“PITH AND SUBSTANCE” RE-EXAMINED

Abstract

The concept of “pith and substance” occupies a central role in the framework for analyzing the constitutional validity of legislation; yet, the concept remains problematically mysterious. The conventional definitions often have a circular, question-begging quality, typically amounting to a direction to examine the law’s purpose and effects to identify its “matter.” At the same time, the determination of a law’s pith and substance is frequently decisive of its validity. As a result, disagreements about validity can seem to turn on a discretionary choice between equally valid ways of describing the legislation’s content.

This article aims to offer a non-mysterious account of pith and substance as a component of a normatively defensible framework for analyzing legislative validity. It proposes that we think of validity analysis as an instance of the more general legal problem of determining whether a given situation falls on one side or the other of a boundary created by a legal rule; from this starting point, the article explains the role that a summary of the relevant facts about the legislation—its “pith and substance”—can usefully play in the analytical process.

The article also assesses, in light of the proposed understanding of pith and substance, the recent federalism case law of the Supreme Court of Canada. Among other things, it suggests that, sometimes, what appears superficially to be a disagreement between the Justices about “what the legislation does, and why” is more productively viewed as a disagreement about what is and is not permissible under the Constitution.