Archive for September, 2010

Trudeau the Parliamentarian

Today’s Canada is largely of Trudeau’s making, says Andrew Cohen (Ottawa Citizen, 28 Sept, 2010). That sounds about right.

We know what Trudeau did.

In the Omnibus Bill, a series of amendments to the Criminal Code that was introduced in December 1967 and given final assent in the spring of 1969, he “liberalized” abortion, contraception, divorce, and homosexuality. In the Official Languages Act, 1969, he made us in the eyes of the world, a bilingual country. In 1970, using the War Measures Act he crushed the murderous Front du liberation de Québec. In 1980 he intervened in Quebec’s referendum on sovereignty to keep Quebec in Canada.

Have I got it all? Not by half. He centralized national decision-making in the executive branch of government. And he left us with the Constitution Act, 1982, which contains notably, a constitutional amending formula and the Canadian Charter of Rights and Freedoms.

Let’s think about the how. Trudeau remade the country as a member of parliament: Justice Minister and Prime Minister.

Never underestimate the power of legislators and legislatures, I say.

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Moore Reviews Dennis Baker

Christopher Moore published this helpful review of Dennis Baker’s book in the Law Times:

Judges act. That’s why they call it the rule of law. Complaints about “judicial activism” often look like an attempt to cast a cloak of principle over sour grapes. Those who complain of judges being out of control often seem mostly to be wishing that they would have decided things differently.

Dennis Baker does fear courts are getting out of control. But he’s not interested in comparing courts whose judgments he dislikes to those of which he approves. Courts have become too assertive, he suggests. But his solution is to encourage a more active response from legislatures and executives.

In a cogent new book, Not Quite Supreme, Baker does not seek to bully or cajole courts out of their activism. He would let judges judge; he just wants to see some pushback from other constitutional actors.

Baker, a poli-sci prof and political philosopher, is a balance-of-power theorist. The Canadian constitution and political tradition, he argues, is based on a separation of powers that is not total, but remains real. Courts, legislatures, and governments all have their spheres, overlapping but still distinguishable. Each should prevent the other from seizing unchecked power. It follows, Baker argues, that this balance depends on no element acquiring a “trumping” power, one that enables it to take over the functions of the others.

Lately, he suggests, courts have begun to invade the spheres of the other branches of the state. Worse, he suggests, many scholars of constitutional law accept and celebrate the courts’ invasion of the legislative and executive roles. Baker suggests these “judicial supremacists” do want the courts to wield a trumping power to which he believes no agency should be entitled.

Baker does not propose that governments or legislatures should simply ignore the rulings of courts. But he notes that traditionally the role of courts has been to rule on “cases and controversies” – specific cases on particular circumstances brought by unique litigants.  Courts have neither the capacity of legislatures to frame general laws nor the institutional competence to administer their application.

Greatly to oversimplify Baker’s argument, he suggests there is a place for legislatures to assert their authority over general law and governments to assert their administrative responsibility – particularly in the face of single court judgments that may well prove to be outliers. He suggests there should legitimately be ways for legislatures to defend their lawmaking powers and for governments to defend their spending and administrative powers against the decrees of courts — particularly against lower court rulings and split decisions that might well be reversed elsewhere.

Baker acknowledges that an ongoing series of judicial decisions, case after case after case, must eventually shape what governments and legislatures can do. But he thinks most “dialogue theorists” are too deferential to courts when they argue that political actors have no legitimate riposte to courts other than the notwithstanding clause.  Baker proposes “the minority retort” and “the textual retort” as plausible strategies by which legislatures and governments can engage in a creative and appropriate struggle with courts.

Baker also considers one possible reason why so many constitutional theorists support “judicial supremacy.” He acknowledges that, as the Supreme Court once said, today in Canada “except in certain rare cases, the executive frequently and de facto controls the legislature.” (Baker, p. 64) He suggests “the orthodoxy” supports judicial power as the only possible counterweight to executive dominance in the era of trained-seal backbenchers. He implies, however, that if the legislature is failing in its role, the solution should be sought in the legislature, not in transferring legislative and executive powers to courts with neither the skills nor the right to exercise them.

Baker has an LLB as well as a PhD but one might guess his theory will not be warmly welcomed either in law schools or in judges’ chambers.  It might get a more sympathetic reading, however, in government offices and legislatures. Which is where he expects the pushback to come from.

Dennis Baker’s Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation was published this year by McGill-Queen’s University Press.

Christopher Moore’s newest book is The British Columbia Court of Appeal: The First Hundred Years, published by UBC Press and the Osgoode Society.  www.christophermoore.ca

Leo Strauss? Who’s He?

Plato, Hobbes, and Marx wrote  books that are called “great” but their arguments are fallacious, sometimes laughably so and their conclusions are “naïve,” if not outright pernicious. That’s Brendon Boyle’s contention in the current issue of Commentary magazine.

Boyle teaches classics at the University of North Carolina. He’s reviewing W.G. Runciman’s Great Books, Bad Arguments: Republic, Leviathan, and The Communist Manifesto (Princeton University Press).

