McGill Law Journal ~ Revue de droit de McGill
RONCARELLIS GREEN CARD:
THE ROLE OF CITIZENSHIP IN
RANDIAN CONSTITUTIONALISM
Matthew Lewans*
This article investigates the distinct char-
acter of Randian constitutionalism and how it
may have been inspired by American discourse
on constitutional values. More specifically, the
author examines how Justice Rands brand of
constitutionalism is distinguishable from the
more dominant strain of Diceyan constitutional-
ism that was prominent among Canadian ju-
rists during the twentieth century. The author
argues that the difference between Randian and
Diceyan constitutionalism can be explained
largely by the central role that citizenship
played in Justice Rands understanding of the
Canadian constitutional order.
The author further argues that Justice
Rand did not invent his conception of citizen-
ship, but borrowed it from American constitu-
tional jurisprudence regarding the Fourteenth
Amendment to the Constitution of the United
States. Accordingly, Justice Rands opinion in
Roncarelli and other cases shows how his con-
stitutional vision was shaped by a series of
strong dissenting opinions concerning the now-
defunct Privileges or Immunities Clause in the
Fourteenth Amendment. By doing so, Justice
Rand sought to install in Canadian public law
the same fundamental principles of equality
and non-discrimination that the American Con-
gress intended to establish by adopting the
Fourteenth Amendment.
Cet article tudie le caractre distinct du
constitutionnalisme randien et examine com-
ment il a pu tre inspir du discours amricain
sur les valeurs constitutionnelles. Plus prcis-
ment, lauteur examine les distinctions entre les
approches constitutionnelles randienne et di-
ceyenne, cette dernire tant prominente par-
mi les juristes canadiens du vingtime sicle.
Lauteur soutient que la diffrence entre les cons-
titutionnalismes randien et diceyen sexplique en
grande partie par limportance quaccordait le
juge Rand la citoyennet dans sa conception
de lordre constitutionnel canadien.
Lauteur fait aussi valoir que le juge Rand
na pas invent sa vision de la citoyennet, mais
la plutt emprunte la jurisprudence consti-
tutionnelle amricaine traitant du Quatorzime
amendement de la Constitution des tats-Unis.
Par consquent, lopinion du juge Rand dans
Roncarelli et dans dautres affaires montre
comment sa vision constitutionnelle a t in-
fluence par une srie dopinions dissidentes re-
latives lancienne clause privilges ou im-
munits du Quatorzime amendement. Le juge
Rand cherchait ainsi incorporer au droit public
canadien les mmes principes fondamentaux
dgalit et de non-discrimination que le Congrs
amricain avait voulu tablir en adoptant le
Quatorzime amendement.
* Faculty of Law, University of Alberta. Thanks to Michelle Westgeest and Jillian Gamez
for their excellent research assistance and my faculty for providing me with an
EFF/SAS research grant. I would also like to thank Eric Adams, Genvive Cartier,
David Dyzenhaus, and Moin Yahya for their comments.
Citation: (2010) 55 McGill L.J. 537 ~ Rfrence : (2010) 55 R.D. McGill 537
Matthew Lewans 2010
538 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
II.
The Constitutional Significance of Citizenship
A Brief History of American Citizenship
The Role of Citizenship in Randian Constitutionalism
Conclusion: The Legacy of Randian Constitutionalism
539
541
545
555
561
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 539
There was here not only revocation of the existing
permit but a declaration of a future, definitive dis-
qualification of the appellant to obtain one: it was
to be forever. This purports to divest his citizen-
ship status of its incident of membership in the
class of those of the public to whom such a privi-
lege could be extended. Under the statutory lan-
guage here, that is not competent to the Commis-
sion and a fortiori to the government or the re-
spondent.
Justice Rand1
Introduction
Roncarelli v. Duplessis is rightly celebrated as a landmark decision of
the Supreme Court of Canada. Part of that celebrated status is a function
of the historical context of the case; part of it is a function of the cause of
action that the Court invoked to award Frank Roncarelli $33,123.53 in
damages for abuse of public power. But for the most part, Roncarelli owes
its landmark status to Justice Rands distinctive brand of constitutional-
ism, which he used to justify judicial redress for what was an egregious
abuse of executive discretion.
Randian constitutionalism is intriguing because it is distinguishable
from the strain of Diceyan constitutionalism that typified Canadian ad-
ministrative law for the better part of the twentieth century. Diceyan con-
stitutionalism is marked by its preoccupation with a formal separation of
powers between the legislature and the judiciary, and its controversial as-
sertion that there is no room for administrative law within the constitu-
tional order. According to Dicey, the rule of law is maintained so long as
the legislature has exclusive law-making authority, the judiciary has ex-
clusive law-interpreting authority, and the executive is confined to im-
plementing the law established by the legislature and determined by the
judiciary. In other words, the Diceyan constitution is maintained so long
as this analytical division of labour between legal institutions is preserved
and judges have the last word on questions concerning legal interpreta-
tion.2
By contrast, Justice Rands constitutional model, which is outlined in
Roncarelli and some of his other judgments,3 outlines an approach to judi-
1 Roncarelli v. Duplessis, [1959] S.C.R. 121 at 141, 16 D.L.R. (2d) 689, Rand J. [reference
omitted, Roncarelli].
2 See David Dyzenhaus, Formalisms Hollow Victory (2002) N.Z.L. Rev. 525.
3 See e.g. Smith & Rhuland v. Nova Scotia [1953] 2 S.C.R. 95, [1953] 3 D.L.R. 690 [Smith
& Rhuland cited to S.C.R.]; Boucher v. R. (1950), [1951] S.C.R. 265, [1951] 2 D.L.R. 369
[Boucher cited to S.C.R.]; Saumur v. Quebec (City of), [1953] 2 S.C.R. 299, [1953] 4
540 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
cial review that is both more and less ambitious than its Diceyan counter-
part. Justice Rands approach is more ambitious because it elucidates a
more complex set of political values which, in turn, complicate our under-
standing of the constitutional relationships between legal institutions; but
it is less ambitious, because it recognizes that judges should respect or de-
fer to administrative decisions in ways that Diceyan constitutionalism
does not. Mullan nicely summarizes the nuances of Randian constitution-
alism when he writes:
On the one hand, [Justice Rand] was clearly a judge who expected
rectitude of those holding public office and, in particular, respect for
the civil liberties of individuals. However, at the same time, he was
always cognisant of the reasons for the creation of administrative
tribunals and of the necessity for recognizing their expertise and role
in working out their own policies as well as their desire to function
efficiently and effectively.4
Thus, it seems that Dicey would agree with Justice Rands statement
in Roncarelli that there is always a perspective within which a statute is
intended to operate; and any clear departure from its lines or objects is
just as objectionable as fraud or corruption.5 But whereas Dicey famously
declared that the French notion of droit administratif was utterly incom-
patible with the rule of law, Justice Rand recognized that the judiciary
ought to respect administrative decisions so long as they are consonant
with a rational appreciation of the situation presented6 and within any
rational compass of the legislative framework.7
In this paper, I will investigate the inspiration behind Randian consti-
tutionalism, but I will not conduct an examination of Justice Rands views
on curial deference toward administrative decisions, since his discussion
of that particular theme is underdeveloped in his judicial opinions.8 In-
stead, I will examine how Justice Rands conception of citizenship helps
explain the normative character of his constitutional model. I will argue
that a deeper understanding of Justice Rands conception of citizenship,
which is front and centre in Roncarelli, helps explain the distinctive quali-
ties of Randian constitutionalism. I will further argue that Justice Rand
D.L.R. 641 [Saumur cited to S.C.R.]; Switzman v. Elbling, [1957] S.C.R. 285, 7 D.L.R.
