Don’t Blame the Courts

Critics of judicial review of legislation, such as Jeremy Waldron, argue that judicial invalidation of democratically enacted laws often occurs in the realm of reasonable disagreement. Perhaps we have a moral right to assisted suicide; perhaps not; it’s a difficult question and we can disagree about the answer ― and it’s not obvious that in the event of disagreement, a court’s view ought to prevail over that of the legislature. Defenders of judicial review like to point to the numerous occasions on which the “political branches” of government ― that is, the legislature and the executive ― act in ways that cannot sensibly be supposed to be constitutional, and indeed with very little thought to the constitutional issues that their actions may raise.

Some critics (though not, I believe, prof. Waldron) respond by suggesting, more or less explicitly, that the politicians would act more responsibly ― that is to say, they would take the constitution more seriously ― if they did not know that their decisions would be subject to revision by courts. It’s not an inherently implausible view, and indeed I have been attracted to it on occasion. But recent events surrounding the Senate have provided something of a natural experiment that sadly suggests that this view is mistaken.

The courts normally have no say over whether a person is eligible to be appointed to the Senate (except, that is, unless the question is asked by way of reference to the Supreme Court, which is how the “Persons case” started). The question is, in the first instance, for the Prime Minister to answer prior to an appointment, and eventually, pursuant to s. 33 of the Constitution Act 1867, for the Senate itself to settle. As for the question of whether any Senate appointments have to be made at all, it may yet be answered by the courts, but the government itself is adamant that it is not justiciable, and thus falls to the Prime Minister to determine. The way these questions have been handled of late, and may well continue to be handled in the future, discloses no concern with the constitution.

We now know that the Prime Minister brushed aside legal advice regarding the meaning of constitutional residency qualifications for appointment to the Senate. His own view that the residency qualification of par. 23(5) of the Constitution Act, 1867 was, in effect, subsumed into the property qualification of par. 23(3) prevailed ― without any explanation ― over his own lawyer’s cogent observation that the existence of two separate provisions meant that the two requirements were distinct. Moreover, as Adam Dodek points out, the Attorney General, part of whose job description is to advise the other government members of legal and constitutional matters, and who can rely on a staff of dedicated (and often very bright) lawyers to help him give this advice, was not consulted at all when the Prime Minister was engaged in this exercise of constitutional interpretation. And the Senate itself, ultimate arbiter of its members’ qualifications, never got around to addressing this question ― seemingly because the good people in the Prime Minister’s office decided that it was unnecessary and inexpedient.

All that, of course, was back when the Prime Minister was still fulling his constitutional responsibility to have Senators appointed at all. He no longer is. Whether he has come up with some specious constitutional interpretation that purports to justify this policy, we do not know, since he has not told us. His publicly offered justifications ― it saves money for the treasury! ― have nothing to do with the constitution. The policy of the Leader of the Opposition is the same, and his justification too ― he claims that denying provinces their representation in the Senate will make them agree to his plan to abolish the Senate altogether ― has nothing to do with constitutional interpretation.

All that to say that, left to their own devices, politicians take the constitution no more seriously than when they act under adult judicial supervision. Actually, they do not care about it at all. To be sure, the courts are sometimes no better. But such cases are, on the whole, aberrations. In politics, blithely ignoring constitutional commands seems to be a perfectly normal thing. Don’t blame the courts for this.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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