Coercing Virtue

by Robert H. Bork

  These doctrines serve several salutary functions. A live controversy by a person with a personal stake in the outcome, for example, makes more likely the full exploration of the issue and an awareness of particular circumstances that illuminate the hazards as well as the benefits of a general rule. But the main value of these doctrines is that they tend to confine a court to the resolution of specific controversies rather than allowing the judges to enter a competition with the legislature in which the courts have the advantage of being almost always final. Courts work at a disadvantage in that a real legislature receives not only written and oral presentations, as does a court, but also intensive lobbying by groups with a variety of special interests at stake. This process informs the legislators of general considerations as well as specific circumstances that do not fit the law’s generalizations and the complications they may present. If a court wishes to displace the legislature as the ultimate rule maker, it ought to open its members to lobbying by the parties or interested members of the public.

  The dilemma posed when a court makes policy at large, independent of the desires of the parties, was nicely illustrated in a U.S. antitrust case. While litigation challenging a merger was pending before the Supreme Court, the parties settled the dispute. The Court should have dismissed the case as moot, but, instead, expressing dissatisfaction with the settlement, remanded the case for further proceedings below. At that point a lawyer for the defendant approached Justice Brennan, an old friend, in his chambers. The Justice, offended, told the man to leave, and the lawyer was subject to general condemnation for his action. The episode could be viewed in another light, however. The lawyer realized there was nobody on the other side of the dispute but the Court and he tried to settle the case with the only opponent his client had. If courts are to be legislatures, perhaps such ex parte, or interested, practice should be encouraged rather than reprehended.

  To add further to its power as a political organ, the Canadian Court has ruled that not merely the holdings of a case but any general observations made in passing – what lawyers call obiter dicta – are law binding on lower courts, and hence on society. In this decision, too, it surpasses the activism of United States courts, which usually preserve the distinction between the reasoning that is essential to the decision and the language used more or less offhandedly in the same opinion. In the United States, dicta may be valuable guides to the court’s likely rulings in later cases, but such language is not binding. It may be contradicted by a lower court when the case seems to demand it, and may be distinguished or disavowed by the Supreme Court itself.

  In an era of increasing judicial imperialism, Canada’s Charter is, in one respect, clearly superior to the U.S. Constitution. The Charter provides some democratic control over courts in section 33: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” A “notwithstanding” declaration has a life of five years and may be renewed.

  Section 33 has largely fallen into disuse. Though the section has been used by two other provinces, its fall into disfavor was due in large part to a controversial use of the clause by Quebec. Yet, as Professor Christopher Manfredi points out, the clause is “a legitimate instrument for preventing the slide from constitutional to judicial supremacy.” Judging from experience with judicial review in Westernized nations, that slide seems inevitable where there is no effective democratic check on the judiciary. There is no particular reason, and no warrant in democratic or constitutional theory, for a supreme court to supersede the principles of the constitution that alone gives the court authority to void legislative acts: that is, to seize power and reject responsibility. Manfredi argues that section 33 could be improved by requiring that it be used only after a court decision, and not beforehand, as a means of insulation from any review. Furthermore, he urges that the vote required to invoke section 33 might be increased from the present simple majority in the House of Commons and the Senate to a three-fifths majority in each chamber.

  It might be suggested, however, that the present relative ineffectiveness of the notwithstanding clause is not because it is too easy to use but because it has been made difficult to invoke owing to the cry that it interferes with judicial independence. That is an odd objection. The notwithstanding clause was built into the Charter at the outset precisely to establish a democratic limit to judicial independence. The cult of the robe, the near worship of courts, and the necessary reliance of the New Class on authoritarian rather than democratic rule seem the reasons for the decline of section 33 to a state approaching desuetude. If so, it would probably be a mistake to try to purchase respectability and renewed vitality for the clause by making it even more difficult to use.

  Before I knew of Canada’s attempt at a democratic curb, I once suggested something very like the notwithstanding clause of section 33 for the United States. That would, of course, require a constitutional amendment, and the chances of such a proposal being accepted lie somewhere between zero and nil. The suggestion was brushed aside as intolerably radical. In any event, I was persuaded that such an amendment would do little good because Canada’s section 33, expressly designed to allow democratic intervention against runaway courts, has proved ineffective. The mystique of the courts is too great. In all probability, the mere existence of a checking power, even though ineffective in practice, would be used, as it has been in Canada, to justify judicial adventurism.

  Though alike in many respects, Canada’s Court has taken some markedly different courses than has the American Court. Interestingly enough, the Supreme Court of Canada, though by some measures more activist than the Supreme Court of the United States, has produced a less sweeping and a considerably more sensible law relating to freedom of speech and religion. A few cases make the point.

