week 11 part 1 Flashcards
Waldron’s basic argument
(a) Rights and Bills of Rights
What does waldron say about moral rights
a moral claim that people have the right to shelter is a claim about the importance of their getting shelter. It is not a claim about the importance of their being assigned shelter in accordance with a specific type of legal or bureaucratic procedure
Waldron’s basic argument
(a) Rights and Bills of Rights
What does waldron say about moral rights
If someone believes in moral rights, what does that mean
does not mean she is demanding legal rights
he begins his case against bills of rights by distinguishing between
a commitment to rights and a commitment to bills of rights.
Waldron shows that the link between the idea of rights and constitutional rights can be broken at several points. He argues, first, that a
fundamental commitment to individual rights need not necessarily result in the derivation of a range of more concrete rights (such as protection of freedom of speech, freedom of religion etc) as normative recommendations
Waldron shows that the link between the idea of rights and constitutional rights can be broken at several points. He argues, first, that a
fundamental commitment to individual rights need not necessarily result in the derivation of a range of more concrete rights (such as protection of freedom of speech, freedom of religion etc) as normative recommendations
Waldron shows that the link between the idea of rights and constitutional rights can be broken at several points.
first, that a fundamental commitment to individual rights need not necessarily result in the derivation of a range of more concrete rights (such as protection of freedom of speech, freedom of religion etc) as normative recommendations,
Secondly
that even where it does so, there is nothing in the recognition of those moral rights that necessarily leads to the recognition of legal rights
Waldron shows that the link between the idea of rights and constitutional rights can be broken at several points.
Thirdly
a commitment to the position that an individual should have a legal right to something does not establish that the legal right should be a constitutional righ
Does a person who is in favour of a legal right always have a reason to demand extra level of protection?
not necessarily
To secure constitutional protection, it is difficult and long. will either have to agitate for constitutional reform or, if there is already a Bill of Rights, persuade judges to recognize the new right under existing heading
Does a person who is in favour of a legal right always have a reason to demand extra level of protection?
second reason for Waldron
textual rigidity
With that less articulate, less formulaic heritage of right-based concern, people can discuss issues of rights and limited government, issues of abortion, discrimination, whatever terms seem appropriate to them, free from obsession with the verbalism of a particular written charter
Waldron
(b) Rights and Disagreement
What is there disagreement
a theory of justice and rights and theory of authority.
(b) Rights and Disagreement
Theories of justice needs to be
complemented by theory of authority
- (b) Rights and Disagreement*
- Theories of rights/justice must therefore be supplemented with theories of authority.
why
When people disagree about theories of justification, we need theories of authority. Any argument about justice needs a decision procedure to make actual decisions.
A theory of authority must not reintroduce disagreements about rights: eg, ‘make the decision that the majority chooses, so long as it does not violate individual rights’
- (b) Rights and Disagreement*
- Theories of rights/justice must therefore be supplemented with theories of authority.
How can theory of authority reintroduce disagreement when ‘make the decision that the majority chooses, so long as it does not violate individual rights’.
People who disagree inter alia about rights will disagree about what that theory of authority requires, and that latter disagreement
- (b) Rights and Disagreement*
- Wollheim’s paradox of democracy
Everyone must concede that there will sometimes be a dissonance between what they take to be the right choice (theory of justice) and what they take to be the choice yielded by the decision-procedure they regard as legitimate (Theory of authority)
- (b) Rights and Disagreement*
- In the end, the legitimacy of JR is understood in terms of a
theory of authority
- (b) Rights and Disagreement*
- In the end, the legitimacy of JR is understood in terms of a
theory of authority
- (b) Rights and Disagreement*
- Anyone whose theory of authority gives the Supreme Court power to make decisions
face up to the paradox that the option she thinks is just may not be the option which, according to her theory of authority, should be followed
(b) Rights and Disagreement
- Wollheim’s paradox of democracy
- give example
same citizen to assert that A ought not to be enacted, where A is the policy he voted against, and A ought to be enacted, because A is the policy chosen by the majority.
(b) Rights and Disagreement
- Wollheim’s paradox of democracy
- give example
same citizen to assert that A ought not to be enacted, where A is the policy he voted against, and A ought to be enacted, because A is the policy chosen by the majority.
