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Department
Social Science
Course
SOSC 3360
Professor
Jonathan Rudin
Semester
Fall

Description
How the Charter Works 9/16/2013 12:35:00 PM - Canada is a federation  2 levels of govt o federal govt o provincial govt - Britain has one real level of govt- federal govt. - Britain passed a law giving Canada its indepedance in 1867  british parliament passed the BNA ACT IN 1867 -The BNA act divided the powers between the federal and the provincial govt.  Powers of the federal govt are found in sec.91 o Immigration o Military o Criminal law o Taxation o Patents & trademarks o Tariffs o Currency o Postal service o Census o Banks o Indians and lands reserved for Indians o Divorce o Residual powers- what’s left after provincial powers o POGG – peace, order, and good government  Powers of the provincial govt are found sec.92 o Education o Healthcare o Property & civil rights o Roads, public works o Provincial companies o Fines – highway traffic act, speed limits etc. -in the US criminal law is a provincial responsibility -judicial review o the act of judges telling you what you can do and what you cant do o division of powers cases - 1960 the federal government (conservstive) john deifenbaker enacted the bill of rights o guaranteed certain rights ex. Freedom from discrimination etc. - two big problems with bill of rights  bill of rights was only passed by the federal govt meaning it could only govern what the federal govt did not the provincial govt  it was not entrenched- the bill of rights was passed like every other legislation, there was no way that the bill of rights was raised above other legislation - very few cases where bill of rights was successfully used  - last case occurred in 1970s ( Lavelle v. bedard) o passed a law in the 1950’s that said if a status indian woman married a non status indian man she lost her status and so did the children in the eyes of the federal govt. o but if a status indian man married a non status indian woman her and her kids gained status.  The case was that Women are treated differently than men - Another prime minister ( liberal) shared deifenbakers idea of rights pierre Elliot trudeau  Prime minister in the 1960s  Created charter of rights  Recognized that he needed a piece of legislation that would cover both the federal and the provincial govt. o This led to challenges  The federal govt has no authority to govern provincial govt  The british govt. only had the authority over all of Canada federal and provincial  Wanted to patriate the constitution o Come from britian back to Canada and wanted it to belong to Canada o Tried to get all provinces to agree - BNA act renamed constitution act 1982  states that the charter is the supreme law in Canada - constitution act of 1982  Canada has a charter of rights for the first time o Applies to the federal govt. o And applies to the legislature and govt of all matters in each province o Sec. 52 – any law that’s in violation with this document is to the exten of the inconsistency is void and of no effect  The constitution act raises the charter to be the supreme law in Canada  It is entrenched -charter of rights  Covers fundamental freedoms o Section 2 ( a) (b) (c) (d)  Covers voting o Section 3  Covers mobility rights o Section 6  Covers section 7, 15 - entrenched legal rights into legislation 2 IMPORTANT SECTIONS OF THE CHARTER - makes the charter very different from American constitution - what makes the carter so attractive to other countries - Section 1  the charter guarantees the rights and freedoms set out in it subject only to reasonable limits etc. -the charter protects the individual from the state but there was a concern that Canada would allow this section to infringe ones rights - Section 33 ( pierre trudeau hated)  the only way that the parliament would pass this charter  the notwithstanding clause ( if you want the charter not to apply)  notwithstanding clause is only good for 5 years, unless it is reintroduced o it is 5 years because that is when elections occur -big fight about Section 15 o because it supported gay rights o equal rights for everyone -charter just covers acts of government judicial review - 9 judges appointed in supreme court  we want judges to make decisions not based on their personal preferences that is what politicians are for  the American judicial history is what highly influenced the Canadian system of judging o americans have a history of the constitution unlike Britain - notion of dialogue  dialogue between the courts and the legislasture  the courts and the legislature talk to each other about the decisions that the court makes and the legislation that parliament passes o allows for negotiation  very Canadian notion ( doesn’t have huge American precedent)  emerged in Canada with the charter American Constitutional Law and History 9/16/2013 12:35:00 PM Reading Notes -Professor Wechsler argues that the court must not be merely a naked power organ  decisions must be controlled by principle  a principled decisions is one that rests on reasons with respect to all the issues in a case, reasons that in their generality and neutrality transcend any immediate result that is involved - the requirement that the court be principled results from - a madisonian system is not completely democratic( completely majoritarian)  assumes that in wide areas of life majorities are