Democratizing Common Law Constitutionalism
25 Pages Posted: 27 Oct 2009 Last revised: 22 Nov 2015
Date Written: October 29, 2009
Common law constitutionalism is the theory that legal principles such as fairness and equality reside within the common law, are constitutive of legality, and inform (or should inform) statutory interpretation on judicial review. This article looks to Rand J’s judgment in Roncarelli v. Duplessis to develop a democratic and relational conception of common law constitutionalism. By “democratic” I mean a version of the theory that governs judicial review but which is available to front-line decision-makers independently of the history and contemporary practice of review. By “relational” I mean a theory that presupposes the existence of a trust-like and legally significant relationship between public authorities and the persons subject to their power.
Under the democratic and relational theory, the legality of administrative action is assessed in light of legal principles constitutive of the trust-like relationship and without reference to the separation of powers. These principles flow from the trust-like nature of the relationship and the implications of working out how public authorities can hold discretionary power over individuals without subjecting them to domination or instrumentalization.
Keywords: common law constitutionalism, public law, rule of law, judicial review, democracy, fiduciary, trust-like, Roncarelli, Rand, common law constitution
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