Corps de l’article


Th[e] power [of the United States’ Supreme Court justices] is immense; but it is a power of opinion. They are omnipotent as long as the people consent to obey the law; they can do nothing once the people scorn the law. Now, the power of opinion is the most difficult one to exercise, because it is impossible to know its limits exactly. Often it is as dangerous to fall short, as to go beyond those limits.[1]

On March 21 and 22, 2019, a symposium entitled “Unwritten Constitutional Norms and Principles: Contemporary Perspectives” was held at the Faculty of Law of the University of Ottawa. This special issue comprises five of the papers that were then presented. The organizers of the symposium, Vanessa MacDonnell and Se-shauna Wheatle, graciously asked me to participate, initially as a commentator, and subsequently, as the author of the foreword to this special issue.

How one envisages the unwritten constitution in general and unwritten constitutional principles (UCPs) in particular is deeply rooted in one’s understanding of, and convictions about, both constitutionalism and democracy. Such understanding is also closely connected to what we as scholars believe to be the factors that trigger constitutional evolution—namely, speculative reason or political struggle, or both—and the role played by institutional actors in such evolution. And, most importantly, since a researcher’s conceptual theorization, however abstract it may be, is always—if only implicitly—based on a certain anthropological premise, our understanding of UCPs is linked to the kind of individual citizen we wish a particular constitutional regime to foster.

The papers featured here are all intellectually stimulating, not only because of the thought and meticulousness with which they were written, but also because they cover most of the central issues raised by the conceptual nebula the “unwritten constitutional principles” have become. As I have written many papers on this subject, in both French[2] and English,[3] some of my own work is analyzed and criticized in this special issue.

My position as author of this foreword is therefore somewhat uncomfortable. On the one hand, I cannot simply recount and summarize these papers, for although they are all excellent pieces of scholarship, I at times strongly disagree with what some authors assert, and with the manner in which my own work is sometimes depicted. On the other hand, it would be unjust to criticize colleagues deprived of the full opportunity to respond.

I have therefore chosen the following strategy, one that does not require direct references to specific papers. This foreword will take the shape of a short essay.[4] In Part I of this text, I will delineate what exactly is controversial about UCPs. In Part II, I shall inquire into the role of speculative reason and political struggle in constitutional evolution. I will discuss how our emphasis, as legal scholars, on one over the other testifies to our understanding of democracy and constitutionalism, and therefore impacts the degree of latitude we are willing to afford to judges in recognizing and enforcing UCPs. Throughout, I will argue for a just equilibrium to be struck between legal and political constitutionalisms, and more particularly, for the cultivation of a measure of skepticism toward a judge’s or a scholar’s capacity to find the “best answer” to a question of law. The five papers comprising this special issue showcase most of the major arguments commonly invoked in favour of or in opposition to UCPs, and they all, in one way or another, address the issues I intend to examine. Consequently, although I will purposely avoid any explicit mention of the papers, “authors” in this essay must be understood not as a general reference to scholars having written about UCPs, but rather as alluding to some or all of the five authors featured in this special issue.

To conclude on this point, I must emphasize that this is not a contest. Even if the authors with whom I disagree were identified,[5] no great harm would follow. It would in no way mean that my position is better in absolute terms than theirs. In his famous lecture “Science as a Vocation,” Max Weber contends that a teacher cannot decide for the student, but can tell her, “if you want such and such an end, then you must take into the bargain the subsidiary consequences which according to all experience will occur. … Figuratively speaking, you serve this god and you offend the other god when you decide to adhere to this position.”[6] My aim is simply to seek to reveal which god we respectively serve when we subscribe to a particular understanding of UCPs.

