Papers by Richard S Kay
Drake Law Review, 2019
The U.S. Constitution is now 230 years old, and it is showing its age. Its text, taken in the sen... more The U.S. Constitution is now 230 years old, and it is showing its age. Its text, taken in the sense that its enactors understood it, is, unsurprisingly, inadequate to the needs of a large, populous twenty-first century nation. The Constitution creates a government that is carefully insulated from the democratic preferences of the population. It fails to vest the central government with the tools needed to manage and regulate a vast, complicated, and interrelated society and economy. On the other hand, it guarantees its citizens protection of only a limited set of human rights.
Notwithstanding these blatant defects, the means provided in the constitutional text to change it, to improve it, are insufficient to make it appropriate for current conditions. There is reason to be skeptical of studies purporting to measure the difficulty of constitutional amendment procedures. But combined with an inspection of the text and the history of amendment, this research is persuasive and supports the claim that reliance on Article V's procedures are unlikely to successfully reform the Constitution. On top of these objective measures, moreover, constitutional revision in the United States is hampered by a widely held, though uninformed, opinion that the current Constitution is still protecting national welfare and that any change-any tinkering-with the rules in that document bears a heavy burden of persuasion.
Reform by amendment, that is, appears to be a dead end. The U.S. judiciary, however, has, in an important way, come to the rescue of a polity that would otherwise be in a perpetual thrall to the principles of the eighteenth century. In "interpreting" the Constitution, the courts have gone a long way to correct the defects listed. But their "interpretations" have little relationship to the fixed rules installed by the constitutional enactors. Judges have assumed what amounts to a power of constitutional amendment. But such an amendment technique is irregular, unpredictable, and devoid of the sanction of the "people," past or present, whose assent is usually thought essential to constitutional legitimacy. The United States has escaped the disadvantages of an outdated Constitution but at the price of subverting the constitutional rule of law.
This is the United States report submitted for the session on Formal and Informal Constitutional ... more This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews the rules of Article V of the United States Constitution that sets out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, if not the hardest. constitutions in the world to change. It goes on to discuss possible limits on the substance of constitutional amendments. Some of these are set out in Article V but, as some other jurisdictions have recognized, there may be further, implicit restrictions based on the distinction between constitutional amendment and constitutional replacement. Many issues associated with constitutional amendment remain unresolved as a result of the Supreme Court’s reluctance to pronounce on the validity of amendments. Finally, the report compares the Article V process to the very significant constitutional change that has been accomplished through the constitutional interpretation of the United States Supreme Court. It concludes that jurisdictions like the United States where the constitution is treated with undisguised reverence, face a dilemma. Limiting constitutional revision to the formal process will eventually result in a constitution that is radically unsuitable for a modern society. But allowing irregular modification by judges sacrifices the key values of stability and predictability, the reasons we have a written constitution in the first place.
This is a retrospective review of H.W.R. Wades classic article on parliamentary sovereignty in th... more This is a retrospective review of H.W.R. Wades classic article on parliamentary sovereignty in the United Kingdom, The Basis of Legal Sovereignty, published in 1955. I discuss the legal background against which the essay was written and particularly the South African case of Harris v. Minister of the Interior that was the centerpiece of Wade's analysis. I survey Wade's differences with Ivor Jennings, the leading figure among the then active academic defenders of Parliament's power to impose " manner and form " limitations on future parliaments. I also compare Wade's identification of an " ultimate political fact " supporting the legal system with Hans Kelsen's Basic Norm and H.L.A. Hart's Rule of Recognition. I try to show both the similarities and differences in these theoretical constructs. I go on to inquire how Wade's understanding has played out in subsequent constitutional developments and, in particular, in the rapidly changing constitutional developments of the present day. Finally, I attempt to show that Wade's central insight the ineluctably non-legal basis of the legal system applies equally to the much more common case of legal systems which recognize a single and supreme constitutional text at the apex of the system's legal hierarchy.
In recent years academic explanations of the originalist approach to constitutional interpretatio... more In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of less careful or less rigorous judges, moreover, abandoning intent as the central object of interpretation enlarges the range of plausible outcomes, threatening, as a practical matter, to subvert the clarity and stability of constitutional meaning that is central to the constitutionalist enterprise
While the nature of legal systems is a perpetually contested question, it is fairly uncontroversi... more While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors - social values, legal rules and judging - comprise much of our study of jurisprudence.
