Recently, a constitutional challenge arose in the province of Ontario, as the newly elected Conservative Premier sought to pass a Bill to interfere with Toronto municipal elections mid-cycle to settle a few scores in his old stomping grounds. Problems arose when the judiciary told him he was violating the Charter. Tensions ratcheted up when he invoked the little-used notwithstanding clause — section 33 — in order to overcome the decision of the Court, resulting in widespread dissent from legal professionals and from the official opposition. Just recently, Ford’s party won an appeal, as a stay was placed on the Court verdict that blocked the Bill.
For now, let’s put aside the merits of the stay or the claimed violation of the Charter. Instead, zoom in on Ford’s reason for opting out of the Canadian constitution. Focus on the rationale: “unelected judges”, filed under apparent threats to democracy. Pin this little offering to a corkboard. Put a light on it. Study under glass.
The invocation of section 33 was argued on ostensibly democratic grounds. Compare specimen to encyclopedia of modern conservative thought. The pattern of argumentation that could have been reminiscent of Jeremy Waldron’s majoritarianism, if done thoughtfully. Admittedly, it’s a weird species of argument to us, we the complacent and diffident Canadians. But the world is weird. That’s why we keep reference manuals. Gotta keep an index of all the weirds.
Now turn back to the corkboard. The actual arguments presented were a mixture of Pravda and Powerpoint. Mutant variation. Pull out the red pen.
- At bottom, a nation of laws is a nation that makes sense, whose stability can be taken for granted. We can only get the first glimmer of a sense of obligation to such institutions when we see their rules as a going concern. The stability of law is primarily achieved through judicial review, an institution where governmental rules are deliberately and carefully interpreted and maintained. The judges are curators and stewards.
- When we talk about our favorite form of government— democratic, monarchical, or whatever— we are tacitly making an assumption that the rulers are not being systematically misled. The sovereign’s affirmation of counsel implies they have *informed consent*. So, if a monarch is constantly fooled by a Rasputin, then it is not strictly speaking a monarchy. Similarly, if a population is fed on a diet of lies, then strictly speaking we cannot say there is a democracy. Every form of government depends on faithful expertise.
So, a democratic nation of laws presupposes judicial review in two ways. First, because judicial review produces stability that makes it possible to talk about true and false claims of legality. Second, because it provides people with informed consent to past and future rules. You can criticize or condemn the operations of the courts for all sorts of reasons. But complaining they are not elected, is not a good reason. Quite the opposite: by challenging them, you undermine democracy.