Wednesday, March 26, 2014

The Laws of History

Wallace Shawn?

Marc Nadon?

That Supreme Court reference about the eligibility of Marc Nadon to be appointed to the Supreme Court of Canada tells us one thing about the Supreme Court:  the judges are up there reading history books!

Browse through Reference Re Supreme Court Act and you come across citations to Ian Bushnell's The Captive Court: A History of the Supreme Court of Canada (1992) and his The Federal Court of Canada: A History (1997).  Then there is John Saywell's The Lawmakers: Judicial Power and The Shaping of Canadian Federalism (2002).  And Debates of the House of Commons 1875, and (be still my heart) The Confederation Debates 1865.  And Peter Russell and Peter Hogg and other political scientists and legal scholars are all in there too.

It's impressive ... and then a little disquieting. One imagines the court as Olympian and remote, and then you see really they are deciding based on what a bunch of histortians (Whoa! Freudian much?) historians tell them?  I've written some legal and constitutional history myself. Skimming the decision, I began to fear they might cite me.  Jeez, I don't know that I want to be responsible for this.  (It's okay, they didn't.)

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