  Freedom of Speech and Religion

  The issue in The Queen v. Keegstra (1990) was the constitutionality of section 319(2) of the Criminal Code, which prohibits the willful promotion of hatred against identifiable groups. James Keegstra, an Alberta high school teacher, was charged with expressing virulent anti-Semitic statements to his students. He claimed the right to do so under section 2(b) of the Charter, which guarantees “freedom of thought, belief, opinion and expression.” The Court had no difficulty in finding an infringement of section 2(b); Keegstra’s statements were clearly expression. The Court majority, however, felt obliged to go into the matter further. Chief Justice Dickson laid out the values of speech freedom: seeking and attaining truth; participation in political and social decision-making; and diversity in forms of individual self-fulfillment and human flourishing. The third value reflects a bias of the New Class and has, on more than one occasion, led American courts astray. If self-fulfillment and human flourishing in diverse forms is the object, freedom of speech is entitled to no more solicitude than freedom to engage in stock market speculation or to bet on horse races. Humans have very different forms of self-fulfillment and flourishing. Much expression that American courts protect as contributing to self-fulfillment, or radical individualism, contributes to the coarsening of American culture and does not qualify as seeking truth or participating in political and social decision-making. The constitutional protection of an obscenity in Cohen v. California, discussed in chapter 1, and other rulings such as the protection of flag-burning can only be explained as manifesting a New Class delight in verbal and symbolic forms of self-gratification.

  Having found that Keegstra’s odious utterances were expression and thus, prima facie, protected, the Chief Justice turned to section 1 of the Charter to determine whether, in this case, application of the criminal law was demonstrably justified in a free and democratic society. He quoted an opinion by Justice Wilson that freedom of expression might have greater value in a political context than it does in the context of the disclosure of details in a marital dispute.
This approach differs from the slavish devotion to freedom of speech and the press that led the American Court to rule, for example, that a newspaper had a right, superior to a state privacy law, to publish the name of a rape victim, a fact of no conceivable public interest.

  The Chief Justice then turned to an examination of American constitutional law. He remarked that he would not have backed away as completely as the U.S. Court has done from the ruling in Beauharnais v. Illinois (1952). That case upheld against First Amendment challenge a state law forbidding certain types of group defamation. He found support for departing from the American view in the “special role given equality and multiculturalism in the Canadian Constitution” and in “the international commitment to eradicate hate propaganda.”

  Among the evils of hate speech that the opinion listed was their effect on society. Here the Chief Justice departed from the American Court’s view. He quoted the Canadian Cohen Committee report (1965) to the effect that individuals can be persuaded to believe “almost anything” in certain circumstances and with the right techniques of communication. The committee said: “We are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them.” The Chief Justice added that events “have qualified sharply our belief in the rationality of man.”

  That statement is a refreshing breath of realism to anyone familiar with free speech dogma in the United States. American law has been badly deformed by the irrebuttable presumption of unswerving rationality embodied in Justice Holmes’s deadly metaphor of the “marketplace of ideas.” The naive notion that, if all ideas are allowed in the marketplace, the best ones will ultimately and inevitably prevail is refuted by human history, including the history of democracies. Though human beings are frequently rational, they are, often enough, sufficiently irrational to contradict the Enlightenment notions of John Stuart Mill and Oliver Wendell Holmes. That is particularly true of the kind of emotional, assaultive speech that Keegstra employed. Then, as Alexander Bickel wrote, the marketplace is replaced by the bullring. Chief Justice Dickson pertinently quoted Justice Jackson’s opinion in Beauharnais:“[S]inister abuses of our freedom of expression … can tear apart a society, brutalize its dominant elements, and persecute even to extermination, its minorities.” The Chief Justice allowed that he was “very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale.”

  Less encouraging was the Chief Justice’s reliance on international human rights principles in assessing the legislative objective. It is uncertain to what degree legislators were motivated by consideration of the various documents enunciating those principles. A more fundamental objection is that, as we have reason to know, international declarations – in the United Nations, for example – are often so vague as to provide little guidance in actual cases, yet are quite as capable of being politically motivated and pernicious as they are of being humane and balanced. The opinion also cites a welter of academic writings in support of such legislation, thus explicitly endorsing New Class views. Judges ought to be wary of the literature produced by writers from the generally leftish academic world.

