New User Special Price Expires in

Let's log you in.

Sign in with Facebook


Don't have a StudySoup account? Create one here!


Create a StudySoup account

Be part of our community, it's free to join!

Sign up with Facebook


Create your account
By creating an account you agree to StudySoup's terms and conditions and privacy policy

Already have a StudySoup account? Login here

Philosophy Of Law

by: Selena Stehr

Philosophy Of Law PHIL 168

Selena Stehr

GPA 3.61


Almost Ready


These notes were just uploaded, and will be ready to view shortly.

Purchase these notes here, or revisit this page.

Either way, we'll remind you when they're ready :)

Preview These Notes for FREE

Get a free preview of these Notes, just enter your email below.

Unlock Preview
Unlock Preview

Preview these materials now for free

Why put in your email? Get access to more of this material and other relevant free materials for your school

View Preview

About this Document

Class Notes
25 ?




Popular in Course

Popular in PHIL-Philosophy

This 5 page Class Notes was uploaded by Selena Stehr on Thursday October 22, 2015. The Class Notes belongs to PHIL 168 at University of California - San Diego taught by Staff in Fall. Since its upload, it has received 47 views. For similar materials see /class/226824/phil-168-university-of-california-san-diego in PHIL-Philosophy at University of California - San Diego.


Reviews for Philosophy Of Law


Report this Material


What is Karma?


Karma is the currency of StudySoup.

You can buy or earn more Karma at anytime and redeem it for class notes, study guides, flashcards, and more!

