Constitutional Crossroads

On this site, I’ve paid a lot of attention to how the Supreme Court of Canada (SCC) used principles during its 2024 term. I’ve been looking (maybe a little too closely) at the Justices’ reasons and trying to find new ways to understand the SCC’s work: to make metaphors like “basic constitutional structure” and “internal architecture” a little less familiar, a little more difficult to accept, and therefore a little more interesting and informative.

Another way to maintain critical distance from the SCC’s work is to compare it with other constitutional courts. For example, the Supreme Court of the United States (SCOTUS) – to pick one such court entirely at random – issued a series of major constitutional and administrative decisions in 2024: Securities Exchange Commission v. Jarkesy, Loper Bright Enterprises v. Raimondo, City of Grant’s Pass v. Johnson, Ohio v. Environmental Protection Agency, United States v. Rahimi, Trump v. United States.

This post is just an initial, instrumental experiment, not a comprehensive comparison of American and Canadian constitutionalism. Recent events have driven me to demonstrate my value to our new American overlords to show how much we can learn from each other despite our apparent differences. Can I use this clutch of American cases to shed new light on old ideas? Or at least generate some heat by rubbing them against their Canadian counterparts? Does this exercise warrant – or better yet demand – more attention? 

So, for now, I will keep it cheap, cheerful, and quick. As with other posts, I will focus on the actual words written by the Justices. At times, this textual emphasis might take us close to certain longstanding theoretical debates, but I don’t want to write a literature review on legal positivism (or purposive interpretation or comparative constitutional methodology) and you didn’t come here to read one. 

Constitutional Principles According to SCOTUS

In 2024, SCOTUS wrote a lot about principles when interpreting the US Constitution.^[1] For example:

• “The public rights exception is, after all, an exception. It has no textual basis in the Constitution and must therefore derive instead from background legal principles” (Jarkesy, p. 7)
• “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” (Rahimi, p. 7)
• “the law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin” (Rahimi, pp. 7-8)
• “the separation of powers principles explicated in our precedent necessitate at least a presumptiveimmunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility” (Trump, p. 14)
• “Determining whether a former President is entitled to immunity from a particular prosecution requires applying the principles we have laid out to his conduct at issue.” (Trump, p. 16)

In these constitutional cases, SCOTUS appears to use principles as either:

1. context for textual interpretation (“background legal principles”, “the principles that underpin our regulatory tradition”); or
2. consequences of structural analysis (“the separation of powers principles”)

At first glance, these functions look a lot like “interpretation” and “filling gaps”: the two permissible uses for unwritten constitutional principles identified by the SCC (Toronto (City), ¶¶55-56). But such parallelism seems too convenient, too cute. It invites closer examination to confirm I am not simply applying a Canadian lens to American jurisprudence. The 49^th parallel isn’t a mirror. Maybe “interpretation” and “filling gaps” have different meanings in the USA, and our two judiciaries are divided by a common vocabulary.

Principles as Context for Textual Interpretation

For the majority in Jarkesy, Roberts CJ wrote that Congress cannot “conjure away” the 7^th Amendment right to a jury trial for actions that resemble traditional common law legal claims by invoking a “public right” and establishing an administrative tribunal to adjudicate it (21). As above, he noted that the public rights exception “has no textual basis in the Constitution and must therefore derive instead from background legal principles” (7). 

In fact, Roberts CJ did not rigorously seek those background principles. He listed a few examples (“relations with Indian tribes” (is it still sui generis if everyone does it?), “the administration of public lands”), did not attempt to synthesize them into anything more systematic, and ultimately decided the case using a combination of precedent and structural analysis (e.g. p. 17). 

Nonetheless, Roberts CJ did demonstrate what he meant by “background” when considering the other side of this particular coin: the longstanding rule that matters concerning private rights may not be removed from Article III courts. He wrote: “A hallmark we have looked to in determining if a suit concerns private rights is whether “it is made of ‘the stuff of the traditional actions at common law tried by the courts at Westminster in 1789.’” If a suit is in the nature of an action at common law, then the matter presumptively concerns private rights, and adjudication by an Article III court is mandatory” (citations omitted).

For Roberts CJ, the “background legal principles” are not the universal, eternal precepts of the rule of law. Rather, they are the historically specific doctrines of the common law that would have been known to the Framers of the Constitution of the United States when the relevant provisions were drafted (in this case, Article III in 1789). This is an approach to “background legal principles” consistent with the originalism espoused by a majority of SCOTUS.

