My dissertation focuses on ratification--the submission of a draft constitution to the people for their approval in an up or down vote--and has two central aims. First, it explores the mechanics, current usage, and possible effects of ratification and argues that despite its intuitive nature and ubiquity, it is in need of justification. Ratification is increasingly common and regularly included within the framing recommendations given by consultants, NGOs, transnational institutions, and the like. In addition, the procedure has significant effects: it can influence the behavior of framers, subsequently alter the contents of what they produce, is expensive to implement, and can lead to costly constitutional rejections. Despite this, both practitioners and scholars treat ratification as a given and provide no explanation or justification for its use. I argue that this is a mistake. Second, the primary aim of my dissertation is to ask what justifies the use of ratification, i.e. what reasons constitution-makers might have for implementing the procedure. Drawing from the history of ratification and the empirical and theoretical literature on constitution-making, I explore a series of possible justifications for the procedure, each of which connects to a central topic or theme in democratic theory. First, I ask whether ratification plays a role in a representative process ongoing during constitution-making, and whether the importance of fostering representation justifies its use. Second, I examine whether the need for ratification stems from its function as a moment of constituent power, an instance where the people manifest and exercise their will to make a constitution their own. Third, I explore whether ratification helps legitimize constitutions; this entails articulating a three-part theory of legitimacy corresponding to the concept's legal, moral, and sociological manifestations, and analyzing the role of ratification within this scheme. I test these potential justifications by looking at their theoretical coherence, applicability to cases of constitution-making from the 18th century to the present, and their compatibility with the actual dynamics and mechanisms of the constitution-making process. The results of my analysis are as follows. I argue that the only role ratification might play in a representative process is as an accountability mechanism, but that the possible divergence between how a voter evaluates a draft constitution and the behavior of his or her representative framer makes the procedure unable to take on this role. I find that theories of constituent power only justify ratification if the procedure is the sole moment during constitution-making in which the people take direct action on the constitution. This limits the justification to ratification procedures involving referenda, and requires that voters make a meaningful choice on the proposed constitution, i.e. they must choose whether to accept or reject a constitution on the basis of their understanding of its contents and the likely result of its rejection. However, this standard of meaningful choice, which requires a far greater level of voter informedness than ordinary instances of direct democracy, is unlikely to be met because voters cannot be expected to possess or obtain the sort of highly technical and specialized information such constitutional evaluation requires. Finally, I show that legal legitimacy collapses into sociological legitimacy when it comes to new constitutions and that ratification might produce sociological and moral legitimacy by making the contents of a constitution more likely to fall within the bounds of actual or perceived legitimacy, or by procedurally legitimating the outcome regardless of its substance. However, each of these pathways has considerable explanatory weaknesses and do not in themselves justify ratification. Thus, I ultimately conclude that there seems to be no convincing general justification available for ratification. The initially compelling arguments in favor of the procedure apply only occasionally, ignore differences between constitutional and ordinary lawmaking, contradict some of our central theories and assumptions about constitutionalism and democracy, or assume the prior existence of robust democratic norms. This does not amount to a wholesale rejection of ratification, for contextual variables might produce reasons for its implementation and I explore what these might be, but it does give reason to question the automatic application of this procedure, as well as the similar treatment of other peripheral components of constitutional and institutional design processes the merits of which are assumed rather than critically evaluated.

