Judicial amendment and our constitutional lives: A reply to Emmett Macfarlane
Bibliographic record
Abstract
Abstract This short article responds to Emmett Macfarlane’s important piece, “Judicial Amendment of the Constitution,” with questions about how well his theory of judicial amendment maps, and thereby offers guidance about, the realities of constitutional life. I focus on the application of Macfarlane’s theory to one of the Supreme Court of Canada’s most internationally known opinions, the Quebec Secession Reference. I take this approach not merely to stake out an interpretation of the Court’s decision in the Secession Reference that differs from Macfarlane’s, but rather to better see what Macfarlane’s approach exposes and occludes about lived constitutionalism. To this end, this essay first questions whether the Secession Reference is an instance of judicial amendment, as Macfarlane argues it is. It then considers the implications of this questioning beyond the Reference. I argue that Macfarlane’s theory would benefit from a more robust account of structural interpretation and that a future normative account should grapple with how the concept of judicial amendment helps us understand our constitutional lives.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.001 | 0.001 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.001 | 0.002 |
| Scholarly communication | 0.000 | 0.000 |
| Open science | 0.000 | 0.000 |
| Research integrity | 0.000 | 0.000 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one teacher head, not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".