I. Distinguishing Between the Unwritten Constitution and Unwritten Constitutional Principles

UCPs have generated an extensive literature. I, along with others, have been identified as a staunch opponent of these principles. However, my objections have been largely exaggerated. I am partly at fault here. Chief Justice Lamer’s lamentable instrumentalization of British and Canadian constitutional histories in the Judicial Remuneration Reference[7] still stands, according to me, as one of the most intellectually dishonest rationales ever devised by a Supreme Court justice.[8] My irritation at this travesty of history certainly lent a patina of ferocity to some passages of my paper “Canada’s Unfathomable Unwritten Principles”[9] and to the one I co-authored with Professor Yves-Marie Morissette (as he then was), “L’indépendance judiciaire et la Cour suprême : reconstruction historique douteuse et théorie constitutionnelle de complaisance.”[10] That said, rejecting the part is not equivalent to rejecting the whole. Those of us who found the Remuneration Reference unpalatable have never been wholly against UCPs; this would be a ludicrous stance to take for anyone even slightly knowledgeable in constitutional history.

To begin with, UCPs must not be confused with the unwritten constitution, and more precisely, the common law constitution. The latter is generally understood as comprising common law rules designed to control administrative action, or as encompassing such common law methodological techniques as “the principle of legality”—providing for a restrictive interpretation of legislation infringing upon common law rights (such as the control and enjoyment of one’s own property[11] or the need to establish the existence of mens rea in criminal matters[12]). A more ambitious definition also encompasses constitutionally enshrined common law rules, such as those regulating parliamentary privileges.[13] Finally, the unwritten constitution is sometimes defined as equivalent to the material as opposed to the formal constitution[14] (i.e., the whole panoply of norms and practices regulating and limiting state power, such as constitutional conventions).

These understandings of the unwritten constitution are, for the most part, uncontroversial, since the unwritten rules to which they refer are either “democracy-promoting”[15] or “liberty-enhancing.” Democracy-promoting rules require politicians to bear the political responsibility for their actions (principle of legality and constitutional conventions) and provide them with unhindered freedom of speech and debate (parliamentary privileges). Liberty-enhancing rules ensure that citizens’ affairs will be dealt with according to law rather than whim (control of administrative action), that their property will not be arbitrarily encroached upon, and that only malevolent intent will lead to a deprivation of liberty. In addition, most of these rules do not stand in the way of the sovereignty of Parliament, as they impose only “manner and form” requirements.

In truth, the controversy centres on the “structural” UCPs as understood in the Remuneration and Secession references.[16] So-called because they are part and parcel of our constitution’s “internal architecture,” and because, without them, the “constitutional structure” of our polity would be inconceivable.[17] UCPs, as understood in both these cases, refer to abstract legal principles identified and interpreted by courts, from which judges can deduce the existence of more specific rules. The latter can be implemented by judges and can lead, in some instances, to the invalidation of legislation. Reflecting the broader debate over UCPs, some authors of this issue are quite comfortable with the courts’ exercise of such a power to create specific rules, whereas others—closer to my own opinion—are less so.

Notwithstanding the controversy, many features of these principles are uncontroversial. Importantly, no one doubts that, as underlined by the Supreme Court in Secession, they “emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning.”[18] Everyone also agrees that UCPs, as well as the legal obligations to which they give rise, may impose substantive limitations on government action:

Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have “full legal force”, as we described it in the Patriation Reference ...), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments.[19]

Some of the purposes to which they can be applied also raise no problem. For instance, as one author suggests, they can, and in fact do, operate as ground rules or codes of good governance for both the executive and the legislative powers. Finally, I do not believe anyone would quarrel with what I wrote nineteen years ago: “[T]he legitimacy of invoking unwritten principles will depend on the purpose they serve and on how the courts use them.”[20] However, this point gives rise to an area of wide disagreement, for the following questions arise: What are those purposes? In what manner should courts utilize UCPs? Are courts the best forum to instantiate them?

