Where Do We Draw the Line?

By Morley, Gareth; Poschmann, Finn | Inroads, Winter 2006 | Go to article overview

Where Do We Draw the Line?


Morley, Gareth, Poschmann, Finn, Inroads


CANADIAN COURTS' ROLE IN PUBLIC POLICY HAS NEVER BEEN GREATER. IN THE last year, in constitutional cases alone, the Supreme Court has ruled on Employment Insurance benefits for parental and maternity leave, deportation of immigrants convicted of serious criminal offences, the ability of juries to use silence as evidence of guilt, provincial tobacco litigation statutes, remuneration for provincial court judges. Aboriginal logging rights and the right to participate in provincial resource decisions, pension rights for common-law spouses, media access to search warrants, roadside screening tests, the French-language education provisions of the Charter of Rights and Freedoms, whether government should fund certain treatments for autism, the legality of private health insurance, and the colour of margarine.

In the same year, a same-sex marriage bill, action on which was supposedly required by the courts, and a bill on judicial compensation, which was in fact required by the courts, occupied the legislative agenda of Prime Minister Paul Martin's minority government. And arguably the most important decisions of Martins first elected term will not be legislation, tax cuts or social programs, but his appointment of Justices Louise Charron and Rosalie Abella, and his likely appointment of a replacement for Justice John Major, who steps down in December 2005.

This rise in the power of the judiciary is a byproduct of decisions made a generation ago. In April 1982, Canada's fundamental legal framework jumped the Atlantic. Canada's first ministers, with the notable exception of Quebec's René Lévesque, had agreed to a constitutional package that included a Charter of Rights and Freedoms. The British tradition of parliamentary sovereignty, constrained by political and conventional understandings, was abandoned for a list of enumerated rights embedded in an American-style written constitution.

In the United States, the Constitution was 14 years old before the Supreme Court, under Chief Justice John Marshall, relied on it to overrule the elected government and Congress. Marbury1 was an ingeniously worded decision, but one thoroughly mired in the politics of the day. What Marbury established in 1803 was that the Court, and not Congress or the administration, would decide whether legislation and the manner in which it was implemented was consistent with its understanding of the Constitution and therefore legitimate.2

Many of the major developments of subsequent American history involved institutional struggles between the courts and elected politicians. In Dred Scott,3 Chief Justice Roger Taney wrote that "being a Negro of African descent," Scott could not be a citizen and that Congress could not prohibit slavery in U.S. territories. The decision helped fan the flames that that brought on the Civil War, and the eventual defeat of the South made the Fourteenth Amendment possible, allowing the federal judiciary to strike down state laws that violated the equal protection and due process clauses of the Bill of Rights.

The Fourteenth Amendment did not prevent the rise of Jim Crow.4 However, federal restraint on state action did grow, notably through Lochner5 and subsequent Court decisions. These decisions brought on a Progressive attack on the principle of judicial review, which culminated in Franklin D. Roosevelt's 1937 attempt to stack the Court to protect New Deal legislation.6 A generation later, a liberal Court used judicial review for other purposes, barring school segregation,7 extending voting rights,8 revolutionizing criminal procedure and pushing the boundaries of free speech in ways not contemplated elsewhere before or since. The liberal high water mark was reached with the Furman and Roe cases in the early 1970s,9 which struck down all state death penalty and abortion statutes respectively.

But just as the Lochner line of cases generated a Progressive reaction, the Furman and Roe decisions in particular spurred a conservative counlermovement. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Where Do We Draw the Line?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.