Constitutional Norms in the United States vs Constitutional Conventions in Canada

I’ve been mulling overGould’s article “Codifying Constitutional Norms” (in the United States) and about constitutional norms in the American versus Canadian systems of government a bit more over the last few days, as well as on the differences between Responsible Government and Consensus Government, as well as a strange precedent that just unfolded in the State of South Australia this week (more on that in a subsequent post). It seems to me that constitutional norms in the United States still remain, for the most part, different in kind rather than merely in degree to most of the constitutional conventions which apply in the Commonwealth Realms, what the British call “the political constitution.”

If I can provide a brief example of what I mean, in Canada and Australia, our founding Imperial statutes (the Constitution Act, 1867 and the Commonwealth of Australia Constitution Act, 1900) contain provisions recognising the command-in-chief of the armed forces and the authority to appoint judges and to summon, prorogue, and dissolve parliament as belonging to the Queen or to the Governor General, yet what these provisions really mean in practice and by constitutional convention is that the Queen or Governor General does these things only on and in accordance with the constitutional advice of Ministers of the Crown, and not unilaterally and autocratically. But by the 1980s, Canada and Australia gained full control over this formerly Imperial statutes, and they now form the core of the Constitution of Canada and the Constitution of Australia, which the federal Parliament of each Realm alone cannot amend because they are instead, like the US Constitution, supreme law subject to extraordinary amending procedures of their own that go well beyond a normal statute enacted by one parliaments.

It seems to me that this level of abstraction — where the legislative drafting of the provisions of our constitutional statutes necessarily imply but do not state outright the proviso “on and in accordance with ministerial advice,” which we leave to concomitant constitutional conventions — does not exist in the United States. When the United States Constitution says “Congress” in Article I and “the President” in Article II, the text means exactly what it says and does not contain a latent conventional or normative proviso. (Sometimes the civil service and agencies under the President’s authority make operational decisions, as they do in the Realms, but this is still a different matter from the latent proviso “The Governor General shall do x on and in accordance with ministerial advice”). If I can put it another way, the United States relies on constitutional norms to some extent, these norms remain subordinate to the text of the US Constitution in ways which constitutional conventions in Canada and Australia do not and cannot remain subordinate to their respective codified constitutions, at least with respect to references to Her Majesty the Queen or to the Governor General. The United Kingdom and New Zealand take this one step further, since they operate wholly on “political constitutions”, where their parliaments can legislate on anything and where no codified constitution at all exists as supreme law over and above normal statute.

While some constitutional norms in the United States can develop organically, either evolving or going extinct, the US Constitution itself has ossified the overall system of government into a republican transcription of the British constitution of the late 18th century, a few decades before cabinet government as we now understand it emerged in the 1830s. What Woodrow Wilson failed to grasp in his admiration for the British system that he expressed in the 1880s and 1890s is that the Ineligibility Clause means that the United States could never organically evolve into a parliamentary republic like Germany or Ireland, because this provision of the Constitution precludes members of the House and Senate from simultaneously serving as officers of the executive branch, and that dual role as both members of a legislative body and members of an executive council responsible to those legislative bodies forms the core premise of all parliamentary systems and cabinet government, in both republics and constitutional monarchies.

Gee and Webber’s “What Is a Political Constitution?”

• Gee & Webber (2010) What Is a Political Constitution

This brings me to Graham Gee’s and Gregoire C.N. Webber’s “What Is a Political Constitution?” from 2010, wherein they try to offer viable definitions of a political constitution versus a legal constitution in general, define the British constitution in particular, and parse out the dual and paradoxical descriptive-normative nature of constitutional conventions, what the British call a political constitution. They offer some pertinent insight but also rationalise tautological dead ends and non-definitions by taking refuge in the notion that political constitutions always contain ambiguity.