In this essay, I want to reprise that theme, paying particular attention to the mutual tensions these elements create in the practical operation of a legal system. I want, that is, to review the difficulties inherent in the use of abstract rules to vindicate social policies in concrete cases.
Every constitution defines and is defined by a period in time. Like all law the creation and appl... more Every constitution defines and is defined by a period in time. Like all law the creation and application of constitutions require reference to the past and future respectively. Every instance of constitution-making is an attempt to control behavior over an extended period of time. Therefore constitutions will be drafted, both in style and substance, to reflect that temporal ambition. The effectiveness of a constitution also requires that its interpretation makes reference to the understanding of its rules held by the constitution-makers. As a result, and notwithstanding the efforts to make it suitable over a long period by its creators, every constitution is bound to become unsuitable. Courts employ a number of devices to cope with the inevitable obsolescence of constitutions but, sooner or later, every constitution will have to be discarded and a new constitutional era begun.
This essay, a revised version of the General Report on "Standing to Raise Constitutional Issues" ... more This essay, a revised version of the General Report on "Standing to Raise Constitutional Issues" presented at the XVI International Congress of Comparative Law, surveys the principal approaches to this question in different legal systems. It attempts to re-conceptualize the distinctions by positing two principal criteria for standing rules based on two different purposes of constitutional judicial review. The first is to resolve legal questions in order to decide particular controversies; the second is to reinforce the impact of constitutional rules by providing opportunities for authoritative clarifications and elaborations of those rules.
The traditional doctrine of the sovereignty of Parliament in the United Kingdom is being transfor... more The traditional doctrine of the sovereignty of Parliament in the United Kingdom is being transformed. The change is the cumulative result of a series of legislative acts, judicial decisions, statements of officials and academic opinions. This paper is not directed to the extent or to the propriety of this change. It examines rather the process by which it has been effected. In most of the world, wholesale constitutional revision is an event. It takes place in a defined period of time and is the work of an identifiable group of people. The striking thing about the changes in the UK constitution is that they are almost universally regarded as arising from a series of uncoordinated events by different actors. The new constitution has not been designed; it has been revealed over time, the work of a “blind” sovereign. I survey these developments, contrast them with constitutional orthodoxy elsewhere and, finally, qualify the comparison by raising doubts about the accuracy of the standard model of constitution-making.
American Journal of Comparative Law 62:37, 2014
In every American jurisdiction, new rules of law announced by a court are presumed to have retros... more In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect—that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This report summarizes these exceptional cases. It shows that the proper occasions for issuing exclusively or partially prospective judgments have varied over time and that there are still substantial differences in approach according to the particular jurisdiction and the kind of law under consideration. The report concludes with a brief survey of some of the still unresolved jurisprudential and constitutional problems raised by recognition of the power of courts to issue non-retroactive judgments.
American Journal of Comparative Law, 59:715, 2011
The force of a constitution, like the force of all enacted law, derives, in significant part, fro... more The force of a constitution, like the force of all enacted law, derives, in significant part, from the circumstances of its enactment. Legal and political theory has long recognized the logical necessity of a “constituent power.” That recognition, however, tells us little about what is necessary for the successful enactment of an enduring constitution. Long-term acceptance of a constitution requires a continuing regard for the process that brought it into being. There must be, that
is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison of various constitutional systems.
Books by Richard S Kay
he Glorious Revolution and the Continuity of Law explores the relationship between law and revolu... more he Glorious Revolution and the Continuity of Law explores the relationship between law and revolution. Revolt - armed or not - is often viewed as the overthrow of legitimate rulers. Historical experience, however, shows that revolutions are frequently accompanied by the invocation rather than the repudiation of law. No example is clearer than that of the Glorious Revolution of 1688-89. At that time the unpopular but lawful Catholic king, James II, lost his throne and was replaced by his Protestant son-in-law and daughter, William of Orange and Mary, with James's attempt to recapture the throne thwarted at the Battle of the Boyne in Ireland. The revolutionaries had to negotiate two contradictory but intensely held convictions. The first was that the essential role of law in defining and regulating the activity of the state must be maintained. The second was that constitutional arrangements to limit the unilateral authority of the monarch and preserve an indispensable role for the houses of parliament in public decision-making had to be established. In the circumstances of 1688-89, the revolutionaries could not be faithful to the second without betraying the first. Their attempts to reconcile these conflicting objectives involved the frequent employment of legal rhetoric to justify their actions. In so doing, they necessarily used the word "law" in different ways. It could denote the specific rules of positive law; it could simply express devotion to the large political and social values that underlay the legal system; or it could do something in between. In 1688-89 it meant all those things to different participants at different times. This study adds a new dimension to the literature of the Glorious Revolution by describing, analyzing and elaborating this central paradox: the revolutionaries tried to break the rules of the constitution and, at the same time, be true to them.
