Is the constitution law or judicial fiat? Are judges bound by the constitution or do they create it? David Beatty and Allan Hutchinson occupy polar extremes in the longstanding debate about this question, a debate that has acquired new urgency in Canada since the advent of the Charter of Rights and Freedoms
in 1982. Beatty is the ultimate Charterphile; he believes in an objective constitution that judges are obligated to apply. Hutchinson is the consummate Charter skeptic; he thinks an objective Charter is a little like the elusive Godot of Beckett's play. Waiting for CORAF (the acronym for the Charter of Rights and Freedoms) will prove as fruitless, Hutchinson believes, as waiting for Godot. Underlying this debate is the deeper question of whether liberal constitutionalism is defensible.
Beatty and Hutchinson agree that the wording of particular constitutional provisions is generally too vague to settle the questions that arise under them. The text is singularly unhelpful when one wants to know whether laws regulating prostitution, pornography, or Sunday closing fall within the federal domain of "criminal law" or the provincial preserve of "property and civil rights"-or whether they perhaps fall beyond the powers of either order of government, because they infringe the Charter rights of freedom of expression or religion. They also agree that such traditional external aids to interpretation as dictionaries, precedents, or framers' intent shed little light. Dictionary meanings are still too broad, precedents tend to "march in pairs," and framers agree on the constitutional documents they devise for a variety of reasons manifesting different, even opposing, original understandings.
Nor, in Hutchinson's view, can social consensus be relied upon as a source of objective meaning. Although constitutionalized rights allegedly represent a settled consensus about fundamental values and principles, one that establishes the bounds or limits to politics, they are in fact radically and irremediably indeterminate on the kinds of issues that typically arise under them. They settle nothing, and pretending that they do is just a way to disguise or camouflage political choices about highly controversial matters. That the Charter does not represent a consensus is clinched for Hutchinson by the ironic fact that if such a consensus actually existed, the Charter and judicial review would be unnecessary.
"The fact is," he writes, "that community consensus runs out at the very time that it is most needed-in the resolution of disputes that arise because of a breakdown, gap, or shortcoming in the extant body of conventional norms." Far from giving voice to social consensus, judicial review enables judges to substitute their political preferences for the preferences of politicians. Hutchinson agrees with the skeptic's adage that the constitution is simply what the judges say it is. "Constitutionality," he insists, "is nothing more (nor less) than a present estimate of how judges will behave in the future in light of their past performances."
Beatty disagrees. The "ambition" of his book "is to try to try to resurrect and defend the integrity of law" from critics such as Hutchinson. Despite the acknowledged indeterminacy of traditional sources of constitutional meaning, he believes an adequate source of meaning-one that should control the discretion of judges and generates objective, principled decisions-can be found. For him, the constitution has a determinate meaning that binds and obligates judges, and that makes it possible for observers to discern judicial mistakes. Judges, he insists, are as capable of acting unconstitutionally as anyone else. He emphatically denies that the constitution is simply what the judges say it is.
What then is Beatty's constitution? If all the traditional sources of meaning are too indeterminate, where does one look for objectivity? One looks, he answers, to the text-not, to be sure, to the vague and indeterminate words of any particular provision, but to the overall structure and logic of the constitution as a whole, to its most fundamental underlying values and principles. In the 1867 Constitution Act, those principles are federalism and democracy; as for the Charter, they were accurately catalogued by the Supreme Court in its landmark case of Oakes: "respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society." These are the "overarching norms" that give meaning to particular constitutional provisions, and from them judges can deduce objective answers to the decisions that come before them.
Leaving aside for the moment the sticky question of whether these norms are themselves too vague to constrain judicial discretion, let us look more closely at how Beatty arrives at them. How, for example, does he know that federalism is one of the overarching norms of the 1867 Constitution Act, a necessary implication of its "inner logic" and structure? He says the underlying logic must be arrived at from examination of the overall text itself, without the aid of such external factors as framers' intent. But the Act contains not only the famous division of jurisdictional powers (which implies federalism) but also the infamous powers of reservation and disallowance (which imply an imperial-colonial relationship between Ottawa and the provinces). Despite the apparent presence of two conflicting logics on the face of the text, Beatty has no doubt that federalism is the Act's true inner logic and that the imperial powers of reservation and disallowance are constitutional impurities that should be dispensed with. How does he know this? Because they were dispensed with. "These powers," he says, "have fallen into disuse over the years, and now everyone recognizes that the `federal principle' is a central pillar of Canadian constitutional law." This circular reasoning is the sum total of his argument in favour of the logic of federalism and against the logic of constitutional imperialism.