At its core, a political constitution remains uncodified and develops organically based on foundational statutes and political norms and conventions; a political constitution also by definition relies on parliamentary sovereignty: parliament can legislate on anything, and no supreme law exists over and above normal statute and outside parliament’s authority to enact, amend, or repeal statutes. In contrast, a legal constitutional refers to a document or collection of documents which serves as the supreme law over and above normal statute law and which can therefore only be amended through special means and not at will by a legislature alone. (This ideal type would seem not to account for the Section 44 and 45 Amending Procedures in the Constitution Act, 1982, but the Constitution itself, rather than a general understanding of parliamentary sovereignty, affirms that the Parliament of Canada or provincial legislatures alone can amend certain provisions of the Constitution Acts). Political constitutions in democratic countries therefore rely exclusively on a dialectic, treat all questions as political questions, and subject all questions to parliamentary debate, since parliament alone can enact statutes on anything. In contrast, legal constitutions necessarily remove some questions from the political realm and reserve them as legal questions which courts adjudicate instead of which legislatures can debate.

Gee and Webber define a political constitution as one under which “the political process in political institutions” (so the House of Commons and House of Lords) “hold those who exercise political power to account” and a legal constitution as one under which judicial review “holds those exercising political power to account.”[1] Their definition of a political constitution rings true, but they fail to grasp that a legal constitution consists far more than simply of judicial review. As many British scholars seem wont to do, they fixate on the concept of judicial review and treat it as the primary feature of codified constitutions instead of treating it as a function that the judiciary must logically assume as a means of adjudicating disputes relating to supreme law. They wrote this article ten years ago before the United Kingdom Supreme Court began granting itself the authority to conduct judicial review in the disastrous Miller 2 ruling in 2019.

All federations need at least partially codified constitutions which, at minimum, delineate a division of powers between at least two orders of government and define what the legislatures and executives of those orders of government can and cannot do within their own jurisdictions. Judicial review in a federation means that the judiciary must determine the constitutionality of statutes enacted by these separate orders of government based on whether they conform to the division of powers set out in the constitution, the supreme law against which other laws are judged. But unitary states can also adopt codified constitutions as supreme law; they simply would not include a division of powers. Some constitutions also protect the political and civil rights of citizens as supreme law, which limit the statutes which legislatures can enact and which executives can enforce, and which expand the scope of judicial review to determine the constitutional validity of other laws based on questions of rights. The constitutions of the United States and Canada contain both elements – a division of powers and a bill of rights – while the constitution of Australia only entrenches a division of powers.

Gee and Webber review some of the relevant literature and point to Griffith as the archetypal defender of the political constitution. Griffith pithily observed that “Law is politics carried on by other means,”[2] in what I can only presume he put forward as a conscious allusion to Clausewitz’s maxim that “War is the continuation of politics by other means.” Griffith also declared, “The constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.”[3] Here Griffith alludes to the tradition that Gregory Tardi in Canada emphasises as “political law.” Unlike real law adjudicated in the courts, political law runs on the caprice of politicians instead of on procedural fairness.

Next, Gee and Webber provide an overview of more recent scholarship by Tomkins and Bellamy. Tomkins regards ministerial responsibility – or in Canadian terms, Responsible Government – as the core of the British constitution, and Bellamy considers parliament’s law-making authority and the legislative process as the core of the British constitution.[4] Tomkins defines the political constitution as ministerial responsibility and sees the House of Commons and House of Lords as primarily scrutineers and reviewers of the executive rather than as legislators, while Bellamy defines the political constitution as parliamentary sovereignty and the process of debate by which parliament enacts law.[5] Bellamy’s definition is the more accurate of the two in the most fundamental and general sense, because he strikes at the heart of the matter: the absence of any codified supreme law means that parliament can legislate on anything and that all questions remain political questions in the United Kingdom. I would argue that Bellany has offered a good definition for a “political constitution” in general and that Tomkins has defined not a “political constitution” per se but instead a particular attribute of the “British constitution” in particular, its ur-constitutional convention of how modern cabinet government must operate. In the Canadian context, Tomkins has defined Responsible Government itself as the political constitution, which is not far off the mark.

