The Stabilizing Function of a Written Constitution

At first glance, it might seem strange to suggest that a written constitution, inter­preted in terms of contemporary common meanings, could possibly have a stabi­lizing function.

But this appearance is illusory. An unacceptable level of instability will be seen to arise only if we assume that the only stability achievable is one guaranteed by a completely rigid and determined foundation. In his analysis of common law consti­tutions, Strauss has already demonstrated that there are other possibilities: His com­mon law approach provides stability through the flexible but restraining force of the principle of stare decisis. In the following sections, we will show how the written constitution, despite and even because its meaning can change along with corre­sponding changes in the language in which it is expressed, is capable of providing a suitable degree of stability. The success of our explanation will depend strongly on the notion of a speech community. Because of this, it would be prudent to take a short detour in order to explain that notion and its connection to the written constitu­tion’s capacity to serve its common ground function.

13.3.1 Speech Communities

The term ‘speech-community’ describes “any human aggregate characterized by regular and frequent interaction by means of a shared body of verbal signs and set off from similar aggregates by significant differences in language usage.” (Gumperz 2001) A speech-community can consist of all the people of a nation, all the people that share one language, or the group of people who are members of a small neighbourhood-gang with a special kind of slang. Obviously, all people who speak the English language, or all US-Americans, or all Canadians, form a speech­community.^[333] Interestingly enough, though, the community of legal officials within a country also forms a speech-community: It is a superposed speech-community, one that is formed within a larger community for the purpose of a certain activity (Gumperz 2001, 69-70). The language used by those people who belong to a coun­try’s legal community is in many respects different from, and might develop differ­ently than, the language used by the wider community of which it forms a subset. The concepts they use, for example, might be understood as applying to different objects, activities or situations, and certain sentences might mean different things within the two overlapping communities. Take, for example, the concept of assault. Under common law, an assault is the threat of bodily injury, not its infliction. Within the common law legal community, the term battery is, strictly speaking, understood to apply only to the actual infliction of harm. Hence the phrase assault and battery. However, within the wider communities in which common law legal communities operate, the term assault is widely understood as also extending to the actual inflic­tion of physical harm. Similar things can be said about the notion of speech, which in American constitutional practice is taken to include things like flag burning and exotic dancing. Most Americans, however, would be inclined to think that the word speech refers only (or almost only) to spoken or written communication.

13.3.2 Constitutional Law and Speech Communities

As noted above, not all speech-communities exist at a national level. Within any nation or country one will inevitably find various sub-communities. The fact that a country’s professional legal community constitutes a superposed speech-community that uses a language relevantly different from that of a country’s larger speech­community is crucial when it comes to understanding constitutions and their role in helping to frame legal, political and moral debates.^{[334] [335] This is especially true when what is at play is a constitution interpreted and applied as recommended by com­mon law constitutionalism. If we assume, as many philosophers of language do, that the meaning of a word, phrase or sentence is determined (at least to a significant extent) by its use in the language, then it follows that the meaning of a word, phrase or sentence will change along with any change in its use.11 Suppose that words like humans and equal find their way into a constitutional provision that declares that All humans are to be considered equal. What do these words mean in this particular circumstance? The answer will depend on the particular speech community one has in mind and how those terms are used at that particular time and within that particu­lar context. In times of slavery, for example, they will have meant something very different from what they mean now, when discrimination based on the colour of one’s skin or on one’s sex is considered both immoral and illegal. It is at this point that it becomes crucial to bear in mind that legal officials constitute a superposed speech community. If the meanings of the words in a written constitution are signifi­cantly determined by their use, and therefore change if that usage changes, then it is possible that the words of a written constitution will come to mean very different things within the speech community of legal officials as opposed to the wider speech community constituted by that country’s citizens.}

First, legal officials constitute a relatively small group when compared with the citizens of a country like Canada or the United States. The class of legal officials is obviously a much smaller group than the class of citizens if only because members of the former are drawn from members of the latter, but only a very small number of the latter are also members of the former. Furthermore, the class of legal officials tends to be much more homogenous than the overall citizenry, owing to the fact that it consists only (or almost only) of people with a certain level of education and experience who are skilled and educated in the interpretation and application of law. This difference is relevant if only because, all else being equal, it is plausible to think that changes in meaning occur much more quickly in small, homogenous groups than in big, heterogeneous ones. Also relevant is the fact that those changes can occur as the result of a singular decision made by the even smaller group of individuals charged with the task of settling a particular question of legal interpreta­tion. Flag burning can come to be accepted as a form of speech on the basis of one authoritative decision by nine members of a Supreme Court. Changes in meaning at the broader social level are often much more gradual, and causally responsive to a much broader range of different social factors.

Second, legal officials -if they function more or less according to the principles of common law reasoning - follow certain rules governing meaning-change by which citizens, for the most part, remain unencumbered. These are the rules, men­tioned above, that determine how precedents are to be handled. It is safe to assume that within the relevant legal context, e.g.

