I would not want to be a Supreme Court judge at the moment. The worst possible charge that can be levelled against a judge — “judicial activism,” or, worse, “making law from the bench” — has become impossible to avoid.
Now that marriage is on the docket, Your Honour, you’re doomed either way. Do you rule that our Constitution contains not a word that could limit marriage only to couples of different sexes? Then you’re a dangerous activist engaging in radical social engineering and overstepping the will of the people. Or do you rule that the customary union of a man and a woman is somehow protected by Canada’s laws and traditions? Then you’re engaging in demagoguery, making new laws that do not exist in the text of the Constitution and imposing your own beliefs on Canadians against their stated principles and values.
Reading the Constitution is about as simple as interpreting the Bible, and judges have developed as many orthodoxies as priests. The same-sex marriage debate — thrust into the high courts of Canada and the United States by the sudden reality of legal gay marriage in Toronto, Vancouver, Boston (soon) and San Francisco (maybe) — is about to take these arcane disputes over the meaning of truth and dump them onto breakfast tables across North America.
In the United States, the war over “activist” judges is far older, and its factions and slogans appear to be moving northward, fast. That battle began in the 1950s, when the liberal Supreme Court of Chief Justice Earl Warren began making decisions that applied the constitution’s core values to issues that weren’t specifically mentioned in the constitution — such as allowing blacks to attend formerly whites-only schools and public universities, or guaranteeing a right of privacy.
This upset religious conservatives, who began to see a parallel between the constitution and the Bible: Both documents, in their view, should be regarded as literal truths. If it isn’t on the page, it doesn’t exist.
This view inspired a faction of judges, calling themselves strict constructionists or textualists, that now dominates the U.S. Supreme Court and a number of lower courts. Antonin Scalia, currently the Supreme Court’s most influential jurist, denounced the “living constitution” of the supposedly activist judges: “I defend a dead constitution,” he declared.
He and his peers also call themselves originalists: If the meaning of a phrase in the Constitution is vague, they say, you apply the Doctrine of Original Intent and find out exactly what the framers of the constitution intended it to mean, three centuries ago. Rulings should not go beyond this intention.
Many people would like to see a conservative approach like this applied in Canada, to put an end to the activist crusade of liberal judges. I decided to give it a test, and apply Justice Scalia’s principles to our Constitution. Since neither gay marriage nor heterosexuality is mentioned anywhere in the strict text of Canada’s founding documents, I was forced to apply the Doctrine of Original Intent.
In the United States, this can be a tricky matter of delving into the letters and essays of James Madison and his friends to find out what they might have thought. In Canada, it’s a bit easier. I called one of the framers.
Was his Constitution being ravaged by out-of-control judges? “I think on balance it has been interpreted reasonably,” Allan Blakeney, the former Saskatchewan premier, said from his office at the University of Saskatchewan. It certainly helps that most of the framers of the Canadian Constitution are not only alive, but answer their own phones.
I decided to quiz Mr. Blakeney because, back when the Charter of Rights and Freedoms was being drafted in 1982, he (a New Democrat) and Manitoba premier Sterling Lyon (a Tory) were considered the conservatives in the group. That is, they both feared that the Charter would allow the courts to become unduly activist and run rampant over the elected legislatures. It was at their bidding that the notwithstanding clause was included.
Given this wary original intent, how does this framer feel about the way the Supreme Court has treated his Constitution? “It hasn’t been as bad as I’d feared,” he said.
Most of the framers, whose political views cover the spectrum, have expressed similar sentiments. Not that they believe every Supreme Court ruling has followed their original intent. Mr. Blakeney has particularly unkind words for a decision that forbade the government from banning tobacco-company sponsorships on the grounds of “commercial” free speech, and for another that allowed provincial court judges to set their own salaries.
But what about gay rights? Was it the “original intent” of the framers that Canada’s equal rights should extend to same-sex couples? There had been some “mild chatter” about it as a possibility at the time, Mr. Blakeney said, but they didn’t get around to putting it in. “I think the temper of the times has changed enough on gay rights that even though it might not have been thought important at the time, it’s probably time to consider it implicit now.”
Other framers, such as Alberta’s Peter Lougheed, might not go as far. Or maybe they would: One Tory framer, Roy McMurtry, went on to be one of the judges who wrote Ontario’s decision allowing same-sex marriages. In any case, it would be hard to find any original intent to forbid either equal rights for gays or same-sex marriage explicitly.
But the truth is, none of Canada’s framers have any respect for the textualist or originalist forms of interpretation. In fact, they wrote the Charter using language that specifically precludes such interpretations.
“I am not a fan of the doctrine of original intent,” Mr. Blakeney said, echoing the views of his peers. “A bill of rights and a charter of rights is an organic document that must be interpreted in accordance with the temper of the time.”
Which gets to the heart of the painful dilemma faced by those who would like to see a conservative ruling on gay marriage: In order to obtain it, judges would have to step far outside both the text and the intention of the Canadian Constitution, adopting a highly liberal form of interpretation and engaging in the highest form of judicial activism. Do you see how tricky this can be?