Proponents of a generous judicial recourse to UCPs invoke a series of arguments, the value of which skeptics such as I acknowledge. For instance, they insist on the limits of a purely textualist approach to the Constitution, on the ontological vagueness of constitutional texts and legal doctrines in general, on the undoubted existence of “gaps” in our written constitution, on the fact that resorting to unwritten sources of law is unavoidable, on the quasi-impossibility of amending our Constitution, and finally, on the inflated claims regarding the democratic underpinning of the written constitution. Nevertheless, from this, they conclude that it is legitimate for courts to resort to UCPs to “impose” legal duties that can be judicially enforced. The vocabulary employed is quite eloquent: UCPs “entail,” “demand,” or “impose” affirmative constitutional obligations or the adoption of specific rules, they “require” the executive to create and maintain particular institutions or processes, and they give rise to “concrete legal obligations.” These authors are not indifferent to the legitimacy issues raised by their proposals. They take great care to state that their suggestions minimally impair parliamentary sovereignty. The specific rules they advocate are confined, so they argue, to administrative processes or procedural schemes comprising certain minimal but well-defined requirements. Legislatures remain free to act, but within the bounds delineated and imposed by courts.

It remains that, in encouraging courts to create judicially enforceable binding rules based on UCPs, these authors give pride of place to judges in the identification and implementation of the rules that could be deduced from these very abstract principles (democracy, federalism, rule of law and constitutionalism, and respect for minorities). However, as illustrated by the Secession Reference, one should not forget that UCPs remain “binding upon both courts and governments,”[21] even though their implementation can only be accomplished by domestic or foreign political actors. In other words, as was clearly demonstrated in that case, a judge can at once create a legal framework (“duty to negotiate”) under the aegis of a number of UCPs, and delegate its enforcement to non-judicial bodies.

Allow me to clarify. The rules, processes, and institutions endorsed by some authors, and that should, according to them, be recognized and eventually implemented by courts, could indeed strengthen the democratic fibre of our polity. I myself have not hesitated to make what might seem to some as very idealistic proposals.[22] However, when I did so, I remained convinced that they could not be translated into specific binding rules sanctioned by judges, the latter lacking, in my opinion, the legitimacy to do so.[23]

I wish to highlight two contentious issues that are specific to unwritten constitutional principles and that, with respect, are insufficiently addressed in some of the papers.

First, the level of abstraction of UCPs is such that there is a theological dimension to them. They operate as articles of faith that are impossible to object to—who would quarrel with the sublime?—and, more importantly, they are, in themselves, devoid of any precise meaning. That is why the Supreme Court stressed, in Secession, that Canada’s specific history constituted the horizon, the background of intelligibility, that had to be resorted to as a basis for interpreting the unwritten constitutional principle of federalism.[24] Indeed, if all references to the horizon of significance that is history were to be eliminated, then all choices would be equally valid and equally important.[25] Any desirable idea gleaned in other constitutions could then certainly be marshalled by courts, as advocated by one author, to fill gaps in our Constitution. By the same token, as others argue, the importance of the constitutional text could be downgraded on the pretense that the guidance it provides is no less vague than that yielded by UCPs, though this would beg the question of why the abstract federal principle should not lead the supreme courts of the United States, Australia, and Switzerland to eventually propose carbon-copy solutions.

In fact, history and text, however unclear the paths they provide, do operate as essential boundaries to the interpretation of UCPs. Claiming that they are no more imprecise than the text of the Constitution has its limits. None of the authors of this special issue would assert that there is no fundamental difference between the Pacific Ocean and the Loch Ness, the one just being bigger and saltier than the other. All would agree that one’s chances of getting lost on the former are much greater than on the latter. The same is true of UCPs and constitutional texts.[26]

As there are many UCPs, another problem that needs to be addressed is the “weight and priority” they must respectively be given.[27] This is what I have dubbed the conundrum of their “interrelatedness.”[28] Contrary to what some claim, I did not say—although I could have—that such interrelatedness may lead to conceptual incoherence because of the inherently abstract nature of each principle and the unclear boundary lines between them. Rather, I praised the Supreme Court for having insisted on the interrelatedness of UCPs, for “if given their full extension,” not only could these principles be irreconcilable with one another, but more importantly, they could be brandished as absolutes.[29] Absolutization of a single principle by a court is one of the greatest dangers raised by UCPs. Whereas the majority’s reasoning in Remuneration was unconvincing on account of its total indifference to countervailing UCPs,[30] the Supreme Court’s careful and prudential appraisal of the UCPs’ interrelatedness in the Secession Reference gave that decision the stamp not only of great scholarship, but also of great statecraft. The Court at once wisely insisted on the need to avoid absolutist interpretations of UCPs[31] and monistic descriptions of our country’s political communities.[32]

