Charters As Living Trees Summary

Charters (or Bills) of Rights and Judicial Review are twinned and often inseparable in the academic controversy surrounding their use and implementation. In Constitutions as Living Trees: An Idiot Defends, Waluchow attempts to defeat critics of Charters and Judicial Review by reframing the desirability of the two concepts in a manner that he argues is compatible with modern democracy. While a broad spectrum of previous conceptions of Charters fail to overcome the arguments set against them by the group Waluchow terms ‘the Critics’, he claims that his argument offers a fresh view of the Charter ― the jumping off point from which he aims to make his defence . He then begins to lay the footwork for his new conception of Charters, covering four …show more content…
He asks the reader to consider the common objections to Charters, explained previously, and then elucidates: “In each case we can see that the criticism is premised on the following critical assumption: Charters aspire to embody fixed points of agreement on and pre-commitment to moral limits on government power .” But what if they weren’t is the unspoken implication that follows it, and that is precisely the point that Waluchow is trying to make . Basing his argument on the previous work of H.L.A. Hart, as well as from the “Persons Case” ― or rather, Edwards v Canada (AG) ― Waluchow describes his conception of a Charter is as a living tree; keeping the benefits of entrenched Charters while avoiding the majority of the criticisms from Waldron . A middle way, then ― a constitutional modesty which uses a common law understanding to give the Charter the freedom and flexibility it requires to grow and adapt to a changing environment, while maintaining the “fixity of entrenched, written law ”. By interpreting the role and stipulations of a Charter through the lens of the current temper and circumstance of the court, a Charter can adapt to changing moral beliefs and legal theory ― all while still protecting the rights of the few from tyranny by the many. Drawing then upon the works of Hart, Waluchow decries legal formalism, he calls it an “empty promise” that is cast aside . Warning against the tempting trap of legal formalism, and to a system where pre-determined and fixed points of law are desired . He then extols the virtues one might see in such a case: “where the need for and possibility of relative certainty about the