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PART I: FOUNDATIONS
Major issues:
1. Understand how and why a particular jurisdiction answers a question the way it
does
2. What if, anything, can the US learn from these jurisdictions, in light of relevant
differences b/t them? When, if ever,
should the US use foreign law?
Modes of Comparison
A.Originalist/genealogical:
1. Useful comparison is possible when the legal systems share many of the same
constitutional starting points.
Similarly situated decision makers, facing parallel questions, can be an important
source of insight. It focuses
on the internal logic of particular legal principles or the relationship b/t those
principles or specific rules.
2.Prob: the Supreme Court’s use of originalism is often embodied in their
interpretations. Thus, such insights
might have little relevance unless they have the strongly backwards-looking
approach that focuses on the proper
meaning to be given to principles already embodied in the text or the originalist
understanding of the
Constitution.
3. Prob: Legitimacy- the more that value judgments are called for, the
more difficult it is to rely on outside sources
of justification
B.Deliberative :
1. Sort of like secondary sources; have added rhetorical value b/c analysis comes
from other learned scholars
2. Legitimacy: based on the existence of real-world consequences, reasons and
experience
3. Persuasive value: public will accept
4. Posner: we have to be worried about rhetoric that isn’t quite right on all fours
C.Empirical :
1. Empirical evidence can usually support both sides
2. Context is very important
3. Have to be wary of mixing up causation with correlation and possibility vs
probability
D.Moral-cosmopolitan : a consensus on a value judgment might be worth
following
 1.Posner/Sunstein and Independence : comparing allows US courts to
gain insights about the moral conclusions of
a large number of relatively independent constitutional decision makers who have
access to diff information. Thus if they all arrive at the same morally correct answer,
the collective action decision reached will reveal a truth rather than reflect one
entity’s idiosyncratic preferences.
a. Requirements:
1) Independent
2) Moral judgments
3) Against similar backgrounds or conditions
b. If two people are answer the same question that has two possible outcomes, and
each has a greater than
50% chance of being correct, then the probability of reaching the right answer
increases as the group
increases.
c. Juries: each juror has access to private information as well as the public trial
information. If they all make decisions based in part on both the private and public
information, then the decision reached is more likely to be correct as the number of
jurors increases.
2.Waldron and Interdependence : if the global community reaches a
consensus after having deliberated and gone
through iterative processes of refining and re-testing decisions, then such
conclusions should have the equal
force of scientific conclusions that have undergone testing and re-testing.
Encourages a rich marketplace of
ideas whereby sound ideas win out after having been implemented successfully.
Coercive compliance with the
consensus isn’t the same thing.
E.Reflective: see how things have changed by examining a small subset
of like-minded countries
Background on the countries we’ll study:
A. Canada
1. Provincial trial ct makes decision; gets appealed to the SC of Canada
2. SC of Canada = court of general appeal so it can hear c/l cases, cases
in equity as well as federal and
constitutional q’s
B. India
1. 21 provincial High Courts can hear constitutional questions; have
original jurisdiction as well
2. Supreme Court of India has 30+ judges who sit in groups of 3 (Division
Bench) for most cases, w/ groups of 5
to hear major cases (Constitutional Bench)
3. SCI has original (intra-govt), appellate and advisory jurisdiction; hears
constitutional as well as non-
constitutional questions.

C. Germany
1. Has a Constitutional Court which only hears constitutional issues
2. Can hear cases in the abstract (ie before any injury has occurred) or
after injury has occurred
3.(Contrast w/ the Kelsen court: before a law went into effect, the court
would be asked to look at its
constitutionality; once passed, no private party could challenge)
D. South Africa
1. SA Constitutional Court: so limited jurisdiction; can hear abstract
questions (almost never does) but mostly
concrete questions.
2. No discussion of standing or advisory opinions but it’s being pushed by
the govt to have these issues settled
The Death Penalty and Comparative Engagement: Case Studies
Bu rns(Can ada)
1.
Roper(US)
Makwanyane (South Africa, 1995)
A.Relevant provisions: Sec 11(2) of the Interim Constitution: No person
shall be subject to torture of any kind,
whether physical, mental or emotional, nor shall any person be subject to
cruel, inhuman or degrading treatment or
punishment.
