The Unwritten Constitution and the Rule of Law
in Grant Huscroft and I. Brodie, eds., Constitutionalism in the Charter Era, (Canada: LexisNexis, 2004) 383-412
34 Pages Posted: 23 May 2013
Date Written: 2004
The argument of this paper is that debate about the legitimacy of judicial resort to unwritten constitutional values cannot be resolved by requiring judges to anchor their resort in values that are stated in the constitutional text. For opposition to judicial resort to such values is most fundamentally opposition to judicial authority to invalidate statutes on a value basis, whether written or unwritten. In fact, the dispute here is between the common law tradition and legal positivism, with the latter assuming a guise of a democratic positivism that marginalizes judges. The paper uses the theoretical writings of Justice Scalia as the main foil for its argument that judges who adopt this guise fail in their duty to uphold the rule of law.
Keywords: Constitutional interpretation, common law, judicial independence, deference
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