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Constitutional Rights and Democracy: A Reply to Professor Bellamy

Published online by Cambridge University Press:  06 March 2019

W.J. Waluchow

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In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.

Type
Part A: Political Theory and Constitutional Reasoning
Information
German Law Journal , Volume 14 , Issue 8: Special Issue - Constitutional Reasoning , 01 August 2013 , pp. 1039 - 1051
Copyright
Copyright © 2013 by German Law Journal GbR 

References

1 Bellamy, Richard, Democracy as Public Law: The Case of Rights, 14 German L.J. 1017 (2013).Google Scholar

2 Id. Google Scholar

3 Id. Google Scholar

4 The most notable defender of this view is Jeremy Waldron. See, e.g., Jeremy Waldron, A Rights-Based Critique of Constitutional Rights, 13 O.J.L.S. 18 (1993); Waldron, Jeremy, Law and Disagreement (1999); Waldron, Jeremy, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006).Google Scholar

5 Bellamy, , supra note 1.Google Scholar

6 Id. Google Scholar

7 Id. Google Scholar

8 Id. Bellamy draws on Philip Pettit's distinction between “authorial” and “editorial” democracy. See Philip Pettit, Democracy, Electoral and Contestatory, in Designing Democratic Institutions, Nomos XLII (Ian Shapiro & Stephen Macedo eds., 2000).Google Scholar

9 Bellamy, , supra note 1.Google Scholar

10 Id. Google Scholar

11 Bellamy seems to contrast courts with “democratic” forums, thereby suggesting that a true democracy finds no place for courts possessing any sort of authorial function, even a very limited one. But this understanding of democracy is contentious at best. It may even beg the question against defenders of constitutional review. In order to avoid this result, and because the democratic forums upon which Bellamy focuses are legislatures, I will instead continue to refer mainly to legislatures, leaving it open whether this is the only legitimate democratic forum.Google Scholar

12 Bellamy, , supra note 1.Google Scholar

13 Id. Google Scholar

14 Id. Google Scholar

15 Id. Google Scholar

16 Id. Google Scholar

17 The term weak form judicial review is closely associated with the work of Mark Tushnet. See, e.g., Mark Tushnet, Weak-Form Judicial Review and “Core” Civil Liberties, 41 Harv. C.R.-C.L. L. Rev. 1 (2006).Google Scholar

18 Bellamy, , supra note 1.Google Scholar

19 For an elaborate and sophisticated defense of this proposition, and for an analysis of the Thomistically inspired notion of specification, see Gregoire C. N. Webber, The Negotiable Constitution: On the Limitation of Rights 116 (2009).Google Scholar

20 Bellamy, , supra note 1.Google Scholar

21 Id. Google Scholar

22 Bellamy, , supra note 1.Google Scholar

23 Id. Google Scholar

24 Corrections and Conditional Release Act, S.C. 1992, c. 20 (Can.).Google Scholar

25 Charkaoui v. Canada, [2007] 1 S.C.R. 350 (Can.).Google Scholar

26 Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Can.).Google Scholar

27 The Immigration and Refugee Protection Act was amended several times. For the latest version, see id., available at http://laws-lois.justice.gc.ca/eng/acts/I-2.5/FullText.html.Google Scholar

28 Bellamy, , supra note 1.Google Scholar

29 Remember that we are talking here about cases where “the settled law” is in dispute, not its application to a particular set of facts in a particular case.Google Scholar

30 Citizens United v. Fed. Election Comm'n, 558 U.S. 50 (2010).Google Scholar

31 Bellamy, , supra note 1.Google Scholar

32 One must be careful here. In light of cases such as Bush v. Gore, 531 U.S. 98 (2000), many view the U.S. Supreme Court as no less susceptible to undue political influence than Congress.Google Scholar

33 In Europe the “margin of appreciation” doctrine was developed partly in recognition of this fact. For example, appeal was made to the doctrine in the case Otto-Preminger Institut v. Austria, 19 Eur. Ct. H.R. 34, para. 50 (1994), where the European Court of Human Rights observed: “As in the case of “morals” it is not possible to discern throughout Europe a uniform conception of the significance of religion in society … even within a single country such conceptions may vary. For that reason it is not possible to arrive at a comprehensive definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feeling of others. A certain margin of appreciation is therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference.”Google Scholar

For discussion of this doctrine and its impact on the idea of constitutional rights for the European Union, see W.J. Waluchow, Constitutionalism in the EU: Pipedream or Possibility?, in Philosophical Foundations of EU Law 189 (Julie Dickson & Pavols Eleftheriadis eds., 2012).Google Scholar

34 I am assuming here that the right in question is a Hohfeldian claim-right with its correlative duties. But much the same points apply to liberties, immunities, and so on.Google Scholar

35 It is worth bearing in mind that voter participation rates in modern democracies are, in many instances, nothing short of shocking. For example, in the last Canadian Federal election of May 2, 2011, only 61.1% of eligible voters cast a ballot. On October 7, 2011, less than half—49.02%—of eligible voters in the Ontario provincial election managed to cast a ballot, the lowest level since 1867. 2009 Parliamentary elections in Germany had a voter participation rate of 64.61%, while the German participation rate in the 2009 EU Parliamentary election stood at 39.53%.Google Scholar

36 The reasonable limitations clause, found in section 1, states that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Canadian Charter of Rights and Freedoms, Part I § 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.). This provision was intended to leave Parliament, at the federal level, and the provincial legislatures considerable room to pursue valid social objectives without the looming threat of judges thwarting their legitimate efforts out of an inflated concern for the protection of individual rights. The notwithstanding or override clause provided an even greater safety valve. Section 33 provides that, “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” Id. at § 33. The override is both effective for five years and renewable.Google Scholar

37 For further reasons in favor of opting for a “partnership” between legislatures and courts in rights specification and protection, see W.J. Waluchow, A Common Law Theory of Judicial Review: The Living Tree (2007). There I draw on the advantages of viewing abstract constitutional rights as analogous to notions of “reasonable use of force” and “negligence” as these have been developed over the years, in an incremental, case-by-case manner, by common law courts. The virtues of this mode of constitutional rights specification when compared with what I refer to as the “top-down” method characteristic of general legislation are highlighted and defended. These virtues are cited in my attempt to justify a modest form of constitutional review.Google Scholar