(2d) 337 [Switzman cited to S.C.R.].
4 David J. Mullan, Mr. Justice Rand: Defining the Limits of Court Control of the Admin-
istrative and Executive Process (1979) 18 U.W.O. L. Rev. 65 at 68.
5 Roncarelli, supra note 1 at 140.
6 British Columbia (Labour Relations Board) v. Canada Safeway Ltd., [1953] 2 S.C.R. 46
at 55, [1953] 3 D.L.R. 641.
7 Re Ontario (Labour Relations Board) (Toronto Newspaper Guild, Local 87 v. Globe
Printing), [1953] 2 S.C.R. 18 at 29, [1953] 3 D.L.R. 561 [Globe Printing]. See also Mul-
lan, supra note 4 at 69-71, 89-90, 112-13.
8 For a more searching analysis of this point, see ibid.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 541
did not invent his conception of citizenship; he rather lifted it from early
American jurisprudence regarding the Fourteenth Amendment to the
Constitution of the United States. More specifically, Justice Rands opin-
ion in Roncarelli and other cases show how his constitutional vision was
shaped by a series of strong dissenting opinions concerning the now-
defunct Privileges or Immunities Clause of the Fourteenth Amendment.
By doing so, Justice Rand sought to install in Canadian public law the
same fundamental principles of equality and non-discrimination that the
Thirty-ninth Congress intended to provide through the Fourteenth
Amendment, but which were given short shrift by a majority of the Su-
preme Court of the United States in its early decisions regarding that
constitutional provision.
I. The Constitutional Significance of Citizenship
The concept of citizenship is one of the most important and complex
ideas in political theory. It has its roots in classical political philosophy
and figures prominently in discussions regarding the foundations of the
city state in ancient Greece.9 Citizens are persons who are recognized as
full members of a particular political community, and it is generally as-
sumed that genuine recognition of citizenship is something of great value.
As Judith Shklar puts it, [t]o be less than a full citizen is at the very least
to approach the dreaded condition of a slave. To be a second-class citizen
is to suffer derogation and the loss of respectable standing.10 Thus, rec-
ognition of citizenship has significant normative content because it as-
serts that citizens cannot be treated as mere means toward political ends
and political authorities have a duty to treat citizens with consideration
and respect. In this regard it is telling that some of the most offensive
forms of political repression in the modern eraslavery, apartheid, and
the Holocaustall involved overt government policies that attempted to
strip people of their citizenship before subjecting them to profound mis-
treatment. However, as Roncarelli shows, government action may un-
dermine someones rights as a citizen without engaging in such gross
forms of abuse.
The idea of citizenship is also complex because although it is closely
associated with the political value of equality, that association can be con-
ceived in a variety of different ways. The relationship between citizenship
and equality is apparent in T.H. Marshalls famous analysis of the concept
in his essay, Citizenship and Social Class:
9 See e.g. Aristotle, The Politics, trans. by Ernest Barker, Book III (Oxford: Oxford Uni-
versity Press, 1995).
10 Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge, Mass.:
Harvard University Press, 1991) at 17.
542 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
Citizenship is a status bestowed on those who are full members
of a community. All who possess the status are equal with respect to
the rights and duties with which the status is endowed. There is no
universal principle that determines what those rights and duties
shall be, but societies in which citizenship is a developing institution
create an image of an ideal citizenship against which achievement
can be measured and towards which aspiration can be directed. The
urge forward along the path thus plotted is an urge towards a fuller
measure of equality, an enrichment of the stuff of which the status is
made and an increase in the number of those on whom the status is
bestowed.11
However, as Marshall goes on to explain, equal citizenship has both
negative and positive aspects. The negative aspect involves various rights
of non-interference, which Marshall asserts are necessary for individual
freedom: rights to physical liberty, freedom of speech, freedom of con-
science, property rights, liberty of contract, and the right to justice.12 But
Marshall also argues that citizenship includes important positive attrib-
utes, because a guarantee of non-interference is not a sufficient guarantee
of equal respect. The most prominent positive aspect of citizenship guar-
antees the right to participate in the exercise of political power, as a
member of a body invested with political authority or as an elector of the
members of such a body.13 But another, more controversial, positive ele-
ment concerns a variety of social and economic rights, which Marshall de-
fines broadly as the whole range from the right to a modicum of economic
welfare and security to the right to share to the full in the social heritage
and to live the life of a civilized being according to the standards prevail-
ing in the society.14 Marshalls analysis of citizenship thus provides both
an explanatory and normative account of citizenship; it both elucidates
the different features of a shared concept and shows how a richer, more
elaborate conception of citizenship serves to emancipate and dignify indi-
viduals in a variety of ways.
Marshalls analysis raises a couple of important points that help illu-
minate both the complexity of citizenship as a normative ideal and how
that complexity explains the distinction between Randian constitutional-
ism and its Diceyan counterpart. First, people are likely to have differing
views or conceptions about citizenship depending upon how they flesh out
the content of the negative and positive aspects of citizenship (i.e., the
civil, political, and social elements of citizenship). Thus, a libertarian con-
ception of citizenship will be fundamentally distinct from that espoused by
11 T.H. Marshall, Citizenship and Social Class in Class, Citizenship, and Social Devel-
opment: Essays by T.H. Marshall (Garden City, N.Y.: Doubleday, 1964) 65 at 84.
12 Ibid. at 71.
13 Ibid. at 72.
14 Ibid.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 543
a liberal democrat, because they disagree about the proper scope of non-
interference in civil society and whether government can play a positive
role in enhancing the content of citizenship.
This complexity is compounded by the fact that there is an interrela-
tionship between the negative and positive aspects of citizenship. For in-
stance, a civil rightlike freedom of speech has both negative and positive
aspects because it is necessary both for the development of ones individ-
ual identity and for meaningful political participation. As Desmond King
and Jeremy Waldron argue, the fact that the negative and positive as-
pects of equal citizenship are closely interrelated shows that there is a
tight reciprocity between the duties individuals owe to the community and
the duties the community owes to them.15 The complex character of the
citizenship ideal explains how Randian constitutionalism can reconcile its
commitment to individual rights, on the one hand, with its recognition of
the legitimacy of the administrative state, on the other. It shows how Jus-
tice Rand could both be committed to individual immunities from state
interferencelike freedom of speech16and still appreciate that the legis-
lative and executive branches of government could play a positive role in
enhancing the quality of life enjoyed by its citizenry.17
The second, related point is that Marshalls analysis highlights an im-
portant issue regarding institutional responsibility. Although Marshall
recognizes the advancement of rights through legislation, he argues that
the development and protection of civil rights was in large measure the
work of the courts, both in their daily practice and also in a series of fa-
mous cases in some of which they were fighting against parliament in de-
fence of individual liberty.18 In vaunting judicial responsibility for the
protection of individual rights, Marshall echoes Diceys famous charac-
terization of both the rule of law and the role of the judiciary.19 However,
unlike Marshall, Dicey did not appreciate the complex interrelationship
between the negative and positive aspects of citizenship. In this respect, it
is worth noting that Diceys conception of the rule of law was driven in
large part by the creed of individualism that he thought was the pre-
15 Desmond S. King & Jeremy Waldron, Citizenship, Social Citizenship and the Defence
of Welfare Provision (1988) 18 Brit. J. Pol. Sci. 415 at 420.
16 See e.g. Boucher, supra note 3 at 284ff.; Saumur, supra note 3 at 325ff.; Switzman, su-
pra note 3 at 300ff.
