By Ian Cram
In glossy liberal democracies, rights-based judicial intervention within the coverage offerings of elected our bodies has regularly been arguable. For a few, such judicial intervention has trivialized and impoverished democratic politics. For others, judges have contributed to a dynamic and fit discussion among different spheres of the structure, faraway from pressures imposed on elected representatives to reply to well known sentiment. This booklet presents a severe review of ongoing debates surrounding the judicial position in preserving basic human rights, focusing particularly on legislative/executive abridgment of a middle freedom in western society - particularly, liberty of expression. various kinds of expression are thought of, together with expression on the topic of electoral strategies, political expression typically and sexually particular kinds of expression.
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Additional info for Contested Words: Legal Restrictions on Freedom of Speech in Liberal Democracies
At 4. 68 A test of these critics’ principled opposition to judicial review of rights questions would occur however if, over time and across a number of issues, having seen their favoured policy outcomes rejected by the peoples’ representatives in favour of antithetical alternatives, those alternatives were then regularly struck down by the courts with clear hints to adopt the critics’ preferred policies. If opposition to judicial review was maintained in such circumstances, it would clearly be of a sort closer in nature to Waldron’s institutional argument against judicial review.
43 In a non-federal context, an argument for ‘auto-limitation’ of government power was made by Patrick McAuslan and John McEldowney in ‘Legitimacy and the Constitution: The Dissonance between Theory and Practice’ in P McAuslan and J McEldowney (eds), Law, Legitimacy and the Constitution (1985, Sweet & Maxwell, London). 44 See thus M Tushnet, Taking the Constitution Away from the Courts (1997, Princeton University Press, Princeton NJ) at 55–57. ). 46 Dennis v United States 341 US 494 (1951). Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom 21 rights regulation.
That the ‘democratic’ cost of majority curtailment of others’ freedoms and rights – when ‘the people’ act in a way that damages the interests of democracy – happens to be downplayed by Waldron is hardly surprising. Instances of ‘rights-holders’ behaving disrespectfully towards other ‘rights-holders’ through their elected representatives can be found in many jurisdictions. This, however, is to move away from a purely institutional account of judicial review. The actual record of judges and legislatures is considered in greater detail below.
Contested Words: Legal Restrictions on Freedom of Speech in Liberal Democracies by Ian Cram