A Common Law Theory of Judicial Review: The Living Tree (Cambridge Studies in Philosophy and Law)
Language: English
Pages: 296
ISBN: 052112266X
Format: PDF / Kindle (mobi) / ePub
In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.
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that the constituents have not appreciated all the relevant facts, or that fear or prejudice has clouded their judgment? Perhaps a representative’s duty is to vote as constituents would have voted under ideal conditions of deliberation – that is, with full knowledge of all relevant facts, and in the absence of prejudice or other factors that can cloud judgment, and so on. Or perhaps this way of looking at a representative’s responsibilities is completely off track. Perhaps the representative’s
understood as requiring direct or indirect voting by the general population – and where government is effected through representatives that these representatives be generally accountable to the general public through the polls. Yet to the extent that Regas combines popular sovereignty with limited government power, it at the very least approaches modern forms of constitutional democracy. To be sure, the latter contain elected, representative assemblies, not benevolent, unelected rulers. But we
constitutional conception. 20 As we will see shortly, the procedural conception is actually a bit richer than this description suggests. But for now, we can accept that description as our working account of the procedural conception. 21 Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, Mass.: Harvard University Press, 1996), 17. 1:32 P1: FCW 0521864763c03 CUNY449B/Waluchow 108 0 521 86476 3 Printer:cupusbw October 10, 2006 why charters ? democracy’s animating
information. The reasons for this condition are fairly straightforward. To provide consent is to exercise one’s autonomy, but autonomous decision is possible and valuable only when it is guided by sound reasoning and adequate information. There are two reasons why this is so – one consequential, the other rooted in deontology. First, one who chooses in ignorance often causes significant harm to himself and others. Being informed in one’s choices allows one the opportunity to avoid such harms.
introduce, for a period of time and subject to renewal every five years, legislation that the legislative body acknowledges either infringes a right enshrined in the Charter or is inconsistent with a judicial ruling – in the view of the legislature, an incorrect ruling – on what that right means or entails for legal purposes. Although the Notwithstanding Clause, as section 33 has come to be known, is not frequently invoked, and despite the belief by some that something approaching a
