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.
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
On some accounts, extrajudicial actors have independent interpretative author-
On others, they influence constitutional interpretation by judges in different ways.
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.
The executive and the legislature are involved, formally and informally, in scrutinising the con-
stitutionality of proposed legislation.
In many systems, the legislature retains the ‘last word’ on
constitutional rights questions by virtue of the presence of limitations and/or override clauses.
Federalism issues continue to be addressed largely outsi de of courts. And while their precise
constitutional basis may be a matter of debate,
legislatures increasingly rely on accountability
offices, such as the auditor-general, the ombuds office, and the electoral commissioner, to perform
an oversight role.
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,
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)