As Justice Claire L’Heureux-Dubé said in her notes for an address at an international conference on how to normalize homosexuality: “Changes in the legal realm, however, have been accompanied by a general failure of the political process to recognize the rights of lesbians and gays without the pressure of court decisions behind them.” Attempts to make changes through the political process, she said, have been controversial and have often led to public criticism and backlash. She then cited changing public opinion polls on these subjects to show that the public is generally supportive of extending rights to same-sex couples. “This indicates that courts are taking the lead in changing society’s attitudes to same-sex partnerships.” After that statement, it must have taken considerable courage to assert that court judgments in this area “reflect the values of ordinary Canadians.”
Substantive Due Process
in the Guise of “Fundamental Justice”
The Canadian Court has even reproduced, under another name, and against the intentions of the Charter’s drafters, the American excrescence of substantive due process. British Columbia Motor Vehicle Reference (1985) concerned the constitutionality of a provision in the province’s Motor Vehicle Act which made the act of driving with a suspended license an absolute liability defense (one not dependent on criminal intent) punishable by mandatory imprisonment and a fine. The Court faced the question of whether section 7 of the Charter – guaranteeing the right not to be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice – was to be given a substantive or a procedural meaning. That is, was the Court confined to judging the fairness of the procedure by which the law was applied or could it also judge the appropriateness of the law’s substantive content? This, of course, was the same question the United States Supreme Court faced – and answered so disastrously in Dred Scott – in construing the due process clause’s guarantee of the same rights. “There was,” Knopff and Morton note, “ample documentary evidence that many of the most influential framers intended the narrower, procedural meaning.”
Manfredi makes it clear just how strong that evidence was. The draft of section 7 used the phrase “due process of law.” But those words were objected to on the grounds that the Canadian courts could use them, as the American courts had, to develop a doctrine of substantive due process allowing the courts themselves to judge the substance of the law for reasonableness. The language change was made in response to that objection. “To the officials of the Justice Department responsible for drafting the Charter … the phrase ‘principles of fundamental justice’ … did not have any substantive connotation in Canadian law. …” A representative of the department, in testimony before the Special Joint Committee on the Constitution in 1981, stated:
[T]he words “fundamental justice” would cover the same thing as what is called procedural due process, that is the meaning of due process in relation to requiring fair procedure. However, it in our view does not cover the concept of what is called substantive due process, which would impose substantive requirements as to the policy of the law in question.
Minister of Justice Jean Chrétien reported the same understanding to the committee.
The clarity of this history did not deter Justice Lamer, who reached a conclusion that Manfredi, with considerable restraint, calls “remarkable.” The clear intention of the legislature did not save the Act from a declaration of unconstitutionality. The Justice discounted the testimony of the Justice Department and the minister of justice because it was given by civil servants and did not sufficiently indicate the intentions of the legislative bodies that adopted the Charter. The absence of any counterargument in those bodies would normally, of course, indicate that they agreed with the drafters. If the Court bound itself to the substantive intent underlying the various constitutional guarantees, the Charter’s rights and freedoms would “become frozen in time to the moment of adoption, with little or no possibility of growth and adjustment to changing societal needs.” This interpretation, of course, ignores the function of Parliament and the provincial legislatures in meeting changing societal needs.
Some Canadian commentators see the same problems that certain of their United States counterparts do with judicial review. Manfredi agreed that “rights-based judicial review is a positive element of liberal democracy” because it safeguards “individual rights and liberties by enforcing constitutional limits on legislative and executive power,” ensuring that “liberal democracy does not degenerate into tyranny.” But he went on in a passage partially quoted in the epigraph to this chapter:
On the other hand, rights-based judicial review taken to its extreme becomes an anti-democratic power, wielded by courts to alter the fundamental character of a nation’s constitution without significant popular participation or even public awareness. Left unchecked, judicial power in this sense poses the same threat to liberal democracy as do other forms and uses of political power. … [In Canada] judicial power has continued to expand as the legitimacy of the notwithstanding clause has been further eroded. Judicial supremacy, in other words, is overtaking constitutional supremacy.
Justice Lamer, among others, undeterred by the fact that the Charter was meant to deny the Court an unstructured authority to judge the substance of statutes in the guise of constitutional interpretation, used the “living tree” metaphor to justify rejecting the framers’ original understanding of what it was they were doing in favor of the judicial understanding of what should be done now. The metaphor is both misleading and pernicious. Under the similar name of the “living Constitution,” it serves the same illegitimate function in America as in Canada. A constitution necessarily grows when a judge applies existing principles to unforeseen circumstances. That is what Holmes meant when he said that the movements of the courts were properly molecular rather than molar. It is the task of today’s judge to discern how the constitution makers’ principles, defined in the world they knew, apply to the circumstances of the world the judges know. As I wrote some time ago, “The world changes in which unchanging values find their application.”
