Wade, and the ability of liberal public interest groups to advance their agendas through the courts, many conservatives have come to view the judiciary with suspicion, at times bordering on outright animosity.
Increasingly, their touchstone is judicial restraint requiring deference to legislatures. This deference, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule precedent, leaving entrenched the very foundations of the welfare state they rail against. Both liberals and conservatives take comfort in their belief that legislatures will respond to the will of the public and make informed policy decisions that can be changed as public sentiment dictates.
Though appealing in principle, this trust in the democratic process ignores the realities of governmental institutions. Through gerrymandering and other means, elected representatives are increasingly insulated from their constituents. Meanwhile, many policies are set and enforced by unelected, unaccountable agencies, boards and commissions. In the absence of judicial limitations, protection of economic and property rights is increasingly dependent on the self-restraint of government institutions—a commodity that is chronically in short supply.
Without judicially recognized constitutional constraints, perverse incentives lead inexorably to expansion of government power and the yielding of individual rights.
That dynamic is nowhere more evident than in property rights and economic liberty, where the current constitutional debate is whether there should be any limits on governmental power. In effect, where does the outer boundary of government authority lie?
A classic example is Kelo v. The Court must decide whether the government can take property from one owner in order to give it to another private party solely because that new owner may be able to pay higher taxes. In upholding the taking of 15 properties owned by seven families to make way for private office space and other unspecified projects begging the question of how a taking can be declared for a public use when no specific use has been declared , the Connecticut Supreme Court deferred to the New London City Council.
The state of economic liberty jurisprudence is even more dire, as demonstrated by a recent 10th U. Oklahoma law requires anyone selling a casket to become a government-licensed funeral director—no small task considering, in addition to years of study, it requires an applicant to embalm 25 bodies; all this despite the fact that casket retailers never handle dead bodies nor perform funerals—they merely sell what amounts to a box. As long as the Court shows such extraordinary deference to legislatures and maintains a two-tier approach to constitutional rights, the ratchet operates in one direction—to increase government power.
When government growth is proceeding exponentially, setting reasonable outer boundaries might be a good place to start. There is an important distinction to be drawn between judicial activism that restricts government actions and judicial activism that expands the obligations of the state. It is this distinction which makes the case of The Queen vs. Gosselin one of the most important Canadian decisions of Although this claim failed, six out of seven members of the majority of the Supreme Court refused to rule out the possibility that S.
In other words, they kept the door open for some activist court in the future to direct social security payments to Canadians as a matter of right regardless of the social policy, legislation, or budget approved by the elected representatives of Canadians. A third example of judicial activism that occurred while I was still in Parliament is the Sharpe pornography case in British Columbia.
In this case, the B. The government did neither. Eventually the Supreme Court reversed the B. And in the interim, the prosecution of numerous child pornography cases across the country was dropped or placed in limbo as a result of the judicial activism of the B. Cases such as these have given rise to some understandable concerns respecting judicial activism, social policy and the role of Parliament which are the subject of our discussion tonight.
That an increasing number of laws passed for better or worse by the elected representatives of Canadians are being modified — struck down altogether or substantially amended — by a judiciary which is not directly accountable to Canadians. The concern is that this trend weakens rather than strengthens democratic control over public policy and the expenditure of public funds in Canada. I have mentioned only three cases illustrating various dimensions and potentials of this trend.
Please notice the range of subjects covered by these judgments:. So, should Canadians be concerned about the courts having an increasing role — not simply in interpreting the law in these areas but in striking down or amending legislation and public policy on these subjects? I would say, Yes, if the rule of law is to mean that the laws to which Canadians are subject should only be made by lawmakers directly accountable to Canadians.
That judicial activism is a symptom of deeper and more serious political problems, namely, the declining effectiveness, influence, and respectability of our political institutions including the Parliament, the legislatures, the political parties, and elections.
In other words, judicial activism is mainly a symptom of the so-called democracy deficit which is deepening in all the western democracies including our own. Why is there no great public outcry against judicial activism, even if it poses a threat to democratic accountability? Because democracy itself is generally in decline, and there is frankly more respect for judges and courts among much of the electorate than there is for politicians and Parliament.
When politicians say they have a mandate for making laws in relation to the public interest by virtue of winning a democratic election, what does this really mean at a time when democratic participation is declining? You have no substantive political mandate to legislate for us on anything! If Parliament and the legislatures want to reassert their role in the making of public laws — if we want to stop the loss of portions of that authority to the courts by default — we need to address with greater urgency than ever before the declining public respect for and confidence in elections, political parties, politicians, and law-making bodies like Parliament.
My father sat in a provincial legislature for thirty-three years and the Senate of Canada for twelve. He spent his entire adult life as a legislator as well as a politician and public administrator. One of the first lessons he taught me with respect to law-making was to ascertain whether or not a bill specified in unmistakably clear language the intent of the legislature or parliament in introducing and passing it in the first place.
When I got to Ottawa I saw more than one bill — for example an omnibus bill in dealing with sexual orientation as a prohibited ground for discrimination — in which the government was deliberately vague on intent. With respect to same-sex marriage, one gets the impression that this is an issue that the majority of governments in the country — provincial as well as federal — would prefer not to touch with a ten foot pole, for political reasons, if they can avoid it. This particular trend is not only a democratic and political concern, it is also a judicial concern — of concern to the judges and the courts themselves.
Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then only because they act last in time, not because their will is supreme.
To avoid becoming mired in political squabbles, we need a definition of judicial activism with no political valence. Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive.
Judicial review, in other words, produces one of two possible results: If the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not. Under that definition, and because the Court is not perfect, the question becomes whether we prefer a Supreme Court that strikes down too many laws or one that strikes down too few.
Many contemporary constitutional scholars favor a deferential Court that invalidates too few. I suggest that we are better off with an activist Court that strikes down too many. As many scholars have previously argued, judicial review is a safeguard against the tyranny of the majority, ensuring that our Constitution protects liberty as well as democracy.
And, indeed, the founding generation expected judicial review to operate as just such a protection against democratic majorities. A Court that is too deferential cannot fulfill that role. More significant, however, is the historical record of judicial review. Although it is difficult to find consensus about much of what the Supreme Court does, there are some cases that are universally condemned.
It turns out that virtually all of them are cases in which an overly deferential Court failed to invalidate a governmental action. When the Court fails to act—instead deferring to the elected branches—it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities. It is thus no surprise that with historical hindsight we sometimes come to regret those passions and prejudices and fault the Court for its passivity. Ideally, of course, the Court should be like Baby Bear: It should get everything just right, engaging in activism when, and only when, We the People act in ways that we will later consider shameful or regrettable.
But that perfection is impossible, and so we must choose between a Court that views its role narrowly and a Court that views its role broadly, between a more deferential Court and a more activist Court.
Both kinds of Court will sometimes be controversial, and both will make mistakes. But history teaches us that the cases in which a deferential Court fails to invalidate governmental acts are worse. Only a Court inclined toward activism will vigilantly avoid such cases, and hence we need more judicial activism. State , 16 Wall. Happersett , 21 Wall.
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