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Its first faculty advisers were the aforementioned Justice Scalia and Robert Bork, a brilliant scholar and jurist whose later vilification by the left blocked his confirmation to the U. Supreme Court. The Federalist Society aimed to nurture and promote originalist legal thought through debates, lectures, and networking opportunities.

A judicial revolution has taken place in the United States in recent decades as a generation of originalist legal minds nurtured in the Federalist Society and elsewhere have ascended to numerous state and federal courts, including the Supreme Court itself. Concurrent with this grassroots movement, an effort was launched at the highest government levels to appoint more originalist judges. This was how Scalia ended up on the Supreme Court. But his scathing and insightful critiques often forced progressives and other judges to take notice.

The Challenge of Originalism: Theories of Constitutional Interpretation

This encouraged challenges to conventional liberal orthodoxy. Over time, decisions became , then , and so on. In addition, later Republican presidents — including both Bushes and now President Trump — have shifted the court in an originalist direction through their appointments.

Conservative prime minister Stephen Harper had as much power as any of his Liberal predecessors or successor to choose judges, yet he did little to dislodge the Court Party. The larger problem for a Conservative government that wants to change the status quo is that Canada lacks its own theory of originalism and an associated movement that could compete with the living tree monopoly in our legal institutions. There is potential for one to emerge, however. Judges wield the closest thing possible in contemporary society to absolute power. Howard Anglin, Executive Director of the Canadian Constitution Foundation and a former deputy chief of staff to prime minister Harper, has thought about this issue at length.

As did the U. While trying to discern a common original intent in sections of the text may be difficult, there is often clear evidence concerning what the drafters and elected representatives who approved the Charter did not think it would do. Due process is a legal principle obliging the state to respect all legal rights given to a person.

It creates wide judicial wiggle room for invention of rights. The concept of fundamental principles of justice has a narrower scope. That became the — arguably illegitimate — work of post-Charter judges.

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Harper appointed six of the nine justices who currently sit on the Supreme Court — without a discernible shift in judicial direction. But Harper did the best he could with what he had to work with. In the U. Harper had nothing like this available to him. He did score some rare victories, such as the appointment of Mr. But this is just the beginning, and the project of building a Canadian originalism could take decades, just as it did in the U. We as Canadians are heirs to a glorious tradition of parliamentary government.

The Charter was in some ways an artificial imposition onto this order. It prioritizes abstract rights, something that the great philosopher and statesman Edmund Burke warned against. Burke saw abstract rights as dangerous because they led to theoretical schemes of politics that often demanded the destruction of the old and the creation of the new, which too often comes hand-in-hand with bloodshed.

For skeptics of the way it has transformed our politics, we must accept it is part of us now and attempting to dismantle it would be not only near-impossible but potentially destabilizing and destructive. So we must learn to work within its boundaries.

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That debate has been lost. Our gripe should no longer be that this happened, but that a philosophically homogeneous group of people have a near-monopoly on deciding cases. But we could, potentially, nurture some alternative voices and promote their ascent through the legal community and onto our courts. Benjamin L. Consider making a tax-deductible donation to help us create more and better content.

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Skip to content About Stories Submissions Menu. Videos Global Newsstand Donate Menu. How to Take Back the Charter. Woodfinden December 17, Who should rule supreme? A Canadian conservative legal movement? Where to go from here We as Canadians are heirs to a glorious tradition of parliamentary government.


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