Our guardians need guards, too

There was a time when no one would call satisfactory any political philosophy that could not answer Juvenal's classic question Quis custodiet ipsos custodes? Unfortunately, we have since had so much progress that we have trouble just understanding it, even if it is asked in English: "Who shall guard the guardians?" In any political system someone must have ultimate authority. But since it is a fundamental principle of justice that nemo judex in causa sua ("no one shall be a judge in his own case"), there is a seemingly insoluble difficulty in establishing a just political system. People like Saddam Hussein don't encourage discussion of such issues. But even Hitler and Stalin believed, at least ostensibly, that history would be their judge. And I suppose it was. But given the cost in human life and misery, one naturally prefers a more immediate mechanism. Which is why, in democracies, ordinary people get to decide if their government stinks.

Proper democracy is based on majority rule. But not untrammeled. The people can veto policy but not initiate it. Democracy's answer to Juvenal is: The government guards the public good, and the public guards the government.

It is not perfect for, as the ancients knew too well, it collapses if (or, in Cicero's view, when) the government becomes merely an instrument of the popular will. Which puts me in a rather peculiar position. For years I was concerned largely with reminding people why we need checks on the popular will, especially while Preston Manning was going about suggesting we solve this problem by ignoring it. When the Citizen's Susan Riley took some heat for worrying that if the Tories won, "the rights of gays and lesbians to marry would be decided by the mob, in the form of a free vote in Parliament," I was not entirely unsympathetic.

The problem is that where Mr. Manning ignored the tyranny, she seems to want to ignore the majority. Which strikes me as throwing out the baby with the bathwater. Surely the solution to the tyranny of the majority is to avoid the tyranny, not the majority. If not, any number of other tyrants stand waiting in the wings. Maclean's Mary Janigan just wrote: "when the Tory platform declares that 'Parliament, not unelected judges, should have the final say on contentious social issues like the definition of marriage,' it is a jarring disruption in a tradition of delicate, mutually cautious respect. This is about far more than gay marriage: when parties declare that parliamentarians will function as the final interpreters of basic rights, they may unleash forces they cannot control." Such as mob rule? Perhaps. But if parliamentarians are not to have that function, who is? What forces are then unleashed, and how are we to control them, if at all?

We should be told. Instead, deputy Tory leader Peter MacKay recently said he couldn't imagine "any circumstances" in which he would support the notwithstanding clause because "it's the legislative equivalent of a nuclear bomb, it basically wipes out the law and preserves the status quo for five years." Actually, it reinstates a law a court has wiped out (or protects one against future Charter challenges). If he doesn't know that, one wonders what else he doesn't know.

Ms. Riley more recently wrote: "Human rights charters exist to protect minorities, because the majority cannot always be relied upon to do so." Then who can? If not only the establishment but also the maintenance of restraints on the majority are ultimately in the hands of the majority, then their effect is to prevent that majority from acting in haste; if not, then their effect is to prevent it from acting at all. These are quite different matters, and if opponents of the notwithstanding clause favour the latter, then I should desire them to lay their political philosophy before the public in considerably more detail than they have done.

Retiring Supreme Court Justice Frank Iacobucci just gave a parting interview in which he called the top court's rulings so far only "beginnings" and conceded the legality of the notwithstanding clause but questioned its legitimacy: "I find it difficult to believe that in our democracy that we would want to amend the Constitution to deny rights." Which misses the point. Regardless of the excellence of institutions, there is always the problem, when interpretations clash, of whose shall ultimately prevail. He said "Courts can't give many of those decisions too quickly. The rest of society have to, in some ways, catch up." Jolly patient of him. But what happens if we never do, in his "new democracy based on constitutionalism and individual human rights?"

I preferred the old one based on the people. For if not even the majority may be judges in their own case, how can judges be trusted with this power? Quis custodiet ipsos custodes? Huh?

[First published in the Ottawa Citizen]