Justice Gorsuch is a prolific proponent of originalism who writes a lot of concurrences. In Jarkesy, he concurred, looked beyond Article III and the 7^th Amendment to the Due Process Clause of the 5^th Amendment, and wrote: “due process promises any trial will be held in accord with time-honored principles” (1). Then, he identified those principles by examining the historic practices of common law courts at the time the 5^thAmendment was adopted. 

Similarly, concurring in Loper Bright, Gorsuch J provided a “quick sketch of traditional common-law understandings of the judge’s role and the place of precedent in it” (pursuant to which judges found and applied law, and prior decisions may have been useful but did not bind future judges) and then explained the Constitution was “adopted against the backdrop of these understandings and, in light of that alone, they may provide evidence of what the framers meant when they spoke of the “judicial Power”” (5). Although he wrote of “the backdrop of these understandings,” Gorsuch J used them like “background legal principles” to establish the particular legal context within which the Framers acted, rather than to describe some ahistorical, natural, or inherent feature of law itself.

In a series of judgments concerning s. 96 of the Constitution Act, 1867, the SCC has wrestled with very similar issues: (1) the extent to which provincial legislatures could transfer jurisdiction from the superior courts of general inherent jurisdiction staffed by federally appointed judges to provincial courts and tribunals and (2) the uses of both principles and history in drawing that line. From Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 through (among others) Sobeys Stores Ltd. v. Yeomans, [1989] 1 SCR 238, Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252, MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186, and Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, the SCC has developed two tests which apply sequentially:

1. the “historical jurisdiction” test (aka the Residential Tenancies test), which determines whether the jurisdiction in question may be transferred from the superior court to another body by asking first whether that jurisdiction is analogous to one exercised exclusively by the courts that became superior courts at the time of Confederation (Re Residential Tenancies Act (NS), ¶75; Re Code of Civil Procedure, ¶¶55-62); and 
2. the “core jurisdiction” test, which determines whether the jurisdiction may not be transferred by asking “whether a grant of jurisdiction infringes on the superior courts’ core jurisdiction either through an alteration of their essential nature or because they are prevented from playing their central role conferred by s. 96” (Reference re Code, ¶¶6, 65-66).

The first test is, in large part, an historical inquiry and therefore an anomaly in Canadian constitutional law. It fits awkwardly alongside orthodox purposive interpretation (MacMillan Bloedel, ¶¶91-93, McLachlin J dissenting; Re Code of Civil Procedure, Art. 35, ¶¶ 303-319, Abella J dissenting) and the talisman of the living tree: “the living tree must ‘gro[w] and expan[d] within its natural limits’ Section 96 is one of these limits” (Re Code of Civil Procedure, ¶89 (citations omitted)). But the “historical jurisdiction” test is not unique in Canadian constitutional law: the tests for aboriginal rights and aboriginal title under s. 35(1) Constitution Act, 1982 also require historical analysis of cultural and governance practices at specific points in time, namely contact with Europeans and the assertion of Crown sovereignty. 

The second (and newer) test involves structural analysis and is therefore more compatible with contemporary Canadian constitutional jurisprudence. The constitutional structure of Canada dictates the role of superior courts, which also defines their essence. Sections 92(14) and 96-100 of the Constitution Act, 1867 express a foundational compromise that created a unitary justice system characterized by federal-provincial cooperation (Re Code ¶36) whose objective was national unity (Re Code ¶38, citing Residential Tenancies at p. 728). That historical moment yielded this judicial structure, which has certain logical consequences, including the necessary function, status, and essence of the superior courts, as well as the “core jurisdiction” test to protect them:

• “The superior courts of the various provinces were called upon to form the cornerstone of this system and to act as a “unifying force”, thereby enabling the development of the law nationwide” (¶39)
• “The core jurisdiction test prevents the legislature from transferring to other courts the features that are essential to the role of the superior courts as the centrepiece of the unitary justice system and the primary guardians of the rule of law, for such transfers could transform those other courts into mirrors of the superior courts.” (¶66)

Cool story bro, but weren’t we talking about principles? Aren’t we always? The majority in Re Code explained that both tests “may have changed over the years, they are not ends in and of themselves; they are simply expressions of the principles that underlie s. 96”: national unity and the rule of law (¶¶31, 70). But there is nothing simple about it. These unwritten constitutional principles are not just background assumptions or knowledge against which the Fathers of Confederation acted. They may have inspired the compromise that the text reflects (¶4), but they also underlie the superior courts’ role as the cornerstone of Canada’s judicial system (¶42) and they continue to unfold within constitutional doctrines. They inform our evolving understanding of constitutional text, structure, and law, and vice versa.

