Marbury v. Madison is the considered the seminal decision in judicial review of executive and legislative action. At least, that is what the U.S. courts have subsequently repeated. In fact, the 1803 decision of a fledgling American high court represented a Mexican standoff between executive and judicial power in which the limits of the U.S. Supreme Court were sharply defined. Was Marbury a boundary wall it built to assert its jurisdiction, or one behind which it retreated?
One criticism that can be leveled against the Marbury court was that it institutionalized a mechanical, semi-democratic vision of judicial action. American governments now operate within a constitution which can enable laws forcing Americans to register for health care but cannot allow the government to require them to register assault weapons. The Supreme Court of the United States effectively claimed title to the country’s basic law instead of recognizing it as a social contract between the state and its citizens – instead of interpreting it as a working document for all three branches of government. As a result, the concentration of constitutional power in the hands of the judiciary meant the legal history of a powerful nation was determined more by litigation over the intent of revolutionary “Founding Fathers” than by democratic process.
In the current row between Canada’s Prime Minister and the Supreme Court Chief Justice, no one has drawn the comparison with the landmark 1803 decision. It is about time someone did. There are some superficial similarities in subject matter. William Marbury found himself in the middle of an argument over the technicalities of a judicial appointment by an outgoing president. In the end, the court ruled against the completion of the appointment. Those wanting a reminder of the details of Marbury can read the excellent synopsis in Wikipedia.
If we suspend for a moment the lawyer’s proclivity to look for analogies or to pick at differences in specific legal issues, we can see in Marbury a case study of a relatively organic formation of the division of powers in the United States in the 19th-century. The case study allows us to see the plot structure of the current Canadian drama between the government and the Supreme Court with the aid of X-ray vision.
Why Marbury remains a fixed point in constitutionalism
Despite some early precedents in the English courts about the role of the Common Law in curbing legislative and administrative power, the self-proclaimed supremacy of the English Parliament and the proximity of the Courts of Chancery to the monarch meant England never had its Marbury moment. The King’s Law Courts and the Courts of Chancery developed as appendages of royal power and were eventually eclipsed by legislative power. After signing on to the European Union, any clash of the orbs between Parliament and the judiciary has been sidestepped. In the Old World outside England, we must remember that in 1803 fledgling republics were still fighting the Divine Right of Kings and sliding into authoritarianism. Parliamentary Supremacy seemed to be a good enough idea that no one thought it necessary to curb it.
In Canada, with its Loyalist tradition and an economy built on Crown grants, did not see much of a need for judicial power until the emergence of a more modern, pluralistic society. Before 1982, constitutional law in Canada largely consisted of drawing boundaries between provincial and federal power, a bit like a surveyor guiding the fence builder where to plant the posts. In law school, students did not learn about human rights but did learn about interprovincial trade in beer, or about margarine imports. Canadian courts, even after cutting the appeal route to the English House of Lords, served the role of linesmen and not even referees.
The 1982 patriation of the Constitution and the introduction of the Charter opened a door for judicial incrementalism to define the authority of the judicial branch to interpret and even strike down laws to conform to constitutional norms. For the most part, there has been no significant conflict between executive and judicial power because the courts applied constitutional law in a manner that permitted governments to avoid the political fall-out of divisive social issues such as abortion, assisted suicide and same-sex marriage. The lack of conflict was never cooperation or deference despite appearances: It has been good (or expedient) politics to follow the furrows ploughed by the Supreme Court.
In contrast to the English and Canadian experiences, the U.S. Supreme Court decision in Marbury represented statecraft through conflict. The politics leading to the law suit involved mass appointments of judicial officers, historically significant but to some extent resembling a counter-putsch by the outgoing board of directors at a tennis club. The need for a clever solution to a inter-jurisdictional mess meant Chief Justice Marshall wanted to send Congress and the President to their respective corners. He did so by sending his own court into a third corner. It is a fixed moment in constitutionalism, because we are likely never to see another example of carving up a state as simple and as blatant as this. Without Marbury, the role of constitutional law in American history is likely to have played a less prominent role. Imagine America today without Roe v. Wade or Brown v. Board of Education. Marbury is instructive, because the court decision is like an instructional model of a molecule: there is a lot of the same constitutionalism swirling around in the current Canadian power play.
