Judicial audacity scales new height

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The Supreme Court of Canada scaled a new peak in hallucinatory constitutional interpretation on Dec. 9, 2004. In an advisory opinion sustaining the Canadian Parliament's power to recognize same-sex "marriages," the best and the brightest of Canada's jurists insisted the nation's constitution was an organic "living tree," not a petrified forest incapable of new limbs and climbing treetops. The "living tree" standard of interpretation, the justices say, gives birth to "progressive" laws and policies addressing "the realities of modern life."

But like the emperor's new clothes, a "living tree" legal doctrine is naked of substance. It empowers the Canadian Supreme Court to weave its own progressive finery into the Canadian constitution without restraints on personal whims or prejudices. Such judicial abuse and arrogance is what the Democrat Party in the United States champions and hopes to foist on the American people. It speaks volumes that liberal Democrats have not denounced the Canadian judicial frolic, a silence that echoes their unspoken joy over the Massachusetts Supreme Judicial Court's invention of a state constitutional right to same-sex "marriage" in 2003.

Living trees, simpliciter, are not sinister things. Henry Wadsworth Longfellow versified in "The Village Blacksmith," "Under the spreading chestnut tree the village smithy stands." The no less "gifted" Barbara Walters pointedly asked honorifics to disclose their arboreal ambitions. But even U.S. Chief Justice Earl Warren, during a rare earthbound moment in Reynolds vs. Sims (1964) recognized that unlike people, trees have no representation in legislative bodies. Trees likewise command no role in constitutional thinking, whether weeping willows, giant redwoods or sweet magnolias.

The Canadian Supreme Court did not discover the "living tree" vitality of the constitution in the document itself. Instead, it summoned an encyclical by Lord Sankay speaking for the Privy Council in 1930 that frowned on "narrow and technical" constructions in favor of "large and liberal" interpretations, but within "certain fixed limits." The "living tree" principle, the justices merrily chorused, enables the constitution to pioneer new vistas of rights and powers unanticipated by the framers without the bother of amending the charter with the people's consent. The principle, however, is a one-way ideological street. As the justices admonished, a living constitution's tree trunk sports only "large, liberal, or progressive" branches unblemished by a single conservative limb or twig. The court thus decreed: "In determining whether legislation falls within a particular head of power, a progressive interpretation of the head of power must be adopted." The justices, of course, make decisions based on their political biases whether a law is a progressive reflection of new thinking or a retrograde endorsement of social Darwinism, i.e., whether it advances the welfare state or rewards individual talent or industry.

Lord Sankay had spoken of latitudinarian interpretations within certain fixed or natural limits. But the Canadian Supreme Court crippled that hedge against judicial creativity by confining the meaning of "natural" to what is universally accepted. With regard to marriage, views differ as to whether same-sex partners are natural. Accordingly, the court reasoned, the constitution must embrace the most ecumenical concept to escape the reproach of liberal historians. Since no idea worth discussing is universally acclaimed, Lord Sankay's dictum leaves Canada's Supreme Court omnipotent over the meaning of Canada's constitution.

The court's outlandish "living tree" standard of interpretation is twice-cursed. As a judicial doctrine, it is intellectually vacuous and irreconcilable with the rule of law. Constitutional principles aim to dispel doubts and to provide guideposts for the future. The "living tree" standard, in contrast, leaves the Canadian Parliament and subordinate tribunals clueless in assessing the constitutionality of legislation, other than guessing the political prejudices of the justices. Indeed, the "living tree" standard implicates neither judging nor specialized legal knowledge. It entails only a forceful articulation of a political faith.

The standard also enervates democracy. It arrogates to the Canadian Supreme Court power to decide vexing or troublesome policy questions that are the responsibility of the people and their elected representatives.

Responsibility begets maturity and enlightened compromises. It fosters wisdom and a mastery of complexities. It is the alpha and omega of an active citizenry that collectively and individually lives democracy by word and deed in its professional and private spheres.

Without popular responsibility, self-government becomes a shadow of the genuine article. The common citizen becomes inert, passive and aloof from national destiny. The fighting issues of the day are left to judges and lawyers, and government by the consent of the governed becomes more myth than reality.

The Canadian Supreme Court's domination of Canada under the aegis of "living tree" judicial power will destroy Canada's democracy and pluckiness on the installment plan. The U.S. Supreme Court should learn by that example.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.