Some people would have us believe that the Supreme Court of Canada, emboldened by the Charter of Rights and Freedoms, has adopted an increasingly ”œactivist” stance and is now usurping powers that should legitimately be exercised by the legislature. This criticism reveals a profound misunderstanding of the ideals that underlie our political system. In particular, it suggests a fail- ure to grasp the role that a constitu- tion plays in a democratic polity.
Of course, a written constitution is not an indigenous feature of the British parliamentary tradition, so we may perhaps be forgiven for taking a little while to adjust. As a way of eas- ing that process, it may be helpful to remind ourselves of why so many democratic nation-states have chosen to adopt constitutions in the first place, and why these constitutions include a schedule of rights.
At first glance, the existence of a constitution in a democratic society may seem counterintuitive. After all, if democ- racy means that the people rule, then why should there be any limits upon what the people can decide to do? Why not have unlimited popular sovereignty?
The basic answer to this question is simple. The democratic revolutions that ushered in the modern era constituted not only a rejection of the ancient aris- tocratic procedure for selecting political leaders, they also constituted a rejection of the absolutist state. In an absolutist system, there are no constraints on the type of obligations that the state can impose upon its citizens. Anything that is felt to be desirable can be made legal- ly obligatory.
In a system of limited government, on the other hand, not just any- thing can be made into law. Recall that law is always backed by the threat of force. The mere fact that a particular outcome is desirable is not sufficient to show that everyone should be forced to do what is necessary to bring it about. A further test must be met. This can be specified in a variety of differ- ent ways. In the social contract tradi- tion, the standard way of doing so is to claim that the use of force is legitimate only if, in principle, the exercise of this power could be endorsed by the unan- imous consent of all citizens.
From this perspective, the use of state force to protect the integrity of persons, or to enforce their contracts, is legitimate, because the exercise of such powers could be freely accepted by all. On the other hand, the use of state force to impose a consensus on controversial religious questions is ille- gitimate, simply because reasonable people can disagree over such ques- tions, and so the use of state power to settle them would never be unani- mously accepted.
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This is why punishing murderers is in, while punishing heretics is out. But note the structure of the argument that leads to this conclusion. Punishing heresy is out, not because it is impru- dent for the state to meddle in ques- tions of religious doctrine, but because the state lacks the authority to make law in this domain. The power of the state is limited. A law is not a law just because the legislature says it is. The law must also satisfy certain constraints.
One of the clearest ways of elabo- rating these basic constraints is in terms of a system of rights. The requirement that there be unanimous consent for the exercise of certain powers can be satisfied by giving each individual a ”œtrump” card that he or she can play, which will veto any col- lective project. So while society as a whole might benefit from having me locked away, my right to due process protects me. Society might also benefit from preventing the dissemination of my obnoxious political views, but my right to free speech protects me.
The important thing about these rights is that they are not just ”œshared values” or ”œthings that we think are really important.” They are legal bar- riers that circumscribe and define the legitimate authority of the state.
Of course, since the state exercises a monopoly over the use of force in our society, such rights are not of much use to the individual all on their own. This is where the idea of a written constitu- tion comes in. In its modern form, a constitution essentially codifies the limits that we as a society impose upon the power of the state. The individual is then granted the power to appeal to the judicial branch, in cases where the legislature is thought to have trans- gressed its legitimate boundaries. The overall result, when it works correctly, is a system in which the state ”œself-cor- rects,” and thus limits its own tendency to overstep its legitimate bounds.
Thus it is highly misleading to speak as though the Supreme Court is taking power away from the legislature when it rules on charter cases. The role of the Supreme Court is to decide whether the legislature has satisfied the conditions required for the creation of legitimate law. Thus the only power that the Supreme Court takes away, when it rules against the legislature, is the power to engage in an illegitimate use of force. And this is not a power than anyone should want the legislature to have.