Book Reviews by Richard S Kay
Book review of 'Constitutional Odyssey: Can Canadians Become a Sovereign People?', by Peter H. Ru... more Book review of 'Constitutional Odyssey: Can Canadians Become a Sovereign People?', by Peter H. Russell (Toronto, University of Toronto Press, 2004). constitutional reform in Canada now faces two formidable and related obstacles-- the need to accommodate what art now recognized as independent "peoples" and the demand for wide popular participation and assent to any new constitutional settlement. Together these factors make any serious constitutional reform almost impossible in the foreseeable future.
Drafts by Richard S Kay
This is a pre-publication draft of my contribution to a forthcoming collection, Law under a Democ... more This is a pre-publication draft of my contribution to a forthcoming collection, Law under a Democratic Constitution:Essays in Honour of Jeffrey Goldsworthy (forthcoming, eds. L.Crawford, P.Emerton, & D.Smith, Hart Publishing, 2019). A persistent concern with constitutional judicial review of legislation is based on its necessary interference with democratic government.Various responses have been made but almost all take for granted the presumption that the decisions of elected legislatures ought to be respected and that any deviation from such decisions requires special justification. I raise some questions about the assumed desirability of democratic decision-making.These questions arise from evidence casting doubt on the competence of average voters, a problem which may have been exacerbated by changes in the way information is transmitted and received. At the same time, constitutional rules and institutions that prevented popular preferences from being translated into public choices have been progressively abandoned.
Numerous academic commentators have plausibly challenged the conventional understanding of the function of constitutional judicial review -- i.e. the enforcement of rules entrenched in a governing constitution. They argue that, either intrinsically or as a matter of experience, constitutional judges review state action according to their personal views of the public good. If that characterization is accepted, it is easy to see judicial review as a version of the ancient concept of mixed government. While, historically, that idea was seen as a way to check the power of monarchs, in its modern iteration, judges supply the aristocratic element that guards against dangers inherent in democracy. In the American constitutional system, this means that the judiciary would take over the role that the Senate was expected to take in the mixed government designed by the founders.
Endorsement of the "mixed government" picture of constitutional judicial review necessarily involves giving up as impractical the "rule of law" values of the conventional view. In this respect, it may have more in common with European type judicial review -- in which constitutional tribunals have a deliberately political role in public decision-making -- than with the American model in which such review is just a by-product of the judicial duty to apply governing law. While the mixed government view interferes with the directly influence of popular preferences on public policy-making, it maintains a situation whereby persistent and deeply held public opinion is likely to prevail. In that sense, it is consistent with democratic government broadly conceived.
In recent years, the literature of constitutional originalism has adopted a new concept, “constit... more In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay is a critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or “public meaning” version of originalism. At least in the context of constitutional adjudication, however, originalist interpretation seeking to identify the meaning of the text that was actually intended by the people whose assent made it law, leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side’s interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete.
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Papers by Richard S Kay
Notwithstanding these blatant defects, the means provided in the constitutional text to change it, to improve it, are insufficient to make it appropriate for current conditions. There is reason to be skeptical of studies purporting to measure the difficulty of constitutional amendment procedures. But combined with an inspection of the text and the history of amendment, this research is persuasive and supports the claim that reliance on Article V's procedures are unlikely to successfully reform the Constitution. On top of these objective measures, moreover, constitutional revision in the United States is hampered by a widely held, though uninformed, opinion that the current Constitution is still protecting national welfare and that any change-any tinkering-with the rules in that document bears a heavy burden of persuasion.
Reform by amendment, that is, appears to be a dead end. The U.S. judiciary, however, has, in an important way, come to the rescue of a polity that would otherwise be in a perpetual thrall to the principles of the eighteenth century. In "interpreting" the Constitution, the courts have gone a long way to correct the defects listed. But their "interpretations" have little relationship to the fixed rules installed by the constitutional enactors. Judges have assumed what amounts to a power of constitutional amendment. But such an amendment technique is irregular, unpredictable, and devoid of the sanction of the "people," past or present, whose assent is usually thought essential to constitutional legitimacy. The United States has escaped the disadvantages of an outdated Constitution but at the price of subverting the constitutional rule of law.
