{"id":1876,"date":"2016-07-29T02:58:20","date_gmt":"2016-07-29T02:58:20","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=1876"},"modified":"2018-08-31T18:48:51","modified_gmt":"2018-08-31T18:48:51","slug":"reaffirming-the-case-for-constraint-a-reply-to-leonid-sirota","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/reaffirming-the-case-for-constraint-a-reply-to-leonid-sirota\/","title":{"rendered":"Reaffirming the Case for Constraint: A Reply to L\u00e9onid Sirota"},"content":{"rendered":"
Leonid Sirota has written two excellent articles in response to my essay, \u201cThe Case for a Constrained Approach to Section 7<\/a>.\u201d I am grateful for these pieces, firstly, because Mr. Sirota takes the view that my position is \u201clargely misguided,\u201d meaning that he endorses at least some of my views (though perhaps I am channelling Lloyd Christmas a bit on this one); and, secondly, because my original essay was written with its own \u2018constraints\u2019 \u2013 a word limit, which, incidentally, I exceeded anyway \u2013 and I now have an opportunity to flesh out my argument in greater detail.<\/p>\n Mr. Sirota\u2019s first article, cleverly entitled \u201cSeven\u2019s Sins,\u201d <\/a>critiques my arguments with respect to section 7. His second article, \u201cHow to do Constitutional Adjudication,\u201d <\/a>takes on my suggested approach to constitutional adjudication more generally. There is much to say in response to both these pieces, and indeed, Mr. Sirota and I are not as far apart as it may initially seem. As he says, the devil is in the details.<\/p>\n Since my overarching judicial philosophy of \u201cconstitutional supremacy\u201d directly informs my views of section 7 in particular, I will first reply to Mr. Sirota\u2019s second article. My reply to \u201cSeven\u2019s Sins\u201d will follow in short order.<\/p>\n ***<\/p>\n Mr. Sirota offers quite a bit to chew on in just over 1000 words, but his argument, as I understand it, boils down to the following propositions: 1) Judges must generally apply the law as written and should work to foster stable legal doctrine, 2) In applying the law, judges cannot avoid making moral and value-laden judgments; and 3) Judicial moralizing is, to a certain extent, desirable due to \u201cdemocratic process failures,\u201d meaning that the legislative process is not properly responding to the changing will of the people (Mr. Sirota also discusses briefly the circumstances in which courts should be permitted to overrule precedents. Since this was not a central feature of my paper or Mr. Sirota\u2019s response, I will leave this for another day.)<\/p>\n Naturally, I am in complete agreement with Mr. Sirota\u2019s first point. There is little for me to add with respect to what Mr. Sirota eloquently describes as \u201can inflationary interpretation of constitutional texts that divorces constitutional law from the rules that actually were enacted through the democratic process.\u201d<\/p>\n With respect to Mr. Sirota\u2019s second point, I have no illusions about utterly removing morality, social policy and politics from section 7 jurisprudence, or constitutional jurisprudence in general. The judge can no more divorce herself from her subjective experiences, beliefs and values than can the historian, the economist, or the physician. However, by acknowledging that judges are fallible, it does not follow that judges\u00a0should embrace their fallibility. As legal historian G.P. Browne put it, \u201cIt is not a question of whether judicial legislation can be avoided, but of the extent to which it should be restrained.<\/em>\u201d The virtue of an approach that remains wedded to the text and settled doctrine is not that it removes judicial bias, subjectivity or moralizing, but rather that it constrains and limits those things. And it ensures that when\u00a0judges truly are forced to enter the social policy fray, they do so armed with rules and principles\u00a0rather than simply their own subjective worldview. In effect, it imposes a sort of accountability upon the judiciary. A judge who wishes to legislate his or her own social views\u00a0can easily do so under the guise of the \u201cliving tree.\u201d But if that same judge is constrained by a \u201crule of law\u201d culture, an expansionist interpretation of the Charter<\/em> becomes far more difficulty to justify.<\/p>\n Mr. Sirota\u2019s third argument \u2013 that democratic process failures justify judicial intervention \u2013 is the only point with which I seriously take issue. Mr. Sirota concedes that judges must be bound by rules, but it seems to me that if judges are being tasked with correcting \u201cdemocratic process failures\u201d to ensure that the law does not become \u201cdivorced from reality\u201d, they will, at times, be forced to interpret the Constitution in a manner that is not consistent with the constitutional text or doctrine. Mr. Sirota does not offer a precise prescription for how legal stability ought to be balanced with correcting democratic process failures, but whatever the precise balance, the law would, in some cases, have to take a backseat to judge’s own view of proper social policy.<\/p>\n