(c) The Right of Participation
it compromises the right of every individual to have a share in the making of decisions that affect them
(c) The Right of Participation
Give rights to individuals in liberal argument
Give rights to individuals in liberal argument b/c you think its possible for them to make good decisions about their own destiny. Why would you deprive them of capacity to engage in what rights require
(c) The Right of Participation
how does judicial review limit participation
Worked tirelessly for same sex marriage, built coalition, political pressure. Assume it is yes. Parliament enacts law giving access. Then judiciary comes in and invalidates it
Waldron’s theory
rejection of a constitutional bill of rights comes
Waldron’s theory
what type of judicial review does he challenge
strong rights based JR. strike down legislation to say it is invalid even tho it is enacted by parliament
Weaker forms: judges can declare inconsistent with principle but that declaration does not change validity of law. Many statutory forms of bill of rights take that form
A central part of Waldron’s argument is that bills of rights do not demonstrate the respect for individuals
decision-making power out of the legislature to the judiciary exhibits a mistrust of the citizens who vote for and participate in the Parliament
(c) The Right of Participation
what does waldron argue for
he argues for the primacy of the right of participation in political decision-making[34] as the ‘right of rights’
By taking decisions about
rights away from participatory-majoritarian institutions, and placing them in the hands of the courts, judicial review involves an unjustifiable “disempowerment of ordinary citizens on matters of the highest moral and political importance
arguments in favour of entrenching rights in a Bill of Right
this is thought to be a good way of giving rights the ‘special protection’
because it subjects them to an independent review-procedure, relatively insulated from direct political pressure
Two primary arguments against Bill of Rights
- we disagree about what rights we have.
- given this fact, we should respect people’s right to participate and their ability to have a say in the resolution of these disagreements
Participation
what should be adopted instead of JR to resolve disputes
a participatory majoritarian resolution of political disputes should be adopted, even if this would lead to worse outcomes than any other decision-making mechanism.
Participation
the likelihood that judicial review under a Bill of Rights might offer better protection than majoritarian resolution
the likelihood that judicial review under a Bill of Rights might offer better protection to human rights than the scheme proposed by Waldron, is insufficient justification to restrict or limit the “right of rights”
Waldron’s main criticism of constitutional rights is
because strong judicial review of such rights is inconsistent with democratic right of people to participate in public decision making
what does waldron describe right of participation as
right of rights
give example of how JR review of bill of rights limits participation
- citizen launches campaign or lobbies about rights they feel strongly about
- organise petition, lobby parliament, ochestrate support of other supporters, law is passed recognising the right and then it gets struck down b/c your view of what rights have does not accord with judges
When rights are entrenched, how does it affect parliament
limits the legislative powers of the parliament
When rights are entrenched, how does it affect amendment
those limits require extra-ordinary procedures to amend.
When rights are entrenched, how does it affect power of judiciary
power to enforce constitution limits and interpret is given to the (unelected) judiciary rather than to parliament.
Key concern is whether we should
entrust the protection of our rights to the judiciary or the legislature?
Constitutional recognition provides the
strongest form of institutional protection of rights and vests judges with the power to protect these rights.
Waldron presents a
rights based critique of constitutional rights;
Waldron is sceptical about the existence of fundamental rights and cautions inscribing these rights in ‘canonical documents’. This is because
such a proposition is based on a combination of self-assurance and mistrust;
Waldron is sceptical about the existence of fundamental rights and cautions inscribing these rights in ‘canonical documents’. This is because such a proposition is based on a combination of self-assurance and mistrust;
Self-assurance
Self-assurance in that what the individual is putting forward is a fundamental right
Waldron is sceptical about the existence of fundamental rights and cautions inscribing these rights in ‘canonical documents’. This is because such a proposition is based on a combination of self-assurance and mistrust;
Mistrust
Mistrust in that the individual is concerned that an alternative conception to their right might be concocted by an elected legislature in the future, such that the individual’s formulation is elevated beyond the reach of ordinary legislative revision.
Waldron
disagreement;
even those who agree for rights protection disagree about what rights and how these rights should be protected.
Waldron
This self-assuredness and mistrust
detracts from beneficial rights discourse and debate.
disagreement about what rights and how to protect it
In Western societies, the dominant theory of authority is
majoritarian democracy.
-Thus, the principle right which needs recognition is the right of participation which comprises people’s right to participate in the making of decisions which affect them.
The problem of the counter-majoritarian difficulty is that
judicial review is illegitimate because it allows unelected judges to overrule the elected legislature, undermining the will of the majority.
The problem of the counter-majoritarian difficulty is that judicial review is illegitimate because it allows unelected judges to overrule the elected legislature, undermining the will of the majority.
Waldron seeks to challenge these assumptions by arguing that failings in the
legislature of executive makes these institutions no more undemocratic than the judiciary.
Waldron argues that decision-making by a small judicial elite will always ‘score lower’ because it
disempowers the people and their representative institution. Because people reasonably disagree about rights and rights protections, these disagreements should be settled by people themselves in their elected legislature. This would be a more democratic outcome.
