Softening Blunt Instruments: Michelman’s Constitutional Essentials on the Horizontal Effect of Constitutional Rights

Guest Blogger

For the Balkinization Symposium on Frank Michelman, Constitutional Essentials: On the Constitutional Theory of Political Liberalism (Oxford University Press, 2022)

Richard Mailey 

“Constitutional law … is an instrument too blunt to be fit for the work.” 

To begin with a quick clarification: the above quote is not Michelman’s own view, but a constructive challenge that he poses for those who are critical of state-centric conceptions of constitutional rights law. The challenge, put simply, is how to make constitutional law an appropriate “regulatory engine” for addressing the threat posed by concentrations of power in non-governmental or private hands (CE, at 187). What makes this so challenging is that there is a sense (at least in some minds) that allowing courts to address privately inflicted harm through the application of constitutional rights law “amounts to bypass of democratic legislative competence, popular knowledge and wisdom, and political freedom” (ibid). As Michelman continues, the apparent problem is that constitutionalizing so-called “horizontal” relations means “hand[ing] over to a judiciary not chosen either for regulatory acumen or sensitivity to public opinion the translation into concrete regulatory policy of the abstractly formulated clauses of guarantee native … to liberal constitutions” (ibid). 

One of the great strengths of Constitutional Essentials is that Michelman doesn’t attempt to definitively resolve the problems he seeks to unfurl, including the problem of horizontal effect described above. In this regard, I’m reminded of something that Robert Post wrote a decade or so ago: 

“[Frank’s] archetypical article worries a question. And when I say worries, I mean the way that a terrier might worry a rat — by turning it over every which way, by attacking it from every possible angle, and by tasting its every implication. In the end Frank may (or as likely may not) reach some provisional conclusions. But in the process the reader will certainly have reaped rich rewards, for he will have experienced how a deep scholarly mind, exercising perfect scholarly integrity, illuminates depths hitherto unseen and unimagined” (Post, 2011, at 218).

This passage perfectly encapsulates the Michelmanian method as it’s applied to the problem of horizontal effect in Chapter 13 of Constitutional Essentials. To be sure, there is a hint at a solution on the chapter’s penultimate page — a mild preference for consideration of constitutional demands by “the traditional array of private law tribunals” (CE, at 190) — but it’s tentative and general enough to stand as an invitation for further reflection, rather than a conclusive claim that “this is the Rawlsian way.”

That said, it’s worth noting that this solution, tentative as it may be, resonates strongly with the approach that the Supreme Court of Canada has taken to the problem of horizontality. In 1986, just four years after the passage of Canada’s Charter of Rights and Freedoms, the Supreme Court held that while the Charter doesn’t apply directly to courts or the common law — at least in the context of purely private litigation — it has residual relevance when it comes to the common law’s application and development (RWDSU v Dolphin Delivery). Nearly a decade later, in Hill v Church of Scientology, the Court clarified that this residual relevance obliges courts to engage in principled balancing, weighing Charter values against “the principles which underlie the common law,” and using those values as “guidelines for any modification to the common law which the court feels is necessary” (Hill, para 97). This approach, the Court said, was designed to ensure that “[f]ar-reaching changes to the common law [are] left to the legislature,” with courts sticking to their “traditional” role of incremental development as opposed to full blown revision or policy-making (Hill, para 96). 

In one sense, this seems like an appropriate way of meeting to a pair of potentially contradictory needs. On the one hand, section 52 of the Canadian Constitution Act, 1982 makes the Charter (and indeed, the entire Constitution) applicable to “all law,” to the point of rendering inconsistent laws “of no force or effect.” On the other hand, though, there was a significant risk that bringing the “abstractly formulated clauses” (to borrow Michelman’s phrasing) of the Charter to bear directly on the private common law would open it up to ad hoc revision by ill-equipped actors (judges), subjecting private persons to an unstable regulatory environment and disturbing the constitutional separation of powers. In effect, the Supreme Court’s middle ground response was to make the Charter applicable to the common law, but in a way that allows courts to do work that they already did: the work of incrementally developing the law to ensure its consistency with contemporary social norms and expectations (as reflected in the Charter). Yes, the Charter legally applies to “all law,” the Court effectively said; but no, not in exactly the same way, or with exactly the same remedial results. 