entitled to rule for no better reason other than they are majorities - there are some areas of life that should not be controlled by majority but rather by the individual or else it is called tyranny - some see the model as containing an inherent perhaps insoluble dilemma - majority tyranny occurs if legislation invades the area properly left to individual freedom - minority tyranny occurs if the majority is prevented from ruling where its power is legitimate. - the courts power is only legitimates if it can demonstrate reasoned opinion that it has a valid theory derived from the constitution that respects the spheres of the majority and the minority. - judge wright thinks that you make decisions now and principles later  but how can you know a decision is correct if there is no principle to explain or justify it  value choice is the most important function of the supreme court according to judge wright - in order for principles to be neutral they must be neutral in application but also in definition and derivation - the Griswold decision has been a major advance in constitutional law  a demonstration of the courts ability to protect fundamental human values - justice douglas o first amendment- privacy o all other amendments after- set out zones of privacy - Griswold opinion fails every test of neutrality - the equal protection clause has to legit meanings  require formal procedural equality  and because of historical origins it does require that govt not discriminate along racial lines - supreme court has no way of being non racial and always equal so it appeals to the simplistic notions of fairness or what it regards as fundamental interests in order to demand equality. Lecture Notes - the US experience has very much influences the Canadian experience - most of the theorists we study in this course are American th US constitution amended and 14 amendment came in  passed in 1868  significance of that date is that it was right after the civil war - 14th amendment  guarantees that no state should deprive any person of life liberty or property without due process of the law o its not that you cant take away these rights but you cant do so unless it follows due process of the law  it is like section 7 of the charter of rights and freedoms ( life, liberty, and security) -due process ( legal term)  what most people thought this meant prior to the 90’s was that this was a set of procedural rights ( the process you had had to be fair, impartial person making decision, right to know the case etc.)  early 1905 things got weird with this term o ( Lochner v. new york) ex. state of new york started to create work laws and it makes a law that its illegal for a baker to work more than 10 hours a day or 60 hours a week  lochner was fined for allowing one of his workers to work more than 60 hours in one week  he objected and took the case to court because it went against his and his employees liberty to work more  from due process point of view there was nothing wrong the procedural element was followed but he said nevertheless the law was unconstitutional  majority of the us supreme court said : this isn’t about labour law there is no reasonable ground for interfering with the liberty of a person and free contract of a baker or other trades and manual occupations.  the real objective is to create a fair relationship between master and employee - substantive due process of law  whether or not we look at the substance of the law if it properly interferes with the liberty of the individual  and in particular the relationship between master and employee  there is no reason for the state to get in the way if there has been a relationship agreed and established on hours of working  this case provoked strong dissent -concern was that the court was wandering into legislation and was saying what was good law and bad law  our role isn’t to say whether this is good law or bad law but whether this is constitutional  we as judges have the right to over turn but we cant over turn a law because we don’t like it, there has to be some basis in which they interfere however they were in the dissent - yellow dog contract : the contract is when you sign a contract and you try and join a union you can fire them if they join one - dissenters said is its not the job of the judges of the supreme court to strike down laws they don’t like  but the majority went on in this route - there was problems in the 1920s because people votes for figures that promised them these things and then when it came down to it the courts struck down all this legislation -the courts were imposing their own particular economic agenda on the nation  who are they to decide what economic system the united stated had or any country or state  if the constitution says the state can run this way than it can if they run without minimum wage law then its just a question of individual issue th - another part of the 14 amendment o in addition to the first part ( life, liberty, and property) nor can it deny the person within its jurisdiction the equal protection of the law o sparked new litigation in the 1960’s Griswold v. Connecticut  cannot use contraceptive and if using it than you can be fined not less than 50 dollars and imprisoned for not less than 60 days and not more than a year o the state thought if you didn’t want to get pregnant you wouldn’t have sex  planned parenthood said that you could use various forms of contraceptives to prevent conception to married persons o they were charged with aiding abiding or counseling a crime and they were fined each a $100  this was a test case o a case they would use to test legislation o they wanted to be charged so they could challenge this law o the matter ends up in front of the US supreme court  penumbra of privacy o not part of the object it is around the object ( the stuff in the shadow) Roe v. Wade (1973), is a landmark decision by the United States Supreme Court on the issue of abortion. Decided simultaneously with a companion case, Doe v. Bolton, the Court ruled 7–2 that a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests in regulating abortions: protecting prenatal life and protecting women's health. Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the trimester of pregnancy.  caused a great deal of difficulty for many people for a great amount of years Plessy v. Ferguson - ( 1896) train travelling in Georgia - in the train white people and coloured people could not travel together - they had to be in separate cars but the cars had to be the same ( equal) - mr.plessy ( black man) challenges this law because it discriminates his liberty to be able to sit in the white car - goes to supreme court in 1896 and loses - have the right to choose what car you want to sit in ( 14 th amendment) Brown v. Board of Education - ( 1954) black father wanted his kids to be able to go to a white school or to choose the school they go to at least - the states that he’s challenging the law says that black and white schools are separate but they’re equal ( same facilities same staff etc.) - we must look at the effect of segregation on educational opportunities - 1954 the court says to separate from others of equal qualifications solely because of their race is to create inferiority in hearts and minds therefore separate but equal no longer comes in play - neutral principles and amendment problems o this issue of having a constitution that the courts apply to the decisions of a legislature o some see this having an inherent and insoluble dilemma o nor the majority or the minority can be trusted to define the freedom of the other o we live in a democratic state but we are prepared to a non democratically elected group to make decisions because it is the only way to protect our freedoms ( only way to do this is to have a court) - what is the court supposed to do and what basis does it do it ?  what the court is doing is applying a set of principles that go beyond their personal feelings  the court articulates a series of principles and then applies it to a specific case and may lead them to make decisions they will sometimes agree with or disagree with but these principles are neutral so the decision must be carried out regardless  Bork says this is not enough to develop and apply these principles consistently, they must also be neutral in derivation and definition  has to be a way for judges to know where these constitutional norms come from and it cant be from them alone  not up to the court to find the fundamental values of justice  you cant find rights that are not in the constitution -substantive due process revived by the Griswold case is and always has been an improper document ( pg.11) o this means Griswold’s antecedents were also wrong ( lochner v. new york) o you look to history to see what the framers of the constitution intended ( when the law is not perfectly clear this is where you look ) ( p.14) Re B.C. Motor Vehicle Act, [1985] - the law says that a person who drives a motor vehicle while prohibited and comits a crime while driving - you have to go to jail for 7 days if youre driving with a suspended license in british Columbia  this is challenging because you can lose your license and not know you’ve lost it - this law says ( subsection 2)  if your arrested while driving and your license was suspended you do not have the opportunity to say you had no idea because you are guilty as soon as you are stopped whether you knew it or not. - this was decided 3 years after the charter was enacted  Section 7 talks about fundamental justice - Tutorial Discussion 9/16/2013 12:35:00 PM Bork Summary - persistent problem of constitutional law is its lack of theory and principle - supreme courts decisions must be ruled by neutral principles - for bork its not only necessary to be guided by neutral principles but they must look back in history to see what the framework of the constitution intended - judiciary is supreme  a society that is run by judges that make decisions based on bias preference and opinion is one that would be highly un democratic - madisonian system : ensures the rule of the majority as appropriate but also protects the minority freedom from the tyranny of the majority - important to determine the area of freedom by majority and minority - if supreme court judges make decisions based on value choices than it violates the madisonian system - hard to know if decisions correct without principles that come along with it - not enough to apply neutral principles must define and derive them - criticized Griswold vs. Connecticut ( among other cases)  the court failed to define the scope or justify the derivation in striking down those statutes o no neutral principles from decision  condemns substantive due process implied by the court  substantive due process is an improper