Coercing Virtue (9 page)

A sure sign that a judiciary has decided that its function is not simply to decide controversies between litigants, but to legislate for society generally, is the abandonment of constraints that distinguish a court from an elected body. It will be recalled that the U.S. Supreme Court dropped the requirement that parties have standing to litigate the issues they wish to present – that the law or the practice in question has a direct impact upon them – only with respect to the Establishment Clause, so that the Court could ensure that no trace of religion is left in the public sphere. When the discipline of the standing doctrine is removed, the Court effectively issues an invitation to ideologically motivated persons and groups to test every government policy. Litigants invariably respond. As the requirements of standing are weakened, judicial power grows in proportion to that loss. Canada provides many examples of this axiom.

Thorson
v.
Canada
(1975), for example, held that
taxpayers could seek a declaration of the constitutional invalidity of a statute without having to show that its enforcement would inflict harm on them. In
Minister of Justice (Canada)
v.
Borowski
(1981), a case concerning abortion, the Court said that standing to challenge legislation could be given to individuals who showed they had “a general interest in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court.” These invitations to the public at large ensure that no domestic issue will avoid judicial rather than political resolution.

So, too, with respect to the concept of mootness. If a controversy becomes academic, in the pejorative sense of that term – because the parties settled their differences, the situation changed so that the complaining party had nothing left to complain about, or the plaintiff died, effectively removing his interest in the outcome of a dispute – a court, acting as an adjudicator of real disputes, would ordinarily declare the matter moot and dismiss the case. Not so the Canadian Court, which rules in cases where the plaintiff no longer has a personal stake. It is difficult to explain this process on any hypothesis other than that the Court is more interested in governing the society than in doing justice to identifiable litigants. It must be conceded that the U.S. Supreme Court has, on occasion, behaved like the Canadian Court. This was true most notably of the Court headed by Chief Justice Earl Warren, but since that time the doctrines of standing and mootness have undergone at least a modest revival.

These doctrines serve several salutary functions. A live
controversy by a person with a personal stake in the outcome, for example, makes more likely the full exploration of the issue and an awareness of particular circumstances that illuminate the hazards as well as the benefits of a general rule. But the main value of these doctrines is that they tend to confine a court to the resolution of specific controversies rather than allowing the judges to enter a competition with the legislature in which the courts have the advantage of being almost always final. Courts work at a disadvantage in that a real legislature receives not only written and oral presentations, as does a court, but also intensive lobbying by groups with a variety of special interests at stake. This process informs the legislators of general considerations as well as specific circumstances that do not fit the law’s generalizations and the complications they may present. If a court wishes to displace the legislature as the ultimate rule maker, it ought to open its members to lobbying by the parties or interested members of the public.

The dilemma posed when a court makes policy at large, independent of the desires of the parties, was nicely illustrated in a U.S. antitrust case. While litigation challenging a merger was pending before the Supreme Court, the parties settled the dispute. The Court should have dismissed the case as moot, but, instead, expressing dissatisfaction with the settlement, remanded the case for further proceedings below. At that point a lawyer for the defendant approached Justice Brennan, an old friend, in his chambers. The Justice, offended, told the man to leave, and the lawyer was subject to general condemnation for his
action. The episode could be viewed in another light, however. The lawyer realized there was nobody on the other side of the dispute but the Court and he tried to settle the case with the only opponent his client had. If courts are to be legislatures, perhaps such
ex parte
, or interested, practice should be encouraged rather than reprehended.

To add further to its power as a political organ, the Canadian Court has ruled that not merely the holdings of a case but any general observations made in passing – what lawyers call
obiter dicta
– are law binding on lower courts, and hence on society. In this decision, too, it surpasses the activism of United States courts, which usually preserve the distinction between the reasoning that is essential to the decision and the language used more or less offhandedly in the same opinion. In the United States,
dicta
may be valuable guides to the court’s likely rulings in later cases, but such language is not binding. It may be contradicted by a lower court when the case seems to demand it, and may be distinguished or disavowed by the Supreme Court itself.

In an era of increasing judicial imperialism, Canada’s
Charter
is, in one respect, clearly superior to the U.S. Constitution. The
Charter
provides some democratic control over courts in section 33: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” A “notwithstanding” declaration has a life of five years and may be renewed.

Section 33 has largely fallen into disuse. Though the section has been used by two other provinces, its fall into disfavor was due in large part to a controversial use of the clause by Quebec. Yet, as Professor Christopher Manfredi points out, the clause is “a legitimate instrument for preventing the slide from constitutional to judicial supremacy.” Judging from experience with judicial review in Westernized nations, that slide seems inevitable where there is no effective democratic check on the judiciary. There is no particular reason, and no warrant in democratic or constitutional theory, for a supreme court to supersede the principles of the constitution that alone gives the court authority to void legislative acts: that is, to seize power and reject responsibility. Manfredi argues that section 33 could be improved by requiring that it be used only after a court decision, and not beforehand, as a means of insulation from any review. Furthermore, he urges that the vote required to invoke section 33 might be increased from the present simple majority in the House of Commons and the Senate to a three-fifths majority in each chamber.