  That element suggests a danger in the Keegstra ruling. Given the virulence of “political correctness” in the academic world, and in much of the New Class, it may be that the criminal law will come to be used to stifle even legitimate discussion of group and cultural differences. Those topics are necessarily central, for example, to any intelligent debate about immigration policy. Yet in many quarters such debate is now stamped as intolerably racist or hostile to particular ethnic groups. It remains to be seen whether prosecutors and courts will continue to resist this New Class trend and to maintain the distinction, sometimes subtle, between hate speech and legitimate discussion of group differences. If they cannot, it may turn out in the long run that the U.S. courts were inadvertently wise to back away from Beauharnais and to refuse to judge speech by its content.

  The Keegstra opinion exemplifies an unfortunate characteristic exemplified in the constitutional opinions of almost all nations: complexity and length. There is no occasion here to discuss all the sub-issues the opinion addresses or the excruciating detail in which every issue and sub-issue is considered. Such opinions will not be read by the general public; they are useful almost solely to those whose professional preoccupation they are. The United States public has almost no idea what is in its Constitution, much less the doctrines of the Supreme Court, and there is little doubt that the Canadian public is similarly ill-informed. For the public at large, lengthy and tedious opinions tend to conceal, rather than to illuminate, constitutional reasoning.

  Though the decision in Keegstra was split, the Court had no difficulty in The Queen v. Sharpe (2001) in finding unanimously that the prohibition of the “expression” embodied in child pornography was justified under section 1 of the Charter. Commercial speech was protected in RJR–MacDonald Inc. v. Canada (Attorney-General) (1995), holding, by a five-to-four vote, that the restrictions on tobacco advertising, promotion, and labeling contained in the Tobacco Products Control Act were not justified under section 1. This decision was greater protection of commercial speech than the U.S. Court has granted, though it is difficult to compare the decisions in the two countries because the American interpretation of the First Amendment in this context suffers from a longstanding judicial practice, only recently repudiated in part, of deferring to legislative regulation of commercial speech. To the degree that a central function of free speech is the search for truth, not just political truth but any social truth, the rationale and the history of the founders’ respect for commercial speech argue for greater protection than has been accorded in the United States. Tobacco is undoubtedly a danger to health, but users know the possible consequences of their choice, and tobacco has other attributes – such as giving pleasure to individuals – and it hardly creates the same social dangers as hate speech or child pornography.

  Religion

  Religion is another area in which the Canadian Court differs from the U.S. Court. Canada shows none of the savage antagonism about religious questions that characterizes American constitutional law. The Queen v. Big M Drug Mart Ltd. (1985), a case over retail trading on Sunday, did not denounce any public recognition of religion, though it struck down the Lord’s Day Act, a Sunday closing law, which made most forms of work and commercial activity on that day criminal. Justice Dickson, for the Court, reasoned that the Act violated section 2(a)’s guarantee of freedom of conscience and religion, which included nonbelief, because the Act coerced individuals to affirm a specific (Christian) belief. Resort to section 1 was unavailing. The first argument advanced, that the choice of day of rest adhered to by the Christian majority is the most practical, was “fundamentally repugnant because it would justify the law upon the very basis upon which it is attacked.” The second argument, that the day of rest chosen might as well be the one traditionally observed, was rejected because it assigned a nonreligious motive to the legislature which was contrary to fact.

  Jones v. The Queen (1986) upheld the conviction of the pastor of a fundamentalist church for violation of the Alberta School Act because he refused to send his children to public school and refused to seek the exemption provided if an appropriate government official certified that a pupil was receiving efficient instruction at home or elsewhere or if the pupil was attending a private school approved by the Department of Education. The Act was said to constitute some interference with freedom of religion, but did not infringe section 2(a) because alternatives were provided. Section 1 was of no avail to the p
astor because the province’s compelling interest in the adequate education of the young meant that the law was demonstrably justified in a free and democratic society. The result seems quite correct.

  Though the claims of religion lost in Big M Drug Mart and Jones, those claims were treated respectfully and without the hyperventilation that the U.S. religion opinions often display. Often enough in Canada, moreover, the appeal to religious freedom prevails.

  In British Columbia College of Teachers v. Trinity Western University (2001) the Court faced the necessity to resolve a conflict between two values, one explicitly found in the Charter and the other of its own creation. The conflict was between religious freedom and the preferred status the Court had created for homosexuals. Trinity Western University is a private institution associated with the Evangelical Free Church of Canada. It sought to have its students sign a “Community Standards” document agreeing to refrain from all biblically condemned practices, including drunkenness, profanity, abortion, premarital sex, adultery, and, the crux of the case, homosexual activity. The College of Teachers refused to accredit the university’s education program on the grounds that it was discriminatory, rendering its students unfit to teach in the public school system. The university sued and the Supreme Court, dividing eight to one, ordered the College of Teachers to accredit the program.