Free Coercing Virtue by Robert H. Bork Page A

fact is that the Court has never offered a justification of its practice of using the Constitution to alter and reverse the understanding of the framers and ratifiers of the Constitution. Though it is certainly peculiar, if not perverse, to use a document that is the sole source of the Court’s authority to subvert the document itself, most of the Justices quite obviously feel no need to explain the legitimacy of that course. The most the Court has ever offered is the observation that the Court has never felt its power confined to the intended meaning of the Constitution. That much is apparent, but a long habit of abusing power can never make the abuse legitimate. Thatis particularly so when the representative branches of government have no effective way of resisting the Court. The Justices seem to think that their persistent invasions of turf belonging to democratic rule have established an easement across the Constitution for their personal predilections.
    All these trends might have been predicted, and some opponents of ratification did, in fact, predict them. Given unchecked power, most human beings, even those in robes, will abuse it. In the absence of any democratic counterweight, we must rely on the self-restraint of the Justices. These days, that virtue rarely musters five votes.
    1
“Congress” has long since been interpreted to mean any arm of any government – national, state, or local
.

2

CANADA
    Rights-based judicial review taken to its extreme becomes an anti-democratic power, wielded by courts to alter the fundamental character of a nation’s constitution without significant popular participation or even public awareness. … Judicial supremacy, in other words, is overtaking constitutional supremacy
.
    Christopher P. Manfredi
    Changes in the legal realm, however, have been accompanied by a general failure of the political process to recognize the rights of lesbians and gays without the pressure of court decisions behind them
.
    Justice Claire L’Heureux-Dubé
    J udicial review based on constitutionally protected rights and liberties did not become a feature of government in Canada until the adoption of the
Charter of Rights and Freedoms
in 1982. For that reason, this type of judicial review did not follow the same trajectory in Canada as in the United States. There has been no period in which the
post-Charter
Canadian Supreme Court has responded primarily to the ideology of the business class. By 1982 the New Class’s outlook had become dominant and the Court’s activism, which began with the
Charter
, at once responded to the values of that class. The Court has continued on that path ever since.
    Canadian constitutional law does not simply replicate the American version, but it displays the same overall tendencies. This resemblance is not primarily because of American influence, but because the same liberal intelligentsia dominates the jurisprudence of both countries. The Canadian Supreme Court is producing a constitutional jurisprudence that is interesting in both its parallels to and its differences from that produced by the United States Supreme Court. Although the Canadian Court seems the more sensible of the two in cases touching on freedom of speech and freedom of religion, in other cases, notably those relating to abortion and homosexuality, that Court is strikingly activist, perhaps more so than its American counterpart.
    Before the adoption of the Canadian
Charter
, Canadian courts interpreted the statutory
Bill of Rights
in light of its text and its history. As a result, judges were relatively restrained and the traditional understandings ofrights were preserved. The adoption of the
Charter
, however, emboldened judges and introduced the era of judicial activism. For the first time the judiciary vigorously used its authority to strike down laws that infringed on what the judges themselves considered fundamental rights not mentioned in the
Charter
. It was then that the powers of