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Lecture 10

POL224 Lecture 10 Nov 12 .rtf

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Department
Political Science
Course
POL224Y1
Professor
Rodney Haddow
Semester
Fall

Description
POL224 November 5 2013 Canadian Constitution in US/UK comparison • JCPC to 1949, therafter SCC • Canada closest to UK on i, iii, US on ii, iv, depends on other 3 • constitution act (1982): 'entrenches' charter of rights and freedoms, moves largely from UK to US column. This expands the SCC role; moves iv more to US side • constitution act also includes amending formula • federal parliament + 7/50 for many amendments • Meech lake and charlotte town 1992 attempts to change the constitution but failed, attempt to bring quebec into the agreement • canada is a country where the convention of parliamentary sovereignty prevails. is it true or false? break the constitution down into different parts, parliamentary sovereignty applied with respect to federal and provincial governments, what kind of a constitutional doctrine is it? it is a convention, so those parts that are unwritten it is true that parliamentary sovereignty prevails and for those parts that are unwritten it is false it does not prevail. • when it comes to the federal/provincial relationship, this does not apply because the courts have to intervene in the legislature, parliamentary sovereignty doesn't apply • canada is a mixed constitution, partly parliamentary sovereignty and partly not, mix of both us and uk Courts and Civil Liberties • liberal democracy is majority rule tempered by minority rights, balance of both • the self governing people of athens, decided that socrates was teaching false doctrines he was a dissenter a minority with a different point of view. so when they found him guilty of trying to corrupt the citizens of athens, they encouraged his death. in other words, he had no minority right- he was different • modern democracies are liberal democracies because they believe the individual can be protected with minority rule, democracy can only work effectively with the dissent and the will of the majority • have the people being really informed of the decisions they're making must have a chance to entertain minority decisions • the argument is made in canada before 1982, belief by majority of canadians that the protection of the majority should take these rights and entrench them into the constitution like in the US 2) UNITED STATES • american example demonstrates this implementation • bill of rights= amendments 1-10 (1791) • the americans right after gaining independence in 1783 had a preliminary constitution focused on states, changed it into a new constitution in 1789, that constitution did not have a bill of rights and protection of the individual, big debate about it and they quickly amended it in blocks of 10 amendments known as the bill of rights. the 13th and 14th amendments also have to do with rights • Lowi distinguishes between civil liberties and civil rights, civil rights didn't come along until the amendments of 1965 • we merge them, civil liberties of the US are your negative rights/ marshall rights and your civil rights are your positive rights to exercise your will in society • civil liberties are due process- to be treater fairly by the state and not be violated • civil rights are positive rights to engage in society and to develop yourself as a human being • social rights are not in US or CAN constitutions • Whats the overall theme when we look at the history of protected rights? whatever happened to 'stare decisis'? the reality is that there has been massive changed over time in how supreme court justices have understood these rights, where does this precedent come into play? • times where the court has overturned a previous opinion, usually courts don't do that, come up with a decision • Bill of rights guaranteed many kinds of rights against all governments. however, it quickly became the case that things became much narrower than they seemed, only 1 of 10 amendments attempts to make clear wheher bill of rights protection apply to both federal government and provincial gov- it applies to the national government, however it gives the impression is that it is for all governments • for the first 150 years of its existence, the bill of rights was interpreted strictly by the courts, they were very reluctant to be stepping in and overturn statutes contrary to bill of rights • example in reading: Barron vs. Baltimore 1883, Barron argued the city restricted him of his livelihood by clogging up his harbour/warehouse, he couldn't stay in business. the US came up with a decision which is although ythe bill of rights seemed to apply to all states and the federal gov, it didn't it would only apply to the fed gov meaning states could pass laws violating peoples rights and get away with it • this was important on a number of important issues • it mattered for slaves, slavery didn't exist under federal laws, only state laws in southern states, so having someone be a piece of property is a denial of a right of a human being, if the state had been bound by the human rights they would of had to deal with this, but they didn't because states are not bound by human rights • Dread Scott case of 1857, black slave escaped into a northern state Missouri, a state that dint have slavery, bounty hunters dragged him back to the south, if he was in a free state he should of been a free man, but the state declared him a piece of property in the first state and had the legal right to retrieve him when he escaped • subject to the due process of law is protected in this
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