Tuesday, April 9

Like Picking the Brain of Justice John Marshall

A lawyer complains that "each time the court relies on these rather mystical 'unwritten constitutional principles' it opens itself to attack." An '"infuriated" local government and a political-science professor label the court's decision a "naked power grab [which] culminates a decade and a half of ever-bolder assertions of judicial policymaking." Sound familiar? Well yes, but the court in question is the Canadian Supreme Court, not it's American counterpart. This year, the Canadian Supreme Court marks its twentieth year interpreting the Canadian Charter of Rights (sort of the Canadian version of the "Constitution," but more like just the Bill of Rights) and the similarities between the controversies it has engendered to those in the United States are striking. What is fascinating about this article, however, is not its demonstration of the universality of the problems that arise under a written constitution but, rather, the comments of retired Supreme Court judge Antonio Lamer, author of the first opinion that interpreted Sec. 7 of the Charter to allow the Canadian Supreme Court to strike down duly enacted legislation. Reading his comments on that decision is the Canadian equivalent of reading an interview with John Marshall after his decision in Marbury v. Madison. Maybe I'm just a Con. Law geek, but that would be about as cool an experience as any I can imagine.