17 See Globe Printing, supra note 7. See also Mullan, supra note 4.
18 Marshall, supra note 11 at 75.
19 See A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. by
E.C.S. Wade (London, U.K.: Macmillan, 1959).
544 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
dominant feature of the common law,20 and the idea that judges should
preserve the common law against legislative reform.21 Dicey admired Ben-
thams utilitarian principlethat legislation should promote the greatest
happiness of the greatest numberbut thought that the individual was
the best judge of his own happiness. Given the diversity and complexity of
individual desires, Dicey thought that the legislature could not advance
individual welfare; it could only aspire to establish the conditions under
which citizens might prosper.22 Thus, Dicey claimed that though laissez-
faire is not an essential part of utilitarianism it was practically the most
vital part of Benthams legislative doctrine.23
Diceys individualist sympathies are most apparent in his political
writings, where he expresses hostile views toward what he calls collectiv-
ist legislative policies designed to enhance the welfare of British subjects.
For instance, while Dicey advocated expansion of freedom of contract, he
was troubled by implications of the trade union movement for laissez-faire
economic policy.24 Further evidence of Diceys preoccupation with indi-
vidualism is contained in his Lectures, where he derides publicly funded
education (for compelling disinterested individuals to bear the expense of
educating future citizens);25 workmens compensation schemes (for erod-
ing freedom of contract, personal responsibility, and forcing employers to
pay for insurance);26 and welfare reform and old-age pensions (for comfort-
ing undeserving individuals).27 Diceys tone is even more strident in the
introduction to the second edition of his Lectures, where he advocates out-
right disenfranchisement of persons in receipt of social assistance in addi-
tion to lamenting the advent of labour standards legislation and progres-
sive taxation.28
The point of this abbreviated critique is to show that the Diceyan con-
ception of the rule of law is premised, at least partially, upon an impover-
ished conception of citizenship that prioritizes individual immunities from
state action and lashes out against the emergence of the welfare state. In
20 See Mark D. Walters, Legality as Reason: Dicey, Rand, and the Rule of Law (2010) 55
McGill L.J. 563; Matthew Lewans, Rethinking the Diceyan Dialectic (2008) 58
U.T.L.J. 75 at 96-100.
21 See A.V. Dicey, Lectures on the Relation between Law & Public Opinion in England
during the Nineteenth Century, 2d ed. (London, U.K.: Macmillan, 1962) at 126ff. (Lec-
ture VI).
22 See ibid. at 137.
23 Ibid. at 147.
24 See ibid. at 158.
25 See ibid. at 278-79.
26 See ibid. at 282-83.
27 See ibid. at 292-96.
28 See ibid. at xxxiv, li-lii.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 545
what follows, I will argue that, by contrast, Randian constitutionalism is
built upon a more complex understanding of the relationship between
citizens and their government. As this articles epigraph from Roncarelli
suggests, Justice Rand was just as concerned that citizens have access to
the privileges of citizenship that are distributed by the state, as he was
with immunities from state interference like freedom of speech. But in
order to fully appreciate the Randian perspective, one needs to gain a bet-
ter understanding of how his views about citizenship were shaped by his
exposure to American constitutional law.
II. A Brief History of American Citizenship
American constitutional history provides a poignant case study re-
garding the constitutional significance of citizenship. The narrative begins
poorly with a constitution that expressly enshrines slavery and a series of
cases that are depressing by contemporary human rights standards. But
there are also some striking attempts along the way to enlarge the rights
of citizens through constitutional amendments and congressional legisla-
tion. And while the judiciary lagged behind Congress in its attempt to
enlarge the scope and content of American citizenship, there have never-
theless been some profound judicial dissents along the way that foreshad-
owed decisions like Brown v. Board of Education29 and University of Cali-
fornia Regents v. Bakke30 that have become emblematic of constitutional
values like the principle of equal concern and respect.
The early constitutional history of the United States is replete with
contradiction. On the one hand, there were lofty statements regarding the
self-evident truths that all men are created equal, that they are en-
dowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty and the pursuit of Happiness.31 The Constitution also
included a Comity Clause, which was designed to prevent state discrimi-
nation against out-of-state American citizens by ensuring that [t]he Citi-
zens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.32 In Corfield v. Coryell, Justice Washing-
ton held that the Comity Clause provided constitutional protection for
both the negative and positive elements of citizenship:
The right of a citizen of one state to pass through, or to reside in any
other state, for purposes of trade, agriculture, professional pursuits,
29 347 U.S. 483, 74 S. Ct. 686 (1954).
30 438 U.S. 265, 98 S. Ct. 2733 (1978).
31 Declaration of Independence, 1776, 1 Rev. Stat. 3 at 3 (1878).
32 U.S. Const. art. IV, 2, cl. 1 (also known as the Privileges and Immunities Clause). See
also John Harrison, Reconstructing the Privileges or Immunities Clause (1991) 101
Yale L.J. 1385 at 1398.
546 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
or otherwise; to claim the benefit of the writ of habeas corpus; to in-
stitute and maintain actions of any kind in the courts of the state; to
take, hold and dispose of property, either real or personal; and an
exemption from higher taxes or impositions than are paid by the
other citizens of the state; may be mentioned as some of the particu-
lar privileges and immunities of citizens, which are clearly embraced
by the general description of privileges deemed to be fundamental: to
which may be added, the elective franchise, as regulated and estab-
lished by the laws or constitution of the state in which it is to be ex-
ercised. These, and many others which might be mentioned, are,
strictly speaking, privileges and immunities, and the enjoyment of
them by the citizens of each state, in every other state, was mani-
festly calculated (to use the expressions of the preamble of the corre-
sponding provision in the old articles of confederation) the better to
secure and perpetuate mutual friendship and intercourse among the
people of the different states of the Union.33
While there is disagreement among legal historians about whether the
right to vote was generally recognized at the time to be a privilege of
citizenship, there is general consensus that the Comity Clause was in-
tended to establish a principle of equality and non-discrimination.34 In
short, the principle behind the Comity Clause demanded that if a state
bestowed a benefit … on its citizens as an incident of citizenship, then that
state was required to extend the same benefit to American citizens visit-
ing from other states.35
On the other hand, the new Constitution repudiated the principle of
equality and non-discrimination by guaranteeing local self-rule and, by
extension, the practice of slavery that was prevalent in Southern States.36
The Tenth Amendment gave state legislatures exclusive jurisdiction over
any subject not explicitly reserved for the federal government, the federal
government was constitutionally prohibited from regulating the interstate
slave trade for twenty years,37 and Northern States had a duty under the
Constitution to return escaped slaves to their owners.38 In addition, slave-
owning states were given disproportionate representation in Congress,
because the allocation of house representatives was to be calculated on
the basis of the number of free persons plus three-fifths of the slave popu-
lation.39
33 6 F. Cas. 546 at 552 (Pa. Cir. Ct. 1823).
34 See e.g. Robert G. Natelson, The Original Meaning of the Privileges and Immunities
Clause (2009) 43 Ga. L. Rev. 1117.
35 Ibid. at 1187.
36 U.S. Const. art. IV, 2, cl. 1.
37 U.S. Const. art. I, 9, cl. 1.
38 U.S. Const. art. IV, 2, cl. 3.
39 U.S. Const. art. I, 2, cl. 3.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 547
While this constitutional compromise held initially, by the time Dred
Scott v. Sandford was decided it was clearly beginning to unravel.40 In
that case, the Supreme Court of the United States held that Scott could
not sue in a federal court for his freedom, because he was black and there-
fore not a citizen within the original meaning of the Constitution. When
elaborating the framers original intent, Justice Taney declared that black
people were considered as a subordinate and inferior class of beings, who
had been subjugated by the dominant race, … and had no rights or privi-
leges but such as those who held the power and the Government might
choose to grant them.41 While Justice Taney thought that his decision
would help defuse the political controversy concerning slavery by reassert-
ing the constitutional compromise, if anything it stoked the political con-
flict that culminated in the American Civil War.
