Date of Award
Master of Arts (MA)
Wilfrid J. Waluchow
This thesis examines a novel claim that judicial review of legislation is democratically justified because judges can have access to their community's constitutional morality and base their judgments on those grounds. A constitutional morality is a complex intersubjective agreement where citizens have agreed to entrench certain rights in law. It is often claimed both in preambles and in theoretical defenses that constitutions are represent the true will of the people. In liberal democracies, constitutions contain provisions wherein certain rights of citizens are recognized. The legal systems of liberal democracies typically make constitutional courts the final arbiters of the meaning of these moral provisions. Judges are unelected officials and thus any defense of their decisions as being democratic must be indirect and rely on a theory of interpretation. Jeremy Waldron has recently argued that the contents of rights provisions are subject to reasonable disagreement; judges are not adequately guided by constitutional language and thus enforce their own subjective reading of rights provisions. Waldron argues that the practice of constitutional courts disrespects citizens and undermines their participatory rights; majoritarian institutions like legislatures grant greater respect to reasonable disagreement and participatory rights central to democracy, thus it is better to settle rights disputes in that venue. In this thesis, I attempt to rebut Waldron's claims by extending Waluchow's analysis of a community's constitutional morality. The first chapter demonstrates how Waluchow provides a superior response to Waldron's critique than either the 'moral reading' theory of Ronald Dworkin or originalism. The second chapter aims to show that a constitutional morality is plausible meta-ethical description of constitutional practice and an empirically defensible concept, but it remains outside reliable judicial knowledge in common law systems. In the final chapter, I argue that even if judges could know a constitutional morality it would not provide adequate guidance since it is likely to contain indeterminate or conflicting norms. I conclude by arguing that despite their inability to represent constitutional moralities perfectly, constitutional courts may do a better and more efficient job than legislatures.
Wisdom, Scott, "The Judgment of Constitutional Morality" (2008). Open Access Dissertations and Theses. Paper 5659.
McMaster University Library