Administrative Constitutionalism and the Unity of Public Law

Public law scholarship in the common law tradition often aims at elucidating a connection between law and constitutional values like equality, due process, and the rule of law. However, in their quest to reveal the morality of public law, common lawyers often focus their attention on judicial interpretations of constitutional values to the exclusion of other sources of constitutional jurisprudence. The author argues that the traditional fascination with courts as the primary or exclusive arbiters of constitutional values should be tempered and supplemented by recognizing the valuable contributions of administrative officials who interpret and enforce constitutional norms when exercising statutorily delegated legal authority. By drawing attention to the contributions of the Canadian Human Rights Commission and Tribunal in advancing equality rights, the author argues that recent decisions from the Supreme Court of Canada which recommend judicial deference to reasonable, proportionate, and contextually sensitive administrative decisions concerning human rights, instead of resorting reflexively to correctness review, will serve to strengthen the moral unity of Canadian public law

Roncarelli’s Green Card: The Role of Citizenship in Randian Constitutionalism

This article investigates the distinct character of Randian constitutionalism and how it may have been inspired by American discourse on constitutional values. More specifically, the author examines how Justice Rand’s brand of constitutionalism is distinguishable from the more dominant strain of Diceyan constitutionalism that was prominent among Canadian jurists during the twentieth century. The author argues that the difference between Randian and Diceyan constitutionalism can be explained largely by the central role that “citizenship” played in Justice Rand’s understanding of the Canadian constitutional order.The author further argues that Justice Rand did not invent his conception of citizenship, but borrowed it from American constitutional jurisprudence regarding the Fourteenth Amendment to the Constitution of the United States. Accordingly, Justice Rand’s opinion in Roncarelli and other cases shows how his constitutional vision was shaped by a series of strong dissenting opinions concerning the now-defunct Privileges or Immunities Clause in the Fourteenth Amendment. By doing so, Justice Rand sought to install in Canadian public law the same fundamental principles of equality and non-discrimination that the American Congress intended to establish by adopting the Fourteenth Amendment.Cet article étudie le caractère distinct du constitutionnalisme randien et examine comment il a pu être inspiré du discours américain sur les valeurs constitutionnelles. Plus précisément, l’auteur examine les distinctions entre les approches constitutionnelles randienne et diceyenne, cette dernière étant proéminente parmi les juristes canadiens du vingtième siècle. L’auteur soutient que la différence entre les constitutionnalismes randien et diceyen s’explique en grande partie par l’importance qu’accordait le juge Rand à la citoyenneté dans sa conception de l’ordre constitutionnel canadien.L’auteur fait aussi valoir que le juge Rand n’a pas inventé sa vision de la citoyenneté, mais l’a plutôt empruntée à la jurisprudence constitutionnelle américaine traitant du Quatorzième amendement de la Constitution des États-Unis. Par conséquent, l’opinion du juge Rand dans Roncarelli et dans d’autres affaires montre comment sa vision constitutionnelle a été influencée par une série d’opinions dissidentes relatives à l’ancienne clause « privilèges ou immunités » du Quatorzième amendement. Le juge Rand cherchait ainsi à incorporer au droit public canadien les mêmes principes fondamentaux d’égalité et de non-discrimination que le Congrès américain avait voulu établir en adoptant le Quatorzième amendement

Graduate recitals

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Administrative Constitutionalism and the Unity of Public Law

Public law scholarship in the common law tradition often aims at elucidating a connection between law and constitutional values like equality, due process, and the rule of law. However, in their quest to reveal the morality of public law, common lawyers often focus their attention on judicial interpretations of constitutional values to the exclusion of other sources of constitutional jurisprudence. The author argues that the traditional fascination with courts as the primary or exclusive arbiters of constitutional values should be tempered and supplemented by recognizing the valuable contributions of administrative officials who interpret and enforce constitutional norms when exercising statutorily delegated legal authority. By drawing attention to the contributions of the Canadian Human Rights Commission and Tribunal in advancing equality rights, the author argues that recent decisions from the Supreme Court of Canada which recommend judicial deference to reasonable, proportionate, and contextually sensitive administrative decisions concerning human rights, instead of resorting reflexively to correctness review, will serve to strengthen the moral unity of Canadian public law

Administrative Law and Curial Deference

This thesis examines three interrelated issues. The first concerns a question about the status of administrative law, namely whether administrative officials have authority to determine what the law requires under a democratic constitution. Historically, this question has not been adequately addressed in public law scholarship because neither Diceyan constitutional theory nor common law doctrine has been traditionally receptive to administrative law. In this thesis, I argue that there are good reasons for people to respect the legal authority of administrative officials and their decisions. Those reasons are rooted in respect for the democratic process by which administrative officials are empowered, and respect for the various forms of expertise that administrative officials possess. The second issue concerns the doctrinal aspect of administrative law. If there are good reasons for believing that administrative officials have legitimate legal authority, then those same reasons suggest that judges should respect administrative legal decisions. In order to better understand how the relevant reasons for respecting administrative decisions alter the practice of judicial review, I compare and contrast the traditional doctrine of jurisdictional review with the doctrine of curial deference. This comparison shows that the doctrine of curial deference provides a superior account of the legitimate legal authority of administrative officials, and that this account makes a practical difference for the practice of judicial review. The third issue concerns whether the doctrine of curial deference can be reconciled with the rule of law. Assuming that there are good reasons for respecting administrative decisions, how can judges both respect an administrative decision while ensuring that it is consistent with the rule of law? I argue that judges can both respect administrative decisions and maintain the rule of law by requiring administrative officials to justify their decisions adequately in light of public reasons which are both patent and latent in existing legal materials.SJ