During the antebellum period, state legislatures were generally per-
ceived to be the primary guarantors of individual rights and the locus of
legitimate government within the federal system. By contrast, the federal
government was regarded as either irrelevant or, to the extent that it pos-
sessed legislative power, a threat to individual liberty and home rule.42
This sentiment even extended to the judicial branch; state superior courts
frequently blocked or frustrated federal legislation and did not regard de-
cisions from the Supreme Court of the United States as binding prece-
dent. Furthermore, the relative weakness of the national military and de-
pendency upon local militias presented a practical problem of enforce-
ment. Even if the federal government wished to impose its will on intran-
sigent states, it could not effectively enforce federal law against local au-
thorities because it lacked the means to sanction local officials.43
All of this changed after the American Civil War when the balance of
power shifted toward the city of Washington during Reconstruction. Re-
publican politicians recognized that they had an opportunity to change
the course of race relations in the South, and were determined to use the
means at their disposalespecially their political dominance in Congress
and executive control over the militaryto initiate social change. South-
ern resistance to Reconstruction was fierce: republican politicians in the
South lived under the threat of violence, and were often frustrated by
state courts still populated by judges with sympathies toward the Confed-
eracy. But the most disturbing acts of hostility were directed at freed
slaves. In communities where Union forces were weak, blacks lived in
constant fear of being beaten or lynched if they attempted to assert their
40 60 U.S. 393, 15 L. Ed. 691 (1857) [Dred Scott cited to U.S.].
41 Ibid. at 404-405.
42 See William E. Nelson, The Fourteenth Amendment: From Political Principle to Judi-
cial Doctrine (Cambridge, Mass.: Harvard University Press, 1988) at 27.
43 See ibid. at 27-36.
548 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
rights of citizenshiptheir rights to own property, to vote, or to associate
with white persons in public establishments. Beginning in 1865, southern
states began replacing slave codes with so-called black codes, which im-
posed second-class status on blacks by restricting their ability to enter
and enforce private contracts, to own or convey personal property, to pur-
sue certain trades, to seek relief from the courts, and to participate in
common life as ordinary citizens.44
It is important to point out that during the Reconstruction period,
Congress played a crucial role in enlarging the rights of black citizens un-
der the Constitution. It ratified the Thirteenth Amendment, which abol-
ished slavery; it introduced measures to preserve federal control over the
South, and to strip politicians with confederate sympathies of their public
offices;45 and, in order to ensure that blacks could exercise their rights of
citizenship, it passed the Civil Rights Act of 1866, which stated [t]hat all
persons born in the United States … are hereby declared to be citizens of
the United States and that every citizen shall have the same right … to
full and equal benefit of all laws … as is enjoyed by white citizens.46 How-
ever, the congressional agenda was difficult to reconcile with the histori-
cal priority given to local rule and there remained serious doubts as to
their constitutional validity. These concerns prompted President Johnson
to veto the Civil Rights Act on the grounds that civil rights were a matter
of exclusive state jurisdiction.47
Even though Congress was able to pass the two-thirds threshold re-
quired to overcome the presidential veto, lingering doubts about the le-
gitimacy of federal intervention led it to pursue a series of additional con-
stitutional amendments and legislation to guarantee the principle of
equality and the rights of black citizens throughout the Union.
First, the Fourteenth Amendment, which was ratified in 1868, coun-
teracted the traditional view that the federal constitution did not impose
limits on state legislatures. Accordingly, the amendment imposed explicit
limits on state action, which echoed the substance of the Civil Rights Act
of 1866: (1) it reversed Dred Scott by declaring all persons born on Ameri-
can soil to be citizens of the United States; (2) it prevented states from
abridging the privileges or immunities of citizens of the United States;
(3) it prohibited states from depriving any person of life, liberty, or prop-
erty, without due process of law; and (4) guaranteed all persons within
44 Harrison, supra note 32 at 1388.
45 See Nelson, supra note 42, c. 3.
46 Civil Rights Act of 1866, 14 Stat. 27. The specific rights enumerated included the right
to make and enforce contracts, to sue, be parties, and give evidence, to inherit, pur-
chase, lease, sell, hold, and convey real and personal property (ibid. at 27).
47 See Harrison, supra note 32 at 1403-405.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 549
state jurisdiction equal protection of the laws.48 Second, the Fifteenth
Amendment, which was ratified in 1870, guaranteed all American citizens
the right to vote.49 Third, the Civil Rights Act of 1870 entitled American
citizens to vote in all elections and criminalized any attempt by public of-
ficials or private individuals to frustrate or intimidate anyone seeking to
exercise their right to vote.50 Fourth, the Ku Klux Klan Act of 1871 made
it a federal offence to conspire or travel in disguise upon public highways
for the purpose of denying any citizen the exercise of his lawful privileges
or immunities.51 But perhaps the most far-reaching legislative measure
adopted by Congress during this period was the Civil Rights Act of 1875,
which declared
[t]hat all persons within the jurisdiction of the United States shall be
entitled to the full and equal enjoyment of the accommodations, ad-
vantages, facilities, and privileges of inns, public conveyances on
land or water, theaters, and other places of public amusement; sub-
ject only to the conditions and limitations established by law, and
applicable alike to citizens of every race and color, regardless of any
previous condition of servitude.52
This act was an attempt to extend to blacks the same rights of access to
public facilities (e.g., railroads, hotels, restaurants, ferries and theatres)
that were available to white citizens at common law. These common law
entitlements required those who provided such facilities to admit every-
one who could pay the fare, subject to reasonable limits required for pub-
lic convenience.53
Initially, these Reconstruction measures seemed to bear fruit. For the
first time, blacks voted in large numbers, resulting in large numbers of
elected black officials in both the North and South; blacks were permitted
to serve on juries and to receive a public education; and even some forms
of public transport were desegregated for a brief period.54 The result of
this initial success was that it altered, to a modest extent, public percep-
tions regarding federal intervention in local politics; people began to rec-
ognize that the federal government could be a positive agent for constitu-
48 U.S. Const. amend. XIV, 1.
49 U.S. Const. amend. XV.
50 Civil Rights Act of 1870, 16 Stat. 140.
51 Civil Rights Act of 1871, 17 Stat. 13.
52 Civil Rights Act of 1875, 18 Stat. 335, 1.
53 See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the
Struggle for Racial Equality (Oxford: Oxford University Press, 2004) at 17-21.
