Below is a note I sent today to an Israeli friend who asked me about the significance of the “Override” Clause voted into law last week by the Israeli Knesset/Parliament:
The simplest way to put this is to say that in most of the modern democracies Supreme Court judges (and many others, such as State/Provincial judges) are appointed by the executive power (President, Prime Minister, etc.) and vetted/debated for approval by some traditional system.
In countries where Charter/Constitutional Law is characterized as the “Supreme Law” of the land, this means that unelected judges who have no special skill in understanding the political or moral history of their nation, and who tend to have leftist biases (at least in most modern democratic nations), get to nullify laws made by “the people” in their Legislature.
Clearly, this reality is offensive to the entire notion of “Consent of the People” in a liberal democratic system.
Judges/Courts in countries such as Canada (and many other) have got into the habit of characterizing the law itself as a labile, flexible, relative system that they feel obliged to change or reinvent as they decide. This is called the “living-tree” conception of law.
It is in direct conflict with the “original intent” conception of the law which argues (as I do) that legal problems and cases must be interpreted in terms of the original intent of the people who made the laws in the first place. The most cogent argument here, is the fact that if original intent (the original Will of the lawmakers/people) doesn’t matter, then why have a Constitution in the first place? Why not just throw it out and let the Judges make/interpret new law as they see fit?
Critics such as me will reply: that is exactly what they are doing!
The recent decision of the Israeli Knesset to create an “override clause” giving the elected representatives of the people the right to nullify court rulings that depart from the original intent of the people who made the laws, is a huge breakthrough in defense of the Will of the People, and in my opinion ought to be available in all modern democracies for the reasons stated above.
That is the best I can do.
All best wishes
p.s This is not to argue that the People are always correct. Sometimes they are discovered to have been quite wrong. But it leaves the corrective initiative, as they say, in the hands of legislators who represent the People, rather than in the hands of judges who represent no one except themselves.