As mentioned earlier, in spite of the difficulties associated with the UCPs themselves, the main controversy centres on the extent to which they allow judges to create, based on a highly abstract matrix, more specific rules that they can then implement themselves. Behind this rather technical issue are fundamental questions relating to the role of speculative reason and political struggle in constitutional evolution. Emphasizing one over the other tellingly reveals how we conceive of democracy and constitutionalism. And this perception impacts the degree of latitude we are willing to afford to judges over UCPs.

II. Speculative Reason and Political Struggle as Impulses of Constitutional Evolution

The extent to which scholars differ in the discretion they would impart to judges over the determination and implementation of specific rules under UCPs reflects the well-known tension between legal constitutionalism and political constitutionalism.[33] In a nutshell, the first attributes a greater role to courts than the second for holding those in power to account.[34]

A fundamental characteristic of the legal constitutionalists’ epistemological perspective is their greater faith—even if only implicitly—in the power of speculative reason. Defined as an ideal type, speculative reason points to a contemplative and detached process of reasoning that privileges logical inferences drawn from basic principles over analyses of the specifics of a particular situation. Speculative reason is most preoccupied with seeking the “Good” in the abstract, and is therefore less concerned with the realm of experience.

For instance, although section 11(d) of the Charter had always been interpreted as only allowing the level of judicial independence necessary to guarantee a fair trial to the accused,[35] the abstractness of the unwritten principle of judicial independence was interpreted as logically entailing a requirement to depoliticize the relationship between courts and governments.[36] Thus, whether an accused was involved or not in litigation, section 11(d)[37] was held to give rise to a constitutional obligation on the part of the provinces who intended to reduce the salaries of judges to submit any proposed changes to an independent, objective, and effective body that would depoliticize the process. Curiously, a unanimous court had previously determined that such commissions were unnecessary under section 11(d).[38]

Similarly, although they cannot point to an actual crisis concerning the issue they are studying, some authors of this special issue argue that judges should recognize and “impose” specific rules or institutions. They find their inspiration in other countries’ constitutions or in what their own research (or that of other knowledgeable scholars) has led them to consider appropriate. The whole purpose of their defence of UCPs is precisely aimed at providing judges with the power to implement what speculative reason dictates is necessary to address societal threats. For these authors, live threats are no longer necessary as justification for such a position; potential threats that could logically come to mind suffice. I share these scholars’ frustrations over the slow pace of reforms. I also admit that prescribing potential amendments is part of the legal scholar’s and normativist’s genome. All the same, because speculative reason knows no bounds, such a perspective serves to enhance the role of judges as exponents of specific normative and institutional reforms, and therefore prioritizes legal constitutionalism over political constitutionalism.

At its extreme, the espousal of UCPs leads some to claim that the public institutions comprising Canada’s constitutional architecture are simply manifestations of these principles. This is equivalent to standing Canadian constitutional history on its head. To take but one example, our federal institutions were not primarily the product of an abstract unwritten principle of federalism. Rather, they were the result of compromises made by highly pragmatic politicians faced with the instabilities generated by the regime of the 1840 Union Act, and who knew or cared very little for political theory.[39] Once established, however, our federal regime triggered a variety of normative discourses on federalism that eventually influenced the manner in which our Constitution was to be interpreted.

