Authors:Keith Cherry Pages: 1 - 9 Abstract: Around the world, the current political conjuncture is one of profound challenges for constitutionalism and the rule of law. In the United States, the executive has willfully engaged in a prolonged attempt to weaponize the machinery of the state and radicalize public opinion in order to undermine a democratic election. In the European Union, the increasingly authoritarian relationship between the executive and the judiciary in Poland and Hungary is posing the most profound threat to European constitutionalism in decades. In Hong Kong, the Chinese state is actively seeking to undermine legislative and judicial independence in the face of unprecedented pro-democracy mobilizations. In India, Lebanon, Bolivia, and elsewhere mass mobilizations are challenging, and being suppressed in the name of, the rule of law. Here in Canada, the Wet’suwet’en and their supporters, as well as the Tsleil Waututh, Haudenosaunee, L’nu (Mi’kmaq), Inuit, and members of countless other Indigenous nations are contesting the very nature of the rule of law, as they assert Indigenous laws against the law enforcement of the colonial state. Around the world, the use of emergency powers in response to the COVID-19 pandemic is also raising profound constitutional concerns. PubDate: 2021-09-13 DOI: 10.21991/cf29425 Issue No:Vol. 30, No. 4 (2021)
Authors:Mary Liston Pages: 9 - 24 Abstract: No doubt exists that the separation of powers is a fundamental architectural principle in Canadian public law jurisprudence. But what about the idea of a mixed constitution' A simple CanLII search for “mixed constitution” turns up six cases. In five1 of these cases, the search reveals the following phrases: “pre-mix constituted goods,” “the mix constituting the excavated material,” “the Owners’ mixes constitute ‘bread and rolls’,” “the improper mixing constituted a fraudulent misrepresentation,” and “quality control for the asphalt mix constituted.” Clearly baking and aggregate blends figure largely in constituted mixes, but the constitutional jurisprudential sense is largely absent. That said, concerns about pre-mixing, constituted goods, excavating, improper mixing, and quality control do have some salience for the discussion that follows. PubDate: 2021-09-13 DOI: 10.21991/cf29426 Issue No:Vol. 30, No. 4 (2021)
Authors:Arjun Tremblay Pages: 25 - 36 Abstract: Jacob Levy describes three variants of the separation of powers in the 31st Annual McDonald Lecture in Constitutional Studies, only one of which is germane to this reflection. The first variant he describes is based solely on the independence of the judiciary from both the executive and legislative branches of governments; consequently, this variant encompasses both presidential and parliamentary systems under its conceptual ambit. Another variant, which Levy attributes to Montesquieu, envisages the separation of powers between executive, judicial, and legislative branches as a way of allowing for the “pooled”1 rule of “the one” (i.e. monarch), “the few” (i.e. aristocrats), and “the many” (i.e. the people). Levy also describes a distinctly American variant of the separation of powers undergirded by a system of checks and balances. This variant was designed to ensure “mutual monitoring between executive and legislative”2 and it vests the legislative branch with the power to impeach the executive in order to “maintain effective limits on the political power and the political ambition of the president.”3 PubDate: 2021-09-13 DOI: 10.21991/cf29427 Issue No:Vol. 30, No. 4 (2021)
Authors:Yann Allard-Tremblay Pages: 37 - 44 Abstract: In what follows, I reflect on themes arising from my reading of Jacob Levy’s The Separation of Powers and the Challenge to Constitutional Democracy. According to Levy, the separation of powers in contemporary constitutional democracies is failing, thus endangering the rule of law. Briefly, this is because political parties have bridged the gap between the legislature and the executive: by giving rise to partisan politics that cross the institutional divide, political parties have dampened, if not disabled, the institutional incentive and motivation of the legislature to keep the executive in check. Furthermore, when this is combined with the myth of the united and undifferentiated people, which the executive, populistically, can easily claim to embody, the simple act of opposing the executive may be framed as seditious. In the end, the power of the executive is set free by the partisan loyalty of fellow party members and by the framing of opposition as disloyal and deleterious to the polity. PubDate: 2021-09-13 DOI: 10.21991/cf29428 Issue No:Vol. 30, No. 4 (2021)
Authors:Hillary Nye Pages: 45 - 54 Abstract: The concepts of the rule of law, the separation of powers, and checks and balances are related in complicated ways. Jacob T Levy brings this to light in his thought-provoking McDonald Lecture, “The Separation of Powers and the Challenge to Constitutional Democracy.”1 In this response to Levy’s paper I want to further explore the relationship between these three ideas. I will argue that, when thinking about the rule of law, we must consider the idea of “role morality” and its place in constraining power. We should think of the constraints on power that stem from role morality as “internal” as opposed to “external” checks on power. I also suggest that we would do well to broaden our understanding of what the rule of law requires, and to think of it not just as a matter of ensuring impartiality and formal legal equality in the sense that the law applies to all actors within the system. We might benefit from thinking of the rule of law as a weightier moral concept that demands that decision-makers comply with moral ideals, and not just with the rules as laid out. PubDate: 2021-09-13 DOI: 10.21991/cf29429 Issue No:Vol. 30, No. 4 (2021)
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