As far as one can tell, then, the victory of federalism over imperialism as the true inner logic of the 1867 Act turns out to rest on evolving political practice and convention, matters entirely external to the Act, not on any internal necessity in the Act itself. Beatty thus contradicts his announced procedure for discovering a constitution's inner logic. Furthermore, once evolving practice rather than text becomes the wellspring of the constitution's overarching norms, it is unclear how he can criticize as unconstitutional the subsequent judicial practices he dislikes. As Hutchinson correctly notes about his earlier formulations of the same argument, "Beatty does not accept that there is any obligation to recognize" decisions as valid simply because they "have or will become so entrenched in the Court's continuing daily practice or customary self-image as to be considered by everyone else as part of the constitution." He wants a constitution independent of practice, against which practice can be judged. But when he himself rests that constitution on practice, he reveals it to be a very fragile house of cards.
Just as Beatty too lightly explains away important parts of the constitutional text in order to arrive at federalism as one of its overarching norms, so he then uses that norm to explain away even parts of the text that clearly pertain to federalism. The language of "exclusive" jurisdictions in sections 91 and 92 of the 1867 Act, together with the explicit enumeration of a limited number of concurrent jurisdictions, certainly suggests that concurrent jurisdiction was to be the exception, not the rule, in Canadian federalism. For Beatty, by contrast, the true logic of federalism implies as much concurrency as possible, and thus the practical excision of the language of exclusivity. The words of the text are relatively unimportant, he ultimately admits. It is the true logic of federalism, the ungrounded house of cards, that should really guide judicial decisions.
Beatty arrives at similar conclusions about the Charter. Here, too, the overarching norms implicit in its overall structure, not its particular provisions and wording, embody the real constitution. One learns the meaning of the Charter's guarantee of freedom of expression, for example, by deducing it from the norms of human dignity and personal autonomy it is intended to promote. As I suggested earlier, one might well wonder whether a norm such as human dignity is just as vague and indeterminate, and thus as incapable of constraining judicial discretion, as freedom of expression itself. Beatty doesn't think it is.
He is quite certain, for example, that the Charter's overarching norm of human dignity means that "virtually every form of human activity can fairly be characterized as an act of expression, association, conscience, or liberty." He applauds the Supreme Court's decision to bring pornography, soliciting for the purposes of prostitution, and even lying within the scope of the Charter's guarantee of freedom of expression. On the other hand, he criticizes the Court for excluding physical violence from the ambit of Charter protection. Violence, he says, "may be, for the person who engages in it, at the core of the personal history he or she wants to project." Thus, "even acts of killing-for example an abortion or a political assassination-can be characterized as important aspects of personal liberty or political expression that fall within the larger purposes that these constitutional guarantees are designed to promote."
There are those, of course, who would insist that the "overarching norm" of human dignity is violated when the noble and dignified principle of freedom of expression is besmirched by extending its protection to such undignified practices as pornography, prostitution, and killing. Were any who think this way to don judicial robes, they would undoubtedly deduce very different conclusions from the same norm. Perhaps Beatty's deductions from this norm are right and the others wrong, but he simply asserts his view without even acknowledging that another might be possible.
For Hutchinson, this tactic is "fatal". Given Beatty's attempt to "prove that there is one and only one correct mode of judging that can square with the Charter," one need not prove that his interpretation is wrong to upset his project; "it is enough," says Hutchinson, "to show that an alternative reading ... could also be valid and consistent with the Charter." Another reading of the requirements of human dignity is surely possible. In the absence of more than a simple assertion of his reading, Beatty fails to show how his overarching norms are any less vague, and constrain discretion any more, than the words of particular constitutional provisions.
Beatty is clearly no more inclined to spend much time providing persuasive interpretations of his overarching norms than he is to clearly define specific constitutional provisions. Indeed, he wants to expunge interpretation altogether from the exercise of judicial review under the Charter. Judges, he argues, should concern themselves not with whether a law limits a protected right or freedom in the first place, but simply with whether the limit is "reasonable". As shown by his characterization of killing as a form of protected expression, he simply assumes that all laws will restrict his norms in some way or other. This does not mean that the Charter requires the dismantling of all laws, returning us to a Hobbesian state of war of each against all, in which the right to kill is regularly employed. Many laws that limit protected rights and freedoms-including laws against killing-can be justified as "reasonable limits" under section 1 of the Charter. Beatty's real point is to subject all laws to the process of section 1 justification. The section 1 question becomes the only serious question in applying the Charter. In his own words, "justification, not interpretation, becomes the leitmotiv of constitutional review."
