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Lect 4-Democracy and Distrust.docx

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York University
Social Science
SOSC 3360
Jonathan Rudin

Democracy and Distrust October0713425 PMScrutiny SpectrumRaceNational Origin Religion GenderDisability Another perspective on judicial review John Ely Get us out of the box that the previous theorist looked at Borks original intent was very hard to know what it was Bickel is pragmatic what is and what is not a fundamental value Ely argues that the constitution is a process orientated document oConstitution charter does not tell you what the answer is tells you how you get to the answer and when it is and is not appropriate for the court to intervene US supreme court was fighting with concepts of discrimination and how they intervene oUs Supreme court come out with levels of scrutiny If violation is on race then we look at that sort of legislation very carefully If it is about national origin we look at it less seriously and religion will not be as serious as race The problem was that your chances of getting constitutional case successfully depended on the level of scrutiny the court bought on it What is the law about what test do we use what was the applicable test and Ely found this disturbingoSometimes the law could look constitutional but its impact on people seem to be based on something else Example was the experiences the US had during the war in Vietnam In the US in the 1960 there was the draft any male who was over 18 would be drafted and serve in the military but the reality was there were a number of exceptions to people and that in practice all though the law applied to people and the people who were drafted were disproportionally poor and black the exemptions that was available to them were hard because they could not get into university Though a law looks neutral it seems to be treating everyone the same but in practice may be very problematic Ely was concerned about this because in this particular argument has been challenge but there was a chance of those who died in Vietnam it was disproportionally black soldiers who died because there were more of them in the front lines and lower ranks of the army The law treats everyone the same based on race but that is not happening oPresent problems and is still present is the idea of what sometimes called reverse discrimination or affirmative action
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