What Marbury teaches about the Canada in 2014
What has changed in recent years is the emergence within the executive branch of a sense of frustration within the cozy constitutionalism of the Canadian legal system. The passive entente between the judiciary and governments about Canada’s constitution used to be that it set out the boundaries of governmental authority so different parts would avoid conflict or negotiate pacts to overcome them. A judicial theory of the constitution as a socio-cultural document, the basic law as a house manifesto, has filled the void left by two failed attempts to bring Québec into the post-1982 version, both in mind and in body.
Even short-term memory would prove it was actually the judiciary which catapulted the first boulders over its wall. As previously posted on this blog, the attempt by some lower court judges to defy the government by ignoring or working around its penal statute reforms, actually amounted to self-inflicted diminution of the ability of courts to control governmental power, because of the clear abuse of the duty of courts to interpret and apply the law. The December 13, 2013, Globe and Mail article describing a recent example of a judge upholding his Christian values as overriding mandatory sentencing laws did not miss the emergence of a new type of conflict:
But the fight over the financial penalties has become a rare, open clash between the judiciary and Parliament. It is about more than making all people who commit crimes pay for victim services. It is about the limits of judicial independence and justices’ right to speak publicly.
Before the row over the government’s criminal sentencing legislation, the Chief Justice herself was the one redrawing the boundaries of judicial authority, in her 2005 lecture campaign in which she declared that “The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion.” Those unwritten norms were to be derived from “a nation’s history, identity, values, and legal system.” Few outside the legal community took much notice of this speech. Reflecting on it carefully, we are left wondering whether this pronouncement described a conservative assertion of micro-incrementalism, or a judicial licence to set normative policy, traditionally the prerogative of Parliament. Who can know for certain how such unwritten norms could be employed, in any given case? In a vacuum, without application to a case before her court, what could this doctrine mean?
Much of the public debate over the Supreme Court’s disqualification of the Nadon appointment has focused on the grammatical comparison of two sections in the Supreme Court Act. A deeper and more objective analysis reveals that the case turned on the majority’s insertion of unwritten constitutional principles. The following paragraphs from Justice Moldaver’s dissent describes his refusal to read in such normative influences:
 Section 5, as I have explained, sets out minimum eligibility criteria for the pool of potential candidates. The very broad eligibility requirements in s. 5 ensure that the executive branch can choose from among the largest possible pool of candidates who meet the basic eligibility requirements.
 The legislative objective underlying s. 6 is different. The objective of s. 6 is, and always has been, to ensure that a specified number of this Court’s judges are trained in civil law and represent Quebec. By virtue of the fact that these seats must be filled by candidates appointed from the three Quebec institutions named in s. 6 (the Barreau du Québec, the Quebec Court of Appeal, or the Superior Court of Quebec), the candidates will necessarily have received formal training in the civil law. The combination of this training and affiliation with one of the named Quebec institutions serves to protect Quebec’s civil law tradition and inspire Quebec’s confidence in this Court. To that extent, I agree with the majority. Respectfully, however, I do not agree that s. 6 was intended to ensure that “Quebec’s . . . social values are represented on the Court” (para. 18). Parliament made a deliberate choice to include only objective criteria in ss. 5 and 6. Importing social values — 140 years later — is unsupported by the text and history of the Act.
In other words, the constraint on the power of appointment involved importing what the dissenting judge considered an extraneous and off-text criterion.
There was no dissenting opinion in the Senate Reform Reference. Most media accounts emphasized the setback to the government in its quest to fulfill promises to reform the Senate into a more effective and accountable body, or to study its abolition. When one considers that the latter more extreme measure is that advocated by the Official Opposition, the decision was more of a burden on the ability of Parliament itself, rather than the agenda of the party in power, to effect democratic renewal. In upholding the existing constitution’s “architecture” over explicit textual content, the court accepted that it was preserving the colonial anachronism of “an upper legislative chamber made up of elites appointed by the Crown” (para. 14). On the subject of consultative elections, the court effectively forbade the government from enacting laws to hold them even though the written text in fact accommodated them, on the basis that to do so would amount to an amendment of the constitution (paras. 51-53). In other words, you can’t work on the landscaping of the front walkway because it will upset the Feng Shui of the main building.
Canadians can understand that the other questions raised in the Senate reference, in which actual amendments to the constitution are required, require a very cautious approach. But a doctrine that Parliament cannot enact legislation if it upsets non-textual elements of the constitution may be too constraining because neither the government nor the public can say with certainty what the limits to power are. In the very least, a more text-based approach may have provided the basis for further study of the question by the Attorney General’s lawyers.
