THE CONSTITUTION OF LAW Part 4 ppsx

64 legality in a time of emergency

Even worse, these judges have made their decisions in full awareness of

the past, so with the complete benefit of foresight. And they have done so

at a time when, in Canada and the United Kingdom, their jurisdictions

had either enacted or entrenched legal protections for human rights and

at a time when in all three jurisdictions judges had gone a long way in

developing the common law understanding of the rule of law in ways

consistent with the postwar drive to protect human rights.

I do want to sound one very necessary cautionary note. I just spoke

about law’s potential to provide us with moral resources in times of stress.

In making that claim, it is important to put the emphasis on ‘us’ and not

‘law’. It would be a mistake to think that judges or the law can save us in

times of stress. The first president of postwar Germany made the point

that the collapse of the Weimar Republic took place not because of flaws in

the Weimar Constitution, but because in Germany’s first experiment with

democracy there were not enough democrats. Similarly, without enough

believers in the rule of law, law cannot deliver its resources to us. Moreover,

it is not enough that many lawyers and judges are committed to the rule of

law. It is important, indeed much more important, that politicians, public

officials, journalists and plain ‘we the people’ share this commitment. But

to say that public opinion is the ultimate basis of the rule of law does not

make its principles contingent on what the public thinks.

Towards the end of his dissent in Korematsu, Justice Jackson said that

that the courts ‘wield no power equal to’ restraining the command of the

war power, should the people let it ‘fall into irresponsible and unscrupu￾lous hands’. Thus he concluded that the ‘chief restraint upon those who

command the physical forces of the country, in the future as in the past,

must be their responsibility to the political judgments of their contem￾poraries and to the moral judgments of history’. But prior to reaching

this conclusion, Justice Jackson warned against the danger of a court

upholding the constitutionality of the evacuation order after the alleged

emergency was over, especially when the order was based on the principle

of racial discrimination in criminal procedure:

The principle then lies about like a loaded weapon ready for the hand of

any authority that can bring forward a plausible claim of an urgent need. . .

A military commander may overstep the bounds of constitutionality, and it

is an incident. But if we review and approve, that passing incident becomes

the doctrine of the Constitution. There it has a generative power of its own,

and all that it creates will be in its own image.157

157 Korematsu, at 246.

the moral resources of law 65

Taken together these remarks make the point that even though judges

cannot restrain power when it is in the wrong hands, so that it is ultimately

up to the people to exercise that restraint, judges must nevertheless carry

out their duty to uphold the rule of law. If the judges fail to carry out their

duty, they will also fail to clarify to the people what constitutes responsible

government – government in compliance with the rule of law. I will now

turn to my defence of the claim that judges have such a duty and, moreover,

one to uphold a substantive conception of the rule of law.