Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought
Constitutional law; Judicial review; Canada
The author provides an analysis and critique of the various types of arguments advanced by Canadian constitutional jurists to establish formal grounds for the legitimacy of judicial review under the Canadian constitution. He demonstrates how two variables - constitutional truth and trust in the judiciary - are relied upon in past and contemporary debates about constitutional adjudication to construct four different types of argument about the legitimacy of judicial review. Each of these types of argument is then criticized in the context of recent Charter decisions. It is argued that none of them can sustain the burden of legitimating judicial review.
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Bakan, Joel C..
"Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought."
Osgoode Hall Law Journal