Sunday, May 06, 2007

Libertarian Canadian Constitutional Foundation rate the Red Nine

The legal right in the United States is divided into two camps: those like Scalia and Bork who are generally hostile to judicial interference with majoritarian political process and those like Epstein and Barnett who want to see the judiciary defend economic liberty and property rights. Of course, ordinary partisans care more about results, and even the principals of the debate can show some inconsistency. (Note Thomas and Scalia's willingness to invalidate affirmative action schemes under the equal protection clause.) But the lines are undoubtedly there.

In Canada, with its tradition of parliamentary supremacy and with the left-liberal antecedents of the Charter, the idea that the judiciary should be used as a positive force for conservative goals is less common. The National Citizens Coalition (once led by a Stephen Harper) tried to take on the Rand formula, election spending restrictions. Joe Borowski tried to have abortion banned by the courts. These crusades were generally unsuccessful, confirming the supporters of parliamenary supremacy.

There is no doubt that Chaoulli has changed this somewhat. There is now some institutional backing for a quasi-libertarian attempt to employ the tool of legal activism in the form of the Canadian Constitution Foundation. They have recently published a generally favourable review of the "freedom" lovingness of the Red Nine.

Some of the cases that were not considered seem inexplicable from a libertarian point-of-view. For instance, Malmo-Levine upheld Canada's law criminalizing marijuana by rejecting Mill's harm principle. One would think that was worth commenting on. Authorson put the final nail in the coffin of any hope that Diefenbaker's Bill of Rights could be used to defend property rights from Parliament. In contrast, many of the 22 cases chosen seem insignificant. It is good to know that an employer can fire someone who can't come to work because they are in prison, but if that is trumpeted as a major victory for economic freedom, then we're in trouble. It isn't clear to me that there is any good libertarian reason to favour anunlimited contractual capacity on the part of local governments to promise future zoning changes or to give unmarried and unacknowledged biological fathers the right to choose their child's surname.

Anyway, it is an interesting development in our judicial politics.

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