Here’s how Runciman himself puts the matter: “Plato, Hobbes, and Marx are all convinced in their different ways that once the right people are in power, they will want to do the right thing and will know how to do it, so that harmony and order will thereafter prevail.” The argument’s “specious,” he says. “Look around you.”

I agree with Runciman this far: it’s pie in the sky to think that justice will prevail once the “right people” are permanently installed at the top. But I was taught that Plato intends us to reach that conclusion.

Where’s Leo Strauss when we need him? Strauss famously argues that Plato wishes us to conclude that the Just City as Socrates describes it in the Republic is impossible:  it’s ludicrous and pernicious. The Republic “conveys the broadest and deepest analysis of political idealism ever made” (Strauss, The City and Man, page 127).

I won’t pick a quarrel with Runiciman. He should have read Strauss, but he’s a Britisher and Britishers don’t always read Americans. (You Tube has Runciman’s lecture on the three authors, given at Trinity College, Cambridge.)

It’s Boyle, the reviewer, who concerns me. He’s writing in Commentary, the homeland journal of the neo-conservative movement in the United States and he appears to be completely ignorant of the argument about the Republic made by the man who is known to some of his friends and most of his adversaries as America’s greatest neo-conservative philosopher. A generation has arisen that knows not Leo Strauss! Say it isn’t so.

Boyle admits that we should probably go on reading Plato, Hobbes, and Marx.  Their books are not “good” but they do, in some fashion, “… lend an education – and a life – vitality.” I don’t know what to make of this remark about vitality, and I don’t think Boyle does either.

What’s Happening in the Classroom this Fall?

The students in my introductory politics classes had little respect for parliamentary institutions. (I’m no longer teaching but I bet things haven’t changed.)

“Nothing gets done in Canada,” they’d say. “We’re not making progress. Politicians don’t keep their promises. They’re just in it for themselves.”

They hated political acrimony. They were offended by the jostling of parties for office. “Why can’t they all get along?” “That’s a very good question,” I would reply. “We’re rational beings; when the facts are before us, why don’t we agree more often?” But I could hear them thinking: “Because some people are stupid.”

“We should have ‘trained’ people in charge,” they’d say. By “trained people,” they usually meant lawyers. Or economists. In vain I would point out that there are always some – often many – lawyers and economists in Parliament and in the departments and agencies of government.

“It’s a good thing we have the Supreme Court,” they’d say. “Judges know what they’re doing.”

And so I would set to work. I’d think the course a success if I could persuade the students to consider the following propositions. First: parliamentary government is not primarily about “getting things done.” It is not about getting a record number of laws and policies on the books. It was designed originally – in the seventeenth and eighteenth centuries – to make it hard for political men to get things done. It is intended to protect us – the citizens – from ambitious politicians with ambitious programs. It’s meant to subvert oligarchy.

Second: parliamentary government does not require politicians to keep their campaign promises. Quite the opposite is true. We expect them to advance their campaign schemes in Parliament. And so we should. But we also expect them to listen to the political opposition and to the continuing debate among the public at large, and on occasion, when convinced by reason and superior argument, or by poll results, to modify, delay or discard schemes. (It sometimes happens.) Circumstances change; the public’s mood changes. Parliament is a deliberative body.

As for the idea that we should expect our political representatives to set aside their personal and party interests, think again. (I’d say.) It’s oligarchs and tyrants who profess to have no personal ambitions but to speak for all citizens, for the country, the national character, the national will. The most surprising feature of liberal democracies, the enduring and precious feature, is that our would-be oligarchs leave office meekly when defeated, leaving the country and constitution intact. Why do they leave? They leave because they know that their party’s legitimacy on return, and their own future ambitions, depend on vacating office when voted out.

Donald Savoie Trashes the Canadian Constitution

Dennis Baker (University of Guelph) sends this quotation from Donald Savoie’s Power: Where Is It? (MQUP, 2010), pages 72-3. As Baker says: “It’s enough to make your blood boil.”

“[In the Secession Reference], the court ruled that Quebec did not have such a right and based its decision on four fundamental rights: federalism, democracy, constitutionalism, and the rule of law.  Canada’s written constitution dates back to 1867, and one would be hard pressed to see these principles in it, certainly in pre-Charter days. The Canadian Senate, it will be recalled, was established as a check on democracy and federalism, both of which were only reluctantly embraced. As Adam Tomkins writes, it may be more accurate to say that Canada in 1867 was based on principles of “elitism, racism, sexism and imperialism than on the four good things that the Supreme Court identified.” Baker comments: “Nice to see Canada’s public policy guru trash our constitutional heritage, eh? That Adam Tomkins bit is a little troubling too – from his Public Law text apparently.”

Thanks Dennis. It’s discouraging, yes. Savoie’s is the prevailing opinion. But we will overturn it.

Look on the bright side: There is more than enough work for you, me, and a dozen others, including an army of graduate students. (I hope you have graduate students.) Canadian “federalism, democracy, constitutionalism, and the rule of law” are fields of academic inquiry begging for attention. There is a new paradigm. Retrieval of original documents is far from complete.

Note to readers: Dennis Baker is the author of the astonishing book, Not Quite Supreme, The Courts and Coordinate Constitutional Interpretation (MQUP, 2010).