I found this article and felt it needed to be shared. I have spoken to this issue numerous times myself, but he says it much better. Just a note. I had occasion to meet with former MP Perrin Beatty a few years after the Charter was introduced. Beatty, a small 'c' Conservative, had been a part of the all-party committee who had worked on the Charter. I asked him what his thought process was in supporting a Charter which, within a few years, radically altered the social climate in Canada. His response was that they did not anticipate the judicial activism of the Supreme Court justices. It was his belief that the Charter would guarantee that the rights currently in existence in Canada would be protected. He did not foresee the Charter being used as an instrument for social engineering. When I asked what could be done to correct such a monumental error he said that the only answer was to repeal the Charter but that it would never happen. I hope you enjoy the article... and say a prayer for Canada.
FEATURED ARTICLE
The Decline of Common Law Constitutionalism in Canada
The following is a feature article in the current edition of
Modern Age (50:01, Winter 2008).
Canada provides a case study in the precipitous decline and fall of common law constitutionalism in the face of modern, and especially postmodern, political thought and practice. In 1982, the Canadian Charter of Rights and Freedoms (or “the Charter,” as it is commonly called) was introduced. It provided the means whereby what might loosely be termed an “American-style” rights-oriented jurisprudence could play a major role in Canadian courts.
For its first 115 years as a unified nation, Canada had followed English common law doctrines, including, critically, the notion of parliamentary supremacy. Unlike England, Canada from the beginning had a federal system that raised questions of separation of powers between the national and provincial governments. As in the case of U.S. states, Canadian provinces retained sovereignty in certain areas. In Canada, to the extent courts held forth on constitutional matters, it was most often on questions limited to the relationship between the national and provincial governments.
Under the new jurisprudence, Canadian courts, unlike the English courts on which they were are modeled, no longer confine themselves to a relatively limited range of disputes, or to the careful application of existing legislation. Rather, they act as all-purpose social engineers, often declaring unconstitutional, for all times and purposes, legislation duly passed by Parliament or the provincial legislatures—and occasionally, in effect, re-writing that legislation. Such a jurisprudence, prior to 1982, simply did not exist in Canada.
The Charter changed all this, but it did not do it alone. The rights-based liberalism inherent in the Charter was aided by the postmodern politics of Canada. This heady combination has had a devastating effect on common law constitutionalism. Reflecting on it discloses vital lessons for the United States and other common law countries.
The Charter purports to guarantee various fundamental freedoms, democratic rights, mobility rights, legal rights, and equality rights, among other things. But, in a bow to the notion of consent expressed through parliamentary institutions, section one of the Charter makes all of the rights and freedoms therein subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In a further bow to parliamentary supremacy, section thirty-three of the Charter—the so-called “notwithstanding clause”—provides that federal or provincial acts may operate “notwithstanding” the fundamental freedoms or legal rights guaranteed by the Charter as interpreted by the courts, if Parliament or a provincial legislature expressly so declare.
In sum, the Charter can be seen as a liberal rights framework imposed on what the Canadian philosopher George Parkin Grant saw as a “Tory” nation, not traditionally comfortable with, or responsive to, the rhetoric of liberal rights. The document contains within it express provisions that were designed as an escape hatch for the judicial and popular branches of government should the liberal claims to right, and to rule, become too oppressive to the practice of parliamentary government, or to a more modest and limited sense of the proper role of a common law court.
Armed with this information, one might well expect the Charter’s practical impact to be minimal. But this has not proved to be the case. Judges interpret the meaning of section one to suit their purposes, and the notwithstanding clause is rarely if ever used, for fear of contradicting the notion of judicial independence. As a result, a new philosophy of judicial supremacy, in aid of a late modern or postmodern rights-based liberalism, guides Canadian jurisprudence.
It is a philosophy under which the balancing of interests—nominally undertaken by Canadian courts—tends to result fairly consistently in the triumph of individual or group autonomy. But this is an autonomy that is divorced from the limitations of early modern liberalism, particularly the limitation of political consent. In this sense, it is a postmodern, self-expressive liberalism. As such, it threatens the right of people to exercise a traditional kind of liberal-democratic prerogative—the freedom of self-government, not to mention the realization of rights through the slow, steady accretion of common law wisdom, rather than the insistent demand for immediate results, handed down from the philosopher kings of the courtroom.