The SCC in Re Code referred eight times to the Fathers of Confederation. Invoking the Framers is standard practice for SCOTUS, but it is much less common for the SCC to mention the Fathers since the Canadian approach to purposive interpretation insists the “purpose” of any constitutional provision is not identical to the intent of those who drafted it (e.g. Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, ¶¶11, 23; Hunter v. Southam, [1984] 2 S.C.R. 145, pp. 155-157; R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, ¶¶116-117; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, ¶¶151-152; R. v. Grant, 2009 SCC 32, ¶¶16-17; Caron v. Alberta, 2015 SCC 56, ¶¶35-38)

Nonetheless, in Re Code, the SCC follows earlier s. 96 cases (e.g. Re Residential Tenancies Act, 1979) and invokes the “compromise” reached by the Fathers of Confederation to establish a unitary justice system in which the provinces administer the superior courts and the federal government appoints justices to them. The purpose of s. 96 is to give effect to this compromise, which certainly seeks to accommodate both provincial and federal interests while promoting national unity (¶4; RTA 1979, p. 728). But there are deeper layers to this compromise. 

Again, for the SCC, that compromise is not a pure expression of the Fathers’ complex intentions. It certainly is a compromise among competing objectives, which can also be discussed in terms of constitutional principles: national unity, federalism, and – critically – the rule of law. Because it is also a compromise with history: the Fathers established a constitution “similar in Principle to that of the United Kingdom,” which incorporated not only the rule of law but also the superior courts of inherent jurisdiction that pre-existed Confederation (e.g. Constitution Act, 1867, Preamble, s. 129; MacMilan Bloedel, ¶29;  Re Code, ¶36). Further, it is a compromise of form: the Fathers used law to express their settlement. For the SCC, that choice has consequences because courts are “the primary guardians of the rule of law” (Re Code, ¶66) and the rule of law entails certain formal, procedural, and substantive constraints: law serves individual dignity and therefore cannot be a simple command (see, e.g., Reference Re BC Motor Vehicle Act, [1985] 2 SCR 486, ¶¶30-31). 

In United States v. Rahimi, 144 S. Ct. 1889 (2024), SCOTUS reinforced its own approach to constitutional principles when it applied Bruen: “the law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” (7-8). More narrowly, the Court asked “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” (7). The Court’s opinion presents principles as history twice distilled: first into tradition, and then into principles. That distillation is not a natural process. Those principles do not exist in some latent state, just waiting to be uncovered. They are made by judges using analogy. Roberts CJ, writing for a majority of eight, acknowledges this is just what courts do: “ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘applying faithfully the balance struck by the founding generation to modern circumstances’” (7).

To ascertain that tradition and its principles, which allow SCOTUS to analogize to modern circumstances, Roberts CJ examined developments from the earliest days of the common law (13^th and 14^th century, the Reformation, the English Civil War, the Glorious Revolution, and the English Bill of Rights) through colonial surety and affray laws to conclude that “Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others” (16). 

Let us just pause for a moment and contrast this concrete principle – the government may disarm individuals who present a credible threat to the physical safety of others – with the principles that underlie s. 96 of the Constitution Act, 1867: national unity and the rule of law.Roberts CJ derived his principle from a tradition that existed before the constitutional moment of 1791. It was fixed and crystallized at that time and it now provides the backdrop for interpreting the Second Amendment.

The concurring opinions demonstrate this point through a common metaphor:

• Echoing the majority opinion, Justices Jackson (1), Barrett (4) and Sotomayor (4) each claimed the law is not “trapped in amber”: the Second Amendment “permits more than just those regulations identical to ones that could be found in 1791”, provided they are “analogous enough to pass constitutional muster” (Roberts p. 7).
• By contrast, Justice Gorsuch wrote that judges are “charged with respecting the people’s directions in the Constitution – directions that are “trapped in amber””(2). For him, the Framers’ intent was fixed in 1791, in part by the background legal tradition, but the Court can honour directions that “codified a pre-existing right”, such as the Second or Sixth Amendment, via “close historic analogy” to specific exceptions established at the time of the founding (2-3). Justice Gorsuch expressly and archly (note the double quotation marks) disavowed purposive interpretation: “We have expressly rejected arguments that courts should proceed differently, such as by trying to glean from historic exceptions overarching ‘policies,’ “‘purposes’” or ‘values’ to guide them in future cases. We have rejected those paths because the Constitution enshrines the people’s choice to achieve certain policies, purposes, and values ‘through very specific means’” (3). 

For Gorsuch J and Thomas J, constitutional principles do not exist. Their positiv(ist) vibes also resonate in Justice Gorsuch’s account of “common law judging” from Loper Bright, in which “past decisions represented something “less than a Law,”” and therefore “did not bind future judges” (3).

