The Myths of Right Answers

AuthorKent Roach
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
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

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