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The high priests of secularism
One honourable exception is my former colleague, professor Robert Martin who, over four decades, has taught constitutional law in Africa, the United Kingdom and Canada. McGill Queen's University Press (about the last Canadian publisher willing to tackle such a politically incorrect subject) has just published Martin's latest book: The Most Dangerous Branch. In 1962, professor Alexander Bickel of Yale University law school wrote a famous study of the U. S. Supreme Court called The Least Dangerous Branch. Martin's title reversal suggests that over four decades, the judiciary has become more dangerous than either the executive or legislative branches of government. In this, as in much else in his diffuse, thought-provoking polemic, Martin is surely correct. His thesis is summed up by his subtitle: "How the Supreme Court of Canada has Undermined Our Law and Our Democracy." Constitutional democracy is an intricate web of structures and processes, of law and custom, of rule and informal precedent. It is Martin's contention that the Supreme Court of Canada, by its overweening arrogation of authority in matters beyond its proper business, has destroyed the possibility of constitutional democracy. "As someone who is committed to the maintenance of constitutional democracy", Martin writes, "... I cannot avoid seeing the Court as a collection of arrogant and unprincipled poseurs, largely out of control." Hardly the language one hears at a Canadian Bar Association dinner. "The Supreme Court of Canada manipulated the evidence before them to arrive at the desired result. Then they wrote a judgment which tried to lend a fig leaf of legality to their preconceived conclusion." Martin's book is full of examples of the Supreme Court doing that. But the above quote is not from Martin; the speaker here was none other than the principal architect of our imperial judiciary, Pierre Elliott Trudeau, proving, I suppose, that just as the devil can quote scripture, so, occasionally, even politicians and judges -- increasingly indistinguishable one from another -- in an unguarded moment can let slip a bit of truth. Professor Martin's analysis extends beyond the judiciary. His starting point is that Canada is in the grip of "a pervasive and stifling orthodoxy." Call it liberalism, call it relativism, postmodernism, call it what you like, its defining attribute is to deny the existence, even the possibility, of truth. Martin writes: "In orthodox scholarship and judging, there is little need for proof of anything. If I feel that something is true, then it is. The very notion of truth is chimerical; since there is no truth, all ideas, hypotheses, and assertions are, by definition, equal.... Discriminating amongst ideas is seen to be as invidious as discriminating amongst human beings." If relativism is our secular religion, judges our high priests, then the Charter of Rights is our holy writ. In meaningless generalities, the Charter enunciates rights and then empowers the courts to tell us what they mean. When Senator Eugene Forsey, one of the truly grand old men of Canadian politics (a founder of the CCF party), first saw the Charter, he predicted it would become "... a field day for crackpots ... a headache for judges ... and a gold mine for lawyers." Forsey's words were prophetic, except that he got it wrong about the judges: the Charter did not give them headaches, it gave them power. In the first Charter decade (1983-93) the enlightened party line was that nothing much had changed. But today, even Charter cheerleaders such as former chief justice Antonio Lamer have been compelled to concede that the Charter effected (in Lamer's term) "a revolution." Who are the beneficiaries of the Charter revolution? In a scattered, shotgun way, Martin comments on the prime beneficiaries: the special interest groups, primarily LEAF (the Women's Legal Education Action Fund); some left-wing politicians, who use the Charter and the courts to advance an agenda for which there is little popular support; and the legal academics, the aforementioned dead fish. Given Martin's personal, occasionally vituperative prose, some critics will dismiss this book as a rant. In my view, it is one of those rare books (Allan Bloom's 1987 The Closing of the American Mind, which while reading Martin I was often reminded of, was another), books with the potential to revive a dying society. Alas, part of our contemporary malaise is an inability to read, to ponder, and to take in, unpleasant truths. Comatose Canada, circa 2003, is likely either to ignore, or to spurn, Martin's diagnosis. Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario. © Copyright 2003 National Post |