Date Created: 10/22/15
last modified 5505 David O Brink UCSD PHIL 168 Spring 2005 Handout 5 Judicial Review in a Constitutional Democracy THE DEBATE ABOUT JUDICIAL REVIEW Judicial review is the power of the judiciary to declare legislation unconstitutional There is a popular debate between judicial restraint and judicial activism and scholarly debate between interpretive and noninterpretive review over the record of the Warren and Burger Courts in cases in which judicial review was exercised to protect personal and civil rights The Court exercises interpretive review insofar as it invalidates legislation based on its interpretation of the Constitution it exercises noninterpretive review insofar as it invalidates legislation as embodying unsound policy or political morality The debate concerns socalled substantive due process Since the New Deal the Court has rejected the doctrine of economic substantive due process associated with Lochner v New York 1905 which recognized the liberty of contract as a fundamental right deserving special protection But whereas Lochner and economic substantive due process ended during the New Deal substantive due process continued insofar as the Court subsequently construed due process as protecting various fundamental personal and political liberties For nonfundamental interests and liberties the Court employs a legislatively deferential standard known as rational basis revrew 0 Legislation is constitutionally valid iff it pursues a legitimate governmental interest in a reasonable manner By contrast for fundamental interests and liberties the Court employs a much less deferential standard known as strict scrutiny 0 Legislation is constitutionally valid iff it pursues a compelling state interest in the least restrictive manner possible Part of substantive due process concerns the socalled selective incorporation of key provisions of the Bill of Rights the rst nine amendments such as the right to freedom of speech and religion the right against unreasonable search and seizure the right to counsel the right against selfincrimination the right to compensation for property appropriated by the state and the right against cruel and unusual punishment into the due process clause of the Fourteenth Amendment so as to make these provisions applicable against the federal government applicable against state and local governments as well Modern substantive due process also includes the recognition of nonenumerated substantive rights such as the right to privacy recognized in Griswold v Connecticut 1965 JUDICIAL REVIEW IN A CONSTITUTIONAL DEMOCRACY Most parties to these debates are not skeptics about judicial review Within a constitutional democracy such as our own the constitution a creates a federal government specifying its powers and dividing them among the branches of government and 2 b allocates power at least by implication between federal and local government but also c recognizes certain rights of individuals against both local and federal government Judicial review is the power of the judiciary to determine if governmental action conforms to these constitutional powers and constraints The rationale at work here is an argument from institutional role that is also advanced by Alexander Hamilton in Federalist 78 and by Chief Justice Marshall in Marbu v Madison 1803 It is the institutional role of the judiciary to interpret and apply the law The Constitution is the supreme law of our legal system Hence it is the institutional role of the judiciary to interpret and apply the Constitution Hence it is the institutional role of the judiciary to declare legislation unconstitutional if it determines that it con icts with the Constitution bP N This rationale for judicial review fits with a common understanding of the separation of powers Roughly the legislature is supposed to make law the judiciary is supposed to interpret and apply the law and the executive is supposed to enforce the law as interpreted by the judiciary This division of labor has a democratic rationale the legislature rather than the judiciary should make law because we want our law makers to be democratically accountable as in principle legislators are and federal and some state judges are not The institutional rationale for judicial review respects this division of labor It instructs the judiciary to interpret the Constitution and measure legislation against this interpretation interpretive review it does not instruct the judiciary to decide if legislation is wise noninterpretive review The debates that interest us focus on the exercise of judicial review to protect individual rights Whereas we want our laws to be enacted by a majority we have not accepted purely majoritarian politics Concerns about the tyranny of the majority led framers of the Constitution to adopt constraints on what the community can do even with democratic support The resulting form of democracy is not pure majority rule but rather a constitutionally limited democracy Whereas judicial review may be at odds with pure majoritarianism it is an essential part of a constitutional democracy INTERPRETATION AND JUDICIAL REVIEW Both friends and critics of judicial review typically assume that interpretation is a matter of a the plain meaning of explicit constitutional language or b the specific intentions of the framers But the issue is not fidelity to the Constitution but how to interpret it The interpretation of abstractly worded and normatively loaded constitutional provisions should not be guided by either plain meaning or specific intentions Instead it should make and defend normative commitments about the extension of normative language in the constitution and articulate the best conception of those concepts that rationalize the adoption of specific constitutional provisions BORK BROWN AND GRISWOLD Bork is an outspoken critic of substantive due process in general and privacy in particular He thinks that interpretation must be guided by original meaning for which our evidence is the nonidiosyncratic intentions of the framers Though he thinks Brown v Board Last modified 5905 PHIL 168 Philosophy of Law Spring 200539 David O Brink Handout 7 Millian Principles John Stuart Mill 180673 has exerted an enormous in uence on our understanding of the liberal tradition in moral and political philosophy which recognizes individual rights against the state and other individuals and in particular our understanding of the moral limits of the state and the criminal law Mill s On Liberty 1859 is the most in uential statement of his liberal principles Mill begins by distinguishing old and new threats to liberty The old threat to liberty is found in traditional societies in which there is rule by one a monarchy or a few an aristocracy Though one could be worried about restrictions on liberty by benevolent monarchs or aristocrats the traditional worry is that when rulers are politically unaccountable to the governed they will rule in their own interests rather than the interests of the governed In particular they will restrict the liberties of their subjects in ways that bene t the rulers rather than the ruled It was these traditional threats to liberty that the democratic reforms of the Philosophical Radicals were meant to address But Mill thinks that these traditional threats to liberty are not the only ones to worry about He makes clear that democracies contain their own threats to liberty 7 this is the tyranny not of the one or the few but of the majority i 15 Mill sets out to articulate the principles that should regulate how governments and societies whether democratic or not can restrict individual liberties i 6 MILLIAN PRINCIPLES In an early and famous passage Mill offers one formulation of his basic principles concerning liberties The object of this essay is to assert one very simple principle as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion That principle is that the sole end for which mankind are warranted individually or collectively in interfering with the liberty of action of any of their number is selfprotection That the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others His own good either physical or moral is not a suf cient warrant He cannot rightfully be compelled to do or forbear because it will be better for him to do so because it will make him happier because in the opinions of others to do so would be wise or even right These are good reasons for remonstrating with him or reasoning with him or persuading him or entreating him but not for compelling him or visiting him with any evil in case he do otherwise To justify that the conduct from which it is desired to deter him must be calculated to produce evil to someone else The only part of the conduct of anyone for which he is amenable to society is that which concerns others In the part which merely concerns himself his independence is of right absolute Over himself over his own body and mind the individual is sovereign i 9 In this passage Mill distinguishes paternalistic and moralistic restrictions of liberty from restrictions of liberty based upon the harm principle 0 A39s restriction of BS liberty is paternalistic if it is done for B s own bene t 2 A s restriction of B s liberty is moralistic if it is done to ensure that B acts morally or not immorally A39s restriction of BS liberty is an application of the harm principle if A restrict B s liberty in order to prevent harm to someone other than B Here Mill seems to say that a restriction on someone39s liberty is legitimate if and only if it satisfies the harm principle cf iv l4 6 V 2 Later he distinguishes between genuine harm and mere offense In order to satisfy the harm principle an action must actually violate or threaten imminent violation of those important interests of others in which they have a right i 12 iii 1 iv 3 10 12 V 5 So he seems to be saying that the harm principle is always a good reason for restricting liberty but that mere appeals to morality paternalism or offense are never good reasons for restricting liberty MILL S CATEGORICAL APPROACH As this recounting of Mill s principles suggests his defense of individual liberties appears to be part of what might be called a categorical approach To decide whether an individual s liberty ought to be protected we must ascertain to which category the potential restriction of liberty belongs The main categories for potential restrictions are as follows 0 Offense mere offense 0 Moralism mere moralism o Paternalism mere paternalism o Harm Principle The potential restriction is permissible if and only if it is an application of the harm principle if not the restriction is impermissible and the liberty must be protected Sometimes Mill suggests that the harm principle is equivalent to letting society restrict otherregarding conduct i 11 iv 2 On this view conduct can be divided into selfregarding and otherregarding conduct Regulation of the former is paternalistic and regulation of the latter is an application of the harm principle So on this view it is never permissible to regulate purely selregarding conduct and always permissible to regulate otherregarding con ict But this is oversimple Some otherregarding conduct causes mere offense not genuine harm iv 3 12 So Mill cannot equate harmful behavior and otherregarding behavior and cannot think that all otherregarding behavior may be regulated It is generally thought that by applying this categorical approach to liberty and its permissible restrictions Mill is led to offer a fairly extensive defense of individual liberties against interference by the state and society In particular it is sometimes thought that Mill recognizes a large sphere of selfregarding conduct which it is impermissible for the state to regulate We might characterize this sphere of protected liberties as Mill s conception of liberal rights On this reading Mill is deriving his conception of liberal rights from a prior commitment to the categorical approach and in particular to the harm principle MILL S ANTI PATERNALISM Why the blanket prohibition on paternalism Mill offers two explicit arguments against paternalism First state power is liable to abuse Politicians are corruptible and will use a paternalistic license to limit the freedom of citizens in ways that promote their own interests and not those of the citizens whose liberty they restrict v 203 3 Second even well intentioned rulers will misidentify the good of citizens Because an agent is a more reliable judge of his own good even well intentioned rulers will promote the good of the citizens less well than would the citizens themselves iv 4 12 These arguments provide no principled objection to paternalism no objection to successful paternalistic restrictions on B39s liberty that do bene t B Though these are Mill39s explicit arguments against paternalism he has the resources for another stronger argument These resources are clearest in his defense of free speech Indeed Mill thinks that there is general agreement on the importance of free speech and that once the grounds for free speech are understood this agreement can be exploited to support a more general defense of individual liberties i 16 iii 1 MILLIAN PRINCIPLES AND FREEDOM OF EXPRESSION Mill39s discussion of censorship in Chapter ii focuses on censorship whose aim is to suppress false or immoral opinion ii l2 He mentions four reasons for maintaining free speech and opposing censorship l A censored opinion might be true ii l20 41 2 Even if literally false a censored opinion might contain part of the truth ii 3439 42 3 Even if wholly false a censored opinion would prevent true opinions from becoming dogma ii 12 6 7 2223 43 4 As a dogma an unchallenged opinion will lose its meaning ii 26 43 The first two claims represent freedom of expression as instrumentally valuable it is valuable not in itself but as the most reliable means of producing something else that Mill assumes is valuable either extrinsically or intrinsically namely true belief Of course the most reliable means of promoting true belief would be to believe everything But that would bring a great deal of false belief along too A more plausible goal to promote would be something like the ratio of true belief to false belief Freedom of expression might then be defended as a more reliable policy for promoting the ratio of true belief to false belief than a policy of censorship This rationale for freedom of expression is echoed by Justice Holmes in his famous dissent in Abrams v United States when he claims that the best test of truth is free trade in the marketplace of ideas But this rationale for freedom of expression is pretty weak We would be on good ground in censoring atearthers In any case if even if only contrary to fact we had extremely knowledgeable and reliable censors who censored all and only false beliefs this rationale for freedom of expression would provide no argument against censorship We might say that this rationale for freedom of expression provides no objection to successful or competent censorship However Mill also suggests that freedom of expression is needed to keep true beliefs from becoming dogmatic In this suggestion I think lie the resources for a more robust defense of freedom of expression in part because it is intended to rebut the case for censorship even on the assumption that all and only false beliefs would be censored ii 2 2l Mill39s argument is that freedoms of thought and discussion are necessary conditions for fulfilling our natures as progressive beings ii 20 Here Mill is appealing to his perfectionist assumptions about happiness He who lets the world or his own portion of it choose his plan of life for him has no need of any other faculty than the apelike one of imitation He who chooses his plan for himself employs all his faculties He must use observation to see reasoning and


