Natural Born Citizen Reloaded

Back in January I wrote about the controversy over whether Texas Senator Ted Cruz is eligible to be President. The issue centers around the meaning of the phrase "natural born citizen," which according to Article II of the U.S. Constitution is what one must be in order to qualify to be President. At least three lawsuits have been filed seeking to get the court to clarify the meaning of this phrase, and as the blog Constitution Daily recently reported, all have failed. As the blog post points out:

Legislative attorney Jack Maskell, writing for the Congressional Research Service in 2011, found that “the weight of more recent federal cases, as well as the majority of scholarship on the subject, also indicates that the term ‘natural born citizen’ would most likely include, as well as native born citizens, those born abroad to U.S. citizen-parents, at least one of whom had previously resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the birth, had met the requirements of federal law for physical presence in the country.”

Anyone interested in learning more about the arguments concerning this phrase should really give Maskell's memo a quick read.

Access to Justice

There is an access to justice problem in Canada, according the country's top judge. The issue, which is not unique to Canada, is the cost of going to court to seek redress for a wrong. According to a recent Toronto Star report, the cost of a routine three-day civil trial in Ontario is about $60,000, more than the median Canadian family income. The Star reports:

In a speech to the Canadian Bar Association yesterday, the country's top judge declared access to justice "a basic right" for Canadians, like education or health care. Although [Chief Justice Beverely] McLachlin has spoken out about the problem in the past, she sharpened her remarks yesterday and went further than she has before, citing what she described as an "increasingly urgent situation." The justice system risks losing the confidence of the public when "wealthy corporations," or the poor, who qualify for legal aid, have the means to use the court system, she said, noting that for "middle-class" Canadians, resolving a legal problem of any significance often requires taking out a second mortgage or draining their life savings.

Others have argued that the problem is "money grubbing" lawyers who are charging excessive fees and lack principles.

Canadians Celebrate Charter of Rights

Canadians are celebrating the 25th anniversary of the passage of the Charter of Rights, Canada's version of a bill or rights enshrined in the constitution. Prior to it's passage, Canadians were protected from government abuse by the Canadian Bill of Rights, which was federal law that could be changed at the whim of Parliament. By adding rights to the Constitution itself, Canada took the important step of making these rights basically untouchable by the majority-elected Parliament and subject only to Supreme Court interpretation and/or amendment of the constitution itself, not an easy task. In celebration of this anniversary, the Toronto Globe and Mail polled Canadian legal scholars to see what are the ten most influential Supreme Court cases interpreting the Charter. Not surprisingly many of the cases deal with issues that much of the western world, and specifically the United States, has been grappling with for the past few decades: abortion, gay rights and the rights of criminal defendants.

Canadians Want to Elect Judges

The selection of judges in common law countries varies from jurisdiction to jurisdiction. In the United States, where you have a federal court and 50 individual state court systems, the selection of judges is a mixed bag. All federal judges are appointed by the President for life terms. But the selection of judges at the state level varies. A growing number of states allow their citizen to elect judges, like they do other political offices. It appears that a majority of Canadians like the idea of judges campaigning for their spots. The Toronto Globe and Mail reports that two-thirds of Canadians want to abandon their current judicial selection system and replace it with elections. Not everyone in Cananda thinks this is a good idea. Ontario's Chief Justice questioned whether the country's judicial system would remain impartial noting that:

if Canadian judges felt compelled to impose popular verdicts and sentences to ensure their re-election, “it could really destroy the very best traditions of an independent judiciary. I think it would be a tragic initiative for the administration of justice.”

The Chief Justice also cautioned that money needed to run judicial campaigns could lead to abuse.

Few Cases Reach High Court

It appears that legal trends in the United States, at least those involving the Supreme Court, have a tendency to migrate north. Last year there was concern that the appointment of justices to the Canadian Supreme Court was becoming too political, just like the American process for filling court vacancies. Now comes word that Canada's highest court's caseload has been dwindling over the past several years, just like the caseload of the U.S. Supreme Court. The Toronto Globe and Mail reports:

A steady drop in the number of judgments produced by the Supreme Court of Canada hit a striking new low in 2006, with the court rendering just 59 decisions. Statistics compiled by The Globe and Mail show a total that is dramatically lower than years such as 1990, when the court rendered 144 rulings, and 1993, when it handed down 138 rulings.

This decrease looks remarkably similar to what is taking place in the U.S. As the New York Times reported last month:

The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s.