The English Parliament provides another good example of how constitutional evolution proceeds. It was not created in celebration of the principle of democracy or equality, but out of an act of royal will.[40] Parliament was created because it served the King’s interests. In the sixteenth century, the English Parliament did not suffer the fate of its continental counterparts because it assisted rather than opposed Henry VIII in his quest to undo the medieval privileges constraining the exercise of his royal authority.[41] Parliament also proved essential in the financing of the ever more expensive wars in which the King was embroiled. Kings realized that allowing a measure of political representation in Parliament to those who produced wealth was an astute political investment, much more efficient than predation. By protecting the interests of the wealth-producers and letting them have a say in the political arena, kings were able, in exchange, to obtain the producers’ consent to the taxation that generated the revenue stream they needed to consolidate their power.[42] This is not to say, however, that this political struggle did not generate reason-based, normative discourses that eventually played a significant role in constitutional evolution. Indeed, more and more non-elite groups adopted the normative vocabulary of democracy, equality, and liberty to claim their share in the exercise of political power. This was not the result of a well thought out rational plan or a mystically propelled evolution, but rather the result of what I described as a “diffuse constitutionalism,”[43] where constitutionalism results from the unintended consequences of willful or spontaneous human actions—for instance, the King’s creation of Parliament—that are not necessarily designed to do good.

In other words, the political constitution nourishes a normative discourse that eventually finds its way into political theories and the legal constitution, and, in turn, fuels further political movements. Thus, viewed from a historical perspective, legal and political constitutionalisms are complementary, although they are sometimes in tension with one another.[44]

The role we are willing to ascribe to judges in constitutional developments is indicative of our understanding of democracy and constitutionalism.

No doubt, it is possible to recognize a democratic quality to judicial review, and therefore to the legal constitution. Democracy is not simply majority rule. It is simultaneously a mechanism of authorization and decision-making (elections and majority rule), as well as a mechanism for the justification of decisions (based on openness and rational deliberation).[45] If this assumption regarding the dual nature of democracy is maintained, then adjudication is not devoid of a democratic foundation.

As Lon L. Fuller has posited, adjudication is expected to allow the expression of reasoned arguments by all parties involved and the serene consideration of those arguments by the judge or arbiter, contrary to decisions resulting from an election.[46] Furthermore, in the absence of reasoned argument, meaningful participation in the process of adjudication would be impossible. The simple affirmation of something does not qualify as reasoned argument. The latter can only be so if some principle or principles are asserted upon which its soundness and relevancy rest.[47] That is why, in the words of Fuller, “[t]he proper province of adjudication is to make an authoritative determination of questions raised by claims of right and accusations of guilt.”[48] It is in this sense that courts can claim, as Pierre Rosanvallon puts it, to possess a “reflexive legitimacy.”[49]

What are the limits then to the “province of adjudication”? As Fuller has stated, courts are not well equipped to address “polycentric”[50] issues, meaning issues involving many affected parties, not all of whom are represented before the court—issues whose complex ramifications render it difficult to measure the consequence that a particular solution may have on the entire political dynamic more generally.[51] Interventions that take place outside the scope of a court’s “province of adjudication” could compromise the legitimacy of its decision. The outcome of a decision may be considered desirable or morally justifiable according to some external moral conception, but from a Fullerian perspective, the moral legitimacy of the decision itself will be compromised if the process leading to it does not respect the mode of participation that is inherent to it.[52]

In my view, most of the rules or processes advocated for by some of the authors, whether or not they be defined as a “thin” rather than a “thick” version of a given UCP, deal with polycentric issues. They mostly seek to rebalance the equilibrium of power between the people and the state, or between the different institutions of the state. That they could be suggested by judges is one thing; that judges could impose them is another.

Besides, there is a significant difference between a rule aimed at establishing a general legal framework within which the political forces could negotiate the very fate of our country, as was the case in Secession (“the duty to negotiate”), and one that unilaterally imposes a duty allowing for the quashing of democratically enacted legislation, as in Remuneration (“the establishment of independent, objective and effective judicial remuneration bodies”).