54 See ibid. at 10. See also Barbara Y. Welke, When All the Women Were White, and All
the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 18551914 (1995)
13 L.H.R. 261 at 295.
550 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
tional change, and that legislative reform initiated by the federal govern-
ment did not inevitably devolve into tyranny or inefficiency.55
However, even as these Reconstruction measures were beginning to
take root, the Supreme Court of the United States remained reluctant to
alter its understanding of the American Constitution. In Slaughter-House
Cases, the first decision concerning the Privileges or Immunities Clause of
the Fourteenth Amendment, the Supreme Court of the United States re-
fused to compromise the principle of states rights.56 In that case, the Lou-
isiana legislature established the Crescent City Live-Stock Landing and
Slaughter-House Company to build a centralized slaughterhouse in the
city of New Orleans, and required all butchers in the city to slaughter
their livestock at that location instead of operating independently. The
purpose of the legislation was to prevent the proliferation of animal waste
within the city. Twenty-five independent butchers challenged the consti-
tutionality of the legislation, arguing that it had created a monopoly with
odious and exclusive privileges and infringed the equal privileges guar-
anteed to all citizens of the United States under the Fourteenth Amend-
ment.57
In rejecting the butchers claim, Justice Miller held that it is both the
right and the duty of the legislative bodythe supreme power of the State
or municipalityto prescribe and determine the localities where the
business of slaughtering for a great city may be conducted.58 Moreover,
he pointed out that the legislation did not prevent the butchers from earn-
ing a living; the butchers were free to pursue their chosen occupation,
provided that they killed their animals at the central slaughterhouse and
paid a reasonable fee to use the facilities.59 But instead of resting his deci-
sion on the ground that the butchers had equal access to the public facil-
ity, Justice Miller advanced a further argument that gutted the Privileges
or Immunities Clause:60 he held that the clause only protected the privi-
leges or immunities of national citizenship, which left states with exclu-
sive jurisdiction over the broad array of rights traditionally associated
with state citizenship (e.g., rights to enter contracts, own property) unen-
cumbered by the Fourteenth Amendment. So although the Privileges or
Immunities Clause guaranteed the rights of national citizenship (i.e.,
relatively obscure rights such as the right to address the national gov-
55 Mark Tushnet, The Constitution of the United States of America: A Contextual Analysis
(Oxford: Hart, 2009) at 23 ×..
56 Re Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1872) [Slaughter-House Cases
cited to U.S.].
57 Ibid. at 60.
58 Ibid. at 61.
59 Ibid.
60 See Harrison, supra note 32 at 1414.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 551
ernment, the right to claim the protection of the national government
abroad, and to bring suit in federal courts), it did not impose any limits on
a states ability to determine and distribute the privileges of state citizen-
ship.61
Thus, the majority decision in the Slaughter-House Cases eviscerated
the Privileges or Immunities Clause, causing the litigants in future cases
to shift the locus of their arguments to the Due Process and Equal Protec-
tion Clauses.62 By the 1880s, it was clear that the Supreme Court of the
United States was not interested in advancing the cause of Reconstruc-
tion and was beginning to articulate another constitutional compromise.
In the Civil Rights Cases, the Supreme Court of the United States held
that the constitutional principles of equality and non-discrimination did
not apply to action deemed to be private.63 The majority opinion asserts
that the Constitution cannot be impaired by the wrongful acts of indi-
viduals, and that after years of beneficent legislation, the black man
should take on the rank of a mere citizen instead of being the special
favorite of the laws.64 By the time the Civil Rights Cases was decided,
support for federal intervention had collapsed and federal troops had
withdrawn from the South, leading to an outbreak in violence, the re-
sumption of home rule, the beginning of Jim Crow, and a stark deteriora-
tion in race relations.65
The Supreme Court of the United States further retracted the Four-
teenth Amendment in Plessy v. Ferguson when it held that a Louisiana
statute requiring railroad companies to enforce equal but separate ac-
commodations for the white, and colored races was constitutional.66 In
his majority opinion, Justice Brown recognized that the purpose of the
Fourteenth Amendment was undoubtedly to enforce the absolute equal-
ity of the two races before the law, but held that it could not have been
intended to abolish distinctions based upon color, or to enforce social, as
distinguished from political equality, or a commingling of the two races
upon terms unsatisfactory to either.67 In his view, the Constitution only
61 Slaughter-House Cases, supra note 56 at 77, 79-80.
62 See generally Harrison, supra note 32. See e.g. Munn v. Illinois, 94 U.S. 113, 24 L. Ed.
77 (1877); Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064 (1886). Hence, the Supreme
Court of the United States based its decision to declare segregated public schools un-
constitutional in Brown v. Board of Education (supra note 29) upon the Equal Protec-
tion Clause of the Fourteenth Amendment rather than the Privileges or Immunities
Clause.
63 The Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18 (1883) [Civil Rights Cases cited to U.S.].
64 Ibid. at 17, 25.
65 See Klarman, supra note 53 at 10-17.
66 163 U.S. 537 at 540, 16 S. Ct. 1138 (1896) [Plessy].
67 Ibid. at 544.
552 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
prevented state legislatures from promulgating unreasonable legisla-
tion, which for Justice Brown meant only legislation that was expressly
enacted for the annoyance or oppression of a particular class.68 Thus, he
rejected Plessys claim that the statute stamped his race with a badge of
inferiority, saying that [i]f this be so, it is not by reason of anything
found in the act, but solely because the colored race chooses to put that
construction upon it.69
While all of these casesthe Slaughter-House Cases, the Civil Rights
Cases, and Plessyare disappointing by current human rights standards,
they also gave rise to a strong dissenting tradition in American constitu-
tional law. For instance, in his dissenting opinion in the Slaughter-House
Cases, Justice Field offered an interpretation of the Privileges or Immuni-
ties Clause that was consistent both with the antebellum jurisprudence
concerning the Comity Clause and Congresss stated desire to establish a
constitutional principle of equality. Thus, although he acknowledged that
state legislatures could regulate health, good order, morals, peace, and
safety of society, he held that these police powers cannot be permitted to
encroach upon any of the just rights of the citizen.70 The purpose of the
Fourteenth Amendment, according to Justice Field, was to establish a
principle of equal treatment that constrained, but did not usurp, the abil-
ity of state legislatures to determine the privileges of citizenship:
This equality of right, with exemption from all disparaging and par-
tial enactments, in the lawful pursuits of life, throughout the whole
country, is the distinguishing privilege of citizens of the United
States. To them, everywhere, all pursuits, all professions, all avoca-
tions are open without other restrictions than such as are imposed
equally upon all others of the same age, sex, and condition. The
State may prescribe such regulations for every pursuit and calling of
life as will promote the public health, secure the good order and ad-
vance the general prosperity of society, but when once prescribed,
the pursuit or calling must be free to be followed by every citizen
who is within the conditions designated, and will conform to the
regulations. This is the fundamental idea upon which our institu-
tions rest, and unless adhered to in the legislation of the country our
government will be a republic only in name.71
Thus, Justice Field thought that the Louisiana statute was inconsistent
with the principle of equality, because it granted an exclusive privilege to
the Crescent City Company that infringed the plaintiffs economic free-
dom to pursue their chosen trade.
68 Ibid. at 550.
69 Ibid. at 551.
70 Slaughter-House Cases, supra note 56 at 87.
71 Ibid. at 109-10.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 553
This dissenting tradition was further advanced by Justice Harlana
former slaveholder and political opponent of the Emancipation Proclama-
tionin both the Civil Rights Cases and Plessy. As Attorney General of
Kentucky in the aftermath of the American Civil War, Justice Harlan had
witnessed first-hand acts of white terrorism perpetrated against blacks,
and understood that Congress could not simply abolish the practice of
slavery and leave blacks free to be at the mercy of their former captors.
