Judicial Amendment and Our Constitutional Lives: A Reply to Emmett Macfarlane

Author ORCID Identifier

Kate Glover Berger: 0009-0001-2177-8220

Document Type

Article

Publication Date

12-12-2021

Source Publication

International Journal of Constitutional Law, Volume 19, Issue 5, December 2021, Pages 1925–1933, https://doi.org/10.1093/icon/moab129

Abstract

This short article responds to Emmett Macfarlane’s important piece, “Judicial Amendment of the Constitution,” with questions about how well his theory of judicial amendment maps, and thereby offers guidance about, the realities of constitutional life. I focus on the application of Macfarlane’s theory to one of the Supreme Court of Canada’s most internationally known opinions, the Quebec Secession Reference. I take this approach not merely to stake out an interpretation of the Court’s decision in the Secession Reference that differs from Macfarlane’s, but rather to better see what Macfarlane’s approach exposes and occludes about lived constitutionalism. To this end, this essay first questions whether the Secession Reference is an instance of judicial amendment, as Macfarlane argues it is. It then considers the implications of this questioning beyond the Reference. I argue that Macfarlane’s theory would benefit from a more robust account of structural interpretation and that a future normative account should grapple with how the concept of judicial amendment helps us understand our constitutional lives.

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