Constitutional Remedies Research Articles

New Law, Non-Retroactivity, and Constitutional Remedies

New Law, Non-Retroactivity, and Constitutional Remedies

Constitutional Remedies as "Constitutional Hints": A Comment on R. V. Schachter

Recent Canadian Charter of Rights and Freedoms cases including R. v. Schachter, A.G. Nova Scotia v. Phillips, R. v. Hebb and R. v. Morgentaler in which courts have made controversial remedial choices are examined. The authors argue that the choice of whether to extend or nullify an unconstitutionally underinclusive statute cannot be deduced either from the conclusion that the statute is underinclusive or from provisions such as sections 24(1) and 26 of the Charter and 52(1) of the Constitution Act, 1982. In difficult remedial cases, courts must exercise remedial discretion. Three current approaches include: courts always striking out underinclusive legislation, courts ordering the remedy the legislature would have wanted and courts ordering the least disruptive remedy. The authors reject the first approach because it erroneously dictates invalidation as the only remedial choice when that conclusion cannot be defended on textual, functional or procedural grounds. They reject the latter two approaches because they force courts to speculate on matters best left to legislatures. The authors suggest that any satisfactory approach to the exercise of remedial discretion should attempt to avoid regressive outcomes and not to supplant the political process. One such approach, they argue, is to have courts look to the values and purposes that they see in the Constitution for about how to exercise remedial discretion. Parts of the Constitution that protect the disadvantaged, such as s.15 of the Charter, are important sources for progressive constitutional hints. The constitutional hints approach allows the courts to defend one remedial choice over another as preferred, but not necessarily required, by their interpretation of the Constitution. In turn, legislatures may opt not to take the hint and move to amend the court's remedy.

Language, Rights, Remedies, and the Rule of Law

When Georges Forest challenged the validity of Manitoba’s Official Language Act in 1976, he opened up the larger issue of the status of the province’s English-only legislation. The courts had little difficulty in concluding that the Act, which purported to make English the only language used in the courts and legislature of Manitoba, violated s. 23 of the Manitoba Act, 1870. This left open the fate of legislation enacted over the preceding ninety years in breach of the obligation to legislate in both French and English. Prima facie, the natural remedy, in the Canadian constitutional context, would be to declare such unconstitutional legislation invalid and therefore of no force and effect. But this would have left the province with virtually no statutory law. To avoid this result the Manitoba Court of Appeal decided that s. 23 is directory rather than mandatory. This decision was appealed to the Supreme Court of Canada. At about the same time the federal government exercised its power under the Supreme Court Act to refer these remedial issues to the Court for its legal opinion. In Reference Re Language Rights under the Manitoba Act, 1870, the Court disagreed with the Court of Appeal’s classification of s. 23 as merely directory, but was equally troubled by leaving Manitoba without any statute law. Therefore, it declared all Manitoba’s statutes since 1890 to be invalid, but deemed the rights and obligations arising under them to be temporarily in force until the province could reasonably be expected to comply with s. 23. In order to reach this unusual result the Court relied on the doctrine of the rule of law. The constitutional remedies issue posed by this case is probably the most challenging that the Canadian courts have ever faced. The Supreme Court’s approach reveals important underlying presuppositions which go unnoticed in less difficult cases.

The Welfare State: Ethical Foundations and Constitutional Remedies

In 1935, the United States Congress enacted and President Franklin D. Roosevelt signed into law the basic titles of the social security system, thus taking the revolutionary step into the welfare state. Yet, there was hardly a sense of revolution anywhere in the United States. Although there was some fear in that summer that violence might erupt if Congress remained inactive, there were no deep social class or sectional divisions over the welfare state despite the novelty or the scale of commitment. The political struggle in Congress was not over whether to have a welfare state but over what kind of program it would be. In 1965, Congress adopted Medicare and Medicaid. These were the two largest expansions since 1935, and they were going to continue expanding very fast because of the method of third-party financing whereby the doctor and the patient agreed on the service and the government underwrote the charges. In 1969, Congress expanded the food stamp program and made it a regular, rather than experimental, part of the system of comprehensive social support. This meant that three of the largest commitments the United States ever made to the welfare state were made as maturity was approaching (which for any pension or insurance system is thirty-forty years); were commitments to persons structurally outside the work force; and were made at the moment when the ratio of taxpayers to welfare beneficiaries had dropped from 18-1 to less than 4-1.

An Intellectual Crisis in American Federalism: The Meaning of <italic>Garcia</italic>

In National League of Cities v. Usery (1976), the U.S. Supreme Court found that the Tenth Amendment requires the existence of a set of essential state powers that remains beyond the reach of congressional regulation or preemption. The Court reversed itself in Garcia v. San Antonio Metropolitan Transit Authority (1985), holding that the Tenth Amendment provides the Court no basis on which to limit the Congress in the exercise of its commerce powers. We argue that, although contradictory, both holdings can be inferred validly from the U.S. Constitution. This absurd result reveals profound inconsistencies in the constitutional design of federalism, requiring a constitutional solution. The article concludes with a discussion of a variety of constitutional remedies, including constitutional amendments.

A CASE OF MYXEDEMA WITH PROMINENT NASAL SYMPTOMS.

The fact that the nasal condition was the only reason why this patient sought relief and that this seems to be so entirely dependent upon the general disorder leads me to report the history, which is as follows: Mrs. I., age 38, was first seen Sept. 9, 1896. She complained of nasal stoppage with attacks of sneezing and watery discharge following an attack of grippe in May and persisting since then. For the past three weeks it had been worse. Examination of the nostrils at this time showed large boggy turbinates on both sides, rather worse on right, with a waxy paleness of the entire mucous membrane of the nostrils. Several constitutional remedies, as well as local applications, were tried in succession without the slightest effect on the condition. Oct. 26, 1896, frost having eliminated a possible hay fever and the hoped-for improvement not having occurred, I examined the nostrils

TREATMENT OF LUPUS VULGARIS BY MEANS OF ELECTROLYSIS.

As the<i>causa proxima</i>of lupus vulgaris has been established beyond any doubt to be the tubercle bacillus, and the intimate process to be a local tuberculosis of the skin, of necessity the question arises, whether we are able to destroy the tubercle bacillus by constitutional remedies. What, for a while seemed to be a certainty, remains still as a hope of the dermatologist. Several cases of lupus vulgaris have been referred to as completely cured by the Koch's tuberculin injection,¹but impartial criticism and experience has failed to prove the so much desired assertion. Dr. A. Carruccio, at the last international medical congress in Rome, referred to twelve cases of lupus vulgaris treated with tuberculin injections in the clinic of Prof. C. Manassici. The minimum dose was 35 milligrams and the maximum 459 milligrams in twenty-seven injections. In every case the local reaction was apparent in swelling, redness,

OPERATIVE TREATMENT OF PURULENT DISEASE OF THE ANTRUM OF HIGH-MORE, WITH EXHIBITION OF NEW INSTRUMENTS.

In considering the operative treatment of purulent disease of the antrum of Highmore, I shall speak only of operations for chronic disease. Acute purulent cases, which in my experience are of much more frequent occurrence and much oftener of intranasal than of dental origin, seldom require more than the removal of the cause and appropriate local and constitutional remedies. Antrum operations naturally divide themselves into two classes: the intranasal and the intra-oral. Each has its advantages, and many methods have been devised to meet the indications demanded by the two positions. Until recently the general rule has been to open the antrum at its lowest attainable point, in order to secure the best drainage, as with scarcely an exception the importance of drainage was especially urged as the<i>sine qua non</i>of correct surgical treatment, for it was not deemed inexpedient to have such a pus cavity draining into the