Examples in American law are plentiful. I cited the Fourth Amendment’s prohibition of unreasonable searches and seizures, written to prevent the constable, acting on nothing more solid than his own whim or vague suspicion, from entering upon a citizen’s home. The amendment’s general words, however, indicate a general principle, a presumption of privacy against unwarranted government intrusion in the name of law enforcement. After an initial hesitation, the Supreme Court applied the principle to modern technologies of electronic surveillance. More recently, the Court has applied the principle to police use of thermal imaging to detect certain activities within a home. The technique of judicial adaptation does not, of course, apply simply to changes in technology. In an opinion that ruffled some of my conservative colleagues on the bench, I applied the First Amendment guarantee of freedom of the press to defeat a libel claim. Granting that the framers of the amendment did not see libel actions as a threat to press freedom, I argued that, over time, if the libel action evolved so that in some of its new applications it became dangerous to that freedom, judges should properly adapt their doctrines to deal with the new problem. A change in the legal environment provided by common law or statutory law is surely no different from a constitutional judge’s standpoint than is a change in the technological environment.
It is quite another thing, however, to say that the “living tree” metaphor means that judges must keep up with the times and with changing conditions by creating new constitutional principles to be enforced as if they were actually in the document. At that point the judiciary arrogates to itself the powers of a constitutional convention, with one difference: a constitution must be submitted to the people or their representatives for approval before it goes into effect; a judge’s amendment to a constitution needs no imprimatur from anyone but the judge.
In a similar locution, a court’s invention of a new principle – th
e right to an abortion, say, or the special protection of homosexuality – is often justified by saying that “our” understanding of an old value such as equality has evolved. The lie in that formulation is the word “our.” If the new understanding of equality had evolved, that fact would be reflected in legislation – and, in fact, it often is, as demonstrated by civil rights statutes. But when judges make the supposed evolutionary change in understanding the basis for declaring a statute invalid, it is perfectly obvious that the change is not ours, but theirs. And in that they are speaking for the values of the New Class which have not yet found, and perhaps never can find, favor in the legislature.
Morton and Knopff conclude The Charter Revolution and the Court Party with an observation that applies not only to Canada but to activist courts everywhere:
To transfer the resolution of reasonable disagreement from legislatures to courts inflates rhetoric to unwarranted levels and replaces negotiated, majoritarian compromise policies with the intensely held policy preferences of minorities. Rights-based judicial policymaking also grants the policy preferences of courtroom victors an aura of coercive force and permanence that they do not deserve. Issues that should be subject to the ongoing flux of government by discussion are presented as beyond legitimate debate, with the partisans claiming the right to permanent victory. As the morality of rights displaces the morality of consent, the politics of coercion replaces the politics of persuasion. The result is to embitter politics and decrease the inclination of political opponents to treat each other as fellow citizens – that is, as members of a sovereign people.
1 The Justices of the U.S. Supreme Court rejected such a procedure over two hundred years ago. In July 1793 Secretary of State Thomas Jefferson wrote to the Justices at the direction of President George Washington seeking their opinion on the propriety of their giving advice on a number of legal questions arising, or likely to arise, as a consequence of the war in Europe. A few weeks later the Justices declined to give the opinions sought, essentially on separation-of-powers grounds. The impropriety of advisory opinions remains to this day a basic limitation on the authority of the federal courts.
3
ISRAEL
The autonomy of the individual … exists because it is recognized by the law.
The moment that a certain realm is not justiciable, the wielder of power does whatever he wants.
[The judge] must sometimes depart the confines of his legal system and channel into it fundamental values not yet found in it.
The world is filled with law.
Justice Aharon Barak,
president of the Supreme Court of Israel
Pride of place in the international judicial deformation of democratic government goes not to the United States, nor to Canada, but to the State of Israel. The Israeli Supreme Court1 is making itself the dominant institution in the nation, an authority no other court in the world has achieved.
Imagine, if you can, a supreme court that has gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered action it thought the government should take at other times, and claimed and exercised the authority to override national defense measures. Imagine as well a supreme court that has created a body of constitutional law despite the absence of an actual constitution. No act of imagination is required: Israel’s Supreme Court has done them all.
It was not always so. Though Israel has been a highly politicized nation from its formation, the Supreme Court, in order to establish its legitimacy, according to Martin Edelman, wrote opinions that were “characterized by highly formalistic legal style, narrow interpretations of statutes and precedents, adherence to stare decisis, and deference to the decisions of the Knesset, the government, and the Israel Defense Forces.” Gradually, however, the Court began to assert its authority to interpret statutes according to the principles of “natural justice” – an amorphous concept designed to cut the Court loose from the restraints of positive law. But the subjectivity was too obvious. Searching for something that could be designated a mandate for overriding judicial power, the Supreme Court began to claim that its supremacy had been legitimated in 1992 by the passage of two laws: the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Liberty. The first of these laws forbids restrictions on the right to practice any vocation. The second, which is more important for our purposes, prohibits infringements on a person’s dignity, life, body, or property. Each Basic Law contains an exception clause: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” An earlier clause in both laws describes Israel’s values as those of a “Jewish and democratic state.”2 These words seem at least marginally more confining than “natural justice,” but in practice they have liberated rather than constrained the Court.