Justification under section 1, moreover, is primarily a matter of showing that the government has chosen the least drastic means to achieve what the courts will almost always acknowledge to be a compelling purpose. The least drastic means are those that achieve the legislative purpose with as little restriction of personal liberty and autonomy as possible. This, argues Beatty, is little more than a constitutional requirement of legislative moderation. It is the modest requirement that government not "engage in overkill." Moderation of legislative means-what he calls the principles of "rationality" and "proportionality"-is the real test of constitutionality. For reasons I do not have room to set out, he thinks the same principles underlie Canadian federalism jurisprudence, and indeed all constitutional jurisprudence the world over. Constitutions, he concludes, do not so much guarantee rights (personal or jurisdictional) as impose on legislators a duty to act moderately. Never mind that constitutional texts explicitly allocate jurisdictional and personal rights. It is the principle of moderate means, that determines "whether a law is constitutional or not, not the words of the text."
Beatty believes that all sustainable laws should be required to pass the test of moderate means. Thus he strongly opposes all judicial attempts to exclude any interests and activities from the scope of Charter protection. Perhaps the term "vehicle" should be read to exclude bicycles from the ambit of a bylaw prohibiting vehicles in the parks, but similar definitional exclusion at the constitutional level means that in the excluded policy areas governments would not have to justify legislative overkill to judges; they would be free to act unconstitutionally, thus subverting the rule of law. There is no place in Beatty's universe for the idea that a constitution sets outer limits to government action, and that within those limits governments might be free to act stupidly, and to justify their stupidity to no-one other than the voters.
Beatty thinks his emphasis on justification over interpretation is the objectively correct deduction from the Charter's inner logic and overarching norms. He thus devotes most of his analysis of Charter jurisprudence to lamenting the frequent judicial reluctance to follow this approach. The Supreme Court got things right in Oakes, but since then its judges have all too often fallen prey to the false lure of interpretation, reading Charter rights restrictively and permitting laws to escape the strictures of justification. Because the judges who do this are abetting unconstitutionality, they do not deserve to sit as judges. Although the constitution is objective, it is not self-enforcing; its promise will be fulfilled only when more emphasis is placed on appointing judges who truly respect the rule of law.
Unfortunately, the objectivity of Beatty's justification-over-interpretation method of applying the Charter is as suspect as the objectivity of his federalism jurisprudence, and for much the same reason. Once again, Beatty fails to follow his own prescription and looks beyond the text to discover its inner logic. In fact, as we might by now expect, he actually pays very little attention to the text of the Charter in deriving his constitutional methodology. Instead, he relies almost completely on the Court's decision in Oakes. His argument amounts to little more than the assertion that Oakes got it right and that any departures from the purity of Oakes are wrong-indeed, that they are unconstitutional.
As Hutchinson aptly puts it, "although [Beatty] claims that the constitution is not what the judges say it is, he can only make good his claim to objectivity by relying on one particular pronouncement of what the judges said it was." This move, Hutchinson continues, amounts to "freez[ing] a particular moment in judicial time and treat[ing] it as a privileged occasion for objectivist insight." Another house of cards is built on circular reasoning.
Beatty has yet another reason for thinking that his emphasis on justification over interpretation is an objective mode of applying the Charter, one that avoids the charge that judges are simply substituting their political judgement for that of legislators. He thinks this charge is avoided to the extent that judges assess legislative means, not ends. The main political choice is the choice of ends, with which judges rarely quarrel. Their role is the much more modest one of helping legislatures find better means to achieve those ends. This is a more technical and legal function, not one that involves political choice.
Here too Beatty fails to persuade. Leaving aside the obvious point that politics is often as much about means as about ends, it is not at all clear that judges can avoid second-guessing legislative purposes, even when they ostensibly focus on means. In his early book on the Charter, Patrick Monahan posed the hypothetical example of a Maritime province requiring all trucks, but not cars, to install expensive new brakes-except for trucks involved in the seafood industry. A court might well find the exemption for cars to be rational in light of the obvious safety purpose of the law (cars being smaller and thus easier to stop with conventional brakes), but might find the exemption for trucks in the seafood industry to be completely arbitrary in light of the same purpose. Such a court would invalidate this part of the law because it amounted to legislative means that did not promote the law's end.
