Democracy and Dissent: Reconsidering the Judicial Review of the Political Sphere
Bibliographic record
Abstract
There is very little consensus on the Supreme Court when the topic before the justices concerns the democratic process. This article examines the phenomenon of “dissenting about democracy” and it argues that the high rate of dissent is driven in part by a fundamental disagreement about the nature of democracy itself. Specifically, I argue that the Court’s law of democracy cases present the following conceptual puzzle: is the electoral system best conceived of as belonging to the overarching constitutional framework, or is it better viewed as belonging to the political activity that takes place within this framework? I refer to this puzzle as the “framework/politics” problem, and I show that it lies at the heart of the divide between the majority and the dissenting opinions in many of the Court’s law of democracy cases. This article provides an analysis of the Court’s opinions in Saskatchewan Reference, Haig, Harvey, Libman, Sauvé II, Figueroa, Harper and Bryan, and it also provides a detailed examination of the Court’s 2012 decision in Opitz v. Wrzesnewskiyj, a case which concerned contested elections and the entitlement to vote. I argue that the electoral process is neither exclusively constitutional nor exclusively political; instead, the electoral process is best conceived of as a dual constitutional-political entity. This article develops an approach for how courts should treat issues that have both constitutional and political elements. In addition, this article provides a comparative analysis of the rates of dissent on the Supreme Court of Canada and the U.S. Supreme Court. It also considers the relationship between dissent, democracy, and democratic legitimacy.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.103 | 0.188 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.002 | 0.001 |
| Bibliometrics | 0.005 | 0.004 |
| Science and technology studies | 0.011 | 0.036 |
| Scholarly communication | 0.018 | 0.015 |
| Open science | 0.004 | 0.007 |
| Research integrity | 0.012 | 0.014 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".