Here’s the catch, though. Consider the strange inconsistency that emerges when you single out the background rules of the common law for special constitutional treatment. If a private party relies on a statutory provision in private litigation, the Charter applies in full and has the potential to trigger a standard constitutional rights analysis directed at that provision. By contrast, if that same party relies on a common law rule, the other party is deprived of their ability to request a full Charter analysis, or the remedy of judicial invalidation that potentially follows it. Instead, the aggrieved party is now in the weaker position of claiming that the common law rule is inconsistent with a Charter “value,” that this inconsistency is not offset sufficiently by the principles that underlie the rule, and that modification of the common law within reasonable limits is appropriate. Add to that the fact that the aggrieved party now bears the burden of proving all of this — rather than having the state bear the burden of justifying the law — and you suddenly have a quite significant and seemingly arbitrary weakening of the claimant’s position that depends on whether the impugned rule is a product of legislative or judicial hands. As the late Peter Hogg put it: “It seems odd that the applicability of the Charter should turn on the question whether the applicable law is a rule of the common law or a rule of statute law” (Hogg, at 277). 

Of course, Michelman’s comments on the horizontal effect problem don’t suggest support for the Supreme Court of Canada’s very specific approach, but they do arguably gesture in this direction, at least insofar as they imply that private law tribunals should cultivate their own distinctive approach to constitutional review, and insofar as this inevitably requires the type of arbitrary line drawing that we’ve seen in Canada. If this is true, though, one may legitimately respond with a brisk burst of realism: maybe such an approach is simply the best that we can do, given the tension that I laid out above between the need for constitutional efficacy and private law stability. I’m fatalistic enough that I’m almost swayed by this response, but let’s nonetheless ask, for the sake of argument: is this really the best that we can do, on Michelman’s own terms? 

To begin answering this question: another great thing about Constitutional Essentials is that it is so thoroughly teeming with ideas, and it’s accordingly unsurprising that earlier chapters offer promising (although ultimately untapped) insights for dealing with the horizontal effect problem. For example, in a few short paragraphs on judicial supremacy, Michelman writes that: 

“[S]haring of constitutional-interpretive authority can occur through remedial devices such as judicial remands to political branches; through judicial abstentions from rulings on matters or in causes classed as non-justiciable; and through a judicial and a general public posture of (widely) bounded tolerance for constitutional interpretive disagreement — all without unacceptable deviation from a liberal idea of the rule of law” (CE, at 170). 

What’s so helpful about this passage is that it directly addresses the fear that is embedded in Michelman’s framing of the horizontal effect problem. Recall that this fear was motivated, in part, by a sense that horizontalizing constitutional rights means “bypassing” the political branches, and allowing courts to take on the job of “translating” constitutional demands into “concrete regulatory policy.” The paragraph quoted above, however, points to some of the steps that can be taken to ensure that this “translation” work is meaningfully shared, and that democratically accountable actors remain centre stage, despite the judicial application of full constitutional scrutiny to all law. 

