The courts and the constitution

Chief Justice Beverly McLachlin spoke at Victoria University in Wellington, New Zealand, last week, arguing for an expansive view of the judiciary's role in a democracy. Thanks to Dan Postma for calling attention to this article in the National Post: Put rights before Constitution. Rather than respond directly, I will post a column I wrote for Christian Courier, dated 19 January 2004. It is a little out of date, but the basic argument is not:

The vast majority of the world’s states have written constitutions specifying the arrangement of government institutions, the relationship between the levels of government in a federal system, the rights of citizens, and the amending procedures. Unlike ordinary legislation, which requires only a simple majority in a parliamentary assembly, a constitution is usually protected by the requirement of a qualified or raised majority.

For example, a proposed amendment to the US Constitution must secure the approval of a two-thirds majority of both houses of Congress and three-quarters of the state legislatures. Here in Canada an amendment to our Constitution Acts generally requires the agreement of both chambers of Parliament and seven provinces containing at least 50 percent of the country’s population. But some issues, for example the status of the monarchy, require provincial unanimity. Not surprisingly, the US Constitution has been amended only a handful of times, while Canada’s two post-patriation attempts at amendment have failed.

Why should it be so difficult to amend a constitution? Why not allow an ordinary parliamentary majority? Because a constitution is assumed to represent a broad consensus among the citizenry in favour of a particular form of government and the political values that support it. To change a constitution thus requires a similar consensus in its favour. If such a consensus is not forthcoming, then the constitution remains as is.

This very consensual nature of a constitution indicates why the role of the courts in its interpretation is potentially troublesome. Since 1803 the United States Supreme Court has claimed the authority to rule on the constitutionality of federal and state legislation. In 1982 our own Supreme Court acquired similar powers under the Charter of Rights and Freedoms. There is in itself nothing wrong in this, as long as the courts understand their own role as functioning within this consensus.

However, in recent decades the courts have effectively changed their countries’ constitutions in ways that have departed from the consensus. Perhaps the most infamous example of this was the Roe v. Wade decision of 1973. Here the US Supreme Court invalidated the carefully constructed abortion laws of the several states on the basis of a supposed right of privacy nowhere found in the text of the Constitution itself and for which there was no consensus in the public at large. This single decision, so controversial at the time, unleashed three decades of political discord yet to be settled in a satisfactory manner.

Although the Supreme Court of Canada’s 1988 abortion decision, Morgentaler v. the Queen, took care to leave room for parliamentary action, later decisions have increasingly followed the American pattern. The Ontario Appeals Court's controversial Halpern ruling (2003), as well as the US Supreme Court's Lawrence v. Texas decision, can hardly be said to reflect an obvious popular consensus in the two countries. Had formal amendments been proposed to legalize same-sex marriage or to prohibit anti-sodomy laws, it is highly unlikely they would have overcome the qualified majority requirements.

The courts are thus undertaking, on highly questionable legal and constitutional grounds, to change their countries’ constitutions in ways that depart significantly from the consensus of the citizens and that undercut the formal amendment process. While the latter requires a qualified majority, the courts are effectively amending the constitution by doing an end run around the consensus. The problem is not so much that the courts are usurping democracy, as some would have it, as that they lack a proper understanding of what a constitution is, namely, something rooted in the consensual traditions and mores of a political community.