week 11 part 1

Question 1

Waldron’s basic argument

(a) Rights and Bills of Rights

What does waldron say about moral rights

Answer 1

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

Question 2

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

Answer 2

does not mean she is demanding legal rights

Question 3

he begins his case against bills of rights by distinguishing between

Answer 3

a commitment to rights and a commitment to bills of rights.

Question 4

Waldron shows that the link between the idea of rights and constitutional rights can be broken at several points. He argues, first, that a

Answer 4

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

Question 5

Waldron shows that the link between the idea of rights and constitutional rights can be broken at several points. He argues, first, that a

Answer 5

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

Question 6

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

Answer 6

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

Question 7

Waldron shows that the link between the idea of rights and constitutional rights can be broken at several points.

Thirdly

Answer 7

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

Question 8

Does a person who is in favour of a legal right always have a reason to demand extra level of protection?

Answer 8

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

Question 9

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

Answer 9

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

Question 11

Waldron

(b) Rights and Disagreement

What is there disagreement

Answer 11

a theory of justice and rights and theory of authority.

Question 12

(b) Rights and Disagreement

Theories of justice needs to be

Answer 12

complemented by theory of authority

Question 13

• (b) Rights and Disagreement*
• Theories of rights/justice must therefore be supplemented with theories of authority.

why

Answer 13

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’

Question 15

• (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’.

Answer 15

People who disagree inter alia about rights will disagree about what that theory of authority requires, and that latter disagreement

Question 16

• (b) Rights and Disagreement*
• Wollheim’s paradox of democracy

Answer 16

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)

Question 17

• (b) Rights and Disagreement*
• In the end, the legitimacy of JR is understood in terms of a

Answer 17

theory of authority

Question 18

• (b) Rights and Disagreement*
• In the end, the legitimacy of JR is understood in terms of a

Answer 18

theory of authority

Question 19

• (b) Rights and Disagreement*
• Anyone whose theory of authority gives the Supreme Court power to make decisions

Answer 19

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

Question 20

(b) Rights and Disagreement

• Wollheim’s paradox of democracy
• give example

Answer 20

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.

Question 21

(b) Rights and Disagreement

• Wollheim’s paradox of democracy
• give example

Answer 21

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.

Question 22

(c) The Right of Participation

Answer 22

it compromises the right of every individual to have a share in the making of decisions that affect them

Question 23

(c) The Right of Participation

Give rights to individuals in liberal argument

Answer 23

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

Question 24

(c) The Right of Participation

how does judicial review limit participation

Answer 24

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

Question 25

Waldron’s theory

Answer 25

rejection of a constitutional bill of rights comes

Question 26

Waldron’s theory

what type of judicial review does he challenge

Answer 26

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

Question 27

A central part of Waldron’s argument is that bills of rights do not demonstrate the respect for individuals

Answer 27

decision-making power out of the legislature to the judiciary exhibits a mistrust of the citizens who vote for and participate in the Parliament

Question 28

(c) The Right of Participation

what does waldron argue for

Answer 28

he argues for the primacy of the right of participation in political decision-making[34] as the ‘right of rights’

Question 29

By taking decisions about

Answer 29

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

Question 30

arguments in favour of entrenching rights in a Bill of Right

Answer 30

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

Question 31

Two primary arguments against Bill of Rights

Answer 31

1. we disagree about what rights we have.
2. given this fact, we should respect people’s right to participate and their ability to have a say in the resolution of these disagreements

Question 32

Participation

what should be adopted instead of JR to resolve disputes

Answer 32

a participatory majoritarian resolution of political disputes should be adopted, even if this would lead to worse outcomes than any other decision-making mechanism.

Question 33

Participation

the likelihood that judicial review under a Bill of Rights might offer better protection than majoritarian resolution

Answer 33

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”

Question 34

Waldron’s main criticism of constitutional rights is

Answer 34

because strong judicial review of such rights is inconsistent with democratic right of people to participate in public decision making

Question 35

what does waldron describe right of participation as

Answer 35

right of rights

Question 36

give example of how JR review of bill of rights limits participation

Answer 36

• 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

Question 37

When rights are entrenched, how does it affect parliament

Answer 37

limits the legislative powers of the parliament

Question 38

When rights are entrenched, how does it affect amendment

Answer 38

those limits require extra-ordinary procedures to amend.

Question 39

When rights are entrenched, how does it affect power of judiciary

Answer 39

power to enforce constitution limits and interpret is given to the (unelected) judiciary rather than to parliament.

Question 40

Key concern is whether we should

Answer 40

entrust the protection of our rights to the judiciary or the legislature?

Question 41

Constitutional recognition provides the

Answer 41

strongest form of institutional protection of rights and vests judges with the power to protect these rights.

Question 42

Waldron presents a

Answer 42

rights based critique of constitutional rights;

Question 43

Waldron is sceptical about the existence of fundamental rights and cautions inscribing these rights in ‘canonical documents’. This is because

Answer 43

such a proposition is based on a combination of self-assurance and mistrust;

Question 44

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

Answer 44

Self-assurance in that what the individual is putting forward is a fundamental right

Question 45

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

Answer 45

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.

Question 46

Waldron

disagreement;

Answer 46

even those who agree for rights protection disagree about what rights and how these rights should be protected.

Question 47

Waldron

This self-assuredness and mistrust

Answer 47

detracts from beneficial rights discourse and debate.

Question 48

disagreement about what rights and how to protect it

In Western societies, the dominant theory of authority is

Answer 48

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.

Question 49

The problem of the counter-majoritarian difficulty is that

Answer 49

judicial review is illegitimate because it allows unelected judges to overrule the elected legislature, undermining the will of the majority.

