The Pervasive Constitution: The Constitution Outside of the Courts

Date01 December 2020
DOI10.1177/0067205X20955064
AuthorVanessa MacDonnell,Eddie Synot,Gabrielle Appleby
Publication Date01 December 2020
SubjectArticles
Article
The Pervasive Constitution:
The Constitution Outside
of the Courts
Gabrielle Appleby* , Vanessa MacDonnell**
and Eddie Synot***
Abstract
The constitution pervades the governance practices of a state, far beyond its application and
interpretation in the courts. This Special Issue draws together a field of scholarship that
considers these extrajudicial dimensions of constitutional practice to reveal a very different
constitution to the juridified version. It is a more complex, dynamic and pervasive vision of
the constitution, focused on the ongoing relationships of a broader set of constitutional
institutions and actors. These relationships are mediated by the legal and political dimensions
of the constitution and by the narratives and symbolism that grow up around it. In this
introduction, we explore three themes of the pervasive constitution: the importance of
constitutional narratives and symbols, the multiplicity of constitutional actors and the rela-
tional nature of constitutionalism. This recalibrated understanding of the constitution reveals
constitutional actors and power dynamics that are often invisible in more traditional accounts
of constitutionalism. This recalibration is particularly important in addressing contemporary
constitutional challenges. In settler systems hoping to decolonise, courts have proven
important but insufficient sites of constitutional change, and it is in political spaces that new
constitutional stories can be told, stories which acknowledge the full sovereignty of Indi-
genous peoples and their claim to territory. In countries experiencing democratic backsliding,
extrajudicial actors have been championed as the backstops to democracy and human rights.
We argue that only by understanding the space outside the courts will we appreciate the
breadth of new constitutional possibilities.
* Professor, UNSW Law. The author may be contacted at g.appleby@unsw.edu.au.
** Associate Professor, University of Ottawa, Faculty of Law (Common Law Section), and Co-Director, University of
Ottawa, Public Law Centre. The author may be contacted at vanessa.macdonnell@uottawa.ca.
*** PhD Candidate, Griffith University, and Centre Manager of the Indigenous Law Centre, UNSW Law. The author may be
contacted at e.synot@unsw.edu.au.
Federal Law Review
2020, Vol. 48(4) 437–454
ªThe Author(s) 2020
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DOI: 10.1177/0067205X20955064
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I The Constitution Outside of the Courts
To speak of the constitution ‘outside of the courts’ as a subject in need of further scholarly study is
evidence of the degree to which our thinking about constitutions has become juridified.
1
In
constitutional systems around the world, it is now commonplace for scholars to suggest that courts
are the locus of constitutional po wer rather than legislatures and that judg es are the primary
constitutional actors. But these are beliefs worth interrogating, even in countries with strong apex
courts and robust judicial review.
The phrase ‘constitution outside of the courts’ emerges from the United States, where Mark
Tushnet has used it primarily in describing how extrajudicial actors shape the interpretation of
constitutionaltexts.
2
On some accounts, extrajudicial actors have independent interpretative author-
ity.
3
On others, they influence constitutional interpretation by judges in different ways.
4
Regardless
of the precise position adopted, however, the focus of this scholarship is on how non-judicial actors
shape constitutional law. Outside of this body of scholarship, the constitution outside of the courts
tends to be associated with the political dimensions of constitutional practice, broadly conceived. In
this Special Issue, we engage with the constitution outside of the courts in this broader sense.
Extrajudicial constitutional functions are an important part of all constitutional systems, and in
some jurisdictions, they appear to be expanding. Courts are increasingly recognising the consti-
tutional or quasi-constitutional status of laws enacted through the ordinary legislative process.
5
The executive and the legislature are involved, formally and informally, in scrutinising the con-
stitutionality of proposed legislation.
6
In many systems, the legislature retains the ‘last word’ on
constitutional rights questions by virtue of the presence of limitations and/or override clauses.
7
Federalism issues continue to be addressed largely outsi de of courts. And while their precise
constitutional basis may be a matter of debate,
8
legislatures increasingly rely on accountability
offices, such as the auditor-general, the ombuds office, and the electoral commissioner, to perform
an oversight role.
9
1. See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard
University Press, 2004).
2. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999).
3. See, eg, Keith E Whittington, ‘Extrajudicial Constitutional Interpretation: Three Objections and Responses’ (2002)
80(3) North Carolina Law Review 773.
4. See further explanation of different positions in Cornelia T L Pillard, ‘The Unfulfilled Promise of the Constitution in
Executive Hands’ (2005) 103(4) Michigan Law Review 676, 678–9.
5. See Richard Albert and Joel I Col´on-R´ıos (eds), Quasi-Constitutionality and Constitutional Statutes: Forms, Functions,
Applications (Routledge, 2019); Vanessa MacDonnell, ‘A Theory of Quasi-Constitutional Legislation’ (2016) 53(2)
Osgoode Hall Law Journal 508; Farrah Ahmed and Adam Perry, ‘The Quasi-Entrenchment of Constitutional Statutes’
(2014) 73(3) Cambridge Law Journal 514.
6. See Gabrielle Appleby and Anna Olijnyk, ‘Executive Policy Development and Constitutional Norms: Practice and
Perceptions’ (2020) International Journal of Constitutional Law (forthcoming); Janet L Hiebert, Charter Conflicts:
What is Parliament’s Role? (McGill-Queen’s University Press, 2002); Mary Dawson, ‘The Impact of the Charter on the
Public Policy Process and the Department of Justice(1992) 30(3) Osgoode Hall Law Journal 595.
7. Peter W Hogg and Allison A Bushell, ‘The Charter Dialogue Between the Courts and the Legislatures (Or Perhaps the
Charter of Rights Isn’t Such a Bad Thing After All)’ (1997) 35(1) Osgoode Hall Law Journal 75, 84–7.
8. Ann Chaplin, ‘Officers of Parliament: Accountability, Virtue and the Constitution’ (LLM Thesis, University of Ottawa,
2009).
9. See also Gabrielle Appleby, ‘Horizontal Accountability: The Rights-Protective Promise and Fragility of Executive
Integrity Institutions’ (2017) 23(2) Australian Journal of Human Rights 168; Michael Pal, ‘Electoral Management
Bodies as a Fourth Branch of Government’ (2016) 21(1) Review of Constitutional Studies 85.
438 Federal Law Review 48(4)

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