Lochner Comes to Canada

Maintaining this blog’s longstanding commitment to discuss the world’s most important issues–i.e., those pertaining to the Canadian Charter of Rights and Freedoms–during those rare occasions when they are of interest to bloggers with more rational interests, I had better comment on Chaoulli v. Quebec. The case is a genuine landmark which should be, I think, of interest to anybody with an interest in the politics of judicial review. In this case, the Canadian Supreme Court (not, as Ezra said in an understandable mistake, the Quebec courts) struck down a Quebec law that prohibited the sale and purchase of private health insurance. A majority of justices held that the law violated the Quebec constitution; three justices, including the Chief Justice, held that the law violated the Charter as well.

Were this a question of public policy, I would unhesitatingly agree with Ezra (and Matt.) The Quebec law banning any add-on insurance is a bad law, one that does nothing to actually help the quality of health care for ordinary people, and is not necessary to maintain socialized medicine. The Quebec legislature should repeal it. But as constitutional law, this is an awful decision, one that sets an extremely dangerous precedent. And the three-justice concurrence who claim that the law violates the Canadian Charter is simply appalling, one that rehabilitates a discredited jurisprudence that caused a constitutional crisis in the United States 70 years ago.

According to 3 justices, the law violated Section 7 of the Canadian Charter:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

You’ll note that this is simply a “due process” clause, similar to the one in the 5th and 14th Amendments. There is no substantive right to buy private health insurance, or indeed any substantive rights at all. This law, in other words, can only be unconstitutional if it is so arbitrary that it cannot, by definition, be enforced with due process. And, quite simply, this law isn’t. It isn’t like laws banning contraception, which cannot be enforced fairly, or abortion laws, which are arbitrarily enforced in practice. As the majority concedes, the law bears a rational relationship with Quebec’s legitimate goal of providing quality health care on an equal basis. There’s no remotely plausible due process rights violated by this law. What we have here, in other words, is not merely “substantive due process” but “liberty of contract,” the jurisprudence used by the United States Supreme Court to strike down maximum hour and minimum wages laws prior to the New Deal. This law is unconstitutional only if there’s a fundamental right to buy a contract to provide private health insurance. The perniciousness of this argument can hardly be overstated.

The majority’s argument is a little more plausible, but not much. According to them, the law violated Section 1 of the Quebec Charter:

Every human being has a right to life, and to personal security, inviolability and freedom.

The argument has a little more basis here, because at least there are substantive rights involved. But, still, these concepts are so broad that to apply them in this manner would give the judiciary an unlimited modify the economic policy of legislatures. Moreover, there’s a fundamental illogic here. If the rights of personal inviolability are violated by the public system’s excessive queues, then sure the state is obliged to provide a remedy for everyone, not merely those who can afford private insurance. The Court here is adducing a right without a proportionate remedy, and that can’t wash. And it does so because it’s an economic decision, not constitutional law. The dissent of Binnie and Lebel shreds the majority very effectively:

This issue has been the subject of protracted debate across Canada through several provincial and federal elections. We are unable to agree with our four colleagues who would allow the appeal that such a debate can or should be resolved as a matter of law by judges…

We can all support the vague objective of “public health care of a reasonable standard within a reasonable time”. Most people have opinions, many of them conflicting, about how to achieve it. A legislative policy is not “arbitrary” just because we may disagree with it. As our colleagues the Chief Justice and Major J. fully recognize, the legal test of “arbitrariness” is quite well established in the earlier case law. In our view that test is not met in this case, for reasons we will develop in some detail. Suffice it to say at this point that in our view, the appellants’ argument about “arbitrariness” is based largely on generalizations about the public system drawn from fragmentary experience, an overly optimistic view of the benefits offered by private health insurance, an oversimplified view of the adverse effects on the public health system of permitting private sector health services to flourish and an overly interventionist view of the role the courts should play in trying to supply a “fix” to the failings, real or perceived, of major social programs.

Read the whole etc.

I’ve been meaning to post about Ran Hirschl’s fine book Towards Juristocracy. He argues, looking comparatively, that judicial review improves civil liberties but is bad for economic and social justice. My belief has been that the latter point is somewhat overstated; modern courts do little to ameliorate such problems, but I don’t think Hirschl proves that they exacerbate them. But this certainly is evidence for his position. Progressives should not accept this type of argument simply because it produces a good outcome in one case. When conservative justices start interpreting the “right” to freely contract private health insurance, and who knows what else, look out. This is a an extremely bad decision.

Speaking of Lochner, it seems approrpiate to conclude with the sage words of Oliver Wendell Holmes:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics…a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.