Judicial Activism vs. Restraint: The Role of the Highest Courts in Official Language Policy in Canada and the United States

Article excerpt

In the past twenty years, both Canada and the United States have witnessed a significant degree of conflict over language issues. Since the passage of the Canadian Charter of Rights and Freedoms, there has been growing debate about the consequent politicization of the courts and their role in democratic politics. This issue is joined in Canada because English and French are the only two "official" languages, although others are spoken by linguistic minorities and native peoples. In the United States, English was not codified as the "official" language until recently when, at last count, twenty-seven states have enacted laws proclaiming English their official language.

The U.S. Supreme Court probably is the most activist high court tribunal on earth, with Canada's fast becoming a runner-up.(1) Barely a decade after the Charter's passage, Mandel characterized its impact as the "legalization of politics" in Canada,(2) and Peter Russell, another Canadian judicial scholar, believes that "the importance of judicial review in Canada at the present time equals if it does not exceed its importance in the United States."(3) Morton and Knopff go even further, calling it a "Charter Revolution" because "Canadian politics has been replaced by a regime of constitutional supremacy verging on judicial supremacy. On rights issues, judges have abandoned the deference and self-restraint that characterized their pre-Charter jurisprudence and become more active players in the political process."(4) Indeed Alan Cairns anticipated far reaching political consequences from a Charter that designates group entitlements for certain minorities. "The Charter is more than an instrument that hands out abstract rights equally to all Canadians and is indifferent to their various statuses defined by gender, ethnicity, official language status, and the presence or absence of disabilities. In fact it specifically mobilizes Canadians in terms of these categories. It encourages Canadians to think of themselves for constitutional purposes as women, as official-language minorities, as disabled, or as ethnocultural Canadians."(5) To this extent Les Pal agrees: "The advent of the Charter in 1982 therefore did not so much create new groups as new opportunities, though some organizations were spawned specifically to pursue new litigation strategies related to the Charter's equality provisions."(6) It was not long before the Canadian Supreme Court broadcast its intentions in no uncertain terms. In Law Society of Upper Canada v. Sapinker (1984), the Supreme Court declared that its Charter jurisprudence would be "large and liberal" in scope, a welcome signal to advocacy groups who were organizing a litigation campaign.

Thus, the distinction between judicial activism or restraint is largely framed in terms of the relationship between the judiciary and the popularly elected branches. By judicial activism Kenneth Holland means "a court's attitude toward the traditional policy-making institutions and its willingness to enforce claims against them."(7) Canadian legal scholars Rainer Knopff and F.L. Morton agree, explaining that "judicial activism refers to the disposition to interpret rights broadly and to enforce them vigorously against the other branches of government...judicial self-restraint, by contrast, connotes a judicial predisposition to find room within the constitution for the policies of democratically accountable decision makers."(8) The contemporary political problem is that Canadian law and constitutionalism erect firm guideposts on language policy to guide judicial, executive, and legislative decision-makers, but language remains an unsettled area of constitutional and statutory law in the United States. In this divergent legal milieu, we examine whether their respective high courts have adopted a stance of activism or restraint with regard to language policy.

Overview of Canadian National Language Policy

Section 133 of the 1867 British North America Act, the founding constitutional document, permitted the use of either French or English in the national Parliament, the Quebec legislature, and their respective courts, and required laws and records to be maintained in both languages. …