May 2000 Fraser Forum: The Charter Revolution and the Court Party
The Charter Revolution and the Court Party is not just another judge-bashing book. If the courts' new power were just a function of judicial behaviour, it would not have become the issue it is today. The judges are as much a means as a cause of the Charter revolution. It's the money, groups, and social movements behind the judges that are the real source of the Court's new power.
While our thesis may appear radical, it is based on a conservative premise: that political institutions are only as powerful as the constituencies that support them. There are numerous examples of how institutions wax and wane in proportion to their support in society at large. In British history, effective power shifted from the monarchy to the House of Lords to the House of Commons, as the King was challenged by the landed aristocracy, and the latter was in turn replaced by the new urban bourgeoisie.
In US politics, Congress dominated the rural, agrarian, isolationist society that was America in the nineteenth century. In the twentieth century, Congress was displaced by a new "imperial presidency," a coalition rooted in an urban, industrial, internationalist society. Canadians know that the power of our provincial governments vis-a-vis Ottawa has always been more a function of the allegiance of their citizens than of the formal distribution of powers found in the BNA Act. Legal theory holds that constitutions shape society. The political reality is that societies shape constitutions.
And so it is with the Supreme Court. How did an institution that was a relatively minor political actor only two decades ago suddenly become second only to the federal Cabinet in influence? Was it the adoption of the Charter of Rights in 1982? Partly, but scraps of paper do not cause revolutions. Revolutions require leaders. Was it the judges' activist interpretation of the Charter? Yes, partly. This is the focus of chapter 2 of our book. But leaders need supporters. Judges by themselves are neither inclined to lead nor capable of effecting revolutions. Judges are in the vanguard of the Charter revolution, but they are being pushed as much as they lead. They are pushed by the Court Party.
Who is the Court Party? At one level, it is the now familiar coalition of interest groups who regularly appear in our courtrooms using Charter litigation to pursue policy demands that elected governments have rejected: feminists, civil libertarians, gay rights activists, aboriginals, francophones outside of Quebec, Anglophones inside of Quebec, environmentalists, immigration advocacy groups, prisoners' rights groups, visible minority groups, and so on.
The Court Party's influence, however, is not limited to the courtrooms. Many of these same groups mobilized (with generous federal funding) to influence the wording of the Charter in 1980-81. This same coalition was largely responsible for stopping the Meech Lake Accord, because it perceived the accord as a covert attack on judicial power - the enhancement of which is the one goal all Court Party members share. Empowered by its victory over the Meech Lake Accord, they went on to play an important role in turning the Charlottetown Accord into the special interest boondoggle that emerged from the so-called "stake holders" consultative process. Thankfully, the Canadian people defeated the Accord in the 1993 referendum. But this was despite support for the Accord by almost every political and economic elite in the country.
The Court Party is powerful, but its influence far exceeds what its actual numbers warrant. The key to its power is the financial and institutional support that it draws from the state bureaucracies, both federal and provincial. Unlike other interests who must raise their own funds in order to go to court, Court Party groups receive generous funding and other forms of support from a variety of governmental sources. The Court Challenges Program - which is now completely controlled by Court Party interests - is only the most visible. Resources are also provided by Heritage Canada, the federal Justice department, provincial attorneys-general's offices, legal aid, provincial law foundations, law schools, law clerks, and federal and provincial human rights commissions. These institutions - all of which are tax-payer funded - constitute the less visible, strategic infrastructure of the Court Party and account for its undue influence on public policy. The book's chapters 4, 5, and 6 describe these policy networks and the resources they provide.
Of particular concern has been the Court Party's ability to reduce the practical meaning of the Charter to a single value: equality. Cheered on by its academic supporters, the Supreme Court has consistently sacrificed claims of individual liberty on the alter of group equality. In doing so, the Court has transformed the Charter from its classical (and intended) purpose of protecting negative liberty - i.e. rights against government - into an instrument of "positive liberty," i.e., rights to government services. This development is not surprising given the Court Party's dependence on state funding and cozy clientele relationships with government bureaucracies and regulators. In more than just a metaphorical sense, the partisans of Trudeau's "just society," having run out of votes and money, have retreated into the courts from which they now defend their welfare state subsidies against neo-conservative reforms.
In the seventh and final chapter, we explain what we think is wrong with the Charter revolution. Most obviously, it weakens the practice of democracy. It displaces the policy judgments of elected governments by those of unelected judges. The former can be removed and their decisions reversed. Not so the latter.
Rights talk also corrodes the habits of democracy. As the morality of rights displaces the morality of consent as our dominant mode of political discourse, it encourages overblown rhetoric and political intolerance. The Charter revolution is creating a growing number of Canadians who would rather live in an authoritarian state with laws they like, than in a democratic state with laws they don't like. For the friends of democracy and limited government, this is a dangerous trend.
[Note: The first chapter of The Charter Revolution and the Court Party, by F.L. Morton and Rainer Knopff (Broadview Press, 2000), is available free on the internet at: http://jurist.law.utoronto.ca. There is also an excerpt reprinted in the April 2000 edition of Policy Options (Montreal: Institute for Research on Public Policy).]
F.L. Morton and Rainer Knopff are professors of political science at the University of Calgary and both are senior research fellows of The Fraser Institute, associated with our Calgary office.
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