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Lecture 4

POLB30H3 Lecture Notes - Lecture 4: Jeremy Waldron, Paradox (Warez)


Department
Political Science
Course Code
POLB30H3
Professor
Margaret Kohn
Lecture
4

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POLB30 SEPTEMBER 23
LECTURE 4
JUDICIAL REVIEW AND CONSTITUTIONALISM
JUDICIAL REVIEW
Integrity
Interpretation
Living constitutions
Rights as trumps
Courts decide whether statutes, lower
court decisions, and administrative actions
are consistent with the constitution
QUESTIONS FOR TODAY:
Is a Charter a good idea?
Should the court decide political issues (Reference re: Secession of Quebec)
Does the theory of constitutionalism make sense?
IS CHARTER A GOOD IDEA?
Waluchow’s aim in this piece is to defend Charters and also to defend to judicial review against
objections notably against the objections made by Jeremy Waldron.
Usslyers mast metaphor we as citizens are so passionate and self-interested that when given the
opportunity we will do terrible things that will have terrible consequences for other people unless we
are bound by something like the Charters.
Criticisms of Charters:
- Too static (stay the same and not change)
- No metaphysical basis for “eternal truths”
- They don’t pass the “no reasonable disagreement” test
- They are anti-democratic (because the majority are bound by what other people decided in the
past and this is by its logic a restriction on the popular will)
- They rest on a contradictory view of the person
- Judges should not be treated as Platonic kings
- Elitist
- Moral objectivity is impossible/relativism (we live in a pluralist society with diff views)
- Charters are not necessarily as effective as proponents assume
- They don’t necessarily foster deliberation
LOCHNER CASE 5-4 DECISION
Limited the hours a baker could work each day to ten hours a day. Majority of the court decided that
this was a violation of the principle of contract.
WALDRON’S RESPONSE TO THE “CHARTERS FOSTER DELIBERATION ARGUMENT”
It is not true that debates happen
Being constitutionalized makes the debate worse
“Constitutionalization” forces us to speak in code, to address the issues in a less than honest way
(through technical legal issues rather than broader discussions about values
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