This dissertation is a study of the codification of empire and its unexpected consequences. It returns to the constitutional history of the Austro-Hungarian Empire — a subject whose heyday had passed by the late 1920s — to offer a new history of sovereignty in Central Europe. It argues that the imperatives of imperial constitutionalism spurred the creation a rich jurisprudence on the death, birth, and survival of states; and that this jurisprudence, in turn, outlived the imperial context of its formation and shaped the “new international order” in interwar Central Europe. “Law, Time, and Sovereignty” documents how contemporaries “thought themselves through” the transition from a dynastic Europe of two-bodied emperor-kings to the world of the League of Nations. The project of writing an imperial constitution, triggered by the revolutions of 1848, forced jurists, politicians and others to articulate the genesis, logic, and evolution of imperial rule, generating in the process a bank or archive of imperial self-knowledge. Searching for the right language to describe imperial sovereignty entailed the creative translation of the structures and relationships of medieval composite monarchy into the conceptual molds of nineteenth-century legal thought. While the empire’s constituent principalities (especially Hungary and Bohemia) theoretically possessed autonomy, centuries of slow centralization from Vienna had rendered that legal independence immaterial. Seeking conceptual means to manage the paradox of states that existed in law but not in fact, legal scholars and regional claim-makers alike cultivated a language of “historical rights” to serve as a placeholder for the suspended sovereignty of these sleeping states, swallowed up but not dissolved in the python of empire. Remarkably, “historical rights” became a kind of Trojan horse that smuggled the specter of international law into the internal workings of imperial constitutional law: the line between the two orders grew porous long before the formal sovereign rupture of 1918. Drawing on nineteenth-century legal studies and government legislation as well as parliamentary debates and other public statements, I thus show how imperial constitutional law — closely intertwined with the new academic discipline of constitutional law that emerged coterminously — provides an extraordinarily powerful vantage point from which to observe the construction of “modern” notions of statehood, rights, and sovereignty out of the raw materials of dynastic law. What is more, I reveal how the intellectual products of this constitutional tradition survived the empire’s dissolution in 1918: bodies of legal knowledge designed to capture and codify the fractured nature of imperial sovereignty eventually served as intellectual tools for managing its absence. When the empire collapsed under the pressure of four years of total war, a carefully cultivated discursive terrain lay waiting, well-stocked with tropes, arguments, and claims concerning the pre-existing statehood of many of the empire’s component parts. At the Paris Peace Conference and beyond, claim-makers redeployed the rhetorical arsenal of imperial constitutional debate on the world stage, arguing for the survival of these historic polities and their rights over the rupture of imperial collapse. The interwar settlement in Central Europe, I contend, cannot be understood outside a broader sweep of legal ideas forged in the cradle of imperial law. In this way, my dissertation offers a new pre-history of the interwar international order (often narrated as a Central European “year zero”), as well as a history and post-history of the empire’s legal worlds. Sensitive throughout to the co-implication of political and epistemological questions, this dissertation is not only a history of sovereignty but also a history of knowledge about sovereignty. At its heart lies a preoccupation with the relationship between law and time. By tracking law’s “persons” and their survival through time — especially their talent for both reinvention and continuity, and their capacity to carry rights through history — it sketches a more anthropological portrait of the particular tools and logics by which legal thought sets itself in history and resists the effects of time’s passing. In offering a new account of the transfer of rights and their subjects between old world orders and new, “Law, Time and Sovereignty” doubles as a study of the temporal life of states.

The thesis examines the constitutional position of the Court of Session's supervisory jurisdiction. It begins by emphasising the methodological and substantive importance of the historicality and traditionality of law. It then provides a detailed historical account of the emergence of the Court's supervisory jurisdiction, from its inheritance of supervisory functions from emanations of the King's Council to the present-day law of judicial review. Throughout, emphasis is placed on the Court's strong sense of self-orientation in the wider legal and constitutional order, and the extent to which it defined its own supervisory jurisdiction. The court was a powerful constitutional actor and played a strong role in the increasing centralisation and systematisation of the legal order, expanding its supervisory purview through a powerful triumvirate of remedies (advocation, suspension and reduction) and a comprehensive approach to the supervision of a wide range of bodies. The thesis then frames tensions between Parliament and the Court in the context of judicial review of ouster clauses, chosen as a point of heightened inter-institutional tension. This is demonstrated to be an area in which divergent visions of the constitution are evident – Parliament regarding itself as entitled to oust the jurisdiction of the Court to judicially review, and the Court regarding itself as entitled to examine and pronounce on the extent of ouster, including its limitation or exclusion. In attempting to conciliate these divergent constitutional worldviews, the thesis rejects a “last word” approach which prevails in the English judicial review literature. It considers (and rejects), as alternatives, dialogue theories and functional departmentalism. The thesis then advances constitutional narratology as its preferred analytical framework for the accommodation of those inter-institutional tensions, and conciliation of their divergent worldviews. The Court's performance of a constitutional-narratological function facilitates the integration, conciliation and synthesis of legal norms with an existing law and legal system; weaves and coagulates multifarious legal norms into a unified and univocal body of norms; and executes a chronicling, expository and explanatory storytelling function which sets a legally-authoritative narrative to the law. In doing so, the Court performs a distinctive and indispensable constitutional function incapable of fulfilment by Parliament. It is argued that traditionality and functional necessity provide the legal-systemic legitimation for the Court's performance of the constitutional-narratological function. Finally, the thesis considers the institutional specificity of the function, concluding that it is the function, rather than the institution, that is indispensable. However, neither the advent of the Upper Tribunal nor the U.K. Supreme Court suggest at this stage that the Court's performance of that function is waning.

After falling out of favor during the twentieth century, originalism has returned as a compelling and popular interpretive theory. Modern originalism is typically associated with political conservatives. In Reexamining Originalism, I argue that a progressive form of originalism is both more faithful to the Constitution and more similar to early originalism than conservative originalism. The key difference is that progressive originalism respects the Constitution's status as secondary law, whereas conservative originalism is overly concerned with preserving primary applications of law.

