The Shadow Constitution

Carl Jung wrote “The shadow personifies everything that the subject refuses to acknowledge about himself and yet is always thrusting itself upon him directly or indirectly.”^[1] For Jung, the shadow was neither good nor bad; it was inevitable and presented a persistent moral or even existential challenge to the conscious self. Jung and his acolytes applied the shadow metaphor fruitfully to individual psychology as well as in more speculative analyses of the collective unconscious. Among other things, they explained the shadow self could be revealed by projection: we often find it easier – both morally and cognitively – to see those repressed traits in others than in ourselves.

In this short post, I want to extend and possibly misuse this metaphor by contemplating the Shadow Constitution: those aspects of the Constitution we struggle to acknowledge, discuss, and embrace.

In addition to that extracurricular reading, this exercise is inspired by the persistence of two other metaphors in the Court’s reasons:

1. Structure. I’ve talked enough about the Court’s fixation on structure. 
2. Light, specifically reflection. The Court has often invoked reflection to explain its interpretive maneuvers, including the relationship between constitutional text and other constitutional elements. Here are just a few examples from the last 25 years.
   • Reference re Secession of Quebec, [1998] 2 SCR 217
     • ¶13: Art. III, s. 2 of the Constitution of the United States of America, which restricts federal court jurisdiction “to actual ‘cases’ or ‘controversies’…reflects the strict separation of powers in the American federal constitutional arrangement.”
     • ¶80: “the protection of minority rights is itself an independent principle underlying our constitutional order.  The principle is clearly reflected in the Charter‘s provisions for the protection of minority rights”
     • ¶82: “The protection of these [existing aboriginal and treaty] rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.”
     • ¶150: “Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change.”
   • R. v. Powley, 2003 SCC 43, ¶45: “Although s. 35 protects “existing” rights, it is more than a mere codification of the common law.  Section 35 reflects a new promise: a constitutional commitment to protecting practices that were historically important features of particular aboriginal communities.”
   • Canada (Prime Minister) v. Khadr, 2010 SCC 3, ¶37: “The limited power of the courts to review exercises of the prerogative power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution
   • Reference re Senate Reform, 2014 SCC 32
     • ¶29: “The Part V amending formula reflects the principle that constitutional change that engages provincial interests requires both the consent of Parliament and a significant degree of provincial consent.”
     • ¶38: “The process set out in s. 38 is the general rule for amendments to the Constitution of Canada. It reflects the principle that substantial provincial consent must be obtained for constitutional change that engages provincial interests.“
   • Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), ¶80: “In practical terms, this means that the preservation and development of minority language communities are among the values underlying s. 23. Protection of the right to instruction in the minority official language, explicitly entrenched in the Constitution, is a reflection of these values, insofar as education is a means of realizing the societal ideal that they embody.”

When light meets structure, it casts a shadow.

Constitutional Principles: Abundance > Coherence

The shadow constitution is intended as an expansive exercise, not as a critical mission to expose error or hypocrisy. Form is perhaps less contentious than substance, so let’s start with a familiar formal concern: constitutional principles.

The Court has told us a lot about them. Unwritten constitutional principles “are the vital unstated assumptions upon which the text is based” (QSR, ¶49). They have two legitimate uses:

1. “they may be used in the interpretation of constitutional provisions…When applied to Charterrights, unwritten principles assist with purposive interpretation, informing “the character and the larger objects of the Charter itself, . . . the language chosen to articulate the specific right or freedom, [and] the historical origins of the concepts enshrined” (Quebec (Attorney General), at para. 7, quoting Big M Drug Mart Ltd., at p. 344; see also R. v. Poulin,2019 SCC 47, at para. 32); and 
2. “to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecture” (Toronto (City) v. Ontario (AG), ¶¶55-56). 

According to the Court, unwritten constitutional principles serve clarity and coherence. They promote order by refining and deepening our understanding of the constitutional structure.

Except, they don’t. 

We have always known that unwritten constitutional principles are an indeterminate set. There are no criteria for identifying such a principle. These interpretive tools are themselves the product of interpretation: “our Constitution describes an architecture of the institutions of state and of their relationship to citizens that connotes certain underlying principles” (Toronto (City), ¶49).

We can never know whether we have identified every unwritten constitutional principle. Our work is never done.

In theory, these principles serve coherence. In practice, they deliver abundance. That difference has radical implications.

Unwritten constitutional principles proliferate. Judicial independence, democracy, federalism, protection of minorities, constitutionalism and the rule of law, separation of powers, parliamentary sovereignty, parliamentary privilege, prosecutorial independence, the honour of the Crown…the list only grows. It does not get shorter. 

As they proliferate, constitutional principles also complicate the conceptual system. Some of those principles (judicial independence, the separation of powers) have metamorphosed into constitutional imperatives, which apparently have a more immediate relationship with the basic constitutional structure. The exact nature of the relationships between principles, imperatives, and structure remains unresolved. We keep adding principles, concepts, and ideas about those ideas, and our constitution keeps getting more complex, not more coherent.

