The Myth of the Common Law Constitution

Goldsworthy, Jeffrey

doi:10.1017/cbo9780511551116.009

Cited by 4 publications

(2 citation statements)

References 42 publications

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“…69 Goldsworthy's characterisation of Gaul on the eve of Caesar's arrival does recognize a 'dynamic situation' of regional conflict, but there is arguably also some of Holmes' imported national consciousness: the fact that the inhabitants of Gaul were 'disunited and divided' was a 'weakness'. 70 But should they have been anything else?…”

Section: Is It Still With Us?mentioning

confidence: 99%

Chapter 5: The ‘Indian Mutiny’ and the ‘Gallic Revolt’

Thorne¹

2010

Bulletin of the Institute of Classical Studies

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Section: Is It Still With Us?mentioning

confidence: 99%

Chapter 5: The ‘Indian Mutiny’ and the ‘Gallic Revolt’

Thorne¹

2010

Bulletin of the Institute of Classical Studies

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“…22 As Jeffrey Goldsworthy writes, "the most powerful and popular argument against the judicial enforcement of constitutional rights maintains that it is undemocratic for unelected judges to invalidate laws enacted by a democratically elected legislature." 23 While the democratic argument for constitutional interpretation by legislatures has several variations, the argument's most thorough articulation comes from Jeremy Waldron. Waldron has also shaped the Canadian debate.…”

Section: Introductionmentioning

confidence: 99%

Democracy and the Notwithstanding Clause

Pal

2024

Can. J. Law Jurisprud.

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This article focuses on the relationship between democracy and the notwithstanding clause in s.33 of the Canadian Charter of Rights and Freedoms. A number of scholars argue that s.33 is inherently ‘democratic’, as it is an assertion of legislative supremacy. The most influential such theory is Jeremy Waldron’s. This article offers a democracy-based critique of Waldron’s democracy-based account of the notwithstanding clause. The argument that the notwithstanding clause is necessarily ‘democratic’ ignores the constitution of the legislature through elections and the risk of self-dealing by the legislative branch, adopts an idealistic view of legislatures at odds with the reality of executive dominance and party discipline, and over-relies on the assumption that the electorate will ensure retrospective accountability for misuse of s.33. Contrary to Waldron and those who have adopted his arguments in Canada in the context of the Charter, the article argues we can be democrats and have faith in the capacities of legislators and voters while still maintaining skepticism about the uses to which the notwithstanding clause may be put. In short, s.33 is not inherently democratic. The political morality of each use of the notwithstanding clause—including whether it helps or harms democracy—must be assessed on a case-by-case basis.

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Sovereignty and Liberty in William Blackstone's Commentaries on the Laws of England

Lubert¹

2010

Rev Pol

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In this reading of William Blackstone's Commentaries the jurist is neither a conservative promoter of arbitrary power nor a modern liberalizer of the common law. He is a proceduralist who emphasizes due process of law as the way to reconcile political liberty with parliamentary sovereignty. Blackstone's jurisprudence reflects a particular reading of political history, one that sees Parliament at the forefront of the protection of English liberties. While the legislature is capable of tyranny, it is in the king and the courts that historically he finds the greatest examples of arbitrary rule. And it has been the exercise of parliamentary sovereignty that has reinstated and guarded due process-in particular, habeas corpus-thereby preserving and facilitating public liberty.

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The Myth of the Common Law Constitution

Cited by 4 publications

References 42 publications

Chapter 5: The ‘Indian Mutiny’ and the ‘Gallic Revolt’

Chapter 5: The ‘Indian Mutiny’ and the ‘Gallic Revolt’

Democracy and the Notwithstanding Clause

Sovereignty and Liberty in William Blackstone's Commentaries on the Laws of England

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