Philosophy meets metaphor: the living tree and judicial review

Abstract

Constitutional Charters or Bills of Rights are usually heralded as good things to have. They are generally applauded for the protections they are said to provide minorities and for their help in securing fundamental liberal democratic rights. But Charters are not without their detractors. Some Critics argue both that Charters cannot do the work their proponents claim they can, and that they are morally and politically objectionable. This evening, I would like to respond to a few of the Critics’ most serious objections by challenging the very conception of Charters and their aspirations they – and those who believe that Charters are good things to have, a group we’ll call 'the Advocates' – seem to assume. The assumption shared by many Critics and Advocates is that a Charter purports to provide stable, fixed points of agreement on and pre-commitment to appropriate moral limits to government power. The Advocates argue not only that such stable fixed points are possible; they also contend that such points are morally and politically desirable as well