Question 50

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

Answer 50

legislature of executive makes these institutions no more undemocratic than the judiciary.

Question 51

Waldron argues that decision-making by a small judicial elite will always ‘score lower’ because it

Answer 51

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.

Question 52

The counter-majoritarian difficulty

who made up this term

Answer 52

Alexander Bickel

Question 53

The counter-majoritarian difficulty states

Answer 53

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

Question 54

The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacyWe all know the basic story:

Answer 54

the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.”

Question 55

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:

Answer 55

many different theories of democratic legitimacy, and only some of them emphasize “majoritarianism” as the key factor.

Question 56

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

Answer 56

constitution that constrains majority will.

Question 57

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

Answer 57

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

Question 58

other examples of counter majoritarian difficulty (not JR)

Answer 58

• legislation that attempts to constrain the action of a future legislature might be “unconstitutional.”
• abolishes elections and substitutes a system of self-perpetuating appointments.

Question 59

Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for

Answer 59

a regime that incorporates the institution of judicial review incorporating judicial supremacy.

Question 60

The institution of judicial review is counter-majoritarian because

Answer 60

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.

Question 61

The counter-majoritarian difficulty is compounded by the nature of judicial review as it has been practiced by the modern Supreme Court.

Answer 61

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

Question 62

How does Canada ameliorate counter majoritarian difficulty

Answer 62

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.

Question 63

One famous answer to the counter-majoritarian difficulty focuses on the idea of “discrete and insular minorities.”

Answer 63

. Judicial review is arguably legitimate when it serves to protect the interests of “discrete and insular minorities” against oppressive actions by democratic majorities.

Question 64

second answer to counter-majoritarian theory

Answer 64

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

Question 65

the value that Waldron and others believe to be imperiled by JR is that of

Answer 65

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.

Question 66

Describe rights that might be entrenched

Answer 66

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

Question 67

What is the question to be asked for entrenching moral rights

Answer 67

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.

Question 68

Problem with courts interpreting moral rights

Answer 68

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)

Question 69

Moral argument against JR

Answer 69

JR is an undemocratic and illegitimate practice b/c it allows unelected judges contrain and sometimes override decisons made by elected representatives.

Question 70

waldron argues that by taking decisions

Answer 70

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

Question 71

For waldron, the right to participate is

Answer 71

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.

Question 72

When legislatures address a problem, they,

Answer 72

reason in the name of society. Unlike courts, however, they are not constrained by legalisms – text, doctrine, and precedent.

Question 73

When legislatures address a problem, they,

Answer 73

reason in the name of society. Unlike courts, however, they are not constrained by legalisms – text, doctrine, and precedent.

Question 74

Why is it better for Leiglsature to hear matters on Bill of RIghts

Answer 74

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.

Question 75

Waldron’s assumption that the kinds of rights commonly incorporated into bills of rights are

Answer 75

moral rights

Question 76

Waldron contends that courts tend to confront issues

Answer 76

are fundamentally moral in legalistic, logic-chopping terms in which head-on engagement with the contending moral considerations often is almost wholly washed out

Question 77

Two kinds of democracy rights:

Answer 77

(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

Question 78

who should interpret individual rights

Answer 78

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

Question 79

normous pitfalls in incorporating real morality into law

Answer 79

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?

Question 80

what is gained is that morality becomes legally enforceable against the government

Answer 80

Court’s view of what moral rights are

Question 81

How will courts interpret moral rights in constitution

Answer 81

matters of textual analysis and legislative history, not on what our rights really are

Question 82

what is the question

Answer 82

whether those rights should be directly constitutionalized, and if directly constitutionalized, should be invoked by courts to strike down acts of the democratic organs.

Question 83

courts to strike down acts of the democratic organs.

democratic right argument

Answer 83

the democratic organs themselves have a moral right to determine the content of their moral rights.2

Question 84

legislatures, the institutions that Waldron would elevate about courts, are democratic in only two senses

Answer 84

they operate by majority vote, and their members must stand for election

Question 85

what should be decided by majority according to waldron

Answer 85

moral right that the content of our moral rights be decided by a majority vote of the people

Question 86

Waldron makes much of the fact that the content of our moral rights

Answer 86

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.

Question 87

We have assumed that the constitutional authors did not constitutionalize our moral rights by

Answer 87

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,

Question 88

Constitutionalizing moral rights directly does not add to

Answer 88

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.

Question 89

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

Answer 89

rights and freedoms were given constitutional status, and judges were given the power to strike down laws that infringed on them.

Question 90

much has changed in the first 30 years of the Charter

Answer 90

Numerous laws have been struck down and many others altered substantially, often by novel statutory interpretation

Question 91

waldron’s rights based critique is limited to

Answer 91

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

Question 92

weak form of JR

example Waldron gives

Answer 92

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

Question 93

Weak form of JR

NZ

Answer 93

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.

Question 94

What does Waldron say about Canada’s JR

Answer 94

since s 33 of Canadian Charter of rights is rarely invoked, it is a strong form of JR.

Question 95

what does s 33 Canadian Charter of Rights and Freedoms

Answer 95

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.

Question 96

How then could the well-entrenched practice of judicial review in America be justified? John Ely’s answer?

Answer 96

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.

Question 97

One response to Counter majoritarian difficulty

Answer 97

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

Question 98

John Ely’s procedural type of judicial reviewelied heavily on saying.

Answer 98

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

Question 99

Waldron’s response to first argument for JR

Disagreement on rights

Australian example

Answer 99

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

Question 100

Waldron’s response to 2nd argument for JR

care about more values, not just democracy

Answer 100

• 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