Judicial Review: Waluchow and s. 33

Judicial Review

Judicial review = courts evaluate legislation/government action against a constitutional rights document (Charter), and can invalidate/limit laws that unjustifiably violate rights. In the lecture framing, the central worry is legitimacy: critics say it can override democratic will.

Waluchow: Defence of Judicial Review

defends judicial review by saying it is not just anti-democratic interference — it plays a rights-protecting function that is essential to democratic governance: Charters protect minorities and secure fundamental liberal rights.

• Waluchow’s defense starts from the idea that democracy is not only majority rule; a legitimate democratic system also requires robust protection of fundamental liberal rights, especially for minorities who can be systematically disadvantaged in ordinary electoral politics. On this view, judicial review is not inherently anti-democratic, because it helps secure conditions that make democratic governance fair and stable in the first place

Waluchow Response to the Classic Democratic Critique

• Democracy objection: courts can block majority will and entrench past rulings, weakening self-government.

• Elitism/bias objection: judges’ backgrounds can bias constitutional decisions.

• Public debate objection: constitutionalizing issues can create “semantic rigidity” and reduce quality of democratic debate.

Waldron’s Deeper Challenge

Waluchow uses Waldron as a serious problem for rigid constitutionalism:

• Reasonable political disagreement: people can disagree deeply and reasonably about rights.

• Temporal constraints on autonomy: entrenchment binds current citizens to decisions from past generations.

• Unstable overlapping consensus: society’s values evolve (examples like racial equality/same-sex marriage in the slides), so “consensus” shifts.

• So, judicial enforcement of fixed constitutional points can be criticized as incoherent and democratically troubling.

key move is to reject a rigid, fixed-point understanding of Charter rights. He argues that if constitutional rights are treated as permanently settling contested questions, then critics like Waldron are right to worry about reasonable political disagreement, about the way entrenchment creates temporal constraints on autonomy (today’s citizens being governed by yesterday’s decisions), and about the fact that any “overlapping consensus” on rights can become unstable as social values evolve.

Core Solution

1. Charters are not fixed frameworks — they should be treated as flexible, evolving instruments.

2.He rejects a rigid pre-commitment / fixed-point model of rights.

Waluchow and Roach lecture

3.The “living tree” approach involves modest pre-commitment: we commit to rights in a way that is institutionally humble (acknowledges human fallibility and unforeseen cases).

• charters are flexible, evolving instruments

• recognize human fallibility and inevitability of new cases and social understandgins

4. The goal is a balance: preserve legal stability (entrenchment) while allowing law/rights interpretation to adapt over time.

A useful way to phrase it on an exam:
Waluchow thinks democracy + rights can be reconciled if we treat a Charter like the common law: incremental, principle-guided development rather than frozen decisions.

Institutional Justification

Waluchow also offers institutional reasons courts can contribute: courts have judicial independence, can engage in principled deliberation, and can develop doctrine incrementally across cases, rather than legislating under intense partisan or time pressures. Importantly, this is compatible with a partnership model where courts and legislatures interact rather than courts “take over” the democratic project.

Significance

Waluchow’s defense is also institutional: courts can be good at a certain kind of reasoning.

• Judicial independence: insulated from political pressures; supports unbiased case-by-case reasoning.

• Skills in deliberation: principled consistency often lacking in legislatures.

• Incremental jurisprudence: courts can build doctrine step-by-step while legislatures face time/resource constraints.

• Collaborative/partnership model: review can be understood as court–legislature dialogue, not pure judicial supremacy

Strength/Weakness

Strength (why his view is attractive): it answers the “Waldron disagreement” worry by not pretending rights questions get settled forever; the Charter can evolve while still protecting minorities and liberal rights.

• judicial review can be legitimate w/o relying on the unrealistic assumption that rights questions will be permanently settled

• supports minority rights protection as core democratic value rather than a departure from democracy

Weakness (main criticism): flexibility can look like expanded judicial power: if rights evolve through judicial interpretation, critics will say judges still end up deciding contested moral issues (plus bias/elitism concerns remain)

Section 33: Notwithstanding Clause Powers

Section 33 (the notwithstanding clause) allows legislatures to temporarily override certain Charter rights. The lecture frames its purpose as preserving democratic flexibility and sovereignty, so legislatures can still take responsibility for major rights tradeoffs rather than leaving courts with the final word in every case.

Notwithstanding Clause: Scope and Limits

Scope: what s.33 can/can’t override (must be accurate)

Section 33 can be used to override s.2 fundamental freedoms, ss.7–14 legal rights, and s.15 equality rights.

It cannot override ss.3–5 democratic rights, s.6 mobility rights, or ss.16–23 language rights.

One Justification for the Notwithstanding Clause

• ss. 33 helps prevent a system of pure judicial supremacy by keeping legislature meaningfully involved in constitutional governance

• forced elected officials to “own” the choice to limit rights and face political accountability for decisions (rather than treating rights outcomes as solely judicial business)

• A democractice safety valve, pressures legislative authority within a rights-based constitutional system

Criticisms of ss. 33

• Undermines the charter’s purpose, as it is meant to protect rights from the majority will 

  • Section 33 allows the majority to override those protections; however, constitutional rights should not have an “opt-out” clause 

• Violate the rule of law, as laws should be general, predictable, and stable 

  • So section 33 would create uncertainty, and citizens will not be able to rely on the rights protection 

• Undermines federalism as different provinces can suspend certain rights 

  • Example of Quebec Bill 21, which was specifically targeting muslim women, enacted that people in government jobs can not wear symbols to showcase religion or ideologies 

However, the notwithstanding clause is barely used provincially and has never been used federally.

Waldron’s Argument

• Waldron argues that judicial review undermines democracy, because the judges who can strike down laws are not democratically elected, 

  • This removes important moral/political decisions from democratic legislatures 

  • Assumes a false consensus about rights where deep disagreement exists 

    • Charter pretends consensus where none exists 

  • Undermines equal participation in self-government as judges' opinions and views trump citizens (the right and capacity of a political community to govern itself through a  democratic process)

Waluchow Rebuttal to Waldron

• Living tree approach: charters do not require consensus, just a framework for disagreement 

  • The Constitution evolves with understanding, to apply to different times as culture and needs change 

  • Therefore, we do not need to agree on answers, only agreement to use this framework 

  • Essentially, Waldron mistakes charter as fixed answers, while what they really are is a process for working through disagreements 

Against the Idealized Legislature

• Waldron argues that legislatures create democratic, rational, informed decisions. 

• Waluchow rebuts this by saying that this is unrealistic, as actual legislators suffer from 

  • Partisanship 

  • Electoral pressure 

  • Prejudice 

  • Lobbying 

  • Disregard for minorities 

  • Media influence

Against Democratic Illegitimacy

• Waldron argues judicial review violates equal participation 

• Waluchow rebutes this by saying it actually enhances judicial review, as it protects preconditions for democracy, such as free speech and fair elections 

• Having courts and legislature both contribute to a fairer democracy, they work in an institutional partnership

Why Judges Can’t be Elected

• If they were elected, then it would undermine democracy even more, as judges would not be focused on being a judge; they would focus on trying to appeal to what the majority of society would want to get elected. 

• This creates biases with what the judges believe should be done for the law to promote justice, and what the majority of society wants

• This creates injustice as minorities will be ignored in all decision-making 

• Therefore, by having unelected judges, we can promote minorities as they can uphold the charter for justice rather than to get elected again