Davids Hammer: The Case for an Activist Judiciary

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But this does not mean that any decision that they make will necessarily be in the public interest. When a legislature enacts a law, it does so on the basis of utilitarian considerations. Will this measure benefit society as a whole, even if a few citizens may be rendered worse-off? If so, the measure goes ahead. For parliaments, the ends justify the means. It is precisely because parliaments act in this manner—sometimes creating injustices for groups like the Japanese-Canadians as they act to protect the broader public interest—that we have a court system with an anti-utilitarian mandate.

For a court armed with a Bill of Rights, it is the means that are always under scrutiny. Not only do the ends not justify the means, but if the means are found to violate the rules laid down in the Bill of Rights, then they must be rendered invalid, regardless of the consequences. There are other ways of repeating this point.

judicial activist rap- David Smolen

If you like, you could say that legislatures are Benthamite, while courts must be Kantian. Whichever way the matter is put, it does not take much imagination to see how things can start to go wrong in society when the institution that is vested with supreme power starts to make decisions based solely on the consideration of means, and is prohibited from looking at the end results of its actions.

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David's Hammer reclaims for the judiciary its intended role as the ultimate safeguard of a free society. Robertson able argument try to come to an agreement on policy satisfactory to all. Bryant rated it really liked it Mar 24, July 8, , PM PDT Updated on July 9, these cases-rather, they can only be explained by the Justices' per- neither unrestrained judicial activism nor total judicial restraint is ap- the David C. Judicial activism is condemned by both right and left, for good reason lawless courts are a threat to republican government. Political questions and judicial power. Now in its eighth edition, the Cato Handbook for Policymakers sets the standard in Washington for reducing the power of the federal government and expanding freedom.

Sometimes the judges themselves are startled by the negative outcome of their decisions. In , the Supreme Court of Canada ruled that the right to a trial without. The justices added that they thought a wait of six to eight months seemed a great deal more reasonable. Within a year, as a result of this decision, 43, charges were stayed in the Province of Ontario alone, including charges of assault with a weapon or assault causing bodily harm, and charges of sexual assault.

The difficulty is compounded by the fact that Supreme Courts are regularly faced with situations in which judgments in cases that are highly atypical will be applied to an entire range of situations to which they bear a merely formal similarity.

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She maintained that this provision was a violation of her rights under section 7 of the Charter of Rights. Ms Rodriguez was absolutely unlike a typical candidate for euthanasia, in that she had entirely lost control of her body but nonetheless was alert, in complete control of all her mental faculties, supported by a strong and loving family, and in possession of an iron sense of determination. In the event, the Court refused her plea, meaning that any law permitting assisted suicide will have to originate in Parliament.

But a decision to overturn the relevant part of the Criminal Code based upon her case might have permitted the euthanizing of other persons whose personal situations were utterly different from that of Ms Rodriguez. Sometimes judges who have been empowered by a Bill of Rights are aware that their decisions may have socially harmful consequences, and they are forced or seduced, if you like into taking ends as well as means into account—in other words, taking notice of policy considerations—when they make their decisions.

There are several ways in which this can be done. The first way. A court may refuse to use the Bill of Rights to strike down a certain type of law, thereby serving notice to the legislative branch that it will have to make the relevant decisions for itself. This is what both the Canadian and the U. Supreme Courts did when presented with the question of euthanasia.

Judicial restraint of this sort is easiest to exercise in good conscience when the judges are reasonably certain that the authors of the Bill of Rights had simply not anticipated that the question would ever arise. A second solution is for courts to weigh each law that appears to be in violation of the Bill of Rights and to decide if the social purpose being served by that law is sufficiently important to justify the violation that is taking place.

If the answer is yes, then the law is permitted to stand. Laws that are challenged before the courts can also be reviewed to determine whether they achieve their socially useful goals in the least intrusive manner possible. If the answer is yes, then they are allowed to stand. If not, then they are struck down. It is interesting to note, however, that the very same solution has been invented, without a shred of constitutional authority, by the supreme courts of a number of other countries where the constitution contains a Bill of Rights, including the United States, India, Japan and Germany.

