Liberty, Prudence, Imperfection, and Law

“Judicial Review, Charter Politics, and Federalism in Canada – the American Influences, Part 1,” By Ivan Jankovic

This is Part 1 of a two-part essay by Ivan Jankovic. 

The political and judicial revolution that has taken place in Canada after the adoption of the Charter of Rights and Freedoms in 1982 has been usually interpreted in the context of the effects it had on the relationship between the legislative and judicial powers, and increased capacity of individuals to protect their rights by using the strengthened judicial review (Hogg, 1987; Hogg et Bushell 1997; Monahan, 1987; Whoerling, 2001). Even when this process is being criticized (Manfredi, 1990; Morton and Knopff, 2000; Manfredi and Kelly, 1999) that is usually being done in the context of the dichotomy legislature-judiciary and the general philosophical and political musings about the proper balance between the two branches of government in a democratic society.

The aim of this paper is to put this discussion more squarely in the context of the theory and practice of federalism in Canada, in a comparative American perspective. More specifically, it argues that the adoption of the Charter of Rights influenced Canadian federalism in the similar way the (in) famous incorporation of the Bill of Rights into the 14th amendment changed the dynamic of American federalism. In both cases the discourse of individual rights and constitutional freedoms was used for the purposes of political centralization and nation-building, led by judicial and political elites. And in both cases the documents purporting to “protect” rights (the Bill of Rights and the Charter of Rights) were employed as a means of abridging the legislative powers of the sub-national governments (although in Canada this centralizing process was arguably less drastic than in the USA). But the paper will argue that even outside the strict confines of the Charter jurisprudence Canadian judicial review followed American centralizing direction, especially in the areas of commercial and economic regulation and general theoretical understanding of the role of the federal judiciary.

Canadian political system has been traditionally a combination of the British-style parliamentary supremacy and the American-style federalism, within which the concept of a wider Canadian society was thought of as a “community of communities” or a “compact” among the two sovereign nations (Romney, 1999). Within both of these paradigms the role of judiciary was modest and limited, and most of the public policy decisions were made by provincial and federal legislatures.

With the adoption of the Charter of Rights, the discourse of individual rights became pervasive in Canadian politics, transforming the concept of the national community from a federated consociational polity towards the collection of atomized individuals with “equal rights” protected by federal institutions. This new paradigm has been used continuously to upset the federal balance of power by interposing between the citizens and their representatives the individual “rights” enforced by the federal courts. The Charter litigation and interest group politics tended to replace democratic deliberation in certain areas of public policy, resulting in an American-style judicial “legislation from the bench”.

The first part of the paper is outlining the brief history of the American judicial review as a means of political centralization. The part II examines in the comparative Canadian-American perspective the centralizing features of the Charter jurisprudence in Canada. In the third part the argument is provided for a necessary connection between constitutional and judicial supremacy. In the fourth part both political and sociological reasons for the judicial supremacy in Canada and its centralizing tendencies are explored. The paper ends with a brief summary of the findings.

I.  Tradition and Change

The Canadian judicial culture of the last few decades was decisevelly influenced by the United States’ tradition. Before the Charter entrenchment of individual rights into the Constitution the role of the Canadian Supreme Court was relatively modest: the JCPC traditionally interpreted the Constitution very narrowly, concerning itself primarily with the jurisdictional disputes between Canadian provinces and Canada’s federal government, usually siding in that with the provinces, which caused a real consternation among the (pan) Canadian intellectual elites (Cairns, 1988).[i] Even The Supreme Court after the World War II continued by and large to play a relatively passive role in Canadian politics, even after Diefenbaker’s Bill of Rights was adopted in the early 1960s, although a certain shift towards centralization had taken place (Cairns, ibid).

Unlike the Canadian judiciary, which traditionally (especially before 1949) acted as a check to political centralization, the United States Supreme Court has been for two centuries a major player in aggrandizing powers of the U.S. Federal Government and undermining the decentralized federated structure of the republic envisioned by the American founders. As Thomas Jefferson wrote in the early 1800s, “The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a coordination of a general and special government to a general and supreme one alone”.[ii]

The judicial aggrandizement had begun with the Marshal Court in Marbury vs Madison[iii] (1803) in which the Court single-handedly invented the right of judicial review by “seizing the occasion, probably concocted, to establish judicial review by fabricating a statutory provision that did not exist to find that it violated a constitutional prohibition that also did not exist”, as professor Lino Graglia (2011: 74) has succinctly and memorably said. In McCulloch vs Maryland[iv] the Marshal Court had given to the Federal Government an open-ended legislative mandate by interpreting the ‘necessary and proper’ clause of the Constitution as containing a vast reservoir of “implied” powers, not mentioned in the Article 1, section 8.[v] The Lochner era court repeatedly invalidated the state laws it did not like (the minimum wage laws, regulation of working hours and so on) on a purely ideological and non-constitutional libertarian grounds of “liberty of contract” and “property rights” (Kens, 1998). The New Deal Court so inflated the “Commerce clause” of the Constitution that it had given to the Federal Government practically unlimited right to regulate everything it wanted, including production of food for personal consumption. The Warren Court ushered in an unprecedented extension of federal powers by essentially legislating in the name of judicial review in the areas of school segregation (Brown vs Board of Education), abortion (Roe vs Wade) and many other areas traditionally considered to be part of a state’s exclusive jurisdiction. It even unsuccessfully tried to “constitutionalize” the federal minimum wage and proclaim death penalty to be “unconstitutional”!

