it to suppress the freedom of provincial employees to wear religious symbols.[124] But, appalling as this is, it only directly affects Quebec, and will only last as long as its citizens elect governments who pursue this policy. In contrast, when the Privy Council ruled in Barrett v City of Winnipeg [1891] against the Catholic minority’s right to separate schools in Manitoba, despite the clear constitutional protection of that right, its ruling set a harmful precedent that had a ripple effect in provinces like Ontario and Quebec for decades afterwards, hurting both English Protestant and French Catholic communities and stirring up conflict that could have been avoided.[125]
(Incidentally, it should not be forgotten that the Supreme Court of Canada had already unanimously ruled in favour of the Catholic minority before the Privy Council overturned their decision. Nostalgia for a time when the Council kept the Supreme Court in check should evaporate in the face of cases like Barrett or Cunningham v Homma [1902]. Under the Charter, the legislature can thwart deleterious rulings like this in a way they never could before 1982.)
A legislative misuse of the notwithstanding clause for an unjust law is confined geographically and temporally in a way that an unjust court ruling is not. If Quebec using the clause in an oppressive way gives section 33 an unpleasant association, it is only because other provinces have been unwilling to invoke it under more salutary circumstances and thus develop conventions around the clause’s appropriate use. Saskatchewan has finally got the ball rolling on this. We should keep it rolling until it snowballs.
In closing, then, this paper suggests that legal scholars and legislators adapt a more liberal approach towards invoking section 33, particularly in the protection of religious minorities with practices rooted in unpopular beliefs. This would better instantiate the constitution outlined in the Charter, which not only delineates a balance of powers, but also a system where minorities are protected. A situation where elected representatives and judges vie with each other on how to achieve that is an eminently desirable one.
1 A detailed account of how the Charter became law which expresses this opinion can be found in C. Gwendolyn Landolt, Patrick Redmond, and Douglas A. Alderson, From Democracy to Judicial Dictatorship in Canada: The True Story of the Charter of Rights (independently published, 2019).
2 This essay thus places itself in the tradition of Hegelian thought in Canada represented by figures like Charles Taylor, C.B. Macpherson, John Russon, and James Douall (whom Emil Fackenheim called the only true Hegelian).
Graham Crackers 