| Chief Justice Beverley McLachlin's argument in support of having judges apply unwritten constitutional principles in their decisions was nearly lost in the uproar surrounding MP Maurice Vellacott's hyperbolic assertion that she believed judges possess godlike powers. Careful consideration of McLachlin's 2005 Lord Cooke Lecture, however, reveals it to be an important statement concerning the role of courts in modern liberal democracies. McLachlin argues that judges have a responsibility to overrule legislators when they pass laws that cannot be just. To justify this argument she relies on a modern reinterpretation of the medieval concept of natural law, but roots it in the history, values, and culture of a nation, rather than in unchangeable nature. This thesis addresses the contention that a supposed natural law jurisprudence, rooted in a historical understanding of nature, can allow judges to discover unwritten constitutional principles capable of trumping written laws. In particular three problems that McLachlin claims her argument overcomes are considered. First, it is argued that McLachlin too easily dismisses the idea that parliamentary supremacy can protect rights. Second, it is argued that the kind of judicial statesmanship McLachlin recommends in claiming that judges are uniquely qualified to discover and apply unwritten constitutional principles can lead a polity far afield from the principles upon which it was founded. This kind of authority gives judges a privileged position as a special class of citizens, and undermines the fundamental equality upon which liberal democratic regimes are built. Third and finally, through discussion of a Canadian case it is shown that there is little reason to conclude that judicially-discovered unwritten constitutional principles are superior to the written constitutional provisions they sometimes override. In conclusion it is asserted that the argument that judges must have authority to discover and apply unwritten constitutional principles in order to protect fundamental rights is in fact antithetical to the principles underlying modern liberal democracy. |