The counter-majoritarian difficulty
who made up this term
Alexander Bickel
The counter-majoritarian difficulty states
a problem with the legitimacy of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions
If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic
The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacyWe all know the basic story:
the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.”
The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacyWe all know the basic story the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.”
Among the complexities are the following:
many different theories of democratic legitimacy, and only some of them emphasize “majoritarianism” as the key factor.
The counter-majoritarian difficulty is sometimes characterized as a problem with the institution of judicial review, but it could also be understood as a difficulty for any
constitution that constrains majority will.
The counter-majoritarian difficulty is sometimes characterized as a problem with the institution of judicial review, but it could also be understood as a difficulty for any constitution that constrains majority will. Of course, there could be constitutions that impose no limits
give example
at all on the will of democratically elected legislatures.
For example, a regime of unicameral parliamentary supremacy might be said to have a constitution that allows a parliamentary majority to pass any legislation that it pleases and to override the courts or executive whenever the legislature is in disagreement with their action
other examples of counter majoritarian difficulty (not JR)
- legislation that attempts to constrain the action of a future legislature might be “unconstitutional.”
- abolishes elections and substitutes a system of self-perpetuating appointments.
Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for
a regime that incorporates the institution of judicial review incorporating judicial supremacy.
The institution of judicial review is counter-majoritarian because
judges are not elected and they serve life terms vs elected members of legislature
Unelected judges strike down legislation enacted by elected legislators: that is certainly antidemocratic and antimajoritarian in some sense.
The counter-majoritarian difficulty is compounded by the nature of judicial review as it has been practiced by the modern Supreme Court.
Supreme Court has been involved in the enforcement of constitutional provisions that general, abstract, and seemingly value laden—examples include the freedom of speech, the equal protection clause, and the due process clause of the constitution. T
he counter-majoritarian difficulty seems particularly acute when it comes to so-called “implied fundamental rights,” like the right to privacy
How does Canada ameliorate counter majoritarian difficulty
Section 33 of Canadian Charter of Rights provides for legislative override of the decisions striking down legislation
Such provisions ameliorate the counter-majoritarian difficulty, even if the override is rarely exercised, because they provide democratic control.
One famous answer to the counter-majoritarian difficulty focuses on the idea of “discrete and insular minorities.”
. Judicial review is arguably legitimate when it serves to protect the interests of “discrete and insular minorities” against oppressive actions by democratic majorities.
second answer to counter-majoritarian theory
admits that judicial review is antidemocratic but seeks to justify this feature by appeal to some value that trumps democratic legitimacy’
it might be argued that “liberty” is a higher value than “democracy” and hence that judicial review to protect liberty
the value that Waldron and others believe to be imperiled by JR is that of
democratic self rule
the people should decide their own fate through voting and majority rule, with everyone’s vote counting equally. Whenjudges decide the fate of the people, the judges’ votes count for everything and the people’s for nothing.
Describe rights that might be entrenched
US Constitution: free speech, freedom of religion, privacy, equal protection, due process, just compensation for takings of property, and the like. But it also entrenches many other things
What is the question to be asked for entrenching moral rights
whether moral rights should be constitutionalized and, if so, whether their authoritative interpretation should be the province of the courts or that of the legislature.
Problem with courts interpreting moral rights
courts are both resolving controversial matters (moral rights) and then “legislating” — coming up with implementing rules – in a way that trumps the legislature itself (doctrinal rules)
Moral argument against JR
JR is an undemocratic and illegitimate practice b/c it allows unelected judges contrain and sometimes override decisons made by elected representatives.
waldron argues that by taking decisions
about rights away from participatory-majoritiarian institutions and placing them in the hands of courts, JR unjustifiaibly disempowers citizens on matters of the highest moral and politicla importance
For waldron, the right to participate is
not one to be compared, it is a fundamental right. likelihood that JR might offer better protection of HR than participatory majoritarian mechainsm is insufficient justification to limit right to participation.
When legislatures address a problem, they,
reason in the name of society. Unlike courts, however, they are not constrained by legalisms – text, doctrine, and precedent.
When legislatures address a problem, they,
reason in the name of society. Unlike courts, however, they are not constrained by legalisms – text, doctrine, and precedent.
Why is it better for Leiglsature to hear matters on Bill of RIghts
se the legislative model of moral reasoning than the judicial one to ensure that the issues are addressed on the merits, rather than get bogged down in interpretive disputes about the meaning of the constitution.
From Waldron’s perspective, if we want real moral deliberation on rights questions, our job is to make legislative debate the best it can be.