After all, if constitutionalism is defined as a dynamic and interactional process aimed at limiting the abuse of state power, then the judiciary’s own power must also be scrutinized and delimited. By encouraging judges to impose solutions on the basis of UCPs, we scholars may end up, if we are not careful, indirectly fostering a “democracy without a people,”[53] a polity where democratic principles are honoured by courts, but where the soul of democracy—public participation—withers away.[54]

Acknowledging that some issues are better left to be decided under the political constitution is also much more in tune with our parliamentary democracy. I admit that we are increasingly witnessing a “presidentialization” of power that further marginalizes the role played by the people’s representatives.[55] Just the same, turning to courts is no answer to that problem, and it carries serious consequences. In stating clearly, as it did in Secession, that it “ha[d] no supervisory role over the political aspects of constitutional negotiations,”[56] the Supreme Court embraced a divided understanding of interpretive responsibility anchored in its preoccupation with legitimacy. If, on such a fundamental issue as the ability of a province to secede, political actors had been left with no responsibility to exercise constitutional duties in the hustle and bustle of democratic institutions, how then would it have been possible to infuse political and civic life with a true constitutional and democratic ethos?[57] Would this not have encouraged political actors to completely eschew their duty to comply with the Constitution?

If democracy is to mean anything, then courts must design solutions undergirded by an “active” rather than a “passive” understanding of citizenship.[58] This is so with common law constitutionalism. The principle of legality, requiring express statutory derogations to common law rights, operates as an alarm bell by alerting the opposition and the citizenry that potential abuse is on the horizon. However, embracing the tragic nature of democracy, the principle of legality implicitly accepts that the citizens’ indifference to their own fate might lead them to ignore the forewarning chimes. Where there is inertia, nothing will prevent the abuse from taking place. Be that as it may, the best way to discredit the judiciary is for courts to try to substitute their will for that of the majority on the basis of vague UCPs. Courts must constantly reiterate that the fate of liberal democracy is the responsibility of citizens and their representatives. Where UCPs are concerned, the question should be: How are the principles to be mobilized, if they are thought to be aimed at furthering the collective interests of a responsible citizenry composed not of passive individuals, but of active ones? Hence, the question is not what is structurally and rationally desirable at an abstract level, but what is appropriate for the lived experiences of individuals involved in the imperfect and messy world of representative democracy.[59]

As I and others have advocated, “judicial interpretive activity [should be] aimed at reinforcing rather than enfeebling the democratic fibre of the Canadian constitutional order.”[60] American legal scholar Cass R. Sunstein has argued that “decisional minimalism,”—that is, when judges “sa[y] no more than necessary to justify an outcome, and leav[e] as much as possible undecided,”[61]—can actually enhance democratic deliberations. It succeeds in doing so by “promot[ing] reason-giving and ensur[ing] that certain important decisions are made by democratically accountable actors.”[62] In my article “Canada’s Unfathomable Unwritten Constitutional Principles,” I tried to demonstrate that all of the Supreme Court’s decisions based on UCPs met that test, with the exception of one, namely the Remuneration Reference (and its large progeny). Nineteen years later, this still holds true.[63]

Interestingly, in that case, the majority, without giving any explanation, did not resort, as it traditionally had before, to a judicial (and judicious) test that, however symbolically, gives pride of place to the perception of the “reasonable and informed person” in the adjudication of judicial independence issues—a test that is citizen-centric rather than state-centric. Chief Justice Lamer did refer to this criterion, but added an objective dimension to it that radically modified its nature:

However, it would be a mistake to conclude that Le Dain J. [in Valente] intended the objective guarantees and the reasonable perception of independence to be two distinct concepts. Rather, the objective guarantees must be viewed as those guarantees that are necessary to ensure a reasonable perception of independence. As Le Dain J. said himself, for a court or tribunal to be perceived as independent, that “perception must ... be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence”.[64]

In other words, it is not so much the reasonable and informed citizen’s perception that matters, but that of the reasonable and informed citizen who is aware that independent commissions are an objective necessity. In other words, the test could be rechristened the “reasonable and informed judge-in-disguise” criterion.[65] I still remain firmly convinced that Justice La Forest was absolutely right when he concluded:

In my view, it is abundantly clear that a reasonable, informed person would not perceive that, in the absence of a commission process, all changes to the remuneration of provincial court judges threaten their independence. I reach this conclusion by considering the type of change to judicial salaries that is at issue in the present appeals. It is simply not reasonable to think that a decrease to judicial salaries that is part of an overall economic measure which affects the salaries of substantially all persons paid from public funds imperils the independence of the judiciary. To hold otherwise is to assume that judges could be influenced or manipulated by such a reduction. A reasonable person, I submit, would believe judges are made of sturdier stuff than this.[66]

In situations where an informed citizen would perceive a reasonable danger of political manipulation, the need for institutional reform might arise, but the responsibility of devising the appropriate institutional design would be incumbent upon the legislature.[67] In the absence of any real threat, dogmatic ratiocinations were held to require the solution favoured by the Court. Some will say that “output legitimacy” (reinforcing judicial independence) should trump “input legitimacy” (the quality of the democratic process leading to a decision). I personally do not agree.

When all is said and done, one’s preference for legal constitutionalism over political constitutionalism, for courts over politicians, for speculative reason over what Michael Oakeshott referred to as political “traditions of behaviour,”[68] comes down to how one conceives of truth. The greater one’s belief in a form of universal truth attainable by way of reasoning upon principles, the greater one’s faith in judges will be.[69] If, on the contrary, one tends to be more skeptical, and thus more relativist, one will tend to recognize a greater role for political debate and political struggle, however imperfect the solutions they lead to may be. According to the latter view, democratic truths are closer in nature to rational compromises than to rational perfections.[70] We all stand somewhere along this spectrum. Although a staunch rationalist, I see Truth as a moving target, a horizon always receding. As a jurist, I witness daily the very fragile nature of the legal truths to which adjudication may lead. And as a legal historian, I cannot but recognize the inescapability of the law of unintended consequences. For those reasons, I recoil at attempts to cast judges as primary oracles of the law and foreseers of the Good.[71] Then again, I might just be deficient in confidence and audacity.

“Nothing to excess,” the celebrated inscription in the temple of Apollo at Delphi, encapsulates the prudential approach we should adopt in determining who, between the judge and the politician, should be invested with the responsibility of defining and implementing the rules distilled from UCPs.


As I said in the introduction, our understanding of UCPs is closely associated with our innermost beliefs as to what constitutes a liberal democratic regime. Whatever our differences might be, the authors of this special issue would all agree—and some, in fact, explicitly do—that, if such a regime is to survive, it calls for what Hoi Kong and the late Roderick A. Macdonald termed as “virtuous judges.”[72] Institutional and cultural conditions must exist that will “both facilitate the exercise of judicial virtues including temperance, courage, intelligence, and wisdom, and discourage judges from falling prey to judicial vices such as corruption, cowardice, incompetence, and foolishness.”[73] It would appear that informal political and judicial culture plays an essential part in the fostering of these judicial virtues. Judges must tread a path of legitimacy that is sometimes very narrow and calls for the exercise of phronesis, or practical wisdom.[74] The stakes are high. In the sentence following the passage quoted in the epigraph to this foreword, Alexis de Tocqueville summarizes the challenge beautifully:

[F]ederal judges must be not only good citizens, learned and upright men, qualities necessary for all magistrates, but they must also be statesmen; they must know how to discern the spirit of the times, to brave the obstacles that can be overcome, and to change direction when the current threatens to carry away, with them, the sovereignty of the Union and the obedience due to its laws.[75]

In all honesty, if the majority in Remuneration had demonstrated as much statecraft as some of the same judges showed in Secession, and had it refrained from quashing legislation on the basis of a reasoning evidencing judicial self-interest, I do not believe that UCPs would have generated such controversy.

Finally, there is an undeniable Dworkinian flavour to the Supreme Court’s reasoning in Remuneration and Secession, as well as that of many scholars. A word of warning to us all: Dworkin lived and thought in a time of liberal-minded judges. Looking at what is now happening in the United States, let us not forget that his Hercules might become someone else’s Hades. Would UCPs appear as exciting then?