Monday, December 05, 2005

Canada's Constitution: Judge McLachlin

Fuss has been made over Chief Justice B. McLachlin's speech in New Zealand this past weekend. My comments are after this short excerpt:
"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion," said a prepared text of the lecture Chief Justice McLachlin gave to law students at Victoria University of Wellington late last week.

"There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue."

Chief Justice McLachlin set out a blueprint for when judges must rely on unwritten principles, which she defined as "norms that are essential to a nation's history, identity, values, and legal system."

Over at the Great White North, the emergency bells are ringing over this:
A duty to force the government to bend to the will of a simple majority of a group of nine men and women appointed without review by a Prime Minister.

This is why we need a Parliamentary review of and vote on all judicial appointments that are now made unilaterally by either the Minister of Justice or the Prime Minister.

I DO AGREE that there must be a better process in picking judicial appointments. However, I disagree with critisism of unwrriten principles. I think there are unwritten principles, such as the rule of law, that are applicable to Canadians. I think where me and McLachlin disagree is over the content of those principles.

McLachlin, likely, would like to obtain the authority of history for justifying what she discovers as a principle. Me, on the other hand, would let history decide what the principles are.

The difference between the two paradigms is emphasized in her belief that she must apply as supreme "norms" that are identical with the nation's "values." This is, likely, what AGWN is most upset about. And they have a right to be. For who can claim to discover a nation's values? If a nation has any values at all, those values are written down in case law or in statutes. Otherwise, they are mere whims. Likewise, discerning a nation's values is a task in transparent subjectivism.

A jurisprudence respecting history, conversely, is bound by history and history's conventions. Values are discovered in history, not used as justification for reporting on when a judge puts their finger in the air. Thus, this idea of hers becomes heresy to the idea of the rule of law: "Societal values change over time and the constitution document can be incomplete or open to interpretation."

Societal values change over time. Sure. Perhaps we need to change our system then. The separation of powers was intended to protect the legislatures from acting like courts. Now, we have the opposite problem. Courts are acting like legislatures. For how can people be guided by post facto discoveries of rights and values?

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