National Affairs Rory Leishman
Among proponents of judicial restraint, Justice Antonin Scalia of the United States Supreme Court is widely esteemed as one of the most brilliant, learned and principled judges in the English-speaking world. Bruce Allen Murphy disagrees. In Scalia: A Court of One, he sides with the partisans of judicial activism who deride Scalia as a vainglorious hypocrite who imposes his conservative, Catholic ideology on the law under the pretence of upholding the Constitution of the United States.
Underlying this dispute is a profound difference in judicial philosophy. While restrained judges like Scalia strive to uphold the plain words of the Constitution as originally understood, judicial activists treat the Constitution as a living organism subject to updating through judicial interpretation.
Over the past 30 years, most judges on the Supreme Court of Canada have subscribed to this latter view. Thus, in the Reference re Same-Sex Marriage in 2004, this Court unanimously affirmed: “Our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.” On this basis, the Court concluded that the word “marriage” in section 91(26) of the Constitution of Canada Act, 1867, “does not exclude same-sex marriage.”
Scalia has derided the judicial activists in Canada, the United States, and elsewhere who come up with such arbitrary rulings as “the Mullahs of the West.” He points out that under the guise of interpreting a “Living Constitution,” they routinely dictate changes to the Constitution through interpretation to bring it into conformity with their personal understanding of what the so-called realities of modern life now require.
In a provocative lecture given at Princeton University in 2012, Scalia asserted: “The Constitution is dead. Dead. Dead. Dead.” He argued that the Constitution of the United States is not a living organism subject to arbitrary judicial change, but a “dead” or, as he prefers to call it, an “enduring Constitution” that consists of fixed legal principles which judges are bound to apply. Consequently, he said: “When a case comes to me, I don’t do whatever I feel like doing. I have a standard. The standard is what would the people at the time the Constitution was enacted have said.”
Murphy maintains that the ambiguous history of the Constitution cannot provide any fixed standard for judicial interpretation. He charges: “By setting himself free to choose the sources, histories, and historians that he preferred, Scalia could shape the law according to his partisan ideological views, since he was the one reading the history.”
Certainly, judges can reasonably disagree over how the Constitution as originally understood applies to some ambiguous cases. But more often than not, the outcome dictated by this standard is clear.
For example, in Roe v. Wade, 1973, the United States Supreme Court struck down all laws on abortion on the ground that there are “penumbras formed by emanations” of the specific guarantees in the United States Bill of Rights that extends to a woman’s decision to have an abortion. In urging the Court to overturn this unprecedented and calamitous ruling, Scalia has written: “I continue to believe that the Constitution contains no right to abortion. It is not to be found in the long-standing traditions of our society, nor can it be logically deduced from the text of the Constitution.”
That conclusion is surely unassailable. No serious historian would claim that the people of the United States generally understood in 1789 that a privacy right to abortion is implicit in the United States Constitution.
Correspondingly, no credible historian would claim that Canadians generally understood in 1982 that a right to abortion is implicit in the Canadian Charter of Rights and Freedoms. But no such consideration stayed a fractured majority of the Supreme Court of Canada in R. v. Morgentaler, 1988, from striking down Canada’s abortion law.
Meanwhile, under the guise of interpreting a living constitution, judicial activists in the United States and Canada have usurped the legislative powers of elected representatives of the people, by striking down, amending or imposing laws on everything from prostitution to same-sex marriage. In none of these cases have these rulings been grounded in any plausible interpretation of the Constitution as originally understood.
Scalia has sagely observed: “In practice, the Living Constitution would better be called the Dead Democracy.” Canadians should take note.