Post-Common Law Jurisprudence
The change in Canada has been marked. At its most straightforward, the new philosophy was captured by a Justice of the Supreme Court of Canada, Bertha Wilson, in her ruling in the 1988 case of R. v. Morgentaler, which overturned Canada’s penal statute governing abortion. In that case, she exalted individual autonomy and the right to unconstrained private choice as a means to dignity and self-worth. She agreed with the claim that the “liberty” mentioned in section seven of the Charter includes the full control of one’s life and individual autonomy. Relying on Roe v. Wade, Wilson held that “the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter.” Further, as to the fundamental “choice” that is abortion, she said “It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.” And this was conjoined with a lamentation that “women’s needs and aspirations are only now being translated into protected rights.”
To appreciate the general nature of this type of legal reasoning, one need only compare Wilson’s words with those of the plurality opinion of the U.S. Supreme Court, in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
In the Morgentaler case, the then Chief Justice of Canada, Brian Dickson, chose to rely on a purported breach of the Charter guarantee of security of the person to strike down the impugned Canadian Criminal Code provision restricting abortion. At stake, in the view of the Chief Justice, was a woman’s “bodily integrity,” which included integrity in both a “physical and emotional” sense. As one observer of Canadian constitutionalism has noted, he thus concealed the court’s policy-making role “by converting indeterminate substantive issues into procedural questions.” This, of course, is a trick that has been well-honed in American courts, beginning in earnest in the mid twentieth century.
The Morgentaler case therefore captures in a nutshell two phenomena critical to understanding the contemporary Canadian judiciary. First, it illustrates the obsessive concern with the self that is at the heart of late modern philosophy and which, despite its democratic veneer, actually prevents the people from acting in a political sense. Second, it shows how the Charter encourages a kind of reasoning that is legal, or legalistic, in the most technical sense of the term, and that does not take full account of competing moral-political arguments.
These phenomena have already manifested themselves in many Charter cases, and one can safely predict that they will mutually reinforce themselves and continue to dominate much constitutional litigation in Canada. There is really nothing to stand in their way, regardless of the explicit Charter language that was designed to reassure those who were concerned with consensual and customary politics.
Canadian courts are now among the most activist in the world, promiscuously minting new rights having to do with everything from criminal punishment to same-sex marriage. Despite the fact that the Charter never mentions either, Canadian courts have declared capital punishment to be unconstitutional, and same sex “marriage” to be constitutionally guaranteed. They have not only struck down laws on rights-based grounds, they have rewritten existing laws on those grounds.
For example, in the 1998 case of Vriend v. Alberta, the Court held that the human rights code of the province Alberta, which specifically excluded “sexual orientation” as a protected category, must be read as if sexual orientation were a protected category. The facts were as follows: an individual was fired by a Christian college on the basis that he was a practicing homosexual. He attempted to file a discrimination complaint with the relevant government human rights commission, but was told he could not do so because the act that gave the commission its mandate did not include sexual orientation as a protected category. Instead, it protected individuals from discrimination on the basis of “race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry or place of origin.”
The relevant Charter provision, according to the Court, reads as follows:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
In interpreting this clause—in a decision unanimous in the result—the Court brought together a number of strains of its new constitutional reasoning. It held that the “underinclusiveness” of the Alberta human rights act denied the equal benefit and protection of the law on the basis of a personal characteristic—sexual orientation—that is “analagous” to those which the Charter specifically enumerates (but does not actually enumerate).
In Vriend, the Supreme Court of Canada undoubtedly delivered one of the more notable judgments yet rendered by a supreme judicial tribunal in the common law world. A government in Canada now need not pass a specific law that infringes on an alleged constitutional right in order to be challenged in court. Indeed, it may be challenged if it does not pass legislation that furthers a sweepingly egalitarian human rights agenda; and its failure may be rectified by a judicial “reading in” of the absent provision.
Further, the Supreme Court does not find itself bound to interpret, even broadly, the actual words of the Charter. Rather, where a preferred clause is absent (such as a guarantee of nondiscrimination against homosexuals) it too may be “read in” if the Court deems it to be “analogous” to any clause that actually is written in the document. In Stalinist Russia, people were famously air-brushed out of official photographs; in Canada, clauses are openly air-brushed in to legal documents. In this continuing magic show, the role of Merlin is played by the Supreme Court of Canada. In a practice completely alien to common law constitutionalism, Parliament and the provincial legislatures have, in important respects, been reduced to mere errand boys for the judicial branch. Judges have become prophets and priests of the new Holy Writ.
