This is the fifth essay in a special eight-part series on Feminist Constitutionalism, organized by Melina Girardi Fachin, as part of the project ‘Transforming Judicial Outcomes for Women in Canada and Brazil,’ which is funded by the Social Sciences and Humanities Research Council of Canada (SSHRC). For more information about Feminist Constitutionalism, please contact Melina Girardi Fachin via email at melinafachin@gmail.com.
—Beverley Baines, Professor, Faculty of Law, Queen’s University, Canada
Scholars who critiqued the gender gap in constitutional jurisprudence and conceptualized feminist constitutionalism also aspired “to explore the relationship between constitutional law and feminism by examining, challenging, and redefining the very idea of constitutionalism from a feminist perspective.” This aspiration is worth pursuing, subject to one significant qualification.
Feminists should not exhume “the very idea” of constitutionalism. Not only is there too much constitutionalism; see, for example, The Principles of Constitutionalism, Varieties of Liberal Constitutionalism, Constitutionalism in Islamic Countries, Maxim Constitutionalism, Environmental Constitutionalism, etc. More problematically from a feminist perspective, exhuming constitutionalism’s “very idea” is to exhume the master’s tools.
Rather what matters to feminism is to contextualize. One way of “examining, challenging, and refining” constitutionalism in context is to instantiate a case study of a single country which, in what follows, is Canada.
Constitutionalism asserts that in Canada “it is abundantly clear that the powers of government are legally limited by a constitution.” It also assumes that constitutionalism, at least liberal constitutionalism, concerns the relations between rights and limits and frames these relations as distinctions that are either minimal or rich.
This framework presents as a non-judgmental approach to identifying multiple conceptions of liberal constitutionalism. Identification matters because scholarly conceptions (paper) may vie for primacy in equality and other rights and freedoms cases (reality). R v Sharma, a recent Canadian Charter of Rights and Freedoms decision by the Supreme Court of Canada, has the potential to illustrate such scholarly competition.
Cheyenne Sharma invoked her Charter right to race equality (and liberty) to challenge the constitutionality of sentencing legislation that no longer protected Indigenous peoples. The tough-on-crime legislation used sentencing maximums to define serious offences and deny conditional sentences to Indigenous offenders among others and who, like Ms Sharma, were previously eligible to apply for them. By a 5-4 majority, the Court denied that this legislation infringed Ms Sharma’s right to race equality (and liberty).
The majority and dissent reasoned differently about the relations between rights and limits in their adverse impact discrimination analyses. The majority held that neither the purpose or the impact of the facially neutral legislation evidenced a racialized distinction and obviated any further analysis. Effectively they minimized the distinction between rights and limits. The dissent countered that the impact of the legislation evidenced a distinction and discrimination, and was not justified, as Ms Sharma had argued. Relative to the majority, the dissent enriched the distinction between rights and limits.
The majority and dissent also reasoned differently about the separation of powers between the legislature and the judiciary. The majority warned that the dissent’s outcome would transfer sentencing policy “from Parliament to judges,” suggesting a preference for weak form judicial review. The dissent reminded that section 1 of the Charter “expresses an important aspect of the separation of powers by defining, within its terms, limits on legislative sovereignty,” counselling a preference for strong form judicial review.
Do these twofold judicial analyses – of minimal and rich relations between rights and limits and of weak and strong form judicial review – distinguish scholarly conceptions of liberal constitutionalism? This case study assesses two conceptions that scholars knowledgeable about Canadian constitutional rights advance: legislated rights and limited government.
Legislated Rights: Securing Rights through Legislation conceptualizes legislated rights as a theory of liberal constitutionalism. In this conception, rights align the protection of the moral independence and autonomy of individuals and groups with state activity. While appearing to prefer the latter, Gilead Constitutionalism reminds that it explicitly resists the illiberalism of Common Good Constitutionalism. Its preoccupation with legislative specifications and determinations of rights outweighs judicial balancing of rights’ infringements and state justifications, suggesting it prefers a less than strong form judicial review.
The Nature of Limited Government conceptualizes limited government as a theory of liberal constitutionalism. According to this conception, rights protect individuals and groups from limits that interfere with their moral independence and autonomy. It rejects the “instrumentality” principle and relies on a less than mandatory, but more than weak, form of judicial review of justifications for government regulation and remediation of infringements of protected rights.
The legislated rights and limited government conceptions are consistent with the Sharma majority and dissenting analyses respectively. The majority’s analysis minimized the distinction between equality rights and sentencing maximums to the point of collapse, and treated this collapse with such finality that it formally obviated even weak form judicial review. The dissent’s analysis enriched the distinction between the impact and purpose of sentencing maximums and kept the equality rights claim viable beyond weak or strong form judicial review to culminate with a hypothetically successful outcome. Just as these judicial analyses competed for primacy, so too do the scholarly conceptions.
Should feminist constitutionalism aspire to redefine one or both of these conceptions, or become a stand-alone conception? As long as they prevail in judicial decisions, the principles of feminist constitutionalism do not. Four principles that, if implemented, would redefine constitutionalism follow.
The feminist principle of specificity or difference would counter the minimal and rich senses of the relations between rights and limits because “relations” offers the state an open-ended invitation to intrude in the rights claim. Both senses dictate that rights-seekers must argue as if legislation has a “neutral” purpose as well as proving that it has an “adverse” impact, yet they receive no reciprocal invitation to provide input into the state’s justification of its purpose and reasonableness. A rights-claim should be a stand-alone claim about the self-evident, not evidence-based, claim of infringement
The feminist principle of substantive equality would counter the primacy that liberal constitutionalism, whether conceptualized as legislated rights or limited government, attributes to moral independence and autonomy. The feminist principles of parity and intersectionality would counter the weak and strong forms of the relations between legislatures and courts by mandating judicial assessment of the proportionality (aka balancing, not just reasonableness) of the state’s justification. If rights are infringed, the multi-dimensionality of balancing accommodates difference and could achieve structural change; if rights are not infringed, the multi-dimensionality could enhance voice and participation.
Comments