National Affairs Rory Leishman

National Affairs Rory Leishman

While judges in Canada and the United States usually hand down reasonable decisions in conformity with the separation of legislative and judicial powers, occasionally some rogue judicial activists take the law into their own hands with potentially disastrous consequences.

A case in point is the judgment on June 26 by the United States Supreme Court in United States v. Windsor, which struck down the Defence of Marriage Act (DOMA). By a majority of five to four, the Court held that this law, which had been overwhelmingly adopted by the United States Congress and signed into law by president Bill Clinton in 1996,  violated the equality rights of homosexuals under the Fifth Amendment to the United States Constitution.

There is no mention of homosexuality in the Fifth Amendment or any other section of the United States Constitution. Such considerations matter not to judicial activists. There is no reference to abortion in the U.S. Constitution, but that did not

stop a majority of the Supreme Court in the infamous Roe v. Wade ruling in 1973 from striking down all state laws restricting abortion on the pretence that these laws violated a woman’s right to privacy which the Court deemed to be implicit in the Fourteenth Amendment.

In addition to lacking any basis in the text or the original understanding of the United States Constitution, the Windsor and Roe rulings were also unprecedented. Prior to Windsor, the United States Supreme Court had never found anything unconstitutional about the traditional definition of marriage thathad always been enshrined in federal and state laws. Likewise, prior to Roe, the Supreme Court had never questioned the constitutionality of restrictions on abortions in state laws. In a stinging dissent in Roe, Justice Byron White disparaged the ruling of the majority as an arbitrary exercise in “raw judicial power.” The same is also true of the blatantly political ruling by the majority of the Court in Windsor.

Canadians might well note that Edith Windsor and Thea Spyer, the principals in the Windsor ruling, were residents of New York, yet they were legally married in Ontario in 2007. How could that have happened? Had the Parliament of Canada amended the traditional definition of marriage in federal law to allow for same-sex marriages? Had the legislature of Ontario amended its legislation to authorize the solemnization of same-sex “marriages?”

Of course not. Same-sex “marriage” was introduced in Ontario by the dictatorial fiat of the Ontario Court of Appeal which decreed in its Halpern ruling in 2003 that the traditional definition of marriage in Canadian laws as the voluntary union for life of one man and one woman violates the equality rights of homosexuals in Section 15 of the Canadian Charter of Rights and Freedoms. This ruling had no basis in the language or the original understanding of the Constitution of Canada; and it, too, was also unprecedented. Like Windsor and Roe, Halpern was an arbitrary expression of “raw judicial power.”

Prior to the 1970s, the overwhelming majority of judges in Canada and the United States were practitioners of judicial restraint. They understood that judges in a democracy are obligated to uphold the plain text of the law and the Constitution as originally understood.

In contrast, judicial activists have adopted the novel view that the constitutions of Canada and the United States are “living” entities subject to amendment by judges in response to changing social circumstances and moral outlooks. It is a theory that has wide appeal among lawyers, law professors and judges who relish endless litigation and unbridled power to change the law by judicial fiat; it is evident that the notion of a “living” constitution is both plainly undemocratic and fundamentally incompatible with the rule of law.

Friedrich Hayek observed in his classic treatise The Road to Serfdom that, in essence, “the great principle known as the Rule of Law” denotes that “government in all its actions is bound by rules fixed and announced beforehand.” Judicial activists who overturn fixed legal rules by unilaterally amending the laws and the Constitution to suit their own personal preferences manifestly overturn the rule of law and violate the separation of legislative and judicial powers – that basic democratic doctrine which holds that it is elected representatives of the people in the legislative branch of government, not unelected and unresponsive judges, who have exclusive responsibility to enact and amend laws and the Constitution.

Justice Samuel Alito, one of the four dissenters from the ruling of the United States Supreme Court in Windsor, is an exemplary exponent of judicial restraint. He wrote: “The members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. Any change on a question so fundamental should be made by the people through their elected officials.”

Justice Antonin Scalia concurred. In a typically eloquent dissent, he denounced the overweening actions of the majority in Windsor: “Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices – in other words, democracy…

“We might have covered ourselves with honor today,” Scalia continued, “by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.

“I dissent.”

Not so long ago (before the Charter of Rights), the great majority of justices on the Supreme Court of Canada also upheld democracy, the rule of law and the separation of legislative and judicial powers. Would that we still had at least one such genuine exponent of judicial restraint on Canada’s top court.