To illustrate this with an especially obvious example, take the celebrated Canadian case of Edwards v. Attorney-General of Canada, commonly known as The Persons Case. The question that was ultimately answered in Edwards was whether women are eligible to be appointed to the Canadian Senate. And of course the decision was that they are. What interests us here, however, is the very obvious effect this monumental ruling had on the speech community constituted by Canadian legal officials. The law at issue in Edwards was section 24 of the BNA Act, accord­ing to which the Governor General was empowered to summon qualified persons to the senate.^[336] Prior to Edwards, the word persons, in this context, had a meaning that extended to men only. Following the decision, persons meant women as much as men.^[337] The meaning of the word persons (whenever it appeared in the context of laws about legislative appointment) had, with the decision in Edwards, changed within the speech community of legal officials. Because this case entered Canadian constitutional law as an important precedent, and because the principle of stare decisis makes it obligatory to pay respect to binding precedents, the legal meaning of the word person was now to include women.

Unlike legal officials who are bound by the rule of stare decisis, ordinary citizens usually do not observe binding rules (at least ones of which they are aware) that govern changes in the meanings of the words they use. The development of mean­ing within this particular speech community is influenced by a host of largely, if not exclusively, informal factors. It is very difficult work to find rules or principles that might be thought to govern this process of meaning-change. But this much at least seems clear. While the rule of stare decisis that regulates meaning-changes within legal officialdom is normative and followed intentionally by the members of that particular speech community, the same cannot be said for any rules and principles that might conceivably be at play within the wider speech-community of citizens. Changes in the meaning of words in this community reflect a host of developments in, e.g., moral views, social circumstances and scientific worldviews.

They may also, it is worth stressing, reflect developments in the law. As Waluchow argues elsewhere, a community’s morality is, to some extent, shaped by its laws. Laws and landmark case decisions can solve moral indeterminacies and thereby close gaps in the morality ascribable to the community and its members (see Waluchow 2008, p. 83). And if what we say above is true, such decisions will shape the ways in which citizens reason about how they are to behave. Certain options that might earlier have been permissible (or at least seemed so) will now be rejected as outside the boundaries of both morality and/or law. And this will in turn shape, in largely subtle and unpredictable ways, the very meanings of the terms in which their reasoning takes place. The informal, unpredictable nature of these influences entails that it will be hard to predict whether and how a certain decision will have such an effect. It might, for example, be that the decision is perceived to be so out of bounds, morally speaking, that instead of bringing about a change in the meaning(s) of the relevant words, the decision has precisely the opposite effect. It might, that is, serve to entrench established meaning(s) within the wider community.

13.3.3 Problems

The scenario described in the last section suggests a potential difficulty with respect to the development of constitutional meaning. Put simply, the legal community’s understanding of a constitution’s key terms and provisions might develop much more quickly, or in significantly different directions, than the understandings of these same terms within the larger speech-community. This is especially problem­atic because the constitution with a bill or charter or rights is a kind of law that is very much concerned with entrenching a foundational set of moral norms to which a community commits itself and in terms of which it is able to orient its activities. If authoritative decisions made by the judiciary develop the meaning of key terms or provisions of a community’s constitution in ways that diverge significantly from the understandings of citizens, then the legal community’s understanding of the moral foundations their constitution is supposed to provide might be very different from the ones that citizens either do or could accept. And this can have serious con­sequences, ranging from a loss of perceived judicial credibility and authority, on the one hand, to constitutional crisis and perhaps even revolution, on the other.

So one consequence of divergent meanings is that citizens might well become estranged from their own constitution, the same constitution that was supposed to give them a moral foundation to which they can relate - i.e., a common ground. And this can have even more serious consequences for democratic legitimacy. In healthy constitutional democracies, judicial decisions about the meanings of the key terms and provisions of a constitution have a tendency to impact the behaviour of citizens significantly. In other words, in healthy constitutional democracies, where judicial decisions are generally accepted as legitimate and authoritative, citizens tend to alter their behaviour and moral thinking in line with judicially generated constitu­tional meaning. Yet this same tendency also has the potential to lead to a situation that raises serious questions of democratic legitimacy. The judiciary, in making its decisions about what citizens can and cannot do, will significantly influence the lat­ter’s behaviour, beliefs and perhaps even language, but no corresponding effects will be seen to flow in the opposite direction. That is, citizens will not - as they should in a healthy constitutional democracy - exert much if any influence on the development of constitutional meaning within the legal community. The result is that judges themselves will end up establishing the fundamental law of their society, not the citizens or their democratically chosen representatives. Waluchow describes this kind of potential problem as follows:

Over time, judicial decision, not the community’s own morality, sets the appropriate stan­dards for decision in bill of rights cases. (...) It no longer is the community’s (...) morality that is being enforced in bill of rights cases; it is the (.) morality of the judiciary, particu­larly those members of the legal profession who happen to occupy the nation’s supreme court (Waluchow 2008, 82).

