THE DIVINE RIGHT OF KING’S COUNSEL

McLachlin urges judges to go beyond letter of law (Janice Tibbetts, The Ottawa Citizen, December 5th, 2005)

Judges should feel "emboldened" to trump the written word of the constitution when protecting fundamental, unwritten principles and rights, says Canada's chief justice.

Beverley McLachlin, in a speech delivered in New Zealand, took on critics who say judges have no business going beyond the strict letter of the constitution to strike down laws and enforce rights.

"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion," said a prepared text of the lecture Chief Justice McLachlin gave to law students at Victoria University of Wellington late last week.

"There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue."

Chief Justice McLachlin set out a blueprint for when judges must rely on unwritten principles, which she defined as "norms that are essential to a nation's history, identity, values, and legal system."

Yet another judge shilling for judicial supremacy is hardly news, but Her Honour’s reliance on the rule of law is a little like Vladimir Putin quoting the Declaration of Independence. The rule of law, of course, dictates that we are ruled by laws, not men, and certainly not by the unelected, unaccountable, privileged members of one elite profession that claims the right to trump the opinions of democratically elected representatives..

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The Rule of Law (William Einwechter, Vision Forum Ministries, March 29th, 2005)

Republicans generally follow the conservative understanding of the “rule of law.” When conservatives speak of the rule of law they mean that properly enacted law is binding on everyone — no one is above the law — including presidents, judges, legislators, etc. Thus, the chief authorities in American politics are the written laws contained in the federal and individual state constitutions and the statutes established by duly elected legislatures.

Conservatives stress that we must respect the law as we find it and submit to it, even if we think the law is arcane or unjust. Conservatives remind us that our civil law has emerged through the crucible of experience, and, no doubt, reflects a measure of wisdom that should not be lightly set aside. If the law is to be changed, it should be done so carefully, slowly, and only by the action of those in government who are constitutionally empowered to do so. In American politics, this power is given to the legislative branch of government. The role of the executive branch is to see that the laws are carried out, while the role of the judicial branch is to make sure that the will of the legislature as reflected in the letter of the law is properly understood and applied.

To conservatives the rule of law also means that, ultimately, we are governed not by men, but by written law — a government of law, not a government of men.

Democrats generally follow the liberal understanding of the “rule of law.” Liberals differ with conservatives in their conception of the purpose of law. Conservatives view the law as a deposit of wisdom, and see it as a means of restraining the evil proclivities of men and of bringing order to society. Liberals, while not denying the need for order, see the law in a different light. They take a much more utilitarian approach to law, making it a tool for social change.

Furthermore, contrary to conservatives who place law in the context of fixed principles and higher law, liberals set law in the context of evolutionary thinking. Man is changing and evolving. Law, according to liberals, finds its ultimate source in man. Hence, law is not based on fixed principles or unchanging higher law, but upon evolving man. So as man evolves and becomes more enlightened, law must reflect this and change with him. Law that suited man in an earlier stage of his development is no longer viable for modern man and his society.

But since man’s evolution to higher levels of understanding is not at the same rate, it is necessary that an enlightened “elite” lead the way for the rest of us whose evolutionary clocks are slower. This “elite” have found that “law” is a very useful tool for bringing about societal change. The quickest and most effective means to accomplish this change is not through the legislature where elected representatives must take into account the views of their constituents, but through the courts where activist judges can sweep away constitutional and statutory law by their new, enlightened “rulings.”

Thus for liberals, the rule of law often means no more than the rule of judges, i.e., the judge’s interpretation of the law, or simply the judge’s opinion on what the law should be. The rest, the executive and legislative branches of government and all citizens, are bound to submit to their decrees from the bench.