Thinking about Popular Constitutionalism

Thursday, January 3, 2013

Vanessa MacDonnell
Assistant Professor, University of Ottawa Faculty of Law (Common Law Section)
What role do extra-judicial actors play in determining the contours of Canadian constitutional law? This is a question I have been thinking about a lot lately, and in this post Iprovide a few thoughts on one aspect of this very large questionby examining the role of popular constitutionalism in Canada (more detailed thoughts can be found in my paperentitled “Internet Surveillance and Popular Constitutionalism,” to be published as part of a edited collection by Routledge in 2013(George Williams, Fergal Davis and Nicole McGarrity, eds,Surveillance, Counter-Terrorism and Comparative Constitutionalism)).
To date, my thinking on popular constitutionalism has been significantly influenced by Reva Siegel and Robert Post’s many very interesting articles on the subject.[1]Their basic premise is that social movements can play an important role in the evolution of constitutional law by shaping or even altering how we understand basic constitutional doctrine. The issue I want to raisein this post is the extent to whichthese discussions lay bare the political nature of constitutional law. Once we begin to think about how extra-judicial actors – individuals, groups, governments – act as players in constitutional law-making, then a re-examination of what courts do in light of this broader view is inevitable. One of the insights that emerges from this re-examination is thatwhat courts and political actors do may not be as different as all that.
 This is an over-simplification, of course, but I think it is fair to say that the work on popular constitutionalism poses a challenge to those who would argue that judicial decision-making is a “forum of principle”immune from political pressures.[2] Judges must to an important degree be at least removed from political pressures, even if they are not immune from them. After all, if courts and politicians do essentially the same work, the arguments about the problematic (undemocratic) nature of judicial review gain some considerable force. But there is little doubt that arguments which rest on the neutrality of courts are made weaker by Siegel and Post’s scholarship, which detailshow the women’s rights and civil rights movements convinced the courts through their activism to adopt a more enlightened judicial understanding of constitutional doctrine
This brings me to two related points. First, I wonder whether we actually want courts to be immune from political pressure. Siegel and Post’s discussion of the importance of “democratic constitutionalism” suggests that we might not.[3]For those who argue for a robust understanding of constitutional law and its possibilities, it is clear that where there is politics, there is room for progressive change, growth, evolution, development.This position is not without its difficulties, of course, but the point seems to me to be an important one. In this way – and this is the second point – convincing courts to understand constitutional law differently can be viewed as an important tool in the arsenal of activists. Constitutional lawshould be viewed as a tool to be appropriated and deployed in strategic ways; not as some far away law contained in dusty law books, but as the law of “the People,”[4] to be moulded and shaped by popular visions of social justice.

[1] For a selection, see Reva Siegel and Robert Post, “Roe Rage: Democratic Constitutionalism and Backlash” (2007) 42 Harv CR-CL L Rev 373 [Siegel and Post, “Roe Rage”]; Reva Siegel, “Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown” (2004) 117 Harv L Rev 1470; Reva Siegel and Robert Post, “Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act” (2003) 112 Yale L J 1943-2059; Reva Siegel, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family” (2002) 115 Harv L Rev 947; Reva Siegel, “Text in Contest: Gender and the Constitution from a Social Movement Perspective” (2001) 150 U Penn L Rev 297.
[2] Siegel and Post, Roe Rage at 373, citing Ronald Dworkin, “The Forum of Principle” (1981) 56 NYU L Rev 469.
[3]Ibid. See also Jula Hughes, Vanessa MacDonnell and Karen Pearlston, “Bedford: Toward an Equality-Based Approach to Incrementalism?” (2013) Ottawa Law Review (forthcoming).
[4]Larry Kramer, “Popular Constitutionalism, Circa 2004” (2004) 92 California Law Review 959.
Designed by Rachel Gold.