In Canada, we have witnessed the effective destruction of parliamentary supremacy through the assertion of a stunningly broad power of courts to strike down and read in as they please. But this new attitude of judicial omnipotence has also displaced an allied, if more subtle, aspect of the traditional common law understanding: that the primary judicial responsibility is to decide matters of dispute between specific parties. Not only would courts not strike down legislation on constitutional grounds, other branches of government could posit, through action and argument, their interpretation of what adherence to the timeless (and, in the case of England and largely of Canada—unwritten) constitution requires, even if this interpretation were at odds with the judicial interpretation as expounded in a particular case. The legislative branch could, for example, pass another law to clarify the language of the existing statute, or to deal differently with similar cases in the future. Or the executive branch, without affecting the rights of the parties as adjudicated in the particular instance, could act on its contrary view in other cases and in general (as did Abraham Lincoln in arguing and acting contrary to the principles of the U.S. Supreme Court’s ruling in the infamous Dred Scott decision, which held slaves to be property). But the view that other branches of government—and especially Parliament—might assert themselves against the judicial branch has been almost entirely overridden in Canada. And this happened in less than a single generation.
Propitiously for the advocates of the new legalism, the Charter was introduced at a time when postmodern thinking was extending its reach among the intelligentsia, including those in the legal academy. Such thinking proved to be the perfect intellectual vehicle for the client groups of the Charter as they sought to build a post-common law Canada. Postmodernism is an amalgamation of philosophical, literary, and linguistic theories that begin with skepticism of the power of reason to tell us anything about the nature of the cosmos or our obligations in it. As such, it gives modernist, rights-based liberalism a nihilist edge. For many postmodernists, “knowledge” of moral-political things is nothing more than what can be defined by the powers that be in any given society. “Knowledge” accumulates in proportion to the degree of the individual’s internalization of the norms laid down by those powers, unless that person can somehow successfully resist the powers that be. Recognition of the primacy of will or self-assertion, rather than reason or objective inquiry, comes to be the dominant modus operandi of a legal establishment enamored of postmodernism. Creative activity becomes the essence of the political: here a power discourse to be deconstructed or imposed, there an opportunity for self-creation, everywhere an assertion of will. Such self-assertive claims on behalf of allegedly marginalized individuals or groups find their natural home in courts of law, where the consent of fellow citizens need not be sought, and due regard for ancient understandings need not be exhibited in order to achieve substantial cultural change.
Canada, as it turned out, provided a particularly fertile ground for such power games, and such a separation from common law constitutionalism. One could not visit a law school classroom in Canada in the 1980s or 1990s without finding rooms full of 20-somethings excited by these prospects, as postmodern ideas and their implement—in the form of the Charter—came to coexist. Legal education in Canada began to reflect the triumph of a set of interpretations of the modern project as that project unfolded in the formerly “British” part of North America: that the individual, and certain preferred groups of individuals, were paramount. Each was, in its own unique ways, to be protected from the overreaching and unjust intrusions of all levels of government or society—or even, in the case of same-sex “marriage,” from the definitions contained within established dictionaries. This protection would be guaranteed by a new class within Canadian society. It would be a class of young lawyers trained in the intricacies and potential of the Charter. The new class would be educated by a group of legal academics already broadly sympathetic to the idea of increased judicial involvement in Canadian life. Given time, this new class would first convince the existing members of the judiciary of the rectitude of a new Canada in which judges, rather than citizens or their elected legislatures, made final determinations on matters of great moral-political import. And, given even more time, this new class would itself come to dominate the Canadian bench and legal academy.
If one were to scour the course syllabi of Canadian law schools over the past twenty to twenty five years, one would search in vain for two things: a sense that anything might have been lost with the introduction of the Charter, and an account of rights rooted in anything other than the fashions of the current generation. With respect to the former, one Canadian observer has noted that “not one public voice was raised in opposition to the end of British North America.” Furthermore, the “Charter has also played its part in encouraging us to forget our own history. Law students are unshakeably convinced of two things about the Canada that existed before the Charter. First, Canadians simply had no rights until we adopted the Charter and, second, until it got a constitutional guarantee of rights, Canada was just not a proper, respectable country.”
One would perhaps not expect to find a lament for loss within the corridors of the legal academy, whose interests were furthered by converting formerly political claims into legalistic ones. Neither would one expect to find much recognition that the Canada that existed prior to 1982 was, after all, a tolerable parliamentary democracy. In the new dispensation, this label can, ironically, only be worn by a nation wherein all manner of moral and political disputes are, along American lines, constitutionalized.
Bills of Rights and Judicial Power
And here we would do well to remind ourselves of the great debate over the U.S. Bill of Rights—and the nature of judicial power in general—that took place during the 1787–1789 struggle for the ratification of the U.S. Constitution. Alexander Hamilton, in Federalist 84, warned Americans of the founding generation of the dangers of a written enumeration of rights. In arguing against a bill of rights, Hamilton—to most Americans of today—might seem a bit of a crank. But contemporary Canada demonstrates the wisdom of Hamilton’s political theory and prognostications.
