It looks as though the Senate is here to stay, unreformed and unloved. I’m speaking, of course, of the Canadian Senate, also known as the Red Chamber. The nickname, from the traditional royal colour of the interior, symbolizes historic links with the Crown.
The Senate also has historic links with patronage appointments, a sense of entitlement and, more recently, an expense claims scandal. Maybe we should re-nickname it the Red-Faced Chamber.
The Senate is also called the chamber of sober second thought. Second, it usually is, as most legislation originates in the House of Commons. Sober and thought are matters of opinion.
Whatever we call it, without amending the Constitution, we can neither reform nor abolish the unelected, unaccountable Senate. That’s the gist of a recent ruling by the unelected, unaccountable Supreme Court.
Politically, however, amending the Constitution is next to impossible, as it requires the agreement of Parliament and most or all provincial legislatures. Judicially, it’s much easier, as it requires only a majority ruling of the Supreme Court. What’s more, the high court judges haven’t shrunk from making amendments and lower tribunals have followed their example. Since Parliament patriated the Constitution from Britain and added a Charter of Rights and Freedoms, the courts have amended it on matters ranging from life and death to health and sex.
Senate reform or abolition is a notable exception. Not only did the top judges decline to alter the Senate in any substantive way. Despite popular support for change, they refused to let the politicians do it without embracing the intractable amending procedure. Maybe the unelected, unaccountable branches of government feel they have to stick together. Otherwise, government of the judges, by the judges and for the judges might perish from the earth.
Anyhow, the Supreme Court sees the Senate as a foundational political institution, central to agreements that gave birth to the Canadian federation. Curiously, though, the high court doesn’t see marriage as a foundational human institution, central to the birth of children and the only civil agency constituted to unite them with their parents.
On the contrary, it led the way to a redefinition of marriage that includes same-sex couples. By adding sexual orientation to the Charter as a prohibited ground for discrimination, the Supreme Court enabled lower tribunals to do the rest. The express decision of the drafters to leave sexual orientation out of the Charter didn’t seem to matter.
With respect to the Senate, the Supreme Court championed the original intent of the drafters of the Constitution. With disrespect for marriage, it championed the notion that the Constitution is a living tree and accommodates the realities of modern life by progressive interpretation.
The realities of modern life, however, are not the fundamental realities of the human condition. The former are historical and changeable. The latter are outside history and unchangeable as long as human nature is. Anyone familiar with literature from different historical periods and cultures ought to know that human nature doesn’t change. Judges should catch up on their reading.
Naively, I thought they were supposed to safeguard fundamental rights and freedoms, not re-interpret them to suit the times. Otherwise, they’re not fundamental. Different times have accommodated euthanasia, cannibalism, torture, pederasty and polygamy, among other violations of human life and dignity. Do judges think they’re supposed to accommodate these practices if they return in modern guise? I guess judges do, as they have already accommodated abortion and same-sex unions. A living tree can bear bitter fruit.
Reforming or abolishing the Senate wouldn’t act against any fundamental human goods. Re-defining marriage already has. By lowering it to the level of intrinsically sterile, sexually deficient liaisons, the courts acted against life (procreation) and community (male/female complementarity).
It seems to me that the Supreme Court is a far more mischievous branch of government than the Senate. Although both branches need pruning, the judges need it more than the politicians. I suggest we cut the courts back to their traditional role of interpreting laws not making or amending them. Rather than making amendments, it’s time the judges made amends.
My favourite fantasy is that supporters of Senate abolition and judicial reform join forces. Together, they might put enough pressure on federal and provincial politicians to do the next to impossible. The prize, two amendments for the price of one, may be attractive enough to summon the wisdom and courage to persevere.
I realize these virtues are in short supply among politicians, but we can always hope. At crucial points in history, they have risen to the occasion. Why, they may even summon enough wisdom and courage to reverse the faulty judicial decisions.