And Beatty is right. It is not the end of the world. Countries with courts that act in this manner remain civilized, democratic states. But this can hardly be described as the best of all possible worlds, since the basic non-utilitarian function of a Bill of Rights is largely eviscerated.

This criticism leads us, at last, to the matter of judicial activism. It becomes, quite literally, impossible for a judge not to make decisions based on his or her own status as a libertarian or a social democrat, a social conservative or a feminist, a Christian or an agnostic. And once you have crossed the Rubicon even if you were pushed across , there is no turning back.

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But some judges seem to make the crossing with a great deal more enthusiasm than others, and actively set about trying to achieve policy goals. A non-interpretivist approach holds that judges must apply considerations such as contemporary social or economic conditions, or the general spirit of the entire Bill of Rights, to their reading of the individual rights contained therein. Only three years after the Canadian Charter of Rights and Freedoms had gone into effect, the future Chief Justice, Antonio Lamer, was justifying his own non-interpretivism by stating that he could not determine what the authors of the Charter had intended:.

How can one say with confidence that within this enormous multiplicity of actors, without forgetting the role of the provinces, the comments of a few federal civil servants [whose words are on the official record] can be determinative.

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In Canadian and American debates, the tendency is for persons on the political right to be interpretivists and opponents of judicial activism, and for persons on the political left to be non-interpretivists and supporters of judicial activism. These positions seem to have been adopted based primarily on the fact that the activist Warren court of the s—s had a generally leftish orientation. But it is a serious mistake to conclude that judicial activism will always push the political agenda to the left.

During its previous period of activism, which lasted from the s to the s, the U. Supreme Court used the Bill of Rights to repeatedly strike down redistributionist legislation. Once public opinion latches onto the ideological shift in the court, I anticipate a complete rotation of personnel among supporters and critics of judicial activism. I turn now to solutions to the problems described above. I hope that it is clear from what I have said that problems start to arise only when courts are either unable, or unwilling, to exclude utilitarian considerations from their judgments, or when a provision of the Bill of Rights is vaguely drafted that the exclusion of utilitarian considerations becomes an unnecessarily great burden upon society.

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David's Hammer: The Case for an Activist Judiciary [Clint Bolick] on geicrevarorvi.ga *FREE* shipping on qualifying offers. Judicial activism is condemned by both. But challenging conventional wisdom, constitutional litigator Clint Bolick argues in David's Hammer that far worse is a judiciary that allows the.

Therefore it is your job, should you ever find yourselves in the position of drafting a Bill of Rights, to ensure that included within its text are provisions that will allow judges to do their job without perverse as this sounds when stated baldly being forced to take the public interest into account. And as well, to include measures that will remind any willfully activist members of the court that they are paid to be judges, not legislators. As samples of this kind of limiting clause, I have included an appendix which contains possible wordings for a set of derogations which could be attached to either a legislated or a constitutionally-entrenched Bill of Rights.

The first measure that I would suggest is an interpretive clause stating that this Bill of Rights is to be interpreted in a manner consistent with the original intentions of its framers and ratifiers. Interpretive clauses are certainly not a new innovation. Sections 26 and 27 of the Canadian Charter of Rights and Freedoms give specific instructions on how the Charter is to be interpreted. In making the suggestion that an Australian Bill of Rights should contain a clause mandating an originalist interpretation, I am not siding with those who argue that the same rule should be applied by American judges in interpreting the U.

Bill of Rights. The fundamental difference between taking this position in Australia and taking it in the U. So it is impossible to return to an original interpretation without engaging in a judicial revolution in which decades of prior decisions are cast aside. So a clause mandating an originalist interpretation would prevent the possibility of a judicial revolution.