The modern process of using the Supreme Court to informally amend the Constitution in the United States began to accelerate during the twentieth-century, and one of the expedient means for accomplishing this occurred during the 1920s when the Court for the first time employed the so-called doctrine of “incorporation” in Gitlow vs New York. According to this doctrine, the Fourteenth Amendment, which was initially intended to cover very basic civil rights for black Americans (via the amendment’s “equal protection of the laws”, “due process of law”, and “immunities and privileges of the citizens” clauses), was employed to “incorporate” all or most of the Bill of Rights provisions into the “due process of law” clause of the Fourteenth Amendment (Berger, 1997). This allowed the Supreme Court to police the states’ legislation and policy via the Court’s selective interpretation of the Bill of Rights guarantees. That was a huge legal revolution, because before the advent of this doctrine the existing interpretation (a la Barron vs Baltimore) was that the Bill of Rights represented just a list of limitations on the powers of Federal Government, and it did not apply to the states (Ibid.). In the new paradigm, the same Bill of Rights has been transformed into a manual for zealous federal judges to impose their policy preferences in the name of “constitutional interpretation”, and above all as a club to beat the states into submission.

The history of Fourteenth Amendment jurisprudence was essentially a history of a thorough amending of the Constitution by judicial fiat. During this process it had been proven that one did not have to change a word in the written text in order to completely change the meaning and the application of its main provisions. Moreover, the revolution of the Fourteenth  Amendment did not even entail a particularly large reinterpretation of the entire document; it largely pertained to an expanded understanding of the Fourteenth Amendment’s Section 1, and more precisely – to the two phrases: “due process of law” and “equal protection of the laws” (Graglia, 2011: 76-77). These two phrases, previously thought to refer to the specific requirements of the legal process, and having nothing to do with substantive outcomes, now were transformed into powerful policy levers through which federal judges could exercise the law-making power in what had previously been the exclusive domain of state legislation. In Brown vs Board of Education[vi] the Court said that segregated schools were unconstitutional because they allegedly violated the “equal protection” clause of the Fourteenth Amendment. However, the same day the Court handed down the decision in Bolling vs Sharp[vii] in which it also nullified the school segregation (in Washington DC), but this time around on the basis of the “incorporated” due process clause of the Fifth Amendment. That is the same amendment that was adopted just shortly after the ratification of the Constitution and its fugitive slave clause (Article 4, Section 2, Clause 3), which rendered slavery (and, hence, its inherent unequal treatment of human persons) a constitutionally protected institution (at least with respect to slaves escaping from one state into another), but now in the mid twentieth-century the Fifth Amendment was considered irreconcilable with a much milder manifestation of human inequality, school segregation! With Brown and Bolling the Court arrived at the same outcome by applying the two completely different legal arguments.

In Engels vs Vitale[viii] and Abington School vs Schempp[ix] the Court found that the “incorporated” establishment clause of the First Amendment prohibited the school prayers and established the so-called “wall of separation” between the church and state. That was notwithstanding the fact that the same First Amendment was deemed by its drafters and ratifiers to be consistent even with the state-established churches, that existed for many decades after the adoption of the Constitution (Graglia, 2011: 78). But it was now considered by the judges to be inconsistent with school prayers even in the states with non-established churches!

In Roe vs Wade[x] the court asserted that legislative bans on abortion (existing in one form or another in most states at the time) were “unconstitutional” because they violated the “due process” clause of the Fourteenth Amendment; the clause whose only purpose was to make sure that newly freed blacks could not be put in jail without a regular jury trial (Berger, 1997). But, now the judges used the same clause to resolve the philosophical issue of whether abortion is murder, what “life” is, and whether the state legislatures should value more the liberty of a woman or the life of a foetus!

