A penetrating criticism of unbridled judicial activism
The London Free Press, December 16, 2003
By Rory Leishman
Robert Martin is a longstanding professor of law at the University of Western Ontario and well known among lawyers as one of the most prominent legal commentators in Canada. Everyone who still appreciates our national heritage of freedom under law should ponder his latest book, aptly entitled, The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and our Democracy.
With this title, Martin ironically alludes to the assurance by Alexander Hamilton in the Federalist Papers on June 14, 1778, that the people had nothing to fear from the powers conferred on the judiciary by the proposed Constitution of the United States. He wrote: "The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them."
In offering this assurance, Hamilton said he assumed that judges would respect the separation of legislative, executive and judicial powers in the Constitution. He quoted the warning by the Baron de Montesquieu in L'Esprit des Lois: "There is no liberty, if the power of judging be not separated from the legislative and executive powers."