Book Review: Unwritten Constitutionalism

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Unwritten Constitutionalism. By Maxime St-Hilaire, Ryan Alford & Kristopher Kinsinger, eds. Toronto: LexisNexis, 2023. xxxvi, 255 p. Includes tables of cases and index. ISBN 9780433528203 (softcover) $125.00.

Reviewed by Melanie Bueckert
Legal Research Counsel

The papers in Unwritten Constitutionalism originated from The Unwritten Principle of Constitutionalism in Canadian Jurisprudence, the Runnymede Society’s March 2022 academic symposium, and were also published in volume 110 (2023) of the Supreme Court Law Review. Divided into four parts, the collection opens with a foreword by Justice Russell Brown (as he then was), one of the judges who wrote the majority decision in the 2021 constitutional law case involving the City of Toronto, discussed below. There is also a detailed table of contents, a table of cases, and an introduction written by editors Ryan Alford and Kristopher Kinsinger. Abstracts of each paper and a four-page index is also included.

Part I, Unwritten Principles and the City of Toronto Ruling, contains three papers related to the Supreme Court’s decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34, which looked at the province of Ontario’s decision to enact legislation redrawing municipal electoral ward boundaries during an election campaign. Ryan Alford begins by emphasizing the importance of constitutional history in “An Oak Whose Leaf Fadeth: The Barrenness of Constitutionalism without Constitutional History.” Brian Bird and Kristopher Kinsinger next propose renaming and reframing unwritten constitutional principles as animating principles in “Constitutional Exegesis, Animating Principles and Toronto v. Ontario.” Finally, Vanessa MacDonnell and Philippe Lagassé discuss legal and political aspects of unwritten constitutional principles in “Investigating the Legal and Political Contours of Unwritten Constitutional Principles after City of Toronto.” [1]

Part II, Constituent Power and Constitutional Amendment, contains two papers addressing constitutional amendment, both written by professors from outside Canada. Richard Albert from the University of Texas in Austin is Canadian and has published over 25 books on constitutional reform. His paper, “The Most Powerful Court in the World? Judicial Review of Constitutional Amendment in Canada,” focuses on the Supreme Court of Canada’s role in constitutional amendment. Yaniv Roznai, from the Harry Radzyner Law School in Israel, contributes “We the Limited People? On the People as a Constitutional Organ in Constitutional Amendments,” which discusses developments in Kenya, along with other comparative examples.

Part III, Natural Law and Common Good Constitutionalism, contains three papers. The first, by Stéphane Sérafin, Kerry Sun, and Xavier Foccroulle Ménard, is “Notwithstanding Judicial Specification: The Notwithstanding Clause within a Juridical Order” and addresses the role of the Charter’s notwithstanding clause. Next, Michael Foran and Conor Casey provide a view from across the pond in “Constitutionalism and the Common Good: On the Role of Unwritten Principles.” Justice Peter Lauwers of the Court of Appeal of Ontario responds in the third paper in this section, “A Voice from the Attic: A Canadian Take on Common Good Constitutionalism,” offering several critiques of the concept.

Finally, Part IV contains just one paper, a special comparative article by Matthew Harrington from the Université de Montréal, “Unwritten Principles and the American Constitution.”

Given that this volume arose from an academic symposium, it is not difficult to understand why it tends to be fairly philosophical in tone. While it is rooted in the recent City of Toronto case, it extends its scope to weightier, more esoteric topics of constitutional and political theory. For those looking primarily for commentary on the Supreme Court’s decision, other options include various portions of Halsbury’s Laws of Canada, as well as constitutional and municipal law texts; in fact, as of December 2023, at least 30 pieces of commentary citing the case are freely available on CanLII, including The Canadian Constitutional Law Open Access Casebook.[2] For lawyers, judges, and scholars grappling with issues of constitutional interpretation, the papers in this volume may provide some additional tools and insights.[3]

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[1] For further commentary, readers can see Philippe Lagassé & Vanessa MacDonnell, “Writing Canada’s Political Constitution” (2023) 48:2 Queen’s LJ 1.

[2] See also Robin Ketcheson, “Unwriting the Unwritten Principles of the Electoral System” (2022) 16 JPPL 265.

[3] See also Léonid Sirota, “Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation” (2021) 47:1 Queen’s LJ 78, 2021 CanLIIDocs 13940 (canlii.ca/t/7n6k5).