A moment's reflection, however, shows that the law has two conflicting ends: promoting safety and maintaining the competitiveness of a regionally important industry. The exemption for the seafood industry is perfectly rational in light of this second purpose; finding it irrational in light of the safety purpose is really a disguised judgement that the economic purpose is less important, and thus second-guesses the basic political choice. Following Monahan's lead, F. L. Morton and I have expanded and elaborated this point in looking at actual Charter decisions. Beatty ignores these arguments. Once again, one is hard put not to agree with Hutchinson. "The Oakes test," he writes, "is so fluid and imprecise that it is incapable of providing determinate direction and constraining the exercise of judicial discretion."
For Hutchinson, Beatty's failure to find an objective ground for constitutional decisions is not Beatty's alone. Hutchinson reviews several other attempts to do the same thing, and finds them to be equally flawed. The entire enterprise is misguided, he believes, because it is impossible. The constitution gives no objective answers to the questions that arise under it, and those (both judges and scholars) who posit such answers are simply projecting their own ideological wishes into the empty vessels of constitutional language. Pretending to find what they in fact put there, they are engaged in a vast enterprise of mystification. "Legal doctrine," writes Hutchinson, "is an optical illusion of the first order, and its practitioners are magicians deserving of repute." Or, as he puts it elsewhere, "Legal theory is the opiate of the lawyering masses."
Hutchinson opposes the Charter and its judicial application not only because he thinks it fundamentally dishonest, but, more importantly, because he thinks the dishonesty runs mainly in one ideological direction. He inhabits the far left of the political spectrum and believes that justice requires the revolutionary transformation of social structures. From this vantage-point, the problem with Charter rights is that they always tilt toward the status quo. True, because rights are largely indeterminate vessels, left-leaning content could in principle be poured into them. However, the judges who must do the pouring cannot be relied upon. Even the appointment of more women and minorities to the bench won't change its upper-class character, and thus its tendency to support, not overthrow, the status quo. A "truly diverse judiciary," he argues, "can only occur after a dramatic change in the political structure and substance of society." Pursuing judicial diversity in the present circumstances gives the appearance, not the reality, of change, and can succeed only in diverting energy and resources from the essential task of structural transformation.
The same diversion would occur, moreover, even if judges did pour left-leaning content into Charter rights. Freedom of expression, for example, might be interpreted to include the right to beg. While this might be an improvement of sorts, it would be a very small one and would obscure the more fundamental question. A right to beg assumes the inevitability of beggars, and thus legitimates the poverty that causes begging "rather than working to eradicate it." Beggars are not saved by institutionalizing them through a right to beg; they "are only saved when they no longer exist." Rights may be indeterminate, and thus open to manipulation and appropriation, but Hutchinson thinks they "are more amenable to some appropriations and manipulations than others." They have an ideological inclination. Rights are not, in other words, as radically indeterminate as some of his rhetoric might suggest.
One does not have to share Hutchinson's leftist political commitments-and I do not-in order to find his book much meatier and challenging than Beatty's. He wants to free from legalistic obfuscation the bedrock question of "what is the proper and best way to live." In particular, he wants to challenge liberalism, and especially its distinction between public and private, as representing the best way of life. Denying that the public-private distinction is a way of institutionalizing neutrality between human purposes, he believes, with William Galston, that there are "liberal purposes". Liberalism promotes a way of life and Hutchinson hates it. He despises, and works to undo, liberal constitutionalism. Whether liberal constitutionalism, and the liberal way of life, are defensible is indeed a question of enduring interest and importance, and he is to be commended for cutting to the chase. He helps us to see why liberalism must defend itself not only against its avowed enemies, such as Hutchinson himself, but also against its more legalistic friends. Fortunately, liberal constitutionalism has greater resources than either of these writers imagines. In particular, its resources are rich enough that it can do without judicially enforceable bills of rights. Both Beatty and Hutchinson are wrong to place the Charter at the heart of Canada's liberal constitutionalism.
Rainer Knopff is a professor of political science at the University of Calgary.