It might be suggested, however, that the present relative ineffectiveness of the notwithstanding clause is not because it is too easy to use but because it has been made difficult to invoke owing to the cry that it interferes with judicial independence. That is an odd objection. The notwithstanding clause was built into the
Charter
at the outset precisely to establish a democratic limit to judicial independence. The cult of the robe, the near worship of courts, and the necessary reliance of the New Class on
authoritarian rather than democratic rule seem the reasons for the decline of section 33 to a state approaching desuetude. If so, it would probably be a mistake to try to purchase respectability and renewed vitality for the clause by making it even more difficult to use.

Before I knew of Canada’s attempt at a democratic curb, I once suggested something very like the notwithstanding clause of section 33 for the United States. That would, of course, require a constitutional amendment, and the chances of such a proposal being accepted lie somewhere between zero and nil. The suggestion was brushed aside as intolerably radical. In any event, I was persuaded that such an amendment would do little good because Canada’s section 33, expressly designed to allow democratic intervention against runaway courts, has proved ineffective. The mystique of the courts is too great. In all probability, the mere existence of a checking power, even though ineffective in practice, would be used, as it has been in Canada, to justify judicial adventurism.

Though alike in many respects, Canada’s Court has taken some markedly different courses than has the American Court. Interestingly enough, the Supreme Court of Canada, though by some measures more activist than the Supreme Court of the United States, has produced a less sweeping and a considerably more sensible law relating to freedom of speech and religion. A few cases make the point.

The issue in
The Queen
v.
Keegstra
(1990) was the constitutionality of section 319(2) of the Criminal Code, which prohibits the willful promotion of hatred against identifiable groups. James Keegstra, an Alberta high school teacher, was charged with expressing virulent anti-Semitic statements to his students. He claimed the right to do so under section 2(b) of the
Charter
, which guarantees “freedom of thought, belief, opinion and expression.” The Court had no difficulty in finding an infringement of section 2(b); Keegstra’s statements were clearly expression. The Court majority, however, felt obliged to go into the matter further. Chief Justice Dickson laid out the values of speech freedom: seeking and attaining truth; participation in political and social decision-making; and diversity in forms of individual self-fulfillment and human flourishing. The third value reflects a bias of the New Class and has, on more than one occasion, led American courts astray. If self-fulfillment and human flourishing in diverse forms is the object, freedom of speech is entitled to no more solicitude than freedom to engage in stock market speculation or to bet on horse races. Humans have very different forms of self-fulfillment and flourishing. Much expression that American courts protect as contributing to self-fulfillment, or radical individualism, contributes to the coarsening of American culture and does not qualify as seeking truth or participating in political and social decision-making. The constitutional protection of an obscenity in
Cohen
v.
California
, discussed in
chapter 1
, and other
rulings such as the protection of flag-burning can only be explained as manifesting a New Class delight in verbal and symbolic forms of self-gratification.

Having found that Keegstra’s odious utterances were expression and thus,
prima facie
, protected, the Chief Justice turned to section 1 of the
Charter
to determine whether, in this case, application of the criminal law was demonstrably justified in a free and democratic society. He quoted an opinion by Justice Wilson that freedom of expression might have greater value in a political context than it does in the context of the disclosure of details in a marital dispute. This approach differs from the slavish devotion to freedom of speech and the press that led the American Court to rule, for example, that a newspaper had a right, superior to a state privacy law, to publish the name of a rape victim, a fact of no conceivable public interest.

The Chief Justice then turned to an examination of American constitutional law. He remarked that he would not have backed away as completely as the U.S. Court has done from the ruling in
Beauharnais
v.
Illinois
(1952). That case upheld against First Amendment challenge a state law forbidding certain types of group defamation. He found support for departing from the American view in the “special role given equality and multiculturalism in the Canadian Constitution” and in “the international commitment to eradicate hate propaganda.”

Among the evils of hate speech that the opinion listed was their effect on society. Here the Chief Justice departed from the American Court’s view. He quoted the Canadian Cohen Committee report (1965) to the effect
that individuals can be persuaded to believe “almost anything” in certain circumstances and with the right techniques of communication. The committee said: “We are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them.” The Chief Justice added that events “have qualified sharply our belief in the rationality of man.”

That statement is a refreshing breath of realism to anyone familiar with free speech dogma in the United States. American law has been badly deformed by the irrebuttable presumption of unswerving rationality embodied in Justice Holmes’s deadly metaphor of the “marketplace of ideas.” The naive notion that, if all ideas are allowed in the marketplace, the best ones will ultimately and inevitably prevail is refuted by human history, including the history of democracies. Though human beings are frequently rational, they are, often enough, sufficiently irrational to contradict the Enlightenment notions of John Stuart Mill and Oliver Wendell Holmes. That is particularly true of the kind of emotional, assaultive speech that Keegstra employed. Then, as Alexander Bickel wrote, the marketplace is replaced by the bullring. Chief Justice Dickson pertinently quoted Justice Jackson’s opinion in
Beauharnais:“[S]inister
abuses of our freedom of expression … can tear apart a society, brutalize its dominant elements, and persecute even to extermination, its minorities.” The Chief Justice allowed that he was “very reluctant to attach anything but the highest importance to expression relevant to political
matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale.”