In the Civil Rights Cases, he excoriated the majoritys narrow and artifi-
cial interpretation of the Fourteenth Amendment, saying that constitu-
tional rights should be construed with the same spirit of generosity that
the Supreme Court of the United States had extended to slave owners
prior to the American Civil War.72 In order to emphasize his point, he de-
tailed a series of embarrassing Supreme Court of the United States deci-
sions from the antebellum period to show how the court had broadly in-
terpreted congressional power under the Constitution to pass the fugitive
slave acts and enforce slave owners rights.73
Justice Harlan reasoned that the court should employ the same ap-
proach in order to give full effect to the Thirteenth and Fourteenth
Amendments. The former, according to Justice Harlan, did not merely
abolish the institution of involuntary servitudeit also prohibited the
necessary incidents of slavery, which deprived black citizens of their abil-
ity to enter and enforce contracts, sue, give evidence, and own or dispose
of property.74 Likewise, with respect to the Fourteenth Amendment, Jus-
tice Harlan emphasized that many private enterpriseslike highways,
railways, ferries, inns, and places of public amusementwere neverthe-
less affected by the public interest at common law. The proprietors of such
undertakings therefore had a legal duty, which could be enforced in state
courts, to admit members of the public provided that they were willing to
pay a reasonable fee. The purpose of the Fourteenth Amendment, accord-
ing to Justice Harlan, was to ensure that there shall be no discrimination
by the State, or its officers, or by individuals or corporations exercising
public functions or authority.75
Similar themes crop up in Justice Harlans dissent in Plessy when he
again chastised the majority opinion for failing to uphold the equal privi-
leges of citizenship. As in the Civil Rights Cases, Justice Harlan pointed
out that certain conveyances like railroads were affected by the public in-
terest at common law and that the state was acting contrary to this tradi-
tion when it imposed a policy of segregation on these undertakings. In
Justice Harlans view, this did not mean that the state was constitution-
72 Civil Rights Cases, supra note 63 at 26.
73 Ibid. at 28-32.
74 Ibid. at 35.
75 Ibid. at 48.
554 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
ally prohibited from regulating railways; courts were required to respect
legislative will so long as it was constitutionally expressed. What Justice
Harlan meant was that state legislatures were constitutionally barred
from imposing what he called unreasonable regulationsregulations
that undermined the equal status of citizens:
[I]n view of the Constitution, in the eye of the law, there is in this
country no superior, dominant, ruling class of citizens. There is no
caste here. Our Constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil rights, all citizens
are equal before the law. The humblest is the peer of the most pow-
erful. The law regards man as man, and takes no account of his sur-
roundings or of his color when his civil rights as guaranteed by the
supreme law of the land are involved. It is, therefore, to be regretted
that this high tribunal, the final expositor of the fundamental law of
the land, has reached the conclusion that it is competent for a State
to regulate the enjoyment by citizens of their civil rights solely upon
the basis of race.
In my opinion, the judgment this day rendered will, in time,
prove to be quite as pernicious as the decision made by this tribunal
in the Dred Scott Case. The present decision, it may well be ap-
prehended, will not only stimulate aggressions, more or less brutal
and irritating, upon the admitted rights of colored citizens, but will
encourage the belief that it is possible, by means of state enact-
ments, to defeat the beneficent purposes which the people of the
United States had in view when they adopted the recent amend-
ments of the Constitution, by one of which the blacks of this country
were made citizens of the United States and of the States in which
they respectively reside, and whose privileges and immunities, as
citizens, the States are forbidden to abridge.76
Thus, he declared that [t]he arbitrary separation of citizens, on the basis
of race, while they are on a public highway, is a badge of servitude wholly
inconsistent with the civil freedom and the equality before the law estab-
lished by the Constitution.77 In retrospect, Justice Harlans dissents in
both the Civil Rights Cases and Plessy proved to be prescient in the sense
that they foreshadowed the Warren Courts civil rights agenda in the mid-
twentieth century.
I have identified both Justices Field and Harlan as members of the
dissenting tradition of American constitutional jurisprudence, because
both judges sought (albeit in different ways) to preserve the principle of
equality that was embedded in the Privileges or Immunities Clause of the
Fourteenth Amendment. As I mentioned earlier, the effect of the Supreme
Court of the United Statess decision in the Slaughter-House Cases was to
read that clause out of the Constitution, whereas both Justices Field and
76 Plessy, supra note 66 at 559-60.
77 Ibid. at 562.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 555
Harlan attempted to breathe life into it through their opinions. For Jus-
tice Field, the Privileges or Immunities Clause guaranteed to every citi-
zen of the United States equal economic rights to enter and participate in
the marketplace by preventing state legislatures from granting special
privileges or state-sanctioned monopolies. Justice Field reasoned that
state legislatures could regulate market activities so long as the regula-
tions were reasonable in the sense that they did not obstruct anyones
ability to earn a living.
By contrast, Justice Harlan thought that the Privileges or Immunities
Clause guaranteed to every citizen of the United States equal rights to en-
ter and participate in the social and political life of his or her community.
Thus, the protection of the Fourteenth Amendment extended to public
spheres beyond the gates to the marketplaceto highways, railways,
inns, theatres, and restaurants. Moreover, Justice Harlans dissent in the
Civil Rights Cases shows that he thought that the federal government
had a positive role to play in ensuring that private individuals did not un-
dermine the equal privileges or immunities of their fellow citizens by bar-
ring access to the public sphere. Justice Harlan thought that the state
could regulate social interaction, so long as the regulations were reason-
able in the sense that they did not stigmatize certain classes of individu-
als as inferior or less worthy than other citizens. Unlike the majority in
Plessy, Justice Harlan thought that state-sanctioned segregation on rail-
ways was motivated by the racial animus that blacks were not fit to share
the public sphere with their fellow white citizens. However, Justice
Harlans dissent in Plessy turned out to be a last-gasp effort to revive the
juristic concept concerning the privileges or immunities of citizenship.
While the dissenting tradition continued through the next important
phase in the Supreme Court of the United Statess treatment of the Four-
teenth Amendment, the Lochner era, the focal point of the courts analysis
during that period revolved around the Due Process Clause of the Four-
teenth Amendment.
III. The Role of Citizenship in Randian Constitutionalism
Although the Privileges or Immunities Clause was marginalized in
American constitutional law after the Slaughter-House Cases, it lived on
in Justice Rands jurisprudence. It is common knowledge that Ivan Rand
admired American jurisprudence: he received his legal education at Har-
vard Law School from 1909 to 1912, and he regularly cited American con-
stitutional law as worthy of imitation.78 Justice Rands Americophilia is
particularly prominent in his Holmes Lecture, which he delivered at Har-
78 See e.g. Ivan C. Rand, The Role of an Independent Judiciary in Preserving Freedom
(1951) 9 U.T.L.J. 1; Ivan C. Rand, Except By Due Process of Law (1961) 2 Osgoode
Hall L.J. 171.
556 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
vard Law School shortly after he retired from the Supreme Court of Can-
ada. In his address, entitled Some Aspects of Canadian Constitutional-
ism, Rand observes how American secession in 1783 signalized the as-
cension of reasoned government over autocracy, and asserts that Ameri-
can and Canadian constitutional thought have followed parallel courses
since the American War of Independence.79 Moreover, he suggests that
American lawyers examine Canadian constitutional history, because it
shows how Canadians have been able to draw implicit judicial support
for some part … of those fundamental rules and principles that with you
are constitutionally explicit.80
Then, in the middle of his lecture, wedged in between the topics of
freedom of speech and the rule of law, Rand devoted a section to the prin-
ciple of citizenship, which he thought was entrenched by Canadian consti-
tutional law:
Today citizenship is a status of complexity and importance; and not
being expressly enumerated as a provincial or Dominion matter,
falls within the residual powers of the Dominion Parliament.
