6 - Common Law Constitutionalism

Summary

Anteing Up

Among the standard arguments in the Standard Case for judicial review, the most compelling is that Charters serve as vehicles for the protection of entrenched or transitory minorities against the majoritarian biases, excesses, mistakes, inauthentic wishes, and insensitivities of democratic politics. They are applauded by their Advocates as embodying the rational pre-commitment of the community to work against these elements by tying itself to the mast of a chosen set of fundamental rights. Paradigmatically, these are rights thought essential to enlightened democratic rule, and to the free and equal exercise of individual autonomy. These are all stressed, to varying degrees, in public discourse and by philosophers such as Rawls, Dworkin, and Freeman. We have acknowledged that there are serious problems with this picture and with the Standard Case resting on it. Though many of the objections go too far, or rest on dubious premises, there is considerable merit in many of the Critics' complaints, particularly those raised by Waldron. For instance, although the Standard Case does not have to assume that we are all Hobbesean predators who cannot be trusted if let loose in the arena of democratic politics, it does seem to presuppose a level of pre-commitment that seems impossible in the circumstances of politics. There is just too much disagreement among us. The Standard Case also seems at war with our commitment to self-government, the animating ideal of democracy.