Gee and Webber also summarise the views of Hickman, who nevertheless seems to regard the British constitution as a legal constitution and “as founded upon law that is enforceable in the courts.”[6] Yet here Hickman has not proven that the British constitution is a legal constitution; instead, he has merely demonstrated that the United Kingdom follows the rule of law. Statutes are enforceable in the courts, but British courts cannot enforce statutes against the standard of supreme law (a codified constitution), and the Westminster Parliament can also repeal any statute at will. He has conflated the definitions of “rule of law” with “legal constitution.”

After reviewing the literature of the late 20^th century, Gee and Webber over-complicate their subject and bog down the rest of their article in academic gobbledegook. They say things like, “The normativity of a political constitution remains obscured […] because the workings of the political constitution are themselves less visible than [those of] a legal constitution.”[7]But they demonstrated that the workings of a political constitution are not less visible than those of a legal constitution; they simply take place in different arenas, one in legislative bodies and the other in the law courts. If anything, the inner workings of a political constitution are more visible, not the other way around, while the inner workings of a legal constitution are superficially more exacting, since judges at least need to maintain the pretense that they respect stare decisis in issuing their rulings and follow basic principles like non-arbitrariness and procedural fairness and the like. They also say, “While we have focused on the political constitution in this essay, we recognise that both the legal and political models are at their most effective in rendering explicit our self-understandings when taken alongside one another.”[8] I still don’t understand what that latter quote means.

They come to the absurd conclusion in 2010 that the British constitution at that time had become a hybrid of a political and legal constitution. It had not, and despite the UK Supreme Court’s recent efforts, remains not now, because what determines whether a constitution is political or legal (that is, uncodified or codified) depends simply upon whether one law functions as a supreme law above others and remains outside the ambit of parliament’s control. The British constitution remains under the control of the British parliament; therefore, despite whatever features it possesses at any given time, the British constitution remains a political constitution. It’s really that simple.

Conclusion: Against the Tautology of Descriptivism

Gee and Webber reviewed the state of the British scholarship to determine whether a political constitution is descriptive, or, alternatively, normative. I can answer that question succinctly myself: both. A political constitution, especially the constitutional conventions that it entails, exist in a strange and paradoxical dual state, both descriptive and normative. A political constitution is both what happens and what should happen, which means that sometimes politicians will get things wrong and do what they ought not. The normative element of a political constitution – what should happen – derives from precedents and first principles. I mentioned in my previous post reviewing Gould’s article that the Jennings Test for determining what qualifies as a constitutional convention consists of three questions and is therefore in and of itself dialectic. This, in turn, means that conventions always remain subject to debate, which necessarily implies that we judge the actions of ministers based on a normative understanding of how they should apply conventions and interpret relevant precedents. But even if we judge an action as unconstitutional in the sense that it violates a norm, that action could still nevertheless happen or have happened. The political constitution is dialectic and contingent and thus depends upon reasonable debates (in which reasonable parliamentarians can sincerely disagree with one another) and parliamentary majorities. With respect to constitutional conventions, I refuse to believe in the descriptivist tautology that the constitution is merely what happens, because that alone would mean that we cannot judge an action or proposal as “unconstitutional” in principle after the fact. We can only make normative judgements and arguments in reference to a higher authority than a mere description of what happens.

I have therefore, for instance, judged the efforts of Nathan Cullen in 2006 and James Bezan in 2017 to table motions withdrawing confidence from individual ministers as unconstitutional because that idea, in principle, undermines the collective ministerial responsibility upon which Responsible Government depends. The House of Assembly of South Australia just passed such a motion on 18 November 2021 against the Deputy Premier, but simply because it happened does not make it constitutional.

Notes

[1]Graham Gee and Gregoire C.N. Webber, “What Is a Political Constitution?” Oxford Journal of Legal Studies 30, no. 2 (Summer 2010): 273.

[2]Gee and Webber 2010, 277.

[3]Gee and Webber 2010, 280.

[4]Gee and Webber 2010, 283.

[5]Gee and Webber 2010, 284.

[6]Gee and Webber 2010, 295.

[7]Gee and Webber 2010, 286.

[8]Gee and Webber 2010, 299.