When trial judges are refusing to apply the law based on conflicts with personal belief, and the highest court is saying the bounds of government authority are defined by both written and unwritten laws, the work of responsible government and the parameters of public policy are unjustly encumbered by an overly broad risk of judicial review created by unseen judge-made criteria.
What lawyers have said, missing that this is Canada’s Marbury moment
It is against the backdrop of the development of an ad hoc redefinition of legal authority from within the judiciary that we must consider the sitting government’s perspective on subsequent court decisions have gone against the government on issues such as Senate reform, mandatory sentencing and now the appointment of Justice Nadon to the high court. Prominent lawyers’ personal disagreement with the government should not cloud our professional judgment qua readers and interpreters of the law. Our duty as lawyers in upholding the rule of law includes scrutinizing judicial as well as administrative exercises of vested power.
A Marbury approach applied to the recent Canadian cases might have led to a conclusion there is nothing prohibiting a democratic government from consulting the population about a Senate appointment. Referendums have taken place in Canada. There is nothing written our constitution allowing them or prohibiting them. Provinces have enacted legislation regarding referendums. The Clarity Act dealt with the questions to be put to a provincial population about secession from Confederation. If there can be a poll that leads to negotiations to tear up the constitution, why not one to guide the appointment of Senators? A Marbury approach might also have led to a finding that minimum eligibility requirements for a Québec Supreme Court appointment can only refer to training in the bijural legal system. That a more cautious approach to reading the statute would require clear language to restrict the Prime Minister’s prerogative to appoint Supreme Court justices.
What is at play today is a reshaping of the relationship between the government and the courts. Lawyers groups have, this past week, responded by accusing the government of behaviour akin to contempt. Witness, for example, a May 6, 2014, Globe and Mail op-ed statement penned by past-presidents of the Canadian Bar Association. The CBA has adopted this statement as part of its messaging, although in less partisan terms. The following key paragraph of the well-intentioned statement did not do the Supreme Court any service:
The judicial branch is one of the three independent components of Canada’s constitutional democracy, the other two being the legislative and the executive branches. Our system can operate effectively only if each component is respectful and courteous in its relations with the others. The courtesy and respect that these relationships require are particularly important for the judicial branch because it must ultimately judge the constitutionality of the conduct of the other two branches and, yet, at the same time, must on a day-to-day administrative level have dialogue with them. Furthermore, the judicial branch, and judges generally, do not have the ability to defend themselves if those very relationships are used as grounds for attack.
Proponents of “peace, order and good government” (a phrase not unique to Canada’s constitution, within the former British Empire) should agree with the sentiment that civility should be the one used by public servants toward each other. However, to say that the judicial branch of Canadian government depends on the courtesy of the executive branch, or that the three branches depend on each other’s courtesy and respect, is an expression of political fiction which a maturing country might best dispel. As the 1961 Coyne-Diefenbaker row between the Bank of Canada Governor and the Prime Minister proved, the independence of parts of Canadian government does not mean they cannot argue. Judges have reminded counsel for years that litigation is not a tea party. The authority of courts does not depend on the confidence of sitting ministers of the Crown, but rather on the soundness of the reasons courts deliver in interpreting the law. Casting the judiciary as a morally dependent entity of the executive branch of government actually diminishes judicial independence.
Canada’s constitution is based on a division of powers, the most significant of which is between federal and provincial governments. The courts are stand-alone entities whose role and composition are expressed in separate mandates. An independent judiciary means that there is, in fact, no de jure dependence on the federal or provincial governments, or the need for pipelines or cooperation arrangements.
The result in Marbury was that the court could tell the President what the law and the appropriate legal remedy was, but at the end of the day it could not compel the President to act because Section 13 of the 1789 Judiciary Act which authorized the Court to issue such a writ of mandamus against the President, was unconstitutional and thus invalid. By striking down a statute by Congress that expanded the jurisdiction of the Supreme Court to encroach on Presidential power, the court in Marbury circumscribed the power of Congress, and in so doing defined that of the President and the judiciary. The court famously reserved the duty to interpret the constitution, but it did so by saying it did not have the jurisdiction to grant the order sought against the executive branch. This was not so much a victory for judicial activism but a conservative entrenchment of the judicial function within the new republic’s democratic institutions.
The significance of Marbury to the current Canadian situation is that the government is asserting a view (or pushing back) that the three branches of government do not depend on each other but on the authority vested by the written Canadian Constitution. The institution of the judiciary has not been diminished by an executive voice stating the boundary line separating the judiciary and the executive is drawn behind where the judiciary is standing.