For the rest of the Justices, the principles that underpin the Second Amendment are part of the context used to interpret that provision. But the principles remain in the background. They are not part of the Constitution or even constitutional law: they are derived from a tradition that existed long before the United States of America. The Justices use those principles to discern the meaning of the “direction” the Framers set down in the Second Amendment. That direction does not change. The meaning of the Second Amendment does not change. They were established in 1791. The principles underlying the Second Amendment stay the same and SCOTUS justices analogize 21^st century laws to them. 

Whereas in Canada, the constitutional principles that lie beneath s. 96 are expressed by doctrinal tests that SCC justices develop and refine over time. The historical jurisdiction test actually emerged before those principles did (Re Residential Tenancies Act, 1981). Nonetheless, the unwritten constitutional principles are “an essential part of our constitutional law” (Canada (Attorney General) v. Power, 2024 SCC 26, ¶5). “The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments” (Re Quebec Secession, [1998] 2 SCR 217, ¶54). 

The majority in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, used a slightly different formula: “Unwritten principles are therefore part of the law of our Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms” (¶50). 

Although SCOTUS and the SCC each rely on background legal principles, they mean different things with each of those words.

	USA	Canada
Background	Historic	Immanent
Legal	Fixed	Purposive
Principles	Concrete	Abstract

Principles as Consequences of Structural Analysis

SCOTUS is notorious for its emphasis on constitutional text and history, whereas the SCC is perhaps better known for its structural analysis and purposive interpretation.Nonetheless, in 2024, SCOTUS dabbled in structural analysis: distilling constitutional text and history into an essential institutional structure and then drawing doctrinal conclusions from those elemental insights. As summarized by the SCC: “The Constitution implements a structure of government and must be understood by reference to “the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning”” (Re Senate Reform, 2014 SCC 32, ¶25, citing Re Quebec Secession ¶32).

Consider, for example, how the SCOTUS majority invoked constitutional structure and judicial function to justify overturning Chevron in Loper Bright:

• “Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies” – concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear…The Framers also envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts”…To ensure the “steady, upright and impartial administration of the laws,” the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches” (7).
• “Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do” (23).

Unsurprisingly, SCOTUS tends to use structure when its preferred resources of text, history, and precedent are not quite sufficient to reach its desired result.

In Trump v. United States, the majority demonstrated opportunistic structural analysis when it insisted:

• “under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity” (6); and
• “the separation of powers principles explicated in our precedent necessitate at least a presumptiveimmunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility… Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution” (14). 

The text of the Constitution establishes the separation of powers, the principles of which require a vast expansion of presidential immunity. 

A bitter irony: SCOTUS using law to create grey holes in which the rule of law does not apply.

Some sweeter ironies:

• The majority acknowledges there is no “separation of powers clause” in the US constitution and points instead to the structure of the text: “that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President” (38). There is nothing simple about references to “the text”. Just like the SCC, SCOTUS conjures structures within structures.
• The majority finds “the separation of powers principles” in “our precedent”, namely Clinton v. Jones, 520 US 681 (1997) (see, e.g., pp. 697-703 (coram) and 710-11 and 714 (Breyer J.), which is a strange move for justices who dedicated multiple opinions this term to undermining the value of their own precedent, in both deed and word

Trump v. United States demonstrates the role for constitutional principles in structural analysis south of the border. Principles are how courts determine the doctrinal consequences of structure. Put differently, they are the medium by which that structure extends to doctrine. 

Unlike the “background legal principles” discussed above, these structural principles are found in contemporary SCOTUS judgments rather than pre-revolutionary common law. For this reason, they are perhaps more familiar to Canadian jurists.

Where do we go from here?

Looking ahead, 2025 will provide many opportunities to compare ourselves with our southern neighbours.

But we still have a lot to learn by comparing the 2024 SCOTUS and SCC terms, as the two courts took different positions on a range of interesting topics, including: 

• government immunity;
• judicial review and the rule of law; and
• the use of history and principle in constitutional interpretation

It remains to be seen whether these differences are reconcilable or whether the two supreme courts have incompatible views on the nature of law itself. Is it a command or a framework? Are we seriously still trapped in the Hart-Dworkin (or Hart–Fuller) debate? Since I promised to eschew a literature review, I will stop here. To be continued.

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^[1] Some justices also invoked principles for other purposes, such as when explaining the operation of precedent or theories for interpreting the US Constitution. For example, concurring in Rahimi, Justice Barrett wrote “originalism is built on two core principles: that the meaning of constitutional text is fixed at the time of its ratification and that the ‘discoverable historical meaning…has legal significance and is authoritative in most circumstances” (p. 1) (see also Fischer v. United States, p. 5). These principles are more like logical axioms than constitutional elements, so I will not consider them further.