That time late Supreme Court Justice Antonin Scalia brought the originalism debate to Canada
That time late Supreme Court Justice Antonin Scalia brought the originalism debate to Canada
By Ian MacLeod, Ottawa Citizen, February 15, 2016
OTTAWA — Nine years ago today, outspoken U.S. Supreme Court Justice Antonin Scalia was on a Montreal stage fulminating against the so-called judicial activism that has given Canadians physician-assisted dying, same-sex marriage, abortion and other rights never envisioned by the Fathers of Confederation.
Scalia, who died Saturday, championed and revitalized the doctrine of originalism, the notion that the U.S. Constitution should be interpreted by the original meaning of the words set down by George Washington, Thomas Jefferson, James Madison and the other founding fathers.
He believed the framers’ intentions on social-legal issues two centuries into the future are unknowable and immaterial.
If a majority of American citizens want fundamental new rights to reflect fundamental new values, they can amend the Constitution, he said. Otherwise, unelected judges have no business making sweeping moral decisions in a democracy.
At a McGill University event that day marking the Charter’s 25 th anniversary, Scalia faced off against Supreme Court of Canada Justice Ian Binnie .
The mild-mannered Binnie, who retired in 2011, argued that a society’s fundamental values cannot be effectively frozen in time and viewed through the mindset of men who lived in the 1800s.
Rather, the values and principles expressed in the Charter of Rights and Freedoms and British North America Act are meant to be interpreted and evolve as society evolves, what’s commonly called the living tree doctrine, which the current Supreme Court of Canada has clearly embraced.
Without it, women in Canada might still not be considered legal persons and the federal government and aboriginals might have far worse relations.
Besides, Binnie noted, Canada’s constitutional amending formulas are impractical to the point of being almost useless.
For more than an hour, the two battled before a packed auditorium. Here are a few (random) excerpts:
Scalia: “We are talking about who, in a democratic society, should have the power to determine the government’s view of what natural law is. In an open, democratic society the people can debate these issues. And the people, unlike the courts, can even compromise on these issues. But in these early years of the 21 st century, we have become addicted to abstract moralizing,” from the bench.
Binnie: The doctrine of original meaning, “relieves the judges of the responsibility of making sense of the Constitution for their day and generation and what it does is it hands off the responsibility to the framers of, in the case of the Americans, 1789. ‘Don’t blame me, blame the framers and if you want to do something about it, go and get an amendment’. And that, it seems to me, at least in our tradition, is really an abdication of judicial responsibility.”
Scalia: “Under a regime of static law, it was not difficult to decide whether under the constitution there was a right to abortion, or to homosexual conduct or to assisted suicide. When the Constitution was adopted, all those acts were criminal throughout the United States and remained so for several centuries. There was no credible argument that the Constitution made those laws invalid.”
Binnie: “What this debate boils down to is whether judges are at liberty to learn from experience. I say that clearly even in the realm of division of powers, that ability of the courts to move with the times has served this country very well.”
Scalia: “I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for an entire society by unelected judges. There are no scientifically demonstrable right answers to such questions, as opposed to answers that the particular society favours.”
Binnie: “When Justice Scalia asks, ‘Well, where do the judges get the special insight and wisdom to bring about the evolution and the understanding of the constitution to allow it to move with the times’, I say simply that the judges are as much a part of this society as anybody else and at some point they too have to recognize a dead letter when they see one. That’s not to say the the judges are free of the constraints of original meaning. Judges are hemmed in by precedent, they’re hemmed the criticism that is levelled by the media, by the public, by the politician, by the bar and by other judges.”
Scalia: “You can create abortion rights, you can eliminate bigamist penalties by statute, but you have to persuade the majorit, so, in that sense, rights aren’t perpetually frozen. There are no other rights that can be forced on the people by the courts except those set forth in the Constitution.”
Binnie: “I am not suggesting for a minute that judges have any mandate as social engineers. But I do say that if today we have 35 senators, a third of the senate, who are women. We do not have the framers of 1867 to thank for that. We have the women who refused to accept (they were not legal persons) and the judges who eventually agreed with them.”
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Apparently this was a friendly debate, but I couldn't get the video to work (the link in the text above). I don't know who the winner was, but in this case, due to the judges being from different countries with different laws, they most likely both won. The moderator was Bob Rae, whom I know personally. Bob was a Rhodes Scholar, and for a while the Premier of the Province of Ontario - used to sit right behind me at the Blue Jay games in the Skydome.
I can't get the video to work either, Buzz.
I'll try again later.