PHILOS 1B03 Lecture 4: Constitutional Review
1 Sep 2016
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Document Summary
Judges as philosopher kings & queens how judges know better about our rights: the argument of democracy constitutional review is fundamentally undemocratic; unelected judges tell elected personals what to do, radical disagreement: ulysses and the mast. Analogy: ulysses & charter review crucial point of disanalogy: Ulysses knows in advance what he wants to avoid. Social policy: decision should be left to legislators, the argument from democracy: two worries, the people-now vs the people-then. Entrenchment; dead hand of the past: the people-now versus judges-now. Judges democratically unaccountable; judges overturning decisions of democratic legislature" substituting own moral decisions. Models of guidance: all drivers must keep within 100 km per hour speed limit on 403, all drivers must maintain a reasonable speed on 403. Option 1: concrete rule: promotes certainty & fixity of result, sacrifices flexibility (e. g. ambulances; sick daughter to hospital, etc. , little need for judgement calls by drivers, police & judges, anticipate few unforeseen, exceptional cases.
