Law\u27s Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law

This article argues that there is a link between one\u27s theory of constitutional law, and one\u27s judgments about style in judicial opinion writing. It identifies several special functions of the constitutional opinion, including the democratic function of responding to the counter-majoritarian difficulty through an act of public justification, and the inter-generational function of provoking a temporally extended dialogue about constitutional values. Drawing on these functions, it argues for an opinion writing style dubbed open-textured minimalism, that seeks to resolve cases narrowly, articulate fundamental values and principles, and spark long-term debates about the underlying constitutional values supporting each decision. The author argues that the Supreme Court of Canada\u27s rulings on section 2(b) and section 1 of the Charter suffer from their length and technicality. The Court\u27s opinion in the Secession Reference on the other hand, is held out as an excellent example of the open-textured minimalist style favoured by the author