Constitutional principles also mutate. Of course, they are subject to interpretation and reinterpretation as reasons accumulate. For example, the Court recently found that the constitutional principle of the honour of the Crown applies not only to constitutional texts and constitutionally-protected treaties but also to agreements between the Crown and an Indigenous group (1) based on that group’s Indigenous difference and (2) related to an Indigenous right or interest, such as the right to self-government (Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39, ¶¶156-68).

Since these principles are not codified in constitutional text, they also can change in more fundamental ways. In QSR, the Court wrote about the principle of “constitutionalism and the rule of law” (le constitutionnalisme et la primauté du droit) (¶70). But in Canada (AG) v. Power, 2024 SCC 26, Wagner CJ and Karakatsanis J wrote for the majority about “constitutionality and the rule of law” (la constitutionnalité et la primauté du droit) (¶5). As I’m trying to keep this post relatively short and informal, let’s just note for now that constitutionalism is more than constitutionality. Whether this subtle suffix shift has lasting doctrinal impact remains TBD.

The Reality of Constitutional Development

When the Court writes about constitutional principles, it writes about structure and coherence. The Justices are expressly concerned with establishing a discernible constitutional order. They are exercising control over the Constitution.

At least so far, this website is a parallel (ironic?) attempt to understand the Court’s efforts to impose order on the Constitution. By paying close attention to the Court’s reasons at both micro (sentence-by-sentence) and macro (decade-by-decade) scales, we can see how the Justices unleash the same unruly forces they also seek to tame. Their efforts are neither self-defeating nor disingenuous, but their explanations are incomplete because they exclude and repress certain aspects of the Constitution.

The Justices need all those principles, imperatives, and frameworks (and probably more) because the Constitution is also wild, abundant, and radical. That is the Shadow Constitution.

To see the Shadow Constitution, we need to contrast what the Court says with what the Court does. We need to take the Justices’ words seriously but not exclusively: not at the expense of ignoring their conduct (i.e. what they do with their words). As noted above, the Court may say constitutional principles serve coherence, but when considered across years or decades of practice those principles perpetuate and deepen fundamental debates about the meaning and nature of the Constitution. They don’t resolve anything.

Our highest courts have long described constitutional development as the unfolding of some seed of logic or principle. We all know the living tree from Viscount Sankey and the JCPC. We also know the canonical excerpt from Hunter v. Southam:

“A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind” (p. 155).

So stately, so familiar, so Whiggish. The Court minds the Constitution so the latter can mature and maintain the order (“framework”) required for legitimate government under conditions that are not merely novel but unforeseen. This is the way: 

• new realities emerge; 
• the Constitution rises to meet those new realities; and 
• the Court enables the Constitution to realize its destiny. 

The tensions that define this deeply influential account of constitutional development should be obvious by now. For example:

• The Constitution is both consistent and everchanging. Somehow, the Constitution maintains its identity while evolving in response to radically new and different realities.
• The Court is both essential and self-effacing. Since the Constitution is capable of the growth and development necessary to meet those new realities, the Court performs its role properly only when we see no evidence of its work. The Court’s role is to maintain the legitimacy of the Constitution, and the legitimacy of the Court’s work depends on maintaining the appearance of having done nothing to the Constitution. The Constitution woke up like this. 

The Shadow Constitution may help resolve these tensions by enabling us to tell a more comprehensive, complex, and accommodating story, in contrast to the rigid, even procrustean, orthodox account. This alternative account would emerge from what the Court actually says and does, not on theories about what it should or must do.

For example, the Court does much more than guard the Constitution. As shown above and elsewhere, the Justices conjure new constitutional components and concepts and then use their creations to adopt new interpretations of the Constitution, often with unintended consequences. 

The orthodox account of constitutional development omits the generative role of the Court: in every case, no matter the result, we always get more constitution. Even when the Court articulates “organizing principles” to refine a doctrine, any apparent simplification is temporary as the initial clarity illuminates new areas for application and further elaboration. Again, the orthodox account is not so much wrong as it is incomplete: constitutional change is both principled and protean.

Similarly, the Constitution does not merely “meet” new social, political and historical realities. It helps to make those new realities (e.g. the existential threat of climate change, a society defined by individual dignity, a moral and political imperative of reconciliation with Indigenous peoples, a neoliberal economic order). 

By drawing a stark conceptual distinction (with normative significance) between irrepressible “reality” and “the Constitution” (a framework that establishes a legal order which can be justified by reason), the standard model elides the Court’s role in fashioning both elements. This binary model also illustrates projection, as the Court contrasts the unpredictable irruptions of “reality” with the orderly development of the Constitution. To engage the Shadow Constitution, we need to pay attention both to what the Court says about the Constitution and to what the Court says about things that are “not the Constitution.”

The Court uses “reality” to explain constitutional change across many domains (e.g. the Charter, private international law, etc.). The concept appears to operate as a meta-principle (or organizing principle) for constitutional development. This “reality principle” is one potential insight from the Shadow Constitution. It is also a topic for another post.

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^[1] Carl Jung, The Archetypes and the Collective Unconscious (Princeton, 1969), pp. 284-5