doctrine and should not be used  the court must accept the choices made by the legislature because it is a democratic choice of the people o not up to the court to decide what they like or don’t like o except the law clearly violates the constitution  there is no way in which anyone can say who’s liberty is higher than the others ( morality, judgment etc.) should be left to the community - judges are appointed not elected in a democratic society the majority are the ones that elect politicians that represent their interests but judges are not appointed this way - but the judges don’t have to please anyone so they kind of balance the majority and minority Theories of Judicial Review II ‑ Legitimation & Fundamental Values 9/16/2013 12:35:00 PM Theories of Judicial Review II ‑ Legitimation & Fundamental Values - Alexander Bickel and Ronald Dworkin- Constitutional Theorists in 1960s - take different ideas of judicial review - both bickel and dworkin begin their articles by arguing against the position of judicial review even though they don’t actually disagree with the practice Bickel Article: - Bickel wrote in the 1960s, the least dangerous branch à in the US, the government has three branches: executive branch- President and Cabinet, Congress, and Judiciary branch - sees judiciary branch as the least dangerous of the three - no one can elect the judges on the supreme court level - judges understand the limitations of their power - important to look at the practice of judicial review - starts by outlining the problems of judicial review - issue of democracy à since judges are not elected it is not seen as reflecting the values of society therefore its not legitimate because the public cannot elect the judiciary - in the US, democracy is a series of factions who all have to work together, since the president does not have the power to make legislative decisions without the approval from congress - no majority but rather a series of minorities that have to communicate with each other to achieve common national goals - sometimes judicial review is justified and needed, because some people who wish to enact certain laws must be governed in some form if it violates the charter of individual rights - because decisions are made by a legislator, they make sounder decisions because they respond to real needs of the people - unintentional problem of judicial review à judicial review weakens the democratic process, suggests that we should be afraid of government and distrust of the legislator - allows politicians to duck on making choices, because at some point the courts will make the decisions on their behalf - example: s.15 of the Canadian charter, with the omission of sexual orientation because many electorates were afraid that it would anger many of their constituants, left it to the supreme court to decide - bickel wants to be pragmatic when outlining his argument for judicial review à what is it that the courts do better than the legislator? He responds that if we look at government and law, all laws have two aspects to them- immediate consequences and unintended consequences, government responds to immediate consequences and ignore the unintended consequences that could be very serious - sometimes the legislator has an idea of some unintended consequences, presents the need for judicial review to review these laws years down the road to see if the law is effective, and/or presents problems - sober second thought à judges have the time to review laws that are enacted, takes a long time for a case to make it to the supreme court à advantage of this is that it allows the reflection of the constitutional challenges from the time it first gets to court to the time it gets to the supreme court (if it makes it) to see how much has happened as a result of the law - intention of the law when it is first enacted and the impact that the law presents - court takes it time when making a decision, takes months to reach a conclusion after careful review - mystic function à faith in their government because the laws that are being enacted are overlooked by the judiciary to ensure that the law is constitutional - often courts don’t overturn legislation, rather reassures the legislation is valid and legal - courts remain relatively stable as judges can stay on for long periods of times even after electorates come and go - courts are also able to engage in a dialogue with the legislator - if the courts do not reflect the societal values, then public discourse will determine the decision making - the supreme court has the opportunity to hear cases that are brought before them, cases have to be approved to be heard by the court otherwise the case is dismissed - unifying function to society, as well as a mystic function - says judicial review provides an opportunity to hold government accountable, floor and ceiling model for constitutional law à if it’s a floor than the government (ceiling) has to meet the constitution half way, if its vice versa - encourages politicians to think that even if laws are constitutional in theory, in practice it may be seen as being unjust if laws don’t reflect the values of society - Korematsu à laws that governed policy involving Korean and Japanese and the discrimination against them during the WWII era, argued that it was unconstitutional and lost their case on the b
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