On the 28th of January 1988, the Supreme Court of Canada handed down one of the most disastrous judgements in the history of Canada. The case was R. v. Morgentaler and at issue were a multitude of brazen violations of abortion restrictions in the Criminal Code by Henry Morgentaler.
The duty of the judges was clear: they should have authorized the Crown to prosecute Morgentaler. Instead, a majority of the court threw out the charges against the notorious abortionist and struck down the entire abortion law on the pretence that it violated the rights of women “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 as guaranteed in Section 7 of the Canadian Charter of Rights and Freedoms.”
In this way, Canada became, and remains, the only democratic country in the world with no law whatsoever to protect the life of babies in the womb. It is not the Charter, but Canada’s out-of-control judicial activists, who precipitated this scandal. In Morgentaler, as in so many other cases, the judges arbitrarily distorted the plain language and original understanding of the Charter to suit their personal ideological preferences.
Such judicial excesses are not confined to Canada. In Men in Black: How the Supreme Court is Destroying America, Mark R. Levin has documented an array of similar abuses over the past 50 years by activist judges on the United States Supreme Court, who have exceeded their lawful powers by ignoring their own precedents and changing, instead of upholding, the law and the Constitution.
Levin is well qualified to comment on the issue. He is a distinguished constitutional lawyer and a former chief of staff to the attorney-general of the United States in the administration of President Ronald Reagan. He currently hosts the number-one talk radio program in New York City.
In Men in Black, Levin is especially scathing in his denunciation of the 1973 ruling by the United States Supreme Court in Roe v. Wade that struck down state laws restricting abortion on the ground that they violated the privacy rights of women in the United States Constitution. There is, in fact, no mention of any right to privacy or abortion in the United States Constitution. And the same goes for the Canadian Charter of Rights and Freedoms. In both the United States and Canada, the so-called rights to abortion and reproductive freedom discovered by the courts are entirely a figment of the imagination of rogue judges.
Levin recalls that, as recently as 1986, the United States Supreme Court held in Bowers v. Hardwick that homosexuals do not have a constitutional right to consensual sodomy. Yet, in 2003, the same court abruptly reversed course – in Lawrence v. Texas, the court struck down an anti-sodomy law in the state of Texas on the ground that it violated the privacy rights of homosexuals to life, liberty and due process of law in the Fifth and Fourteenth Amendments to the United States Constitution. With this fantastical argument, the court cleared the way for the judicial imposition of bigamy, bestiality and same-sex “marriage.”
Judicial activists in the United States and Canada have become a law unto themselves. Levin charges: “The Supreme Court, in particular, now sits in final judgement of essentially all policy issues, disregarding its constitutional limitations, the legitimate roles of Congress and the president and the broad authority conferred upon the states and the people.”
Levin commends President George W. Bush for proposing a constitutional amendment to prevent arbitrary judges from imposing same-sex “marriage” on the people of the United States. In Canada, no such amendment is necessary – Parliament has the full constitutional authority to declare that the traditional definition of marriage as the voluntary union for life of one man and one woman shall remain in effect across Canada, notwithstanding any preference by the courts for same-sex “marriage.”
Alas, unlike Bush, neither Paul Martin nor opposition leader Stephen Harper has shown any firm determination to curtail the judicial subversion of democracy. It seems that while most Americans still uphold the ideal of government of the people, by the people, for the people, we Canadians have meekly surrendered to rule by a judicial elite.