The Myths of Right Answers

• Author: Kent Roach
• Pages: 253-268

253

chapter tw elve

The Myths of Right Answers

If the endless debate about whether the Court has engaged in ju-

dicial activism is not the answer, where do we go from here? The

conventional answer is towards a theory that attempts to def‌ine a role

for judges that will produce right answers and decisions that are con-

sistent with democracy. One problem, and it is an embarrassing one, is

that there are too many right-answer theories. Take the four judgments

that were written in Morgentaler when the Cour t struck the abortion

law down. In his dissent, Justice McIntyre looked to the text and the

intent of the framers for right answers and found that the framers had

intended that the Chart er and the judges remain neutral on the divisive

and delicate abortion issue. At the other end of the spectrum, Justice

Wilson looked to moral principles for the right answer and found that a

woman’s right to an early abortion was required in order to respect her

liberty and freedom of conscience. In between were the judgments of

Chief Justice Dickson and Justice Beetz. They looked for right answers

in the balance of substantive values that had already been struck by

Parliament and the need that women seeking an abortion be subject to

a fair process. All four judgments in Morgentaler are arguably “compat-

ible with the Charter of Rights and Freedoms because the Charter is

worded generally and subject to varying interpretations.”1 But a conclu-

sion that the judges can be all over the map and that they can all point

to a respectable theory to justify their position will hardly satisfy those

who are concerned about judicial activism. Nor should it.

part three: beyond judicial activism

254

Another problem is the very idea that judges can impose one right

answer, any right answer, on the people. The three main theories of

judicial review — judges f‌inding right answers in the text and intent

of the framers, or the ground rules of democracy, or moral princi-

ples — were all produced by Americans for America ns. They attempt to

justify decisions such as the ruling in Brown v. Board of Education that

racial segregation was unconstitutional while avoiding the excesses

of constitutionalizing economic policies, as in Lochner, and, for some,

abortion policy, as in Roe v. Wade. All assume that so long as judges

reach the right answers, democracy will be preserved , even though the

legislature and the people may not agree and have no alternative but to

accept the Court’s decision. This does not satisfy those concerned that

judicial activism will usurp democracy. Nor should it.

A modem bill of rights such as the C har ter, whic h allows leg is-

latures to limit or derogate from rights with ordinary legislation and

without having to change the Court or the constitution, responds to

the fai lure of conventional theor ies of judicial review to produce re-

liably right answers. The awesome and frequently f‌inal power of the

United States Supreme Court has produced a contest to invent a theory

that gives judges right answers that are, by themselves, consistent with

democracy. Judicial supremacy makes it necessary to produce a theory

that reconciles each and every exercise of judicial power under the

American Bill of Rights as in itself consistent with democracy. Under

the Charter and other modern bills of rights, the search for a theory

that reconciles every judicial decision with democracy is less desperate

because, should judges step over what society believes to be the proper

line, all that is necessary to restore the balance is ordinary legislation

limiting or overriding the Cour t’s constitutional decision. This f‌lex-

ibility also responds to the democratic def‌icit in conventional theories

of judicial review. When the Court has the last word, it is because the

legislature and the people have let it have the last word. Democracy is

maintained and even enhanced by the ability of legislatures to limit or

even override rights as declared by the courts.

The Intent and Text of the Framers as the Right Answer

the leading exponent of looking to the intent and text of the fram-

ers of the constitution as the only legitimate source of right answers