Institutional Substitutes: An Essay Inspired by Professor King's Cross-Border Response to Buchanan & Dorf on Winding Down Constitutional Violations

Ten months ago, Professor Buchanan and I announced the pre-publication availability of our article Justice Delayed: Government Officials' Authority to Wind Down Constitutional Violations, which offers a descriptive and normative account of the power (and limits on the power) of judges and other government officials to gradually wind down rather than immediately cease constitutional (and other legal) violations. I'm happy to report that the final version of that article is now available in the Boston University Law Review. Professor Buchanan and I are very grateful to the editors of the review for their hard and careful editorial work.

We are also very grateful to the B.U. Law Review editors for having reached out to Professor Alyssa King of Queen's University in Kingston, Ontario, who wrote a fascinating and enlightening response to our article. Professor King was a great choice because, as a U.S.-educated Canadian legal scholar of comparative procedure, she is ideally suited to discuss, among many other things, what our article calls "perhaps the most compelling example of a delayed constitutional remedy": the Manitoba Language Rights Case.

Here is how Professor Buchanan and I described the case in Justice Delayed:

Having found that nearly all of Manitoba’s laws were invalid because they had been promulgated in English but not also in French, as required by Section 133 of the Constitution Act of 1867 and Section 23 of the Manitoba Act of 1870, the high court nonetheless gave the provincial legislature a grace period to translate the laws to avoid the chaos that would ensue from a legal vacuum. Faced with the choice between temporarily permitting the continuation of a constitutional violation while the translators could do their work or inviting anarchy in Winnipeg’s streets, the court understandably and wisely chose the former course.

Throughout Justice Delayed, we return to the Manitoba Language Rights Case as an example of both the necessity and the pitfalls of constitutional wind-downs. Professor King's response explains (politely and without saying so expressly--she is Canadian, after all!) how our use of the case also illustrates the pitfalls of comparative law dilettantism. Although Professor Buchanan is currently (and famously!) living and teaching in Toronto, neither of us is an expert in Canadian law. And with respect to the Manitoba Language Rights Case, it shows.

Our article presents the case as though government officials woke up one morning and discovered for the first time that they and their predecessors had forgotten to promulgate the province's laws in French. In fact, however, as Professor King observes, the case did not really involve the question whether to allow a one-year delay, but more like a 92-year delay, thus rendering it more like a case of recalcitrance on the order of the massive resistance in response to the Supreme Court's "all deliberate speed" language in Brown II (which we also discuss at length in Justice Delayed). 

Because our primary interest in wind-down authority is in how it functions in the U.S. legal system, upon reading a pre-publication version of Professor King's response, we opted to tweak some of the details of our own article to ensure that we did not say anything that was literally false, but we continued to use it illustratively as we had in our earlier draft. We also added a footnote making clear that we see the Manitoba Language Rights Case as the equivalent of a hypothetical intuition pump. We write in footnote 24: "As Professor King observes in her intriguing essay commenting on this Article, the backstory of the Manitoba Language Rights Case is more complex than we describe here. . . . Accordingly, and with apologies to our Canadian readers, we analyze a somewhat stylized version of the actual case."

So much for the Manitoba Language Rights case. Now I want to turn to another intriguing observation Professor King makes. Citing the work of other Canadian scholars, she notes how invocation of the Notwithstanding Clause (Section 33) of the Canadian Charter of Rights and Freedoms can serve as a substitute for (or a kind of) wind-down authority. If the national parliament or a provincial legislature believes it cannot comply with a judicial order declaring some law invalid under section 2 or one of sections 7 to 15 of the Charter, it need not seek judicial permission to delay compliance. Instead, it can enact legislation pursuant to the Notwithstanding Clause that renders the challenged law enforceable for up to five years, in effect staying the judicial order and temporarily leaving the otherwise invalid law in place. The Notwithstanding Clause can thus function as a de facto source of five-year wind-down authority.

Or at least so it appears on the face of things. In fact, with the exception of numerous invocations by Quebec, the Notwithstanding Clause is almost never successfully invoked. That doesn't mean it's entirely irrelevant outside of Quebec. Some Canadian scholars argue that it exerts an in terrorem effect: the omnipresent risk that Parliament or a provincial legislature might invoke it prevents the courts from interpreting the Charter especially aggressively. Whether that is correct--or whether, alternatively, the "soft" judicial review one sees in Canada, the UK under Section 4 of the Human Rights Act, and elsewhere is only soft in theory but hard in fact, as some other scholars argue--is a question that goes way beyond my expertise as a dilettante comparativist.

What I can say is that, insofar as the Notwithstanding Clause does substitute for wind-down authority or vice-versa, the phenomenon is quite common. One frequently finds that if a practice is nominally unavailable in a legal system but essential to its functioning, the legal system will find some way to retrofit available practices to plug the gap.

Consider that in the U.S., federal courts--including the U.S. Supreme Court--have authority to hear only concrete "cases" and "controversies." That is, unlike constitutional courts in many other constitutional democracies, our federal courts do not have the power of abstract review. To decide an abstract question is to give what has been deemed, since the Washington administration, an impermissible advisory opinion. However, sometimes it is essential for parties to know their rights and duties in advance of undertaking costly and potentially irreversible steps in reliance on what could prove to be an inaccurate projection of a future ruling. Hence, in the U.S., federal courts have developed numerous mechanisms to circumvent the formal absence of a power of abstract review. Facial and other pre-enforcement challenges are the clearest example, but one might think of the declaratory judgment (which is not supposed to be permitted unless there would otherwise be a live case or controversy) as another attempted circumvention.

Nonetheless, retrofitting has limits and drawbacks, as our entire constitutional system illustrates. The framers feared and loathed political parties. They built a government based on checks and balances that assumed there would be such parties: for "ambition . . . to counteract ambition," representatives and Senators must have greater loyalty (respectively) to the House and Senate than to the President; they might well have such institutional loyalty in a system of government without political parties; but in our actual system, members of Congress will either stand by or oppose the President (on much more than average) depending on whether or not they are of the same party.

The Constitution was expressly amended in the Twelfth Amendment to patch the error that arose from the interaction of the original Presidential selection method and political party tickets, but we have never had an express patch to the separation of powers. Meanwhile, some of the workarounds--like the concentration of power in the Speaker of the House in recognition that the Speaker would be the leader of the majority party in the House--have lately come undone due to a lack of party discipline in the Republican Party. One might think that a crack in the party system would lead to something closer to the original design, but that's not true here. The system still isn't functioning as the framers intended (if at all), because the House as an institution isn't checking the President. Any checking is an accidental byproduct of divided government and intra-Republican disagreement.

One tentative lesson we might draw is that retrofitting will rarely work as well as express design. If you want a house with copper pipes, you should either buy a house that already has copper pipes or build a new one with copper pipes; ripping up the walls to replace rusting steel pipes with copper ones will be expensive and make a mess. So too for legal systems.

Unfortunately, because we in the U.S. are cursed with one of the world's most difficult to amend constitutions, our best option is to retrofit. However, lately even that seems impossible. We are instead drinking rusty water and may soon be drinking poison (again).