Judicial Activism Debated At McGill University

Apparently yesterday at McGill University in Montreal, U.S. Supreme Court Justice Antonin Scalia sparred with his Canadian counterpart, Justice Ian Binnie of the Supreme Court of Canada at a University conference marking the 25th anniversary of the Charter.

That would have been an interesting debate to attend. I blogged previously about the issue of judicial activism, linking it to the issue of abortion and the difficulties we face in instituting laws to protect the unborn.

I’m very glad to know that Justice Scalia was invited to this Conference. It is encouraging to know that his invitation wasn’t overpowered or railroaded by Canadian judicial activists. [I wouldn’t be surprised to hear down the road that a battle was fought on that account.]

Perhaps we’ll hear more about this debate in the coming days. Here are some highlights from the Globe & Mail report:

If the framers of the Charter of Rights did not want judges to rule on moral and ethical issues, they should have said so, Mr. Justice Ian Binnie of the Supreme Court of Canada said yesterday during a freewheeling debate with U.S. Supreme Court Justice Antonin Scalia.

….

"The ability of the courts to move with the times has served this country very well," Judge Binnie said. "I say that if you erect a silo over our court system based on a theory of originalism, it is a very good reason to throw it out."However, Judge Scalia attacked Judge Binnie and his own U.S. Supreme Court brethren for believing that unelected judges are qualified to act as social engineers who possess a greater level of expertise in deciding morally laden issues than doctors, engineers, the U.S. Founding Fathers or "Joe Six-Pack."

"We have become addicted to abstract moralizing," Judge Scalia said. "It is blindingly clear that judges have no greater moral capacity than the rest of us to decide what is right."

He mocked the prevailing judicial belief in Canada that the Charter is "a living tree" that must be given a broad and liberal interpretation, lest its growth be stunted.

This notion simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts, he said.

Judge Scalia said back in the days when the United States was a true democracy, citizens changed the Constitution if a consensus developed around adding or eliminating a human right. "What democracy means is that the majority rules," he said. "If you don't believe that, you don't believe in democracy."

Judge Scalia ridiculed his court's landmark ruling legalizing abortion in Roe v. Wade, saying that it was absurd to issue such a decision without deciding first when a fetus becomes a human life. "Amazing!" he said. "Of course, that question was central."