This is not to say that this proposal would not have consequences which might endear it to one ideological strand within Australian society and alienate another. In enacting such an interpretive clause, the Bill of Rights would effectively prevent the achievement of the agenda described as follows by Sir Harry Gibbs:. Many of the advocates of a Bill of Rights do not merely wish to protect rights already recognized by the law; they often seek, quite openly, to create rights which the law has hitherto denied and hope to achieve that result by securing a favourable interpretation of vague, general phrases which are not specifically directed to the matter which concerns them.

In other words, they hope to achieve social change by judicial rather than legislative action. A Bill of Rights containing a clause like the one I have described above would inevitably be interpreted as protecting only such rights as are currently the subject of society-wide consensus, such as freedom of religion, the right to a jury trial, and protection from post facto laws. Other more controversial rights would have to be added by formal amendment at a later date, just as citizenship rights for Black Americans had to wait until the 14th Amendment was added to the Constitution in The one thing we do know, from reviewing U.

Supreme Court judgments like Dred Scott v. Sandford , which used the Bill of Rights to rule that slavery could not be banned from federal territories, or Plessy v.

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Ferguson , which ruled that segregated education was permissible, is that courts cannot be relied upon to be systematically more enlightened than legislators. A second precautionary measure that I would suggest incorporating into a Bill of Rights would be a requirement that any court decision that has the consequence of disallowing a statute or a pre-existing common-law rule be concurred in by at least two-thirds of the justices hearing the case. Such amendments can only be enacted by extraordinary means, including a referendum victory in two-thirds of the states.

It is difficult to see why a bare majority High Court justices should be granted the same power. William Brennan, who served on the nine-member U. This may seem like a small matter, but it is important to remember that the issues that divide society are also the issues that divide the courts, and these are precisely the issues where it is least advisable to run amok amending the constitution. This can be illustrated by reference to an interesting calculation performed by Canadian political scientist F. Just to cite two examples, the case in which the U. Supreme Court determined that affirmative action was not a violation of the Constitution was decided by a one-vote majority.

These issues seem too momentous to be decided by such narrow margins. The third recommendation that I would make relates to the remedies that the courts may select, once they have determined that the rights of an Australian have been violated. In the United States, the remedies were never spelled out in the Constitution, with the result that the courts have had to innovate. That is why Americans assign such importance to the decision of the Supreme Court in Marbury v. In this decision, the Court simply asserted a right to nullify the offending law in its entirety.

The intention of this clause was noble, but its effect has been to greatly—and in my view dangerously—enhance the powers of the courts at the expense of all other sectors of society.

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Over the past decade and a half, the Supreme Court has developed an array of six remedies which may be applied, depending upon the situation. Briefly, these remedies are:. The Court has also developed two additional remedies that seem clearly to move it out of the judging business and into the legislating business.

This rule was applied in a series of cases regarding laws that require shops to close on Sundays. But the Court indicated that if the law were to be revised to permit an exemption to non-Christians that is, to make the law applicable to Christians but not to Jews, Muslims and so on , it would be valid.

Davids Hammer: The Case For An Activist Judiciary

When a law is found by a court to be inconsistent with the Charter, the court may now exercise the option of adding such words to the statute as would make it consistent with the Charter, and hence valid once more. This particular remedy is utterly unnecessary, since there is no wrong that it cures that is not equally curable under one or more of the other remedies established by the Court.

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But it does deprive Parliament and the provincial legislatures of the chance to review and reconsider the relevant legislation. The proposal that I make here is simply to include in a Bill of Rights a clause giving an exhaustive list of the remedies that the courts may apply in dealing with violations of individual rights. This exhaustive list would simply exclude those remedies that seem inappropriate to the authors of the Bill of Rights. The fourth and final recommendation that I will make today is the one that I regard as most important of all.

I suggest that, as a part of the process of judicial review, any Bill of Rights ought to include a provision mandating popular review of those decisions of the High Court that nullify statutes. A draft constitutional amendment that is approved in Parliament must be submitted for the approval of the voters, so it is difficult to see why a de facto amendment drafted by the High Court should be exempt from a similar review.