Waldron’s assumption that the kinds of rights commonly incorporated into bills of rights are
moral rights
Waldron contends that courts tend to confront issues
are fundamentally moral in legalistic, logic-chopping terms in which head-on engagement with the contending moral considerations often is almost wholly washed out
Two kinds of democracy rights:
(a) Rights constitutively required for democracy: e.g., procedural matters like rights to vote (
(b) Rights required for the legitimacy or moral value of democracy. i.e. Rights that establish a deliberative context for decision-making: freedom of speech and association
who should interpret individual rights
constitutional interpretation away from the Supreme Court and put it in the hands of “the People,” even in cases where individual rights are at stake.1
normous pitfalls in incorporating real morality into law
We and our governmental institutions – the legislature, the executive, and the courts – are at all times subject to morality whether or not it is incorporated into our law.
one believes that in the absence of constitutionalizing, say, freedom of religion, that government would be morally free to deny it. So what is gained – and what is imperiled – by incorporating our moral rights into law?
what is gained is that morality becomes legally enforceable against the government
Court’s view of what moral rights are
How will courts interpret moral rights in constitution
matters of textual analysis and legislative history, not on what our rights really are
what is the question
whether those rights should be directly constitutionalized, and if directly constitutionalized, should be invoked by courts to strike down acts of the democratic organs.
courts to strike down acts of the democratic organs.
democratic right argument
the democratic organs themselves have a moral right to determine the content of their moral rights.2
legislatures, the institutions that Waldron would elevate about courts, are democratic in only two senses
they operate by majority vote, and their members must stand for election
what should be decided by majority according to waldron
moral right that the content of our moral rights be decided by a majority vote of the people
Waldron makes much of the fact that the content of our moral rights
Waldron makes much of the fact that the content of our moral rights is highly controversial.. But its controversiality is not itself a factor that militates in favor of legislative rather judicial resolution.
We have assumed that the constitutional authors did not constitutionalize our moral rights by
by rulifying them - - translating them into determimate rules and then making those rules constitutional constraints on governmental action. If the constitutional authors had done so, courts would have the clear advantage over legislatures in applying those rules,
Constitutionalizing moral rights directly does not add to
the obligations of the legislature, as the legislature should always consider itself constrained by moral rights, whether or not they have been constitutionalized
all governmental decisions are constrained by moral rights, whether or not those rights have been constitutionalized.
Canada was a free and democratic country prior to the Charter of Rights and Freedoms, committed to things such as freedom of expression, equality and the principles of fundamental justice. What changed with passage of the Charter was
rights and freedoms were given constitutional status, and judges were given the power to strike down laws that infringed on them.
much has changed in the first 30 years of the Charter
Numerous laws have been struck down and many others altered substantially, often by novel statutory interpretation
waldron’s rights based critique is limited to
strong form JR where courts can decline to apply statute in particular case or to modify statute to make its application conform with individual rights
weak form of JR
example Waldron gives
in UK: courts issue formal declration that statute is incompatible with rights set out in Human rights act but does not invalidate statute or decline to apply it
Weak form of JR
NZ
NZ bill of Rights Act gives courts authority to prefer interpretations of legislatoin that are consistent with rights and freedoms set out in the Bill.
What does Waldron say about Canada’s JR
since s 33 of Canadian Charter of rights is rarely invoked, it is a strong form of JR.
what does s 33 Canadian Charter of Rights and Freedoms
legislature has authority to override for a limited period of time judicial decisions that a statute is of no force or effect because it is inconsistent with provisions of the Constitution.
How then could the well-entrenched practice of judicial review in America be justified? John Ely’s answer?
process-based theory of judicial review
[t]he notion that courts should exercise judicial review almost exclusively to protect democracy and guarantee the fairness of legal processes.
judicial review’s purpose is to prevent and correct democratic ‘malfunctions’ that entrench the powerful or disregard minorities.
One response to Counter majoritarian difficulty
Not to deny democracy but to say that there are ‘Rights’ are important and worth enforcing even if this comes at some cost to democracy.
More than majoritarian vallues
John Ely’s procedural type of judicial reviewelied heavily on saying.
not building all individual rights but democracy relies on a particular set of process rights where the job of those rights is to clear away any malfunction in democratic government
Designed to make sure democracy is adequately reflecting majority’s will
Waldron’s response to first argument for JR
Disagreement on rights
Australian example
Disagreement on right of freedom of political communication
Law striked down (limiting political parties to purchase television airtime to put their ads up)
Waldron would say whichever view is right, this shows there is good faith reasonable disagreement about those democratic rights. Democracy goes all the way down including those procedural arguments
Waldron’s response to 2nd argument for JR
care about more values, not just democracy
- Taking important moral questions from public debate and giving those issues to unelected judges seems to be inconsistent with picture of human agency that underlies liberal rights theory.
- individual worthy of respect and Able to make autonomous choices seems in contention with institutional approach to rights questions which limits participation of ordinary people
