As we watch the United States fall into chaos, it’s a reminder of the inherent weaknesses and short history of democratic societies. Absolute monarchies, tribal hierarchies, theocracies, autocratic rulers and dynasties have dominated the rule of people. The earliest of democracies in Greece and Rome fell into anarchy and it took centuries before they reappeared.
Today we are watching five democracies—Turkey, Hungary, Brazil, India and the United States—under siege by duly-elected leaders who have, or are moving their countries into illiberal democracies—a governing system with elections, but citizens are cut off from knowledge about the activities of those who exercise real power, and civil liberties (free press, free speech, freedom to peaceful assembly, science and opposition voices) are severely curtailed.
America’s decline as a great democracy has been abetted by the growing imbalance of power between their legislative, executive and judicial branches of government. Over the years, Congress has ceded much of their power to the President and the Supreme Court.
All other wealthy democratic countries have maintained a distinct separation between the legislative and judicial branches of government. As well, Canada and others have stringent qualifications for justices and no life-time appointments.
In her book ‘Truth be Told, Beverley McLachlin, our first female Chief Justice wrote, “Justices of the Supreme Court of Canada are not generally appointed for their political views, and once appointed, they do not hew to the political agenda of the prime ministers who chose them.”
In the United States, it is expected that Supreme Court justices will vote along political and religious lines.
In Canada, the TransMountain Pipeline (TMX) pipeline was initially denied by the Supreme Court because the federal government had not met its constitutional obligations to consult with First Nations and hadn’t done an environmental assessment on oil tanker traffic off the coast.
Doing things right takes time. In the second round, the government met all constitutional requirements and today TMX is under construction with all constitutional rights respected. In the U.S., it would have been a decision based on which political party had the most justices on their Supreme Court.
David Kaplan, American investigative reporter, in an October 3 opinion piece in the Globe and Mail, cited four decisions of the U.S Supreme Court that degraded American democracy.
In 2000, in Bush v. Gore, the court intervened to decide a tied presidential election; in 2008 the court invented an individual’s right to bear arms under the Second Amendment; in 2010, the court opened a flood of big money into elections campaigns; and in 2013 the court eviscerated the Voting Rights Act of 1965.
All these decisions have converged to shape the 2020 vote. The legality of the election is under attack by the sitting President, voter suppression is in high gear, armed militia are storming legislatures and roaming the streets, violence is promised at the voting polls, and it has emboldened President Trump, with a friendly Conservative Supreme Court, to not cede power should he lose.
President Abraham Lincoln warned about ceding legislative power to the Supreme Court, concluding if done, “the people will have ceased to be their own rulers.”
Unfortunately, that is today’s reality in the U.S. where acting in concert, one president, 51 senators and five Chief Justices can exercise absolute legislative control.
“Canada’s justice system is not perfect, but it’s among the best in the world”, wrote Justice McLachlin. “The law is there for everyone, high and low, imposing obligations to be sure, but also offering protections and benefits.”
In this season of Thanksgiving, Canadians should be evermore grateful for our form of constitutional democracy and jurisprudence.
Schimke is a graduate of the UofA with a B. Com. degree and has spent a life-time reading history and studying the successes and failures of various forms of governance.