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Clashing Constitutionalisms in the Bill-Of-Rights Era: Strength, Reach and Rights Values

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Clashing Constitutionalisms in the Bill-Of-Rights Era: Strength, Reach and Rights Values University of Calgary PRISM: University of Calgary's Digital Repository Graduate Studies The Vault: Electronic Theses and Dissertations 2017-12-14 Clashing Constitutionalisms in the Bill-of-Rights Era: Strength, Reach and Rights Values Harding, Mark Stevens Harding, Mark Stevens (2017). Clashing Constitutionalisms in the Bill-of-Rights Era: Strength, Reach and Rights Values (Unpublished doctoral thesis). University of Calgary, Calgary, AB http://hdl.handle.net/1880/106271 doctoral thesis University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca UNIVERSITY OF CALGARY Clashing Constitutionalisms in the Bill-of-Rights Era: Strength, Reach and Rights Values by Mark Stevens Harding A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN POLITICAL SCIENCE CALGARY, ALBERTA December, 2017 © Mark Stevens Harding 2017 Abstract This study contributes to a debate within the tradition of liberal democratic constitutionalism about how best to protect rights. One side (“political constitutionalism”) holds that rights are best protected through “political” channels, such as the elected offices of government; the competing view (“legal constitutionalism”) elevates the judiciary as the primary custodians in rights disputes. Although the original battle between political and legal constitutionalism – whether or not to have an explicit, judicially enforceable rights document – has been decisively won by legal constitutionalists, this “clash of constitutionalisms” continues in the bill-of-rights era, partly though the different designs of rights documents and partly through the politics of interpretation generated by those documents. Taking a comparative approach to the issues, this study focuses on the quarrels between political and legal constitutionalism in Canada, New Zealand, and the United Kingdom. Political and legal constitutionalists in these countries (as elsewhere) disagree about how strongly judicial interpretations of the different rights documents should withstand the more obviously political branches (“constitutional strength”), and about the scope of public and private activity captured by the judicial application of rights documents (“constitutional reach”). The issue of constitutional reach into the private sphere involves a second “clash of constitutionalisms” – between liberal constitutionalism, which seeks constitutional protection of the private sphere against state intrusion, and post-liberal constitutionalism, which is skeptical of the public-private distinction and wants the constitution to combat “private” injustice. The two kinds of clashing constitutionalisms (political/legal, liberal/post-liberal) – and the intersection between them – illuminate important debates about subtle forms of judicial policy-making through revision of common-law rules and strained statutory interpretation ii (which, say its critics, “fixes” a statute by essentially rewriting it). Very few studies address the phenomena of judicial actors interpretively fixing laws and even fewer emphasize the impact bills of rights have on the common law. One aim of this study is to shed light on such still underexplored aspects of the clash of constitutionalisms in the bill of rights era. An even more important aim is to provide a novel integration of the debate’s many dimensions. iii Preface Parts of Chapter 3 update and expand upon research published by Mark S. Harding and Rainer Knopff in the National Journal of Constitutional Law (2013, 31.2: 161-181). Parts of Chapters 5 and 7 update and expand upon research published by Mark S. Harding and Rainer Knopff in the Review of Constitutional Studies (2013, 18.2: 141-160). Mark S. Harding was the lead and corresponding author; both authors contributed to the conceptual framework. iv Acknowledgements I have accumulated many debts over the course of completing this project and have many people and organizations to thank. I have been fortunate to receive generous financial and institutional support from several organizations. I would like to thank and acknowledge the Social Sciences and Humanities Research Council, the Killam Memorial Trust, the Calgary Institute for the Humanities and the University of Calgary for supporting this research. It has been a pleasure to work with the faculty and staff in the Department of Political Science at the University of Calgary. I appreciate all the assistance from Judi Powell, Bonnie Walters, and Ella Wensel over the years. My biggest debt is to my supervisor, Rainer Knopff. His guidance has been indispensable and his patience seems to know no bounds. It will always be an honour to introduce myself as Rainer’s last PhD student. I wasn’t his finest (and far from his quickest!) but I hope I can live up to the standard he set. No student could ask for a better teacher. I would also like to thank the following colleagues for their generous feedback and suggestions on earlier versions of this work: Barry Cooper, Maureen Hiebert, Ted Morton and Robert Leckey. Thanks also to Joshua Goldstein, Dennis Baker, Michael Zekulin, Andrew Banfield, Jack Lucas, Donald Savoie and Tom Bateman for their assistance and guidance both personally and professionally over the last several years. Thanks to Ian Brodie and James Kelly for their service as my internal and external reviewers on this project. My fondest memories of Calgary will always include Dave Snow and Tim Anderson. I’ve never had another friend quite like Dave. His encouragement and reminders to have more confidence in my work have helped me through many stages of self-doubt. I can’t think of a moment of success that I don’t owe to him in some way. Tim’s clear (and often exacting) opinions helped me think harder about many of my scholarly convictions. Both Tim and Dave helped me become a better writer and thinker. Graduate school would not have been the same without them. But it’s their friendships I value most. My family has been supportive throughout this process. The only thing my parents ever insisted on was that I pursue what I loved to do. I will always appreciate their encouragement. My wife Molly deserves special credit. I never would have completed this project without her. Her love and support has never wavered throughout this long process. I hope she never changes. v Dedication For Margaret Harding vi Table of Contents ABSTRACT ................................................................................................................................... ii PREFACE ...................................................................................................................................... iv ACKNOWLEDGEMENTS .............................................................................................................v DEDICATION ............................................................................................................................... vi TABLE OF CONTENTS ............................................................................................................. viii CHAPTER ONE: INTRODUCTION .............................................................................................1 CHAPTER TWO: CONSTITUTIONAL STRENGTH AND BILLS OF RIGHTS ....................18 Strong-Form and Weak-Form Judicial Review .....................................................................18 Dialogue in Strong-Form and Weak-Form Systems ............................................................. 26 Instability and Escalation ...................................................................................................... 35 Conclusion ............................................................................................................................ 38 CHAPTER THREE: CONSTITUTIONAL REACH: SEVERE LIMITS OR CONSTITUTIONALIZING EVERYTHING? ..............................................................................40 Judicial Supervision of Conventions and Executive Prerogative ..........................................43 Underlying Constitutional Values ..........................................................................................47 Griswold v. Connecticut (1965) .........................................................................................51 Alden v. Maine (1999) ........................................................................................................53 Provincial Judges Reference (1997) ..................................................................................55 Secession Reference (1998) ...............................................................................................58 Hosking v. Runting (2004) .................................................................................................61 Conclusion .............................................................................................................................67 CHAPTER FOUR: CONSTITUTIONAL REACH: THE PRIVATE SPHERE AND THE CLASH BETWEEN LIBERAL AND POST-LIBERAL CONSTITUTIONALISMS ................71 Liberal Constitutionalism .......................................................................................................72
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