Aside from incorporation, Commerce clause jurisprudence is possibly an even more egregious example of this stretching of the Constitution beyond recognition without formally changing the text. The clause was originally understood as a mere authorization of the federal government to strike down the interstate trade barriers,[xi] such as tariffs or arbitrary taxes on commerce; however, by 1942 and now into the present, it has been so transformed as to allow the Federal Government to regulate virtually every aspect of economic (and not only economic) activity within the states. In Wickard vs Filburn[xii] (1942) the Court upheld a federal statute allowing government to prohibit farmers from growing corn for private consumption beyond a certain administrative quota, in the name of interstate commerce regulation. Among other things, the Commerce clause power was used by the Federal Government, and upheld by the Supreme court, to ban growing marijuana for personal use (Gonzales vs Raich[xiii], 2005), or ban racial segregation in the recreational facilities, on the basis that 3/4 of snacks sold at their snack bars were produced in other states (Daniel vs Paul[xiv] 1969). We could go on in listing the various “landmark” cases in recent American constitutional history that transformed public policy and represented at the same time major constitutional revolutions. It is very important to note that judicial review has been used as a means of social engineering that essentially abolished American federalism. Since 1937 until 1982 very few federal laws were struck down as unconstitutional, but many state laws were targeted by the judiciary. And even after 1982 when the Supreme Court did overrule a few federal laws (or more often parts thereof), it was always on the very narrow grounds, on minor points and in comparatively less important cases. Actually, USA vs Lopez[xv] in 1995 was the first major Supreme Court case (at least since the New Deal) where a federal statute was struck down based on inappropriate use of the Commerce clause; here the government was using Congress’s power over interstate commerce to ban the handguns in the schoolyards. The argument was so preposterous that even the Supreme Court could not endure the overreach: the government was effectively saying that if the guns are allowed in the schools, the kids are not going to study well, ergo they are going to have lower grades, ergo they are going to be less competitive in the labour market once they graduate, ergo they are going to earn less, ergo the production will be lower than it otherwise would have been, ergo that will substantially impact the interstate commerce, ergo the federal government has a right to ban handguns in the schoolyards (Calabresi, 1995-96). Obviously, this was too much even for the Supreme Court – with strong protestations of the gun-control lobbies and accusations for “judicial activism”, the Court struck down the statute.

The academic establishment was appalled by this temerity of the Supreme Court to say that there are any limits to the power of the Federal Government. The next “landmark” case was United States vs Morison in which the Supreme Court found that the Federal Government cannot use the interstate commerce as a basis for regulating sexual assaults. At issue was a part of the federal “Violence against Women Act” which had given to women a right to civil rights procedure in the cases of sexual assaults ending without criminal charges. The claim was again a hilarious flight of imagination: if civil procedure is banned, women will have less protection from sexual violence; if women have less protection from sexual violence they will be less self-confident; if they are less self-confident they would travel less and will be less willing to take jobs in other states; if they are less willing to take interstate jobs, that would have the substantial impact on interstate commerce, and hence the Federal Government has a right legislate in the area of sexual assaults on the basis of the Commerce clause (Baier, 2006: 89-91).

The fact that decisions such as Lopez and Morrison attracted widespread criticism in academy shows how far the process of judicial takeover went: Lopez and Morrison did not challenge the absolute power of the Federal Government to regulate commerce in whichever way Congress deems appropriate, as established by Wickard v Filbrurn (which in itself represented a drastic distortion of the original, narrow meaning of the clause). The Court just said that if you want to invoke the Commerce clause you have to regulate commerce (e.g. buying, selling, production, marketing), and not something else that you want to regulate, like gun ownership or sexual violence! However, this did not deter the academics: Gerald Baier is puzzled over the Courts blindness for the evidence that unpunished sexual violence has negative impact on the families which is in his mind sufficient proof that regulating sexual violence federally is constitutional on the grounds of the Commerce clause!

Ivan Jankovic is has worked as a journalist and public intellectual, and he is currently a PhD Candidate at Simon Fraser University. 

[i] It is, therefore, possible to say that the judicial reconfiguration of the constitutional order is not a completely new phenomenon in Canada, brought about by the Charter jurisprudence. The JCPC’s restrictive interpretation of the federal governments’ commercial and trade powers, as well as the POGG legislation, rendered the constitutional law much more in tune with the provincial interests than the original centralist design of the British North American Act implied. For this, see Alan Cairns, “The Judicial Committee and its Critics,” Canadian Journal of Political Science 4:3 (1971), pp.301-345.

[ii] Letter to Thomas Ritchie, Monticello, December 25, 1820, see, The Works of Thomas Jefferson, the definitive edition., accessed September 9, 2012.

[iii] 5 U.S. 137 (1803).

[iv] 17 U.S. 316 (1819).

[v] In this case the issue was the National Bank and whether a state can tax it or not. The reasoning of the Marshal court was that “the power to tax is a power to destroy” and that the National Bank, although not specifically authorized by any positive grant of power, was justified as a necessary and proper measure to regulate the commerce, and the state of Maryland could not levy an arbitrary tax on it. James Madison, himself a major architect of the Constitution, warned that if this elastic interpretation of the necessary and proper had been proposed to the delegates in Virginia, the Constitution would have never been ratified. See, Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 17–30.

[vi] 20.347 U.S. 483,493 (1954).

[vii] 21.347 US. 497 (1954).

[viii] 370 U.S. 421 (1962).

[ix] 374 U.S. 203 (1963).

[x] 410 U.S. 113 (1973).

[xi] For the original meaning of the Commerce clause, see Randy Barnet (2001), “The Original Meaning of the Commerce Clause”, University of Chicago Law Review – Winter, 2001 – 68 U. Chi. L. Rev. 101.

[xii] 317 U.S. 111 (1942).

[xiii] 545 U.S. 1 (2005).

[xiv] 395 U.S. 298 (1969).

[xv] 514 U.S. 549 (1995).

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