Waluchow 5.1 10/24/2011 3:42 PM
2011] Democracy and the Living Tree Constitution 1037
of Anglo-American legal systems. So construed, CCM is a subset of the
wider class of moral norms and convictions that enjoy some measure of
stable, reflective support within the community. It is not clear, however,
how that support is indentified. Some members of this wider class of
norms and convictions lack any legal recognition whatsoever.
Even if within the reflective and stable community there are
moralities of most contemporary western societies—norms and convictions
of positive morality governing non-political matters (such as friendship,
gratitude, marital fidelity, and charitable giving) and norms governing
political matters (such as the responsible, but legally unregulated exercise
of political power by government authorities)—these are not, in the main,
part of the CCM of those societies because they lack appropriate legal, let
alone constitutional, recognition. Distinct and different norms and
convictions concerning equality and fundamental justice are, on the other
hand, characteristic elements of those communities’ CCMs. In the United
States, Canada, and many countries of the European Union, legal
recognition of CCM norms includes, but is not limited to, enshrinement in
a constitutional charter, and evidence in legislative history and
jurisprudence that combine to flesh out the local understandings or
Thomistic “determinations” of that particular community’s principles.
180
With this conception of constitutional morality in hand, the Author
sets out to defend charter review as conceived by living constitutionalists
against many of its most ardent critics—most notably, for our purposes
here, those who view charter review as falling prey to the democratic
challenge. Put simply, the Author’s thesis is that CCM, owing to its social
origin, is a source of moral norms and fundamental convictions upon which
judges can draw without compromising democratic legitimacy. A key
premise in defense of this thesis is the claim that charter review includes,
though is by no means limited to, the task of ensuring acts of parliament or
congress do not, in ways that could not have been reasonably foreseen or
avoided by legislators, infringe the fundamental moral norms of CCM to
which the community has committed itself. If this is the role a judge plays
in a particular instance of charter review, then democratic legitimacy need
180. See 1 THOMAS AQUINIS, SUMMA THEOLOGICA 1–4 (Fathers of the
English Dominican Province trans., Benzinger Bros., Inc. 1947) (1265–1274) (discussing
the theory of “determination of common notions”); see also J
OHN FINNIS, NATURAL
LAW AND NATURAL RIGHTS, 281–90 (H.L.A. Hart ed., 1980) (citations omitted);
W
ILFRID J. WALUCHOW, THE DIMENSIONS OF ETHICS: AN INTRODUCTION TO
ETHICAL THEORY 111–16 (2003). The role of determinations of common notion will
be further discussed below. See supra A
QUINIS, at pt. I-II, Q. 95, Art. 1–4.