To follow this thread, consider two of the “remedial devices” mentioned above: remands to the political branches, and tolerance for interpretive disagreement. In Canada, the first of these is reflected (for example) by the judicial practice of issuing suspended declarations of invalidity, which began in the Manitoba Language Reference (1985) and continued, most notably, with the Supreme Court’s Carter decision on medical assistance in dying. As a response to the horizontal effect problem, such suspended declarations of invalidity could have tremendous value, since they mitigate the fears of legislative bypass and judicial policy-making, as well as the connected fear of overzealous intrusions in previously settled areas of private law doctrine. The idea here would be that a court faced with an impugned common law rule could subject that rule to full-fledged Charter analysis, and could strike the rule down if it failed to pass muster, with the proviso that the invalidation wouldn’t become effective until, say, a year or two later. In this scenario, there would be 1) no regulatory vacuum, 2) no sudden disturbance of a settled area of private law, and 3) full legislative control over “concrete regulatory policy,” since the buck would effectively be passed to the legislature to remedy the constitutional problem before the invalidity kicked in. Rather than using constitutional law as a blunt instrument, then, the suspended declaration would use it as a way to trigger legislative review and improvement, all while redeeming the promise of section 52 of the Constitution Act, 1982, i.e. the promise that unconstitutional laws will not just be incrementally improved, but will have “no force or effect.” 

What about the second remedial device, then? Here, the obvious example is the Charter’s ever-contentious notwithstanding clause, which allows Canadian legislatures to derogate from certain constitutional rights commitments for renewable five-year periods. While the notwithstanding clause has rightly generated a lot of controversy of late, much of this, I suggest, is because too little has been done to ensure that derogation is accompanied by a sufficiently rights-sensitive public dialogue, and by meaningfully independent oversight of government action. If Canadian legislatures took steps to require such dialogue and oversight — as Ian Peach and I argue they should in a forthcoming article (Peach and Mailey, 2023) — the notwithstanding clause could evolve into a legitimate secondary means of avoiding legislative vacuums in cases where courts invalidate private common law rules. Crucially, though, the notwithstanding clause can also allow legislatures to temporarily register reasonable disagreement with a judicial finding that a private law rule is unconstitutional, and to (again temporarily) revive the rule and the balance that it sought to strike between competing values. On its own, this will surely smack of governmental fiat, but if it is supplemented by the focused deliberations of a legislative committee, or a citizen’s jury, say, it might take on a deeper hue of dialogic democratic legitimacy. The point being: the notwithstanding clause could, under the right circumstances and with the right additional laws in place, mitigate the juristocratic risks laid out at the start of this post while still allowing courts to apply full constitutional scrutiny to the rules that contour private affairs and interactions. 

***

To clarify: nothing that I have written here goes against the grain of Michelman’s chapter on horizontal effect, but rather seeks to extend it in a Michelmanian direction via insights developed elsewhere in Constitutional Essentials. At the same time, though, if there is one critical point worth making, it is perhaps that more scrutiny could be applied, within the horizontality chapter, to the assumptions that animate opposition to full horizontal effect — most notably the assumption that constitutional law is a necessarily blunt instrument. To be sure, if constitutionalism is cast as a blunt instrument, Michelman’s challenge is correctly framed; but, as the examples above suggest, blunt instruments can be productively softened, provided that one is attentive to the risks that come along with such softening (especially in the case of the notwithstanding clause). 

Richard Mailey is Director, Centre for Constitutional Studies, at the University of Alberta. You can reach him by e-mail at mailey@ualberta.ca. 

References

Books and Articles

Hogg, Peter, “The Dolphin Delivery Case: The Application of the Charter to Private Action” (1986) 51 Saskatchewan Law Review 273

Michelman, Frank, Constitutional Essentials: On the Constitutional Theory of Political Liberalism (New York: Oxford University Press, 2022) [abbreviated as “CE”]

Peach, Ian & Richard Mailey, “Weaving Section 33 into the Charter Project: Citizen-Led Oversight as a Potential Way Out of the Legitimacy Conundrum” (2023) 32:3 Constitutional Forum (Forthcoming)

Post, Robert, “Provocation: Frank’s Way” (2011) 125 Harvard Law Review Forum 218

Cases

Carter v Canada (AG), [2015] 1 SCR 331

Hill v Church of Scientology, [1995] 2 SCR 1130

Reference re Manitoba Language Rights, [1992] 1 SCR 212

RWDSU v Dolphin Delivery, [1986] 2 SCR 573