These Basic Laws provide an inadequate platform for a Court intent on invalidating legislative action. For one thing, the Basic Laws are even more general and undefined than major provisions in the United States Bill of Rights and the Canadian Charter of Rights and Freedoms. The American amendments and the Canadian Charter were, at least, written, proposed, and ratified as constitutions. By contrast, it is not at all clear that Israel’s Basic Laws were designed to be more than precatory. The Basic Laws were enacted by the Knesset in the middle of the night without even a majority of the 120 members present. The Law dealing with liberty and dignity passed by 32 to 21 votes; that dealing with freedom of occupation by 23 to 0. There was no discussion in the Knesset indicating any recognition that a constitution was being adopted. Certainly there was no understanding that the Supreme Court was to be the final arbiter of what the Basic Laws meant. Yet that is how the Court has chosen to read them.
The extraordinary events that followed cannot be understood without reference to one man, Aharon Barak. From the beginning of his tenure on the Supreme Court in 1978 to his assumption of the presidency in 1995 to the present day, Barak has been the dominant figure in Israeli law and, increasingly, a major force in shaping the nation’s policies. He is without significant opposition within the Court. So broadly has he spread the Court’s powers that it is no exaggeration to say, along with Hillel Neuer, that “Barak may well be the single most influential person in Israeli public life today.” Barak’s philosophy, now apparently shared by the Court, is that there is no area of Israeli life that the Court may not rule. This radical position follows from three extraordinary legal doctrines also adopted by the Canadian Supreme Court, whose Charter jurisprudence has greatly influenced the Israeli Court. But these doctrines appear to have led in Israel to an even more extreme body of decisions than Canada’s, or any other nation’s for that matter: first, all behavior, governmental or personal, is examinable and may be controlled by the Court; second, all persons may raise any issues they choose for consideration by the Court; and third, all questions are fit for Court resolution. These are not dusty technicalities, but revolutionary changes in the Court’s role in government and, hence, in the distribution of power within Israel.
The first doctrine holds that since law covers everything, even those areas on which the law is silent, freedom from law is a legal issue reviewable by the Court. Since nothing escapes the legal maw, Israel may not allow freedoms of which its Court disapproves. “Constitutional law” about private behavior, therefore, may be devised without the benefit of a constitution. By contrast, in the United States there must be action by government, usually in the form of a legal command, to trigger constitutional scrutiny.
The second doctrine, standing, holds that parties may address a court only if they allege injuries to themselves which the court has the authority to redress. A mere personal or ideological disagreement with government is not enough. Pre
sident Barak and his Court have done away with that limitation on their power. Anybody who thinks the government is misbehaving in some respect can litigate, even if the alleged misbehavior affects him not at all. Thus, a citizen with a private grievance against a Cabinet appointee can litigate the worthiness of this person on grounds having nothing to do with any specific injury to the complainant. It is as though a United States citizen, unharmed by an action of the Federal Reserve Board, could go to the U.S. Supreme Court to litigate the wisdom of an interest rate hike.
The doctrine of justiciability, the third on the list, requires that the issues to be litigated must be fit for courts to decide. Barak has reshaped the law so that practically any subject, no matter how political, may be decided by the Court. The issue may be legal or simply one that the Court considers in the public interest. Virtually every subject, then, is justiciable. Barak sees two categories of justiciability – one normative and the other institutional – though he and the Court have little use for any restriction that might arise from such categorization. Normative justiciability raises the question whether legal criteria exist which a court can apply in the case proffered to it. If there are no such criteria, the matter is not one for judicial resolution. Institutional justiciability raises the question whether the subject matter is appropriate for judicial decision or whether some other branch of government may more properly decide the issue.
Normative nonjusticiability is inconceivable in Barak’s world view because no legal void can exist: law covers everything. Legal criteria – which mean no more than the Court’s willingness to decide – always exist. Even an activity bearing the greatest political character, such as the making of war or peace, is examinable by judicial criteria. The decision whether to intervene or not, however, lies entirely within the Court’s discretion. Institutional justiciability is similarly toothless because, should the Court say that an issue is committed to another branch of government and inappropriate for judicial intervention, the Court essentially grants the government freedom to behave illegally. That is not to be tolerated. The Court, of course, cannot behave illegally, since it is the law.
Coercing Virtue Page 9