Useful Toil or the Paths of Glory? Civil Liberties in the 1956 Term of the Supreme Court

Abstract The statutory entrenchment of the Canadian Charter of Rights and Freedoms marks a break with the common law practice of protecting civil liberties by means of socio-legal convention. This article argues that such a break with common law practice can be justified at a theoretical level through reference to Max Weber's liberal rationalist account of the effects of modernization on law and society and, at a practical level, points out parallels between Weber's position on modern law, the pre-entrenchment doctrine of the Supreme Court and Pierre Trudeau's advocacy of the Charter. However, the article argues that a Weberian account of modernity and law is based upon too narrow a conception of rationality to allow it to deal with the normative questions that are raised by the substantively democratic claims made by the Charter and with which the courts will have to deal in making judgements in Charter cases. The article concludes that in order for court interpretation to take the substantive sections of the Charter into account in a meaningful fashion, it will be forced to abandon what, until the entrenchment of the Charter, was a narrow, positivist interpretation of rights and democracy; and that this can be accomplished by means of a reconstruction of the democratic ethos that is nascent within the common law tradition but remains as yet undeveloped in a clear fashion.

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The Supreme Court and Civil Liberties

Alberta Law Review ◽

10.29173/alr2332 ◽

1969 ◽

pp. 97

Author(s):

Stephen Allan Scott

Keyword(s):

Supreme Court ◽

Civil Liberties ◽

Supreme Court Of Canada ◽

Individual Liberty ◽

The Rule Of Law ◽

Natural Justice ◽

Legislative Authority ◽

The Supreme Court ◽

Governmental Power ◽

Single Part

Of the plan suggested by its title (intended to embrace amongst other things some treatment of the Canadian BiU of Rights and relevant aspects of the distribution of legislative authority) this paper as delivered is confined to single part dealing with the rule of law. Roncarelli v. Duplessis, probably the single most celebrated of the Supreme Court's decisions, is chosen as the source of four themes. Each involves conflict between the individual's rights and liberties and governmental power. The author argues that lawful governmental action especially competent legislation and anything which is authorized by competent legislation is damnum sine injuria. Some of the harshest consequences of legislative supremacy have however been mitigated by various common law rules, notably those governing natural justice, the prerogative remedies, mens rea in the criminal law, the condition of reasonable ness implied into at least some statutory powers, and the restriction of subdelegation. The author examines critically the work of the Supreme Court on these subjects, as also on the matter of access to the courts for redress, question central to individual liberty, both as regards the jurisdiction of the Supreme Court of Canada itself, and that of the other superior courts.

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The U.S. Supreme Court Decisions

Workers against the City ◽

10.5622/illinois/9780252043468.003.0006 ◽

2020 ◽

pp. 144-178

Author(s):

Donald W. Rogers

Keyword(s):

Supreme Court ◽

Due Process ◽

Civil Liberties ◽

Fourteenth Amendment ◽

District Court ◽

Circuit Court ◽

Court Of Appeals ◽

The Supreme Court ◽

Federal Jurisdiction ◽

The U.S

This chapter traces Hague’s appeal through the Third Circuit Court of Appeals into the U.S. Supreme Court under Chief Justice Charles Evans Hughes, showing how the Hughes court’s inner dynamics explain affirmation of the district court injunction. Observing flux in court personnel and law, the chapter shows that both courts embraced the contemporaneous civil liberties revolution by defending worker speech and assembly rights, but it reveals the Supreme Court as divided over constitutional logic. Justice Owen Roberts’s plurality opinion upheld speech and assembly rights under the Fourteenth Amendment privileges and immunities clause, Justice Harlan Fiske Stone’s concurrence incorporated the First Amendment into the Fourteenth Amendment due-process clause, and dissenters rejected federal jurisdiction. The ruling reflected the contentious evolution of civil liberties jurisprudence, not antiboss or labor law politics.

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