The Role of Innovation in Securing Business Approval in the US

The Supreme Court of Canada is visible in Ottawa on Tuesday, September 6, 2022. Sean Kilpatrick/Canadian PressNobody begged for this revolutionIt is unclear how much of the constitutional upheaval that Canada has seen since 1982 Pierre Trudeau anticipated, or whether his constitutional revolution took on a life of its own, as revolutions sometimes do. He may have been naive enough to believe that, contrast to most exercises of uncontrolled power in history, his new liberal rationalist constitution would be contained by the judges charged with interpreting and enforcing itThere is some evidence that he believed courts would use their increased powers to rein in the most extreme excesses of the democratic spirit, rather than to pre-empt democratic deliberations on social policy. In 1981, while the Constitution was still being debated, Trudeau wrote to Cardinal Carter, the then-Archbishop of Toronto, assuring him that Canadian courts would not be able to find an implicit right to abortion in the Charter's vague guarantee of "life, liberty, and security of the person," as the United States Supreme Court had recently done in its Bill of Rights.Trudeau noted that he thought it was appropriate that "the Charter should remain neutral on the issue, leaving it to be debated and resolved from time to time in Parliament rather than before the courts." In a second letter to the Cardinal, Trudeau stated that "the Charter is absolutely neutral on the issue of abortion," which was also "interpreted by senior officials and agents of the Department of Justice and the Minister himself."

He went on to say that if a court were 

to overstep and resolve problems of social policy, "Parliament will continue to legislate on the matter by overriding the court's decision." It is possible that Trudeau was lying, but I do not believe so. He was a devout Catholic who was unlikely to commit such fraud on official letterhead—especially to a Prince of the Church.Whatever Trudeau's intentions, the liberal constitutional project proceeded in Canada in the same manner as it did in the United States, and for the same reason: once the liberal conception of rights as claims against society is introduced into a political order, it cannot be contained to discrete and defined areas of law or public policy. Because it claims the power of a universal concept, it must grow and occupy every part of society, colonizing our speech and even how we think about every legal and moral issue, including life and death. It defies society's established expectations under the guise of rationality.Yes, advocates of the new order argue, judges now have the authority to apply a reasonable lens to the policy that emerges from parliament, and who could object? Objecting to logical law enforcement would be unreasonable in and of itself. Who would support absurd policies? This method of thinking is incorrect in three ways.First, it posits that judicial rationality is objectively reasonable. 

In practice, it has frequently been the imposition 

of a liberal ideology that sees rights as one-way claims by individuals against society, rather than starting with an understanding of the common good and assessing what is properly owed to a person or a group within that socially rooted context. At best, the existing method to judicial review is debatable ideologically, and it is far from ideal.Second, it implies that the issues raised by judges may be resolved definitively in the political realm. However, questions such as assisted suicide (Carter v. Canada), Sunday closing laws (R. v. Big M Drug Mart Ltd.), and prisoner voting (Sauvé v. Canada) are not readily answered, especially not by claiming that they can be settled objectively by legal reasoning. It is not unexpected that the courts in peer nations have reached different conclusions on each of these problems. They require moral decisions, and the Canadian Supreme Court's approach to rights, which prioritizes near-absolute human autonomy, is not the only—or even a viable—moral option. These are political decisions, not legal ones, because they determine who we are as a people and how we define the character of our political system.Third, not only are judges not trained in (or chosen for) moral and political reasoning.

but it is unclear why, even if they were

we should choose to be subjected to unreviewable reasoning from judges rather than reviewable reasons from elected officials. Surely, when it comes to matters of life and death, it is at least plausible to prefer the danger of political error that can be addressed democratically to the chance of irreversible judicial error. That appears to be Trudeau's position when he discussed the idea of courts taking over social policy monitoring in his letters to Cardinal Carter. As it turned out, he had overestimated his ability to contain rationality.Shortly after the new Constitution was adopted, the Supreme Court of Canada announced its intention to deviate from the expectations of the democratic organizations that enacted it, as well as the technique of evolving the law case by case in a way that reinforced existing social practices and norms.5 Instead, it would seek more radical inspiration from international constitutional courts and an outpouring of new indigenous scholarly theories. The most significant and long-lasting example was the 1986 case of R. v. Oakes, which adopted the German legal methodology of proportionality review.