Prime Minister Harper has nominated Andromache Karakatsanis and Michael Moldaver to the Supreme Court. Were this the United States, this would just be the beginning of the story, as the nominees would have to face a potentially grueling confirmation process in the Senate. While Harper instituted parliamentary hearings in 2006, no one expects anything more than a few challenging questions to be posed to Karakatsanis and Moldaver.
But we have to remember that the procedure of choosing Supreme Court justices is merely a means of gauging the judicial philosophy that nominees will bring to bear in interpreting the constitution. This philosophy is what matters most in deciding whether a particular candidate is suitable.Â Not much is known about the jurisprudential thinking of Karakatsanis and Moldaver, except that the latter seems inclined to a law and order approach as well as showing deference to the legislative prerogatives of Parliament.
This raises an interesting question: what type of judicial philosophy should classical liberals and libertarians want to see in a potential Supreme Court judge? In the existing literature on constitutional jurisprudence, two fundamental alternatives are offered. The first is originalism, which argues that the constitution should be interpreted in light of the intent of its framers. The other possibility is to view the constitution as a living document whose meaning must evolve over time to fit shifting circumstances.
In the United States, classical liberals and libertarians will naturally be drawn to originalism because the country’s founding fathers intended to establish a limited government focused on the protection of property rights. But in Canada, while we’ve had a constitution since 1867 with the BNA Act, most of the contentious issues pertain to the Charter of Rights and Freedoms, which was enacted in 1982. Property rights were explicitly kept out of the Charter due to concerns that those might be invoked to strike down government efforts to intervene in the economy. Adhering to the intent of the framers in the Canadian context would effectively mean giving constitutional sanction to the social democratic welfare state.
Hence,Â originalism is not an option for classical liberals and libertarians in this country. Instead, the most promising avenue is to support an interpretive framework guided by a political philosophy that prioritizes individual freedom.
But isn’t this undemocratic in encouraging unelected judges to impose their values on Canadian society? Perhaps, but the constitution invites, indeed necessitates, judges to do this as a result of the generality of its language.Â That generality has to be filled with specifics in the case at hand and there is nowhere else that filling can come from than the world-view of the judge. Better that world-view reflect Mises, Hayek, or Nozick rather than Rawls.