Waluchow’s general defence of judicial review suggests a potential solution to this serious problem of democratic legitimacy. Judicial decisions about the meaning of the relevant terms and provisions of a constitution should, he argues, be reflective of the democratic community’s own fundamental moral beliefs and commitments. Were judges to attempt, faithfully, to interpret the constitution in this manner, the effect will be to eliminate the above threat to democratic legitimacy. This is because it will ultimately be the morality of the democratic community that influences the way the meanings of the constitution’s key terms and provisions develop within the judiciary, not the other way round.^[338] Waluchow argues that judges both can and should identify the morality of the democratic community by exploring the implica­tions of the moral commitments previously established by the community in its democratically generated laws and precedent-setting interpretations of these laws by the judiciary (Waluchow 2008, 77). To the extent that they succeed in doing so, democratic legitimacy is preserved.

Our aim in the present paper is to extend this analysis and to argue that, in the case of decisions about constitutional meaning, the written constitution functions as a vital connection between the development of citizens’ considered moral views, on the one hand, and corresponding developments within constitutional law and prac­tice, on the other. If judicial decisions resulting in the development of the common law constitution must always be reconciled with the written constitution, and if the meaning of the latter is to a very large extent reflective of what the relevant words mean within the broader speech community, then the common law constitution will be capable of serving the role Waluchow’s theory assigns it: constitutional deci­sions will reflect the considered moral views of the democratic community. And to that extent at least, those decisions will enjoy democratic legitimacy.

13.3.4 The Written Constitution: A Link

Between Speech-Communities

Let us assume, for the sake of argument, that the written Constitution is constructed and understood in the way Strauss suggests (see Sect. 2.1). Its meaning is signifi­cantly fixed in just the right places, while it is suitably vague or abstract enough in other places. The result will be a blend of flexibility and stability that is almost always more valuable than the much greater degree of stability arguably achieved were the written constitution as a whole is taken to establish an absolutely fixed, unchanging foundation. The hazards of the latter option are well established.^[339] But what about flexibility? Do we not face a potential hazard here too, specifically one tied to democratic legitimacy? If the constitution is flexible, then will it not end up meaning whatever the judiciary currently say it means? And will not this too repre­sent a serious violation of democratic principle? Not if, as Strauss recommends, the basic meaning of the written constitution is taken to be whatever its words currently mean in common English. And not if, as Strauss also recommends, judicial deci­sions regarding the common law constitution are made in such a way as to be rec­oncilable with the written constitution so understood (Strauss 2010, 104-111). In discerning or developing the meaning of the written constitution, judges will be ultimately bound to honour developments in meaning (and corresponding beliefs, moral and otherwise) within the speech community of citizens. Owing to the requirement that they reconcile their constitutional decisions with the written con­stitution, the judiciary will thereby be required to gear their decisions regarding the meanings of the latter (i.e. words like equality and freedom of expression) to the well-considered, contemporary moral views of the speech community of citizens. Not only will this prevent the judiciary from developing a meaning for the written constitution that is radically at odds with the meaning that would be ascribed to it by competent speakers of the language, it compels the judiciary to respect, in their constitutional decisions, any developments in the meanings of the words employed by members of that wider community. The meaning of the constitution, as it is developed through the common law approach, is therefore not only prevented from becoming estranged from the community and their beliefs and practices, it also tracks developments in their language. Now, as we have already observed, these developments in language - especially with respect to the meaning of words that belong to the normative realm (like e quality, freedom, and the like) - will mirror developments of moral views and practices within the relevant community. It fol­lows that the written constitution can serve as a link between the judiciary and citi­zens, one that provides a significant means by which the latter’s developing moral views can significantly influence the moral and legal commitments made through the development of constitutional law. This is further facilitated by the fact that the judiciary is composed of individual who are, in addition to being part of the judi­ciary, also part of the much larger speech community and will likely be well-versed in whatever developments in meanings and views occur therein. Indeed, as mem­bers of that democratic community, judges will participate in the development of language within that wider community. The result is this: that they have to reconcile all decisions regarding the common law constitution with the written constitution will establish an obligation on the judiciary to reconcile their decisions regarding the common law constitution with the state of moral and social development found within the broader democratic community. So while the common law approach to constitutionalism, with its inherent flexibility, protects us from being governed by the dead hand of the past, the presence of a written constitution helps ensure that we will not be governed by the whims of democratically unanswerable judges. The written constitution, interpreted and applied as we have suggested, will help ensure that social and moral developments within the democratic community play a key role in the controlled development of constitutional law. Furthermore, it will facili­tate understanding, on the part of members of the democratic community, of the principles by which they are governed. The fact that the meaning of the written constitution reflects the moral views of her community means that any knowledge a citizen has of the latter will guide her understanding of the former whenever she reads it and seeks its guidance. Furthermore, it will allow her to see the constitution as reflecting moral choices she and her fellow members of the democratic commu­nity have made. The stability that the written constitution provides is not that pro­vided by a never-changing foundation that inevitably loses touch with contemporary social and moral reality, but that of a common law constitution that is responsive and reflective of the needs and convictions of the community for which it has been created.

13.4