Friday, February 23, 2007

The Charter at 25, and Scalia and Binnie on Constitutional Interpretation

The Canadian Charter of Rights and Freedoms turns 25 this year, and the anniversary is being marked by a variety of conferences. This story reports on a dialogue between Canadian Supreme Court Justice Ian Binnie and U.S. Justice Antonin Scalia recently at one such conference. Both Justices made what I think are interesting and newsworthy comments.

Binnie, says the story, "extolled the virtues of measured judicial activism over an archaic notion of 'frozen rights' that do not evolve with the times." He added: "'The ability of the courts to move with the times has served this country very well. . . . I say that if you erect a silo over our court system based on a theory of originalism, it is a very good reason to throw it out.'" Finally, he said, "'[J]udges are as much a part of society as anyone else, and they can recognize a dead letter when they see one.'"

Scalia, for his part, derided the notion of living constitutionalism, saying, "'It is blindingly clear that judges have no greater moral capacity than the rest of us to decide what is right.'" Scalia suggested that living constitutionalism, in the story's words, "simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts." Scalia ridiculed Roe v. Wade for failing to decide when a fetus becomes human life. Finally, responding to a discussion of a Canadian Supreme Court decision involving criminal justice, he said, "'I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence.'"

A couple of thoughts, based on the story as quoted. First, whatever the virtues of "mov[ing] with the times," Justice Binnie is surely too simple in suggesting that the vehicle for doing so must be the courts. The Charter itself provides an amendment procedure, and of course its scope might be read narrowly to allow for legislative developments that the courts would then enforce, so there are lots of ways to move with the times that don't involve aggressive Charter interpretation. His "dead letter" remark raises the disturbing specter of judges not only expansively interpreting the Charter, but also selectively underenforcing it on grounds of social progress. And Binnie offers no metric to assess his claim that the Canadian courts have served the country well in the post-Charter era; at the least, he would have to weigh not only the direct effects of rulings, but also any damage to full and vigorous citizen participation in the political process caused by the judicialization of central issues of Canadian life. I might add one point in mitigation of Binnie's remarks, however: Canada's Charter also provides an override mechanism, so we might see courts there as having greater warrant to interpret the Charter in a more aggressive manner than they would in the U.S., since the Canadian system provides a mechanism for political intervention in court rulings that falls short of the demanding requirements for constitutional amendment.

Given those failings in Binnie's remarks, you might say Scalia takes the debate on points. And that would be true if "Good Scalia" -- the Justice who preaches a narrow judicial role for methodological and democratic reasons -- had shown up. But it looks as if "Bad Scalia" attended the conference. I don't mean that as a comment on his political views. Rather, I mean it in the sense of a Scalia who undermines his own view of the ideal judge as one who simply interprets the original understanding of the Constitution without injecting his own political views, by making arguments that appeal directly to those political views. Under Scalia's ideal vision of constitutional interpretation as I understand it, we ought not give a damn what the Justice thinks of "questionable groups such as bigamists and pederasts." (And, I'm sure Scalia would add sotto voce, "homosexuals.") The Constitution protects their rights or does not; and if it does not, the political process can decide whether to protect them or not. But he has little or no business selling his vision of the Constitution based on his own substantive views about who the "questionable groups" in our society are or what the Constitution ought to say about them. Such statements lend ammunition to those who argue that his supposedly loyal interpretation of the Constitution happens to favor views he doubtless holds personally. I'm not saying his interpretive method is therefore a ruse, nor am I critiquing his personal political views. But his arguments about the narrow judicial role would be much stronger if he could resist the temptation to share his own presumably irrelevant political views and use them as support for his substantive views on the Constitution, as he seems regularly to do at such conferences.

Finally, I wonder whether readers or co-bloggers who are more expert on criminal law can assess Justice Scalia's claim that, in 20 years on the bench, he has not "not seen a case where I thought there was the slightest doubt about the person's innocence.'" Leaving aside his subjective views, may I ask: On a reasonably objective view, do you think he's right? Can any readers supply the names of cases either argued before the Court or in which cert. was sought in the past 20 years in which, in your view, any reasonable person would harbor more than "the slightest doubt about the person's innocence?"