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Democratic rights on trial : judicial reasoning, charter litigation, and the shaping of Canadian democracy Goldberg, Jonah

Abstract

The purpose of this essay is to gain a greater understanding of judicial reasoning and strategic judicial behaviour through analysing Charter cases in one of its major subfields: democratic rights. While many authors have previously sought to address democratic rights cases dealing with judicial reasoning, none have offered a unified and comprehensive theory of democratic rights litigation that addresses all of the field’s major subcomponents, including prisoners’ voting rights, referendum and election campaign finance restrictions, party subsidies, and electoral boundaries. This essay will seek to provide a unified and comprehensive theory through looking at democratic rights cases involving all four major areas. It will ultimately argue that democratic rights litigation can best be understood as a product of tensions between two major lines of judicial reasoning, remedial egalitarianism and procedural libertarianism, over the constitutional meaning of equality. This essay will begin by exploring the nature of judicial reasoning and strategic behaviour, and then turn to defining and explaining the two major lines of judicial reasoning that characterize democratic rights litigation. Next, it will seek to apply the theoretical concepts of remedial egalitarianism and procedural libertarianism to explain judicial rulings involving the intersection between democratic rights on the one hand and freedom of expression and representation on the other. This essay concludes by speculating about where democratic rights litigation is likely to go in the future and how Canada’s experiences might be relevant to scholars abroad.

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