What’s Constitutional Law, Anyway?

Understandings of what is constitutional law depend on time and place

Law is beset with definitional problems. Quite apart from the law’s struggles to define terms external to it, and translation difficulties, 2400 years after Plato, we can even agree about what law is. And it is similarly difficult to define specific legal categories and fields. The process of developing my New Zealand constitutional law class is a good reminder that the boundaries of the field to which this blog is devoted are, at best, a matter of contingent convention.

Speaking theoretically, I would define a polity’s constitution as the set of rules that structure its political institutions, define and limit their respective powers, and govern the relationships between them. Constitutional law is the subset of such rules that are also recognized as belonging to the realm of law, as opposed to, notably, that of constitutional convention (though I have been known to argue that the distinction between the two is an artificial and an untenable one). But this very broad definition, while I believe that it has the merit of logical comprehensiveness on its side, has little to do with how the field of constitutional law is generally understood by its practitioners, whether at the bar or in academia. Put another way, when we say “constitutional law,” we normally mean something narrower than the entire set of legal rules about political institutions.

For one thing, important swathes of law that fit within the general definition above are considered to be independent study areas. This is notably, the case of administrative law, which deals with decision-making by various governmental agencies and the review of their decisions by courts; municipal law, dealing with local government; and variously defined areas of legal study having to do with the procedures and organization of courts. So in practice, when we say “constitutional law,” we refer to those legal rules about political institutions that are not conventionally assigned to other subjects.

Beyond that, though, just what we mean, though, depends on just who “we” are. This becomes clear if you compare, say, constitutional law treatises from different jurisdictions ― even those that are in many ways “similar in principle,” as Canada and New Zealand are. Of course, there are important differences between the two, which help explain some of the differences. Unlike Canada, New Zealand is a unitary state, and so does not need to figure out whether elephants, and other weighty matters, are a federal or a provincial responsibility. New Zealand also does not have an entrenched constitution, meaning that it lacks our over-complicated amending formula and that its New Zealand Bill of Rights Act 1990 is an ordinary statute that cannot be invoked to strike down other legislation. New Zealand’s constitution also has features that Canada’s lacks, such as provisions for citizen-initiated referenda and a still relatively-new electoral system (MMP) which has caused some evolution in the workings of the cabinet. Still, as significant as they are, these differences do not explain everything.

The leading Canadian text, Peter Hogg’s Constitutional Law of Canada, consists mainly of extensive coverage of the provisions on the division of powers between the (federal) Parliament and the (provincial) legislatures, and of the Canadian Charter of Rights and Freedoms. Its other chapters ― on the sources and evolution of the constitution, on the courts generally and the Supreme Court specifically, on the Crown and on Parliamentary sovereignty, seem comparatively a minor matter. (Indeed, the Chapter on the Crown does not even feature in the Student Edition of prof. Hogg’s book.)

The leading New Zealand treatise is P.A. Joseph’s Constitutional and Administrative Law in New Zealand.  Some of its contents is similar to that of prof. Hogg’s book: there are chapters on the sources and the history of the constitution for instance, and one on Parliamentary sovereignty, though some subjects ― such as the Crown ― are treated in much more detail in prof. Joseph’s work. There is a chapter ― just one ― on the New Zealand Bill of Rights Act 1990, though it only deals with the Bill’s application provisions, and not with the substantive rights. But much of prof. Joseph’s book deals with subjects that do not make it into prof. Hogg’s: access to information legislation, for instance; the internal workings of Parliament, including its standing orders and legislative procedure; and the officers of Parliament ―including a (brief) discussion of Parliament’s restaurant and a (brief) section on the Mace!

These issues aren’t just accidentally missing from prof. Hogg’s treatise of course. In Canada, we tend not to think of them as falling within the scope of constitutional law at all ― we see them, it seems to me, as discrete areas of the law. This is, in some ways, unfortunate, because gives Canadian constitutional lawyers ― and I include myself in their number ― a somewhat blinkered view of the government’s workings and the ways in which it can be held to account. At the same time, I think it is perfectly understandable that, having federalism to worry about (and to complicate matters too ― prof. Joseph only needs to describe the operations of one Parliament; prof. Hogg would need to deal the more than a dozen, counting the legislatures of territories), and devoting a great deal of attention to the Charter, we lose sight of some other issues. The (shortened) student edition of Canadian Constitutional Law is as long as Constitutional and Administrative Law in New Zealand, and of course it doesn’t cover administrative law. (A note to my students at AUT: it also every bit as expensive. I sympathize with your having to buy a very pricey textbook but, if it’s any consolation at all, at least you get the whole thing, and you won’t need to buy a separate book for Judicial Review ― you are actually getting a better deal than your Canadian counterparts.)

Besides, there are arguably at least some issues that might have deserved to be treated as constitutional law that are missing from both the Canadian and the New Zealand accounts. Take the central banks, and the rules regarding their independence and accountability. These are critically important institutions of government, yet how many constitutional lawyers think about them at all? I’m as guilty of having this blindspot, and likely others, as anyone else of course.

So I do not mean that one approach is better than the other. I am simply trying to illustrate the point I made above ― that what we think of as “constitutional law” depends on the jurisdiction we are in, and more specifically both on the set of available rules that are constitutional in the broad theoretical sense, and on the legal culture of that polity. That culture, it is worth pointing out, evolves, so that even within the same jurisdiction, understandings of what is constitutional law change. As the late Rod Macdonald pointed out in remarks delivered at a conference to devoted to the Charter’s 25th anniversary,

[w]hen Albert Abel published the 900-page 4th edition of Bora Laskin’s leading casebook Canadian Constitutional Law in 1973, he left out the chapter on civil liberties that Laskin included in the 3rd edition on the grounds that the subject was not really constitutional law.

And by the time prof. Macdonald was speaking ― and still today ― the Charter had come to dominate the writing and thinking about constitutional law in Canada, and its teaching:

Few are the constitutional law teachers today who do not sacrifice their teaching of history, politics, institutions, practices, conventions and federalism on the altar of the Charter.

Fabien Gélinas, who taught me constitutional law at McGill, sacrificed less than just about any of his colleagues. Still, preparing to teach in a jurisdiction where institutions, practices, and conventions, are still the focus of constitutional law is an interesting, although challenging, reminder of the contingency of our own understandings.

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