Into their own hands

“[Liberty] cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe.” ~ Sir William Blackstone, Commentaries on the Laws of England (1765-69)

Supreme Court of Canada The world’s democracies have come under internal attack by an unlikely foe – rogue members of the judicial establishment. Prior to the 1950s, the great majority of judges in the democracies practised judicial restraint. In conformity with the separation of legislative and judicial powers, they understood that they had a duty to uphold duly enacted statute laws and the constitution as originally understood by elected representatives of the people in the legislative branch of government.

Today, democracies are plagued by judicial activists; that is to say, judges who have no compunction about making radical changes under the guise of judicial interpretation. Far from respecting the exclusive authority of elected legislators to amend laws and constitutions to meet the needs of a changing society, judicial activists have taken this responsibility upon themselves. Thus, judicial activists on the Supreme Court of the United States have amended the laws on evidence in criminal proceedings, abolished centuries-old laws authorizing prayers in the public schools, and defied the express will of Congress, by imposing racial and sexual preferences in hiring and promotion within both the public and private sectors.

Far from respecting the exclusive authority of elected legislators to amend laws and constitutions to meet the needs of a changing society, judicial activists have taken this responsibility upon themselves.

In Canada, judicial activists on the Supreme Court have likewise transformed themselves into a veritable super-legislature. Under the pretence of upholding the Constitution, they have promulgated equality rights for homosexuals, passed judgment on the wisdom of a government decision to authorize the testing of cruise missiles in the wilderness of northern Canada and, in the case that particularly outraged former prime minister Pierre Trudeau, promulgated a set of entirely non-legal, political guidelines for amending the Constitution.

For a striking illustration of the difference between judicial activism and judicial restraint, consider the contrasting majority and minority opinions of the US Supreme Court in Roe v. Wade in 1973. In this calamitous seven-to-two ruling, the majority swept aside long-standing state laws restricting abortion. It did this on the ground of incompatibility with a woman’s “right to privacy”, a right which the Court had found hidden in “penumbras formed by emanations” of the due process clause of the 14th Amendment. This ruling was entirely unprecedented. Writing in dissent, Chief Justice William Rehnquist noted: “To reach its result the [majority] has had to find within the scope of the 14th Amendment a right that was apparently completely unknown to the drafters of the Amendment.” In a separate dissent, Justice Byron White likewise charged that in purporting to find a right to abortion hidden in the Constitution, “the Court engages not in constitutional interpretation, but in the unrestrained imposition of its own, extra-constitutional value preferences.”

Three years later, in 1976, much the same abortion issue came before the Supreme Court of Canada, when counsel for a convicted Canadian abortion doctor, Dr Henry Morgentaler, urged the Court to follow the Roe precedent, by finding that Canada’s abortion law violated the rights of women “to life, liberty, [and] security of the person” in section 1 of the Canadian Bill of Rights. The Supreme Court rejected this argument. Chief Justice Bora Laskin, stated: “How foreign to our constitutional traditions, to our constitutional law, and to our conceptions of judicial review was any interference by a Court with the substantive content of legislation”.

In 1988, Morgentaler came back before the Supreme Court of Canada, having again been charged with unlawfully procuring an abortion. This time, his counsel asked the Court to hold that Canada’s law on abortion violated the substantive rights of women in section 7 of the 1982 Canadian Charter of Rights and Freedoms “to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In a complete turnaround, a majority of the Court agreed with this revisionist argument. In striking contrast to the previous Morgentaler ruling, the Court evaluated the substantive content of Canada’s abortion law, arbitrarily decided that the law was ill advised, and struck it down.

In 1976, the Court exercised judicial restraint: It respected the separation of legislative and judicial powers. In 1988, the Court indulged in judicial activism: It usurped the legislative powers of Parliament to define an abortion law for Canada. As justification for this policy flip-flop, judicial activists contend that the 1982 Canadian Charter of Rights and Freedoms mandates judges to second-guess the wisdom of laws that have been duly enacted by Parliament and the provincial legislatures.

However, these judges can cite no persuasive evidence for this claim in either the language or the history of the Charter. In a compelling dissenting opinion in Morgentaler, 1988, Mr Justice William McIntyre wrote: “The solution to this [abortion] question in this country must be left to Parliament. It is for Parliament to pronounce on, and to direct, social policy. This is not because Parliament can claim all wisdom and knowledge but simply because Parliament is elected for that purpose in a free democracy and, in addition, has the facilities -- the exposure to public opinion and information -- as well as the political power to make effective its decisions.”

It’s tragic that the majority of the judges in 1988, did not pay heed to McIntyre. As a result that Canada became then, and remains now, the only democracy in the world that has no law whatsoever to protect the lives of babies in the womb. If a mother decides, for whatever reason, that she no longer wants her pre-born baby, it is lawful in Canada for a doctor to kill that baby at any time during the pregnancy up to a few seconds before birth.

Judicial activism is rampant not only in Canada and the United States, but also in democracies like the Netherlands and Australia that do not have a constitutionally entrenched bill of rights. In the Netherlands, it was the courts, and not the Dutch Parliament, that initially sanctioned physician-assisted suicide and euthanasia, by arbitrarily refusing to enforce the ban on euthanasia in article 293 of the Dutch Penal Code. In Australia, judicial activists have likewise usurped legislative power by adopting a "progressive" approach to interpretation of the Australian Constitution. Greg Craven, professor of government and constitutional law at Curtin University, explains:

This is an approach to constitutional interpretation which essentially posits that the High Court should so construe Australia's constituent document as to continually up-date it in line with perceived community and social expectations, rather than according to its tenor or in conformity with the intentions of those who wrote it.
This form of judicial activism, which naturally has profound social and political implications, has taken the High Court by storm over the past decade. Thus, the Court cheerfully has invented an implied freedom of political communication (along with other associated freedoms), a freedom which in reality emerges neither from the words of the Constitution themselves, nor from the wildest imaginings of the Founding Fathers.

However, things seem to be changing in the US. Judicial activists are losing their grip. In a remarkable five-to-four ruling in Gonzalez v. Carhart on April 18, the Supreme Court broke with a string of abortion judgments going back to Roe, by upholding the Partial-Birth Abortion Ban Act of 2003. Under the terms of this federal law, it is a criminal offence punishable by up to two years imprisonment for a doctor to perform a partial-birth abortion (also known as intact dilation and evacuation), in which the doctor typically delivers all but the head of a live baby from the womb, before piercing or crushing the baby’s skull so his or her head can pass through the cervix. The Partial-Birth Abortion Ban Act absolutely forbids recourse to this brutal and gruesome procedure, unless it is “necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury.”

In a concurring opinion in Carhart that was joined by Justice Antonin Scalia, Justice Clarence Thomas stated: “I write separately to reiterate my view that the Court's abortion jurisprudence, including Roe v. Wade, has no basis in the Constitution.” While Chief Justice John Roberts and Justice Samuel Alito, Jr – both Bush appointees ­– refrained from expressing a similar opinion in Carhart, they are proponents of judicial restraint and might well also affirm that Roe has no basis in the Constitution when a directly pertinent case comes back before the Court. Consequently, there is reason to believe that the US Supreme Court might now be just one vote short of having a majority determined to uphold the laws and the Constitution of the United States as originally enacted and understood.

Sir William Blackstone would be pleased.

Rory Leishman is a freelance journalist in Canada. He is the author of Against Judicial Activism: The Decline of Freedom and Democracy in Canada (Montreal and Kingston: McGill-Queen’s University Press, 2006).


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