Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession

Abstract

Constitutional theorists are in midst of debate over appropriate institutional arrangements for interpretation and enforcement of constitutional norms in constitutional democracy. Larry Kramer has described two extreme positions in this debate as and constitutionalism. For legal constitutionalists, supreme authority to interpret and enforce constitution rests with courts. Because court judgments are regarded as authoritative by other government institutions, and, indeed, by public, these political actors defer to judicial pronouncements in face of their own conflicting constitutional interpretations. Popular constitutionalists, by contrast, permit and even require that members of executive and legislative branches independently interpret constitution alongside courts in course of performing their functions. Moreover, these branches are ultimately subject to active and ongoing control over interpretation and enforcement of constitutional law by people As Frederick Schauer has suggested, is possible to understand this debate over institutional design as turning on different underlying conceptions of point and function of constitutions To popular constitutionalists, a constitution . . . becomes both statement of our most important values and vehicle through which these values are created and crystallized. On this conception, Schauer concedes that it would indeed be mistake to believe that courts should have pre-eminent responsibility for interpreting that constitution, since would eviscerate fundamentally democratic function of constitutional charters. For Legal constitutionalists, by contrast, constitution serves to fetter majority decision-making, especially when majority is likely to disregard longer term values to pursue short term policy preferences. Interpretation and enforcement by an institution other than ones which are bound by these precommitments - i.e., courts - is integrally tied to the external nature of constitutional norms themselves. In this chapter, I question Schauer's seemingly universal equation of constitutional strategies of precommitment with legal constitutionalism and judicial supremacy. I agree with Schauer that constitutions serve an important disabling function, in that they set up roadblocks in way of political decision-making. But does not follow that external enforcement through judicial review is necessarily sole institutional mechanism for enforcing those constitutional precommitments. Along with popular constitutionalists, I argue that would be mistake to infer that boundaries of judicial decision-making are co-terminus with limits of constitution. The question in each case is whether institutional settlement - e.g. through judicial review - can produce political settlement. Even for modest constitutionalist, choice is not between legal constitutionalism and its populist alternative. Rather, true choice is when and to what extent to opt for one or other. Indeed, challenge may be to design arrangements that permit responsive and even tentative allocation of institutional responsibility for resolving constitutional questions.