Law\u27s Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law

Abstract

This article argues that there is a link between ones theory of constitutional law and ones judgments about style in judicial opinion writing It identifies several special functions of the constitutional opinion including the democratic function of responding to the countermajoritarian difficulty through an act of public justification and the intergenerational function of provoking a temporally extended dialogue about constitutional values Drawing on these functions it argues for an opinion writing style dubbed opentextured minimalism which seeks to resolve cases narrowly articulate fundamental values and principles and spark longterm debates about the underlying values supporting each decision The article then applies these lessons to the Canadian Supreme Courts rulings on freedom of expression arguing that the Courts rulings on this subject in the first two decades of the Canadian Charter of Rights and Freedom suffered from their length and technicality and that the Court should have taken a more opentextured minimalist approach Although the article addresses Canadian law specifically its attempt to draw connections between constitutional theory and opinion style and its advocacy of an opentextured minimalist approach should be of interest to readers in the United States and elsewhere particularly lawyers in countries whose constitutional jurisprudence is still relatively youn