In Sparrow, the Supreme Court of Canada stated that ss. 35(1) is “a solemn commitment that must be given meaningful content” the objective of which is to ensure that Aboriginal rights “are taken seriously.” Despite such a clear directive from the highest court, in Manitoba Métis Federation v. Canada [2007], MacInnes J. of the Queen’s Bench of Manitoba seemed incapable of taking seriously the Aboriginal title of the Métis under s. 31 of the Manitoba Act, 1870, and in no way thought of its explicit recognition as ‘a solemn commitment that must be given meaningful content’. For his part, if Scott C.J. of the Manitoba Court of Appeal was able to find a ‘cognizable Aboriginal interest’ in the expression ‘Indian title’, and thereby recognize to some extent Métis Aboriginal rights, he seemed incapable of conceiving such interests as title. This thesis is basically an attempt to ‘take seriously’ the common law Aboriginal title of the Métis. In order to do so, it first looks at the treatment of the concept of Indian title and the Royal Proclamation, 1763, in the lower courts throughout the infamous St. Catharine’s Milling and Lumber case. Subsequently, the existing common law doctrines of inherent Métis rights, those of the derivative rights doctrine, the empty box doctrine and the distinct Aboriginal people doctrine are all found to be inadequate to the task of providing cogency to the ‘constitutional imperative’ that was evoked in Powley. A fourth doctrine is therefore proposed, that of a Métis Autochthonous or Indigenous rights doctrine. In light of this, it is argued that the recognition of the ‘Indian’ title in s. 31 was not a mere ‘political expediency’ but is rooted in the underlying constitutional principle of the protection of minorities. Furthermore, insofar as the ‘Indian’ title of the Métis is taken seriously, it can be seen as having been extinguished through the federal power over ‘lands reserved for Indians’ under ss. 91(24). The legal implication is that they were, in the logic of the times, basically enfranchised ‘Indians’. Finally, by applying the grid established in Sioui for determining the existence of a ‘treaty’, it is argued that s. 31 is a ‘treaty’ or land claims settlement within the meaning of s. 35.

The general theme of the thesis is a broad examination of the nature and structure of the constitution of the Northwest Territories, including the relationship of the Territorial Government to the Federal Government and an examination of some possible future developments in the area.<p> Following a review of the constitutional history of the Northwest Territories and a summary of relevant legislation, past and present, Chapter Two contains an examination of the status of the Government of the Northwest Territories, concluding that it is a government in the true sense and not simply an agency of the Federal Government. It has powers similar to those exercised by the Provincial Governments but differs from them in its lack of responsible government and its continuing legal and practical domination by the Federal Government.<p> Some examination is made of the forces promoting change in the constitutional structure and status of the Territories. The two dominant forces examined are the existence of major non-renewable resources, particularly hydrocarbons, and the pressure for settlement of native land claims and native self-determination. An examination of the current law concerning control of natural resources and Federal Government policy statements indicates that the Federal Government has, and will endeavor to retain, virtually complete control over all non-renewable resources with a significant economic impact or national demand.<p> A general review of some of the proposals for the settlement of native claims leads to the conclusion that the claims will be settled in the same manner as previous claims by native people in Canada but will be coupled with changes in the governmental structures of the Territories, consistent with Canadian political traditions, designed to promote and guarantee the involvement of native people in government.<p> It is concluded that, for the most part, the constitution of the Northwest Territories will continue to evolve towards responsible government and full participation by the Territories as a member of the Confederation. That evolution will follow a pattern similar to that established by the development of the prairie provinces with the only significant differences being found in the role of native people in the political life of the community and the strengthened determination of the Federal Government to retain control of non-renewable resources for an indefinite period.

The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

This thesis examines the consequences of taking a conversational approach to legal interpretation. This is meant to contrast with and improve the argument given in Ronald Dworkin's Law's Empire.

The general theme of the thesis is a broad examination of the nature and structure of the constitution of the Northwest Territories, including the relationship of the Territorial Government to the Federal Government and an examination of some possible future developments in the area.<p> Following a review of the constitutional history of the Northwest Territories and a summary of relevant legislation, past and present, Chapter Two contains an examination of the status of the Government of the Northwest Territories, concluding that it is a government in the true sense and not simply an agency of the Federal Government. It has powers similar to those exercised by the Provincial Governments but differs from them in its lack of responsible government and its continuing legal and practical domination by the Federal Government.<p> Some examination is made of the forces promoting change in the constitutional structure and status of the Territories. The two dominant forces examined are the existence of major non-renewable resources, particularly hydrocarbons, and the pressure for settlement of native land claims and native self-determination. An examination of the current law concerning control of natural resources and Federal Government policy statements indicates that the Federal Government has, and will endeavor to retain, virtually complete control over all non-renewable resources with a significant economic impact or national demand.<p> A general review of some of the proposals for the settlement of native claims leads to the conclusion that the claims will be settled in the same manner as previous claims by native people in Canada but will be coupled with changes in the governmental structures of the Territories, consistent with Canadian political traditions, designed to promote and guarantee the involvement of native people in government.<p> It is concluded that, for the most part, the constitution of the Northwest Territories will continue to evolve towards responsible government and full participation by the Territories as a member of the Confederation. That evolution will follow a pattern similar to that established by the development of the prairie provinces with the only significant differences being found in the role of native people in the political life of the community and the strengthened determination of the Federal Government to retain control of non-renewable resources for an indefinite period.