PHGY 502 Lecture Notes - Lecture 12: Originalism, Virtual Community, Fungibility
29 Jun 2018
School
Department
Course
Professor
Class 12
February 28
Recap of Last Class
- Constraints on judicial preferences
- Interpretation
- Conflict rules
- Political safeguards – principal/agent relationship of federalism
Today’s Class
Political Safeguards of minority rights in a federation
- How does a federation protect non-territorial minority groups?
- Traditional arguments about federalism – a bargain that can account for a minority group within a larger political union
- Some “parents” of federation thought this extended to non-territorial minority groups as well (e.g. 14th amendment,
disallowance power, etc.)
- Can the regulation of minority groups within minorities be better achieved through the principle of subsidiarity? (under
conditions of disagreement, we leave the regulation to the level of government who “knows the issue best”)
- Why do we assume the federal government will be better equipped to protect minority rights? (as opposed to provinces)
- More “removed” and dispassionate perspective? (less invested in these minority-majority differences)
- Institutional design: mechanisms within the federal government to ensure minority representation there (e.g.
alternative Franco and Anglo Chief justices, or guaranteed representation in the executive, requirement that federal
legislation be in both official languages)
- One of the risks of small jurisdictions is that they tend to be relatively homogenous; risk that such sub-national groups will
constantly ignore the minority groups within them (the 4L in the class analogy!)
- But at a federal level, perhaps Fred can make coalitions and align his interests with those of others in a similar
position
- Might explain something like a Civil Rights Act – not going to get that in a small southern state, but might be possible
at the federal level ((in African-Americans can form coalitions at the federal level, and with other interested minority
groups with similar interests)
- Perhaps the incentives are different for federal politicians? (aren’t as pressured to cater to the interest of homogenous
majorities in provinces)
- Question of resources (feds just have more to dedicate towards protecting minority rights)
Congressional enforcement of rights
- A situation where there is a constitutional protection of rights (13, 14, 15th amendments); interpreted by Courts, but where the
federal government has enforcement powers
- Why would we want the federal government to enforce/interpret?
- Litigation takes time; states could try and find bath faith ways to get around the rule and spend 10 years taking it to
court
- More efficient than litigation alone (the use of affirmative political power)
- Questions of interpretation (should congress have the ability to interpret rights in ways that are different from how the
Supreme Court interprets rights?)
- E.g. under equality rights provision, rule that says laws of neutral application do not violate the equal protection
clause (law has to be expressly discriminatory); Congress essentially says they will legislate at a higher level
- When can the government go further and give you more rights? (is it the job of the federal government to come up
with a more expansive interpretation of rights? Court says this in City of Boerne v Flores)
- Federal government is therefore undermining the provinces? Would restrict the political sovereignty of the
populations within those states (forced them to protect rights that congress doesn’t actually have the jurisdiction to
be doing)
- Issues of deference (when it does, how much should it defer to the Court?)
- Shelby case: question of relative institutional competence – should Congress be given deference to enforce s 4 and 5
of voting rights act?
- Conditions that gave rise to preclearance mechanisms are no longer the case (less voter suppression now than in the
past)
- If Congress has a reasonable basis for making decision, is that enough? What level of deference should Congress get
in this matter?
find more resources at oneclass.com
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- In discussions of political view, we were quick to say that courts didn’t have the capacity to engage in complex policy
debates/matters of data – but what about when what’s at issue is the federal government infringing on states’
rights?
Disallowance – Thought Experiment
- You become PM of Canada, and decide to use the disallowance power to enforce constitutional rights in Canada (decide that
there are a lot of jurisdictions that don’t protect minority language right very well, so you’ll compel the provinces to do so, e.g.
through control of budget allocations, or knocking down school zoning regulations)
- Think of historical purpose of federal power of disallowance (MacDonald memo, vs parents of confederation with idea that it’ll
protect minority rights) – so it should appeal to both living tree and originalist constitutionalists!
- Seems too static
Class 13
February 2
Recap:
- Political safeguards for minorities in a federation
- Original historical debate re: who does the policing of powers; one potential way is through the power of
disallowance
- Is federal order of government better placed to protect minority interests? (objective perspective from a distance);
can’t always assume this is the case
- Congressional enforcement of rights (Interpretation and deference)
- What if we allow government a more robust interpretation of rights (beyond the baseline set by the court)? This
interferes with resource allocation/political autonomy of the states
- Separation of powers concern: courts play the proper role here; congress shouldn’t be able to override or offer an
alternative interpretation where constitutional division of powers is concerned
- Disallowance: a thought experiment
- Very controversial; current thought is that there’s now a constitutional convention against its use
- Consider example of offering minority language education
- Litigation is slow
Today’s Class
Spending Power
- Scope: How broad should it be? Constrained to the division of powers, or go beyond this? What’s the appropriate scope
- Case of Dole: should the spending correspond to policy objective you’re trying to achieve?
- Means: transfer tax points to the provincial government? Unconditional transfers? Conditional grants? Direct grants that bypass
governments
Objections
- Goes against division of powers
- Hard to trace political accountability
- Political incentives: when province knows the federal government is writing cheques for an area of your jurisdiction, they re-
allocate funds to other areas; what happens when federal government ends that funding, and provincial government is left
having to make cuts/make tough political choices
- Provincial government is incentivized to spend beyond their means because feds are covering certain things; when it
ends, you’re forced to make cuts you hadn’t anticipated/don’t want to do
Responses
- Amendment: but how likely is this? Parties all have an interest in the status quo
- We have a highly inflexible constitution, which protects from constant changes based on political will of the time
- Amendment doesn’t seem like a practical idea because of historical political reasons (failed attempts)
- So we’re arguing for a more flexible amending formula (taking things out of the political sphere); leaves minority
interests vulnerable to national majoritarian impulses
Class 15
March 16, 2018
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Political safeguards of minority rights in a federation. Traditional arguments about federalism a bargain that can account for a minority group within a larger political union. Some parents of federation thought this extended to non-territorial minority groups as well (e. g. 14th amendment, disallowance power, etc. ) Can the regulation of minority groups within minorities be better achieved through the principle of subsidiarity? (under conditions of disagreement, we leave the regulation to the level of government who knows the issue best ) Why do we assume the federal government will be better equipped to protect minority rights? (as opposed to provinces) More removed and dispassionate perspective? (less invested in these minority-majority differences) Institutional design: mechanisms within the federal government to ensure minority representation there (e. g. alternative franco and anglo chief justices, or guaranteed representation in the executive, requirement that federal legislation be in both official languages)
