Is the Rule of Law a Limit on Popular Sovereignty?
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d Haljan
1 Introduction Welcome to our quaint hypothetical, democratic, and pluralist State – let us call it ‘Herculeum’. The majority of the inhabitants are white and of a Christian background (whether practising actively or not), with the minority comprising a collection of other major and minor religious creeds, as well as atheists and agnostics. The full range of political views finds representation, from arch–conservatism, through liberalism, to socialism, and Marxism. It is also blessed with the standard organs of State provided for in a Constitution (legislative, executive, and judicial), a constitutionally–entrenched bill of rights, and the ordinary principles and tenets of a modern constitutional democracy, such as representative and responsible government, the separation of powers, the rule of law, and so on. Indeed, Herculeum could be any or all of the current Western democratic States. For whatever reason, things have become unsettled of late in Herculeum. A minority have become dissatisfied with the requirement that shops and businesses must close on Sunday – statutorily prescribed as a day of rest, but seemingly without any account for the particular beliefs and interests of that minority. If these wish to observe their respective faiths, they stand at a disadvantage to the majority, having thus to close two days rather than one.2 Others have ruffled feathers over such issues as the requirement that pharmacists cannot refuse to sell contraceptives or tie the sale to a moralising lecture or the acceptance of anti–abortion pamphlets3, or such as the acceptance of homosexual conduct and same–sex mar1 2 3
J.–J. Rousseau, The Social Contract (M. Cranston trans.) (Harmondsworth: Penguin, 1968) 81. See e.g., R v Big M Drug Mart [1985] 1 Supreme Court Rep. 295, Hy and Zel’s Inc. v Ontario (AG) [1993] 3 Supreme Court Rep. 675 (Canada). For reports on such US cases, see: http://jurist.law.pitt.edu/paperchase/2007/10/settlementproposed-in-illinois.php; and related lawsuits in Washington State: http://www.acluwa.org/detail.cfm?id=727.
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riage.4 Would it truly be surprising then to observe that a number of lawsuits have been filed to challenge the relevant laws and rules, all claiming some form of breach of some constitutionally–guaranteed rights and freedoms? Hardly. But this is not all. The Herculeum courts have also been active in responding to challenges against various governmental acts, from the delimitation of electoral constituencies5, to committing military resources to conflicts abroad6, to the decisions to deploy various types of weapons.7 Judicial review of the constitutionality of laws and governments acts is alive and well in Herculeum. To the perceptive observer, at least three critical elements underlie this idyllic picture of a democratic Rechtsstaat. In order of increasing significance, they are as follows. First, the courts are empowered to review some, if not all, laws and administrative acts. This refers not only to some conception of judicial independence, but also by impli
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