Holistic interpretation and the interdependence of constitutional structures and rights: an essay in honor of Cheryl Saunders

This chapter honors Cheryl Saunders’ insights into the importance of federalism and the allocation of fiscal powers in understanding how constitutional systems work and how they protect rights. Drawing on caselaw from three common law jurisdictions – Canada, Australia, and the United States – it argues that rights and structures, like federalism or the separation of powers or democratic voting systems, are interdependent. Structures may be understood necessarily to imply certain rights necessary to make the structure effective. Rights may require structures to secure their effective protection. At times, the chapter suggests, texts relating specifically to rights may be less effective in securing their protection than reasoning from more general structural provisions. Federalism, in particular, is a structure that may require certain rights; as a form of government, federalism can both protect rights and undermine their protection. And interdependencies may exist among different structural provisions. As a positive matter, rights and structures may find mutual grounding in basic constitutional norms of unity, liberty, and equality. Whether particular provisions are understood as rights or as structures, or even whether particular rights should be understood to exist, may vary over time and among judges. As a normative matter, the chapter suggests that errors may result from failing to consider the overall constitutional context in which a claim of right, or a very specific structural claim, is situated.