Hamilton first claimed that a bill of rights would, in important senses, be redundant. In addition to the overall structure of government created by the proposed federal Constitution—including its republican character along with its separation of powers doctrine and its extended sphere—the Constitution contains within it a number of specific provisions, many derived directly from English constitutional norms and practices, that in effect guarantee the rights of citizens. Such provisions include the guarantees of habeas corpus and trial by jury, the prohibition on bills of attainder and ex post facto laws, and the precise and limited definition and punishment of the high crime of treason. Hamilton notes Blackstone’s claim that habeas corpus—“The Great Writ”—is the bulwark of the British Constitution. Common law constitutional principles and practices, built up over many centuries of English experience, are far greater protections for liberty than parchment barriers in the form of rights declarations.
But Hamilton goes beyond this in reflecting on the implications of a bill of rights for the question of the civic education and acculturation of citizens. A written enumeration of rights is a poor exercise in civic education insofar as it implies that rights are privileges given by the sovereign unless specifically reserved to the people. In other words, such an enumeration will confuse citizens as to the origins of their rights, which exist in nature and the design of nature’s God, and have been revealed and protected in time through the slow accretion of common law wisdom. A proper understanding of the dignity and station of human beings, which can never be “enumerated,” is at issue. Such things ought not to be subject to infinite redefinition, expansion, or contraction at the whim of positive law, especially national positive law. In America, the people have not surrendered to the national government the rights that would be enumerated, and therefore nothing needs to be reserved. In Hamilton’s words, “a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns.”
And herein lies the danger that goes well beyond redundancy. Bills of rights “would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” Such bills “furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given.” The proper interpretation of citizen rights, which undoubtedly exist and have existed for centuries within the English tradition, always depends upon proper “public opinion, and on the general spirit of the people and of the government.” It is precisely this public opinion and spirit that are likely to be corrupted by an “injudicious zeal for bills of rights” that at once inflame the soul and provide ambitious men the tools to further their ambition. The mere “aphorisms” that tend to appear in bills of rights are, for Hamilton, things that “would sound much better in a treatise of ethics than in a constitution of government.” They are, in short, invitations to political scheming.
And nowhere is this scheming of ambitious men more likely to be found than in the judicial branch—whether among the judges themselves, or the lawyers and litigants who appear before them. The Anti-Federalists feared the dangers of federal judicial power, even as they demanded the inclusion of a bill of rights in the American constitutional plan. The eventual inclusion of the Bill of Rights can be considered one of their great victories and contributions to American constitutionalism, but in winning this victory they provided what would prove to be a useful tool for judicial usurpation. Still, Anti-Federalist analysis of the essential characteristics of the judicial power that was created at least in potential by the Constitution remains commanding. Such power can only be understood by setting it into relief against what it is not: an outgrowth of common law constitutionalism.
As the New York Anti-Federalist “Brutus” wrote in 1788:
the supreme court under this constitution would be exalted above all other power in the government, and subject to no controul . . . I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. . . . The judges in England, it is true, hold their offices during their good behaviour, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union. . . . they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land.
Brutus’s elucidation of the limits of judicial power in English common-law constitutionalism contrasts markedly with what he sees, presciently, as the inevitability of the U.S. Supreme Court’s deciding cases according to its loose sense of the spirit rather than the letter of the document:
There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
For the Anti-Federalists as well as the Federalists, the political art was largely defined by the fact that there will always be “men disposed to usurp.” In one of the many ironies of history, the Anti-Federalists feared the dangers of unchecked judicial power, but not the Bill of Rights, while Hamilton and other Federalists downplayed the dangers of the federal judiciary while emphasizing the dangers of a bill of rights. As it has turned out, both sides were half right.
It took a great deal of time for U.S. courts to feel themselves independent of every power under heaven—essentially from the Founding to the middle part of the twentieth century. It took Canadian courts only a few years, once they were given the green light of the Charter, to upend the great tradition of common law constitutionalism. The difference is accounted for by the fact that the modern language of rights had to become more virulent, to the point of merging with the nihilism of postmodern assertion. The Charter added the practical tools to an already impressive array of intellectual tools in the kit of those usurpers of all parties who made war on the earlier constitutional wisdom. By itself, neither the Charter nor postmodern thinking could have so thoroughly and rapidly transformed Canada—a “Tory” nation steeped in a common law constitutionalism that existed within the memory of so many living Canadians. These Canadians, having borne witness to the destruction of their organic constitution, such that it was, can offer with George Grant a lament that is “not based on philosophy but on tradition. If one cannot be sure about the answers to the most important questions, then tradition is the best basis for the practical life. Those who loved the older traditions of Canada may be allowed to lament what has been lost, even though they do not know whether or not that loss will lead to some greater political good.”
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