Buy Material

Are you sure you want to buy this material for

25 Karma

Buy Material

BOOM! Enjoy Your Free Notes!

We've added these Notes to your profile, click here to view them now.


You're already Subscribed!

Looks like you've already subscribed to StudySoup, you won't need to purchase another subscription to get this material. To access this material simply click 'View Full Document'

Why people love StudySoup

Jim McGreen Ohio University

"Knowing I can count on the Elite Notetaker in my class allows me to focus on what the professor is saying instead of just scribbling notes the whole time and falling behind."

Amaris Trozzo George Washington University

"I made $350 in just two days after posting my first study guide."

Bentley McCaw University of Florida

"I was shooting for a perfect 4.0 GPA this semester. Having StudySoup as a study aid was critical to helping me achieve my goal...and I nailed it!"

Parker Thompson 500 Startups

"It's a great way for students to improve their educational experience and it seemed like a product that everybody wants, so all the people participating are winning."

Become an Elite Notetaker and start selling your notes online!

Refund Policy


All subscriptions to StudySoup are paid in full at the time of subscribing. To change your credit card information or to cancel your subscription, go to "Edit Settings". All credit card information will be available there. If you should decide to cancel your subscription, it will continue to be valid until the next payment period, as all payments for the current period were made in advance. For special circumstances, please email


StudySoup has more than 1 million course-specific study resources to help students study smarter. If you’re having trouble finding what you’re looking for, our customer support team can help you find what you need! Feel free to contact them here:

Recurring Subscriptions: If you have canceled your recurring subscription on the day of renewal and have not downloaded any documents, you may request a refund by submitting an email to

Satisfaction Guarantee: If you’re not satisfied with your subscription, you can contact us for further help. Contact must be made within 3 business days of your subscription purchase and your refund request will be subject for review.

Please Note: Refunds can never be provided more than 30 days after the initial purchase date regardless of your activity on the site.