Being the totality of personal relations between the individual and
the state, questions may arise of its constituent attributes and inci-
dents. A citizen moves across the Canadian territory in a dimension
free of provincial boundaries; he is entitled to enter provincial courts;
he would not, I venture to say, as a resident be subject to discrimina-
tion by provincial legislation related to, for instance, his place of
birth, or his racial origin; a departure on any such case would be in
derogation of constituent elements of citizenship. … No doubt the
right to sue and be sued in provincial courts, or the inability to enter
into contracts based on recognized disabilities, may be determined
by general provincial laws operating on all persons alike; but to sin-
gle out particular persons for discriminatory action on grounds that
trench upon an indivisible status, is to infringe the status.81
The only Canadian case authority Rand cited for this passage is his
opinion in Winner v. S.M.T. (Eastern) Ltd.82 But while Rand used Winner
as authority for asserting that citizenship was a fundamental value in
Canadian law, the passage mirrors the very same ideas expressed in cases
like Corfield v. Coryell and Justices Field and Harlans dissents in the
Slaughter-House Cases, the Civil Rights Cases, and Plessy.
Rands comments in his Holmes Lecture were not merely a rhetorical
flourish in a speech to an American audience. When one looks over Jus-
tice Rands record from the Supreme Court of Canada, it is clear that he
79 Ivan C. Rand, Some Aspects of Canadian Constitutionalism (Cambridge, Mass.: Har-
vard Law School, 1960) at 1.
80 Ibid. at 2.
81 Ibid. at 24-25 ×..
82 Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, [1951] 4 D.L.R. 529 [Winner].
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 557
practised what he preached. The theme of citizenship crops up constantly
in his decisions and, as Mullan points out, shows that Justice Rand ap-
preciated both the negative and positive elements of citizenship.83 Justice
Rands decisions regarding the implied bill of rights show that he recog-
nized the importance of what Marshall called rights of non-interference
necessary for individual freedom.84 Thus, in Boucher, he held that Aim
Boucher should be acquitted of seditious libel, saying that [f]reedom in
thought and speech and disagreement in ideas and beliefs, on every con-
ceivable subject, are of the essence of our life;85 and in Saumur, he held
that a municipal by-law prohibiting the distribution of religious material
was ultra vires, stating that freedom of speech, religion and the inviola-
bility of the person, are original freedoms which are at once the necessary
attributes and modes of self-expression of human beings and the primary
conditions of their community life within a legal order.86
However, it is equally clear that Justice Rand appreciated that free-
dom of speech was not merely a matter of non-interference; it also had a
positive aspect, which entitled citizens with unpopular views to partici-
pate in the political life of the community. So when Justice Rand held the
Quebec padlock law to be unconstitutional in Switzman, he did not merely
characterize John Switzmans right to advocate communism as liberty
from restraint or interference with property rights; he also pointed out
that [p]arliamentary government postulates a capacity in men, acting
freely and under self-restraints, to govern themselves, which required
individual liberation from subjective as well as objective shackles.87
But Justice Rands appreciation for the positive aspects or privileges
of citizenship comes through most clearly in Roncarelli. His decision in
this case shows why the constitutional ideal of citizenship demanded that
privileges created by the state (e.g., liquor licences) be distributed in a
non-discriminatory manner. To briefly recount: Roncarellis liquor licence
was revoked dfinitivement et pour toujours by the Quebec Liquor
Commissioner (Commissioner), who was acting under the direction of the
Prime Minister and Attorney General, Duplessis. Duplessis had in-
structed the Commissioner to cancel Roncarellis licence after he learned
that Roncarelli had been acting as a bondsman for members of the Jeho-
vahs Witnessesa religious sect that was much maligned in Quebec soci-
ety for its seditious public criticism of the Roman Catholic Church. Ron-
carelli operated his restaurant without a liquor licence for six months, but
then sold the premises because it was impossible for him to earn a living
83 See Mullan, supra note 4.
84 Marshall, supra note 11 at 71.
85 Boucher, supra note 3 at 288.
86 Saumur, supra note 3 at 329.
87 Switzman, supra note 3 at 306.
558 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
operating a restaurant in Montreal that could not sell liquor. He then
sued Duplessis under the Civil Code of Lower Canada for damages. In a
six-to-three decision, the Supreme Court of Canada held that Duplessis
was liable in delict for abuse of public power, because he exceeded his le-
gal authority by directing the Commissioner to cancel Roncarellis liquor
licence.
Out of the majority opinions in Roncarelli written by Chief Justice
Kerwin and Justices Rand, Martland, and Abbott, only Justice Rands in-
volves a serious discussion regarding the relationship between Ron-
carellis rights as a citizen and his interest in the liquor licence. Chief Jus-
tice Kerwins opinion simply asserts that Duplessis had not satisfied the
requisite threshold for overturning the findings of fact made at trial re-
garding causation and liability. Similarly, Justice Abbott affirmed the
trial decision after reviewing the necessary elements in Roncarellis cause
of action: he confirmed that the evidence adduced at trial showed that
Duplessis had caused the revocation of the licence by dictating the deci-
sion to the Commissioner; he held that the decision to revoke the licence
was unrelated to the legal objects or purposes of the act in question; and
since Duplessis had exceeded his statutory authority, Justice Abbott held
that he was not entitled to certain procedural protections reserved for
public officials under the Civil Code of Lower Canada.
Justice Martlands opinion adopts a similar tack, but examines the
structure of Roncarellis cause of action in greater detail. At each turn in
the argument, he (1) considers whether there was a plausible factual basis
for a necessary finding of causation to support the cause of action; (2) re-
views the express statutory powers associated with the office of Attorney
General; (3) considers whether it was within the scope of the provincial
Alcoholic Liquor Act88 to cancel a liquor licence on the ground of the licen-
sees religious views; and (4) inquires whether the cause of action was
compromised by a procedural flaw. But Justice Martlands opinion is es-
pecially interesting because he held in Roncarellis favour in spite of the
fact that Duplessis had revoked Roncarellis privilege to sell liquor.
One of Roncarellis arguments on appeal was that the revocation of his
liquor licence was unlawful because the Commissioner had not complied
with the rules of natural justice. The Liquor Commission had not given
Roncarelli notice that it intended to cancel his permit nor had it afforded
Roncarelli the opportunity to be heard. But in Justice Martlands view,
Roncarellis natural justice argument was without merit, because the
House of Lords had decided in Nakkuda Ali v. Jayaratne that natural jus-
tice was not required in cases where a government decision affected a
88 R.S.Q. 1941, c. 255.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 559
privilege that had been created by legislation.89 Thus, Justice Martland
held that it was doubtful that Roncarelli was entitled to natural justice
because the Commissioners decision merely revoked a government privi-
lege,90 which the government could rescind without a hearing or giving
reasons for its decision.
Justice Rands opinion also recognizes that Roncarellis liquor licence
was a privilege, but unlike Justice Martland, Justice Rand thought this
meant that the government could not discriminate against citizens when
determining who was entitled to exercise it. In language reminiscent of
American cases regarding the privileges of citizenship, Justice Rand
points out that although the liquor licence was a legislative creation, it
was also a matter of fundamental importance to Roncarelli because it had
become deeply entwined with one of the privileges of citizenshipthe
freedom to enter the market and the ability to pursue ones trade on equal
terms with ones fellow citizens:
The continuance of the permit over the years, as in this case, not
only recognizes its virtual necessity to a superior class restaurant
but also its indentification with the business carried on. … As its ex-
ercise continues, the economic life of the holder becomes progres-
sively more deeply implicated with the privilege while at the same
time his vocation becomes correspondingly dependent on it.
