Limitation and amendment of rights

A fundamental distinction exists between the amendment of a constitutional right and its limitation. The amendment of a constitutional right requires an amendment of the constitution, while a limitation of the right is possible with no constitutional change. The distinction stems from the more basic distinction between the right’s scope and the extent of its protection. An amendment of a right entails a change – a narrowing or expansion – of its scope; such a change, in turn, affects the persons and institutions governed by the right, its content, or its application in terms of time and place. Thus, for example, a constitutional amendment would be a change in a constitutional provision – which currently applies to any person – according to which the provision would, from now on, apply only to citizens. Such a change is possible only through the mechanism of a constitutional amendment. Here, the proportionality of the constitutional change does not play a role. A statutory provision which intends to lead to such a change in the constitution is unconstitutional regardless of its proportionality. Conversely, a limitation of a constitutional right only narrows the ability to realize the right without changing the right’s actual boundaries. These limitations are constitutional only if they are proportional, as required by the limitation clause.

The distinction between a constitutional change (which requires a constitutional amendment) and the limitation of a constitutional right (through a proportional sub-constitutional law) is not always self-evident. The proper criterion to distinguish between the two should be objective in nature and not require an inquiry into the subjective intent of the law’s creators. Naturally, the application of such an objective test may lead to substantial difficulties. Take, for example, the Canadian Supreme Court case of Quebec Protestant School Boards. There, the court was asked to examine the constitutionality of a Quebec statute that limited the acceptance of English-speaking students who studied English outside Quebec into English-speaking schools in Quebec, in an alleged violation of the Canadian Charter of Rights and Freedoms. The Canadian Supreme Court held that the proposed change – through a statute – to the constitutional right cannot be considered a mere limitation whose constitutionality need be determined by the provisions of the limitation clause. Rather, the change should be seen as a complete denial of the constitutional right without following the rules required by the Charter for a constitutional amendment. Therefore, the court invalidated the statute and declared it unconstitutional; importantly, it did so without even examining whether the proposed change was as per the limitation clause. The court then added the following clarification:

A more recent ruling by the Canadian Supreme Court emphasized that only a “complete denial” of the constitutional right would not be considered a mere “limitation” and therefore not examined through the lens of the limitation clause. The decision was heavily criticized. Hogg argued that there is no rational basis to differentiate between a right’s “denial” – whether partial or complete – and a right’s limitation. In his opinion, any denial (partial or complete) should be considered a limitation whose constitutionality should be determined by the limitation clause. It is hard to support such an approach. With all the difficulties arising from the distinction between a constitutional change of a right and its limitation, these difficulties should not deter us from using this analytically sound, constitutionally vital, distinction.