In this essay, I want to reprise that theme, paying particular attention to the mutual tensions these elements create in the practical operation of a legal system. I want, that is, to review the difficulties inherent in the use of abstract rules to vindicate social policies in concrete cases.
is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison of various constitutional systems.
Books by Richard S Kay
Book Reviews by Richard S Kay
Drafts by Richard S Kay
Numerous academic commentators have plausibly challenged the conventional understanding of the function of constitutional judicial review -- i.e. the enforcement of rules entrenched in a governing constitution. They argue that, either intrinsically or as a matter of experience, constitutional judges review state action according to their personal views of the public good. If that characterization is accepted, it is easy to see judicial review as a version of the ancient concept of mixed government. While, historically, that idea was seen as a way to check the power of monarchs, in its modern iteration, judges supply the aristocratic element that guards against dangers inherent in democracy. In the American constitutional system, this means that the judiciary would take over the role that the Senate was expected to take in the mixed government designed by the founders.
Endorsement of the "mixed government" picture of constitutional judicial review necessarily involves giving up as impractical the "rule of law" values of the conventional view. In this respect, it may have more in common with European type judicial review -- in which constitutional tribunals have a deliberately political role in public decision-making -- than with the American model in which such review is just a by-product of the judicial duty to apply governing law. While the mixed government view interferes with the directly influence of popular preferences on public policy-making, it maintains a situation whereby persistent and deeply held public opinion is likely to prevail. In that sense, it is consistent with democratic government broadly conceived.
Notwithstanding these blatant defects, the means provided in the constitutional text to change it, to improve it, are insufficient to make it appropriate for current conditions. There is reason to be skeptical of studies purporting to measure the difficulty of constitutional amendment procedures. But combined with an inspection of the text and the history of amendment, this research is persuasive and supports the claim that reliance on Article V's procedures are unlikely to successfully reform the Constitution. On top of these objective measures, moreover, constitutional revision in the United States is hampered by a widely held, though uninformed, opinion that the current Constitution is still protecting national welfare and that any change-any tinkering-with the rules in that document bears a heavy burden of persuasion.
Reform by amendment, that is, appears to be a dead end. The U.S. judiciary, however, has, in an important way, come to the rescue of a polity that would otherwise be in a perpetual thrall to the principles of the eighteenth century. In "interpreting" the Constitution, the courts have gone a long way to correct the defects listed. But their "interpretations" have little relationship to the fixed rules installed by the constitutional enactors. Judges have assumed what amounts to a power of constitutional amendment. But such an amendment technique is irregular, unpredictable, and devoid of the sanction of the "people," past or present, whose assent is usually thought essential to constitutional legitimacy. The United States has escaped the disadvantages of an outdated Constitution but at the price of subverting the constitutional rule of law.
In this essay, I want to reprise that theme, paying particular attention to the mutual tensions these elements create in the practical operation of a legal system. I want, that is, to review the difficulties inherent in the use of abstract rules to vindicate social policies in concrete cases.
is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison of various constitutional systems.
Numerous academic commentators have plausibly challenged the conventional understanding of the function of constitutional judicial review -- i.e. the enforcement of rules entrenched in a governing constitution. They argue that, either intrinsically or as a matter of experience, constitutional judges review state action according to their personal views of the public good. If that characterization is accepted, it is easy to see judicial review as a version of the ancient concept of mixed government. While, historically, that idea was seen as a way to check the power of monarchs, in its modern iteration, judges supply the aristocratic element that guards against dangers inherent in democracy. In the American constitutional system, this means that the judiciary would take over the role that the Senate was expected to take in the mixed government designed by the founders.
Endorsement of the "mixed government" picture of constitutional judicial review necessarily involves giving up as impractical the "rule of law" values of the conventional view. In this respect, it may have more in common with European type judicial review -- in which constitutional tribunals have a deliberately political role in public decision-making -- than with the American model in which such review is just a by-product of the judicial duty to apply governing law. While the mixed government view interferes with the directly influence of popular preferences on public policy-making, it maintains a situation whereby persistent and deeply held public opinion is likely to prevail. In that sense, it is consistent with democratic government broadly conceived.