The field of licensed occupations and businesses of this nature is
steadily becoming of greater concern to citizens generally. It is a
matter of vital importance that a public administration that can re-
fuse to allow a person to enter or continue a calling which, in the ab-
sence of regulation, would be free and legitimate, should be con-
ducted with complete impartiality and integrity; and that the
grounds for refusing or cancelling a permit should unquestionably be
such and such only as are incompatible with the purposes envisaged
by the statute: the duty of a Commission is to serve those purposes
and those only. A decision to deny or cancel such a privilege lies
within the discretion of the Commission; but that means that deci-
sion is to be based upon a weighing of considerations pertinent to the
object of the administration.91
This passage resonates strongly with Justice Fields dissent in the
Slaughter-House Cases, because it emphasizes that the privilege at
stakethe liquor licenceis required in order for Roncarelli to compete
with his fellow restaurateurs. But it also differs from Justice Fields ap-
proach in one crucial respect; namely, Justice Rand recognized that gov-
ernment regulation of liquor sales was not illegitimate per se. He recog-
nized that government regulation of the market was acceptableeven de-
sirableprovided that it was administered in a manner that recognized
89 Nakkuda Ali v. Jayaratne, [1951] A.C. 66 at 78 (P.C.).
90 Roncarelli, supra note 1 at 156.
91 Ibid. at 139-40.
560 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
the equal status of the citizens. Thus, the foregoing passage is followed
immediately by Justice Rands iconic statements regarding the rule of
law: there is no such thing as absolute and untrammelled discretion so
the exercise of executive power must always be exercised in a manner
consistent with the objects and purposes of empowering legislation.92 But
the crux of Justice Rands analysis is a principle of equality and non-
discrimination, which constrains government distribution of privileges
created by legislation. Accordingly, Justice Rands held that the decision
to revoke the licence was beyond the discretion conferred because Ron-
carelli was free from any relation that could be tortured into a badge of
character pertinent to his fitness or unfitness to hold a liquor licence.93
In this respect, Smith & Rhuland is of a piece with Roncarelli.94 As in
Roncarelli the issue in Smith & Rhuland concerned the distribution of a
statutory privilegethe certification of a union for the purposes of collec-
tive bargaining. The Nova Scotia Labour Relations Board had refused cer-
tification solely on the ground that the secretary-treasurer of the union
was a communist who held subversive political beliefs. However, Justice
Rand, who wrote the lead judgment for the Supreme Court of Canada,
held that the board could not exclude employees from the rights and
privileges of a statute designed primarily for their benefit unless it could
be shown that the union was pursuing goals that were destructive to the
declared purposes of the legislation.95
However, while Justice Rand was keen to protect the privileges of Je-
hovahs Witnesses and communist sympathizers whose activities were
deemed subversive by political authorities, his record in upholding the
rights of non-citizens and aliens is more equivocal. For instance, in Refer-
ence Re Persons of the Japanese Race, Justice Rand held that the order-in-
council directing the deportation of all Japanese persons in the aftermath
of World War II was ultra vires only to the extent that it affected natural
born British subjects and their dependents.96 While Justice Rand recog-
nized that one sovereignty has no legal power to force its own citizen into
the territory of another,97 he nevertheless thought that the order to de-
port Japanese nationals was valid because [t]he power of Parliament to
deal with aliens is unquestioned, and that field is under delegation to the
Governor in Council.98 Although Justice Rand held in Winner that a deci-
92 Ibid. at 140.
93 Ibid. at 132.
94 Smith & Rhuland, supra note 3.
95 Ibid. at 100.
96 Reference Re Persons of the Japanese Race, [1946] S.C.R. 248, [1946] 3 D.L.R. 321 [cited
to S.C.R.].
97 Ibid. at 289.
98 Ibid. at 286.
THE ROLE OF CITIZENSHIP IN RANDIAN CONSTITUTIONALISM 561
sion of the New Brunswick Motor Carrier Board restricting the operating
licence of an American bus line was ultra vires because it infringed the
privileges of free access to the market and public highways,99 he silently
concurred in Narine-Singha case in which the Supreme Court of Can-
ada held that a regulation setting out strict requirements for the admit-
tance of Asians to Canada justified an administrative decision to deport
two immigrants from Trinidad.100
Conclusion: The Legacy of Randian Constitutionalism
If the influence of Randian constitutionalism ended with Justice
Rands departure from the Supreme Court of Canada, one might be
tempted to conclude that his project fell short of the mark insofar as it
concerns the interests of aliens and immigrants. However, that conclusion
would ignore the continuing relevance of Justice Rands opinion in Ron-
carelli. The manner in which Justice Rand articulated his understanding
of constitutionalism and legality in that case makes a difference today be-
cause it forged a path distinct from theories premised exclusively upon
parliamentary sovereignty or the prepolitical rights of individuals. That
distinct path remains an active memory in Canadian legal practice; it con-
tinues to inform and inspire the way we conceive of the rule of law, fun-
damental legal values, and judicial review of administrative action.101
The point is that the legacy of Roncarelli can be only partly illumi-
nated by an exegesis of Justice Rands reasons in particular cases. It also
includes Roncarellis gravitational force,102 which is evident in Justice
LHeureux-Dubs reasons in Baker.103 So while one might understandably
criticize Justice Rands opinions in Reference Re Persons of the Japanese
Race and his acquiescence in Narine-Singh, that criticism is tempered by
the fact that another judge in another era was able to advance the consti-
tutional project first articulated in Roncarelli. The decision in Baker,
which has already become an active memory in its own right, established
that Mavis Baker (a non-citizen) was entitled to be treated with the same
concern and respect as Frank Roncarelli (a citizen) in at least one impor-
99 Winner, supra note 82.
100 Narine-Singh v. Canada (A.G.), [1955] S.C.R. 395, 111 C.C.C. 321 [Narine-Singh]. For a
more extensive critique of this decision, see James W. St. G. Walker, Race, Rights and
the Law in the Supreme Court of Canada: Historical Case Studies (Toronto: Osgoode
Society for Canadian Legal History & Wilfrid Laurier University Press, 1997) c. 5.
101 See David Dyzenhaus, Rands Legal Republicanism (2010) 55 McGill L.J. 491; David
Dyzenhaus, The Deep Structure of Roncarelli v. Duplessis (2004) 53 U.N.B.L.J. 111.
102 Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University
Press, 1978) at 110-15.
103 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para. 53, 174 D.L.R. (4th) 193 [Baker].
562 (2010) 55 MCGILL LAW JOURNAL~ REVUE DE DROIT DE MCGILL
tant respect: she was entitled to an administrative decision that was rea-
sonable, in the sense that it provided an adequate justification for denying
her a statutory privilege. The Supreme Court of Canada held that the
immigration officer was required to give reasons showing why Baker
should be deported, and those reasons had to be consistent with the
boundaries imposed in the statute, the principles of the rule of law, the
principles of administrative law, the fundamental values of Canadian so-
ciety, and the principles of the Charter. 104
In short, it seems that Justice Rands views about the rights of legal
subjects were both informed and constrained by his historical context.
While his ideas about the immunities and privileges of citizens were en-
riched by his understanding of American constitutional law, they were
also constrained by his reluctance to apply those ideas in cases concerning
the interests of non-citizens. Nevertheless, in the fifty years since Ron-
carelli was decided, the logic of Justice Rands decision has been bolstered
by a constitutional discourse of human rightsone that asserts that all
persons are entitled to some fundamental legal rights in virtue of their
personhood as opposed to their formal political status.105 Therefore, in or-
der to fully appreciate the legacy of Roncarelli in the twenty-first century,
one must not only understand the historical context of that case but also
examine how judges and legal scholars continue to employ Justice Rands
judgment in order to develop a richer understanding of the Canadian con-
stitutional order.
104 Ibid. at para. 56.
105 See e.g. James Griffin, On Human Rights (Oxford: Oxford University Press, 2008) c. 2;
James W. Nickel, Making Sense of Human Rights, 2d ed. (Oxford: Blackwell, 2007) c. 4;
Allen Buchanan, Human Rights and the Legitimacy of the International Order (2008)
14 Legal Theory 39.
