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June 10, 2005

Canada High Court's Bad Judicial Review

Another examples of why I hate judicial review of legislation via Canada. 

Canada's high court has opened the way to rich people in Quebec getting to buy care unavailable to poor people in violation of federal law providing equal care for all.  The Court's justification is a Quebec constitutional clause protecting a person's "life and personal security, inviolability and freedom."

Now, if people are facing some delay in health care service, there are a lot of ways to address that problem other than giving the wealthy special access to private care.   Poor Americans face that every day, yet no constitutional court jumps in to mandate health care help for them. 

But the problem is that courts are particularly incompetent in dealing with budgetary matters.  Because they are reluctant to just mandate increases taxes to pay for better care, they prefer some legal rule to avoid budget solutions, even if they are the heart of the issue involved.  More spending on better care for all Canadians might address the problem in this case, but the Court avoided that solution.

Politics requires a whole set of compromises, involving budgets and legal rules and agreed tradeoffs.  Courts lack critical budget tools and can't reflect the political tradeoffs that cement long-term agreements.  So they intervene with mandated legal rules that are inflexible because they lack those tools.

The Canadian examples is also a reminder to liberals that courts can be more soliticious of the wealthy than the legislative realm-- something progressives were all too aware of in the New Deal era when courts attacked minimum wage and other pro-worker laws but have largely forgotten in the modern era.

Posted by Nathan at June 10, 2005 07:27 AM