Judicial Review

Other critiques that have been offered of judicial review are laid out by Waluchow. First, Waluchow question the moral insight of judges, which, if they are called into resolve rights issue already decided legislatures, must be superior to that of legislators. (Waluchow 2007, 261) Waluchow also mentions Ulysses and the way in which defender try to explain the benefits of judicial review using the metaphor of Ulysses tying himself to the mast of his ship in order to prevent steering his ship into the rocks of the sirens island. However, the large disagreement in how right should be treated, and who have what rights makes it difficult to say that we should be pre-committing ourselves to any of them. (Waluchow 2007, 263) Finally, Waluchow

In fact, judicial review provides a way to address to address rights violations that specifically reduces the power inequality between representatives, and the people they represent. Lever say that, “If we care about democratic government, we should care about unequal political power, not merely the lack of power itself. Otherwise what could be the objection to letting men attain the vote at a younger age than women, as was the case in the United Kingdom from 1918–28.” (2009, 815) Removing judicial review limits the options of citizens, forcing them to engage in costly attempts to lobby members of the legislature, or wait for the next election and use their ballot to put into power a party who has a more favourable stance on the issue. While it is true that judicial review is also costly, and so perhaps limited in the types of people who can use it easily, but this again does not invalidate the review itself, but instead call for more programs to expand access, like the Court Challenges Program of Canada which sought to allow everyday Canadians the ability to raise minority language cases by providing financial

By taking a substantive, rather than procedural view of democracy, it is evident that simply relying on majority rule, and fair elections as a basis for decision making is insufficient in a democracy that wishes to be the most fair. A liberal and expansive view of democracy is better standard to set, than simply a procedural one. Simply looking for, or creating, democratic processes does nothing to actually create a fair and engaging society, which should be the goal of any democracy. While Waldron argues that there is no conclusive evidence that the outcomes of judicial review are better than the outcomes of the legislative process, and that judicial review inherently fails to be democratic as it provides less convincing answers than a democratic and majoritarian legislature to the questions: (1) why are these people privileged to make decisions?; and (2) why is the distribution of power in the decision making group structured the way it is? When combined with other criticisms, such as the lack of agreement of what rights people actually hold and the inflexibility of written formulations of rights, there is indeed good reason to question judicial review. Despite these criticisms, if we looks at charters in a less rigid way than Waldron and other critics tend to, and recognize that the need follow precedent, or provide sufficient reasons to justify deviating from