B. Sec 9: Everyone shall have the right to life.
C. Sec 10: Every person shall have the right to respect for and protection of his or
her dignity
D. Issue: in light of constitutional provisions on a seemingly unqualified right to life,
the right to dignity and the right to
be free from cruel, inhuman or degrading punishment, is the death
penalty constitutional?
E. Holding: No it’s not constitutionally justifiable. South Africa, b/c of its
unique history, is committed to not exacting
full retribution and under a Kantian version of human dignity, deterrence
is not a valid enough reason.
F. Background history:
1. African National Congress is in power, lead by Mandela.
2. This was a deliberated transition from an apartheid system thus the
concessions b/t the outgoing white majority
and incoming black majority; an interim constitution was drafted w/
certain provisions that must be in the final
3.This is about the interim constitution. The issue of the DP was not
decided upon (out of fear that it would be
used against the outgoing pro-apartheid govt) and it was well known that
the issue was being punted to the
supreme court.
G. Relevant constitutional provisions:
1.11(2): prohibits cruel, inhuman or degrading punishment (to be read
disjunctively)
2.9: everyone has the right to life (seems to be an unqualified right,
unlike the US and due process that leads to
rights violations)
3. 10: everyone has the right to dignity
4.33(1): a depravation of rights is permissible if it’s “reasonable” or
“justifiable in an open and democratic
society.” Requires a 2-step analysis: (now Sec 36)
a. Is there a right?
b.If so, can the limitation be justified in an open and democratic society?
Use enumerated factors.
c. This seems sort of like varying levels of scrutiny that constrain
discretion; here the inquiry is holistic.
H. Reliance on foreign law?
1. Cruel and unusual:
a.Customary international law, international agreements and
international tribunals moral-cosmo reliance
b.Cites Brennan for the proposition that dignity is at the core of the
prohibition on cruel and unusual
punishment deliberative
c.Citing Germany’s holding that capital punishment is a serious
impairment of human dignity deliberative
(Kant would say that you have to treat people as ends unto themselves;
can’t treat them as objects)
2. Right to life?
a.There’s no international consensusagainst the DP
b. But there is a moral-cosmo consensus that life is important; thus state
has to meet a very high bar to justify
the DP if life is so important
I. Analysis:
1. Framework: limitations on fundamental rights have to be justified
under Section 33
a. Is there a right?
 b.Purpose must be reasonable and necessary in a democratic society
c.Weigh competing values by balancing. Proportionality will turn on the
importance of the govt objective
AND its constitutional grounding
2. Balancing
a. Deterrence, prevention and retribution vs alternative punishments; factors that make
the DP cruel, inhuman
and degrading; destruction of life; annihilation of dignity; elements of arbitrariness;
inequality and
possibility of error in the judgment
b. You don’t forfeit any constitutional rights just by being a criminal—so
the right to life and dignity are not
automatically forfeited by a convicted murderer.
c.Yes, imprisonment does impair dignity; the fact that their freedom has
been curtailed doesn’t legally justify
further curtailment (relative to whatever crime they committed)
d. The right to life and dignity are the most important of all human and rights. Thus these
two are valued
above all else. These values are not upheld when the state objectifies murderers by
the DP, in the hope that
it will deter others.
e. Balancing:
1) Costs: Loss of dignity and life (most important con/HR values) against
2)Possible Benefits: retribution (Court says this cannot by definition
outweigh dignity/life) and
deterrence (which is a valid reason at this time)
f. Conclusion: costs are too high.
3. How is dignity implicated?
1. Under Kant, deterrence isn’t a valid reason b/c can’t use people as a means to an
end.
2. Retribution might be ok under Kant but isn’t good enough given the history of the
region and the apartheid-
era use of retribution
Bachan Singh v Punjab (India 1982)
A. Facts: Singh was tried and convicted of murder. He’s been sentenced
to the DP and now argues that the penal code
provision calling for the DP is unconstitutional under Article 19 of the
Constitution.
B. Issue: Does the DP violate the Constitution? If not, does the sentencing
procedure violate the Constitution?
C.Held: The DP does not violate Art 19(1). The sentencing procedures
don’t violate Art 21.
 D. Test:
1. Does the impugned law, in its pith and substance, deal w/ any of the fundamental
rts conferred by A 19(1)?
2. If so, does it abridge or abrogate any right?
3. If not, then is the direct and inevitable effect of the impugned law to abridge those
rights?
4. Next:
a. Remote or collateral effects on those rights don’t satisfy the test
b. If the answer is yes to any of those questions, the impugned law, in
order to be valid, must pass the test of
reasonableness under A 19.
c. But if the impact on the rights are merely incidental, indirect, remote or
collateral or depend on factors
which may or may not come into play, the anvil of A 19 is not available to
judge its validity.
E. Rules:
1. Pith and Substance: does the law aim to burden a right? Is the purpose
of the law to burden the right? Is the
law designed to impose a burden on the penumbral rights associated
here?
2. Effects Test: is the direct and inevitable impx a burden on the right
a.This is like Yick Wo/Washington v Davis—disparate impx are enough to
burden
b. Or explicit classification that is the burden
F. Is Art 19 violated? No.
1.Test: P’s burden to rebut presumption of constitutionality
a. Does the impugned law, in its pith and substance, deal w/ any of the
A19 rights? No.
b. If not, is the direct and inevitable effect to abridge those rights? No.
1) The deprivation of freedom is not a direct and inevitable consequence of the
penal law.
2) The deprivation is merely incidental to the order of conviction.
3)You get tried for murderit’s not automatic that you’ll get the DP. Plus
the law provides for
exceptional circumstances, so it’s not a direct or inevitable outcome.
4) Weird argument.
2. A19 enumerates a bunch of rights but the claimant is arguing something of a
penumbra: that the general right to life is a priori in order to give rise to the more
specific enumerated rights. It’s not specifically discussed though at this time, there is
an understanding that there are more general rights.
3.Assuming that that the Pith and Substance or FX test is satisfied and
you move on to the reasonableness inquiry:
 a. The legislature is not required to choose the least severe penalty
possible as long as it’s not cruelly
inhumane or disproportionate to the crime.
b. Heavy burden on the claimant to prove unreasonableness when the
penalty scheme is the outcome of a
democratic process.
c. It is reasonable b/c it serves the penalogical purpose:
1) Use of international law:
A) US stats and cases – DP is democratically favored even when judges rejected
the DP
B) Bill to reinstitute the DP in Britain was narrowly defeated
C) Upshot: b/c there’s no international consensus that it’s devoid of purpose or utility
and reasonable
people disagree on it, it’s reasonable for India to have it.
2)SCI reads in c/l principles of mitigating/aggravating factors to cut
against an argument that the DP is
arbitrary.
G. Is Art 21 violated? No.
1.Art 21: no person shall be deprived of his life except by procedures of
law (India is very concerned about
procedural due process and the drama of theLochner era)
2. Procedures of law: refers to meaningful process but not as strong as
substantive due process; process must be
“right and just and fair” and not “arbitrary, fanciful or oppressive”
3. So hard to win on this b/c so narrow. Is dismissed quickly.
H. This decision is used to avoid granting the DP in India. SCI reads in the
aggravating and mitigating factors in such a
way that it’s used to restrain sentencing of the DP. Thus DP is not done as
often as it could be done.
German Life Imprisonment Case(1977)
A. Facts: a lower court referred a murder case to the GCC. The relevant
murder/manslaughter statute called for life
imprisonment in extreme cases such as homicide to satisfy sexual urges
and homicide as the result of greed etc.
B. Issue: Do the life imprisonment statutes violate the human dignity
clause of Art 1, Sec 1 of the Basic law?
C. No.
D. Reasoning:
1. Framework of Art 1, Sec 1:
a. Art 1, Sec 1 as a constitutional norm: every penal sanction must bear a just relation to
the severity of the offense and the guilt of the offender. The command to respect
human dignity means that cruel, inhuman and degrading punishment is not allowed.
 b.Deterrence is not a valid goal of punishment as the state cannot usea
person as an object to deter. This
would strip him of his constitutionally protected right to social worth and
respect.
c. It’s inconsistent w/ the concepts of human dignity to forcefully strip a
human of his freedom w/o the human
having at least the possibility of ever regaining freedom.
2. There’s no violation of Art 1, Sec 1:
a. The inviolability of the dignity of man means that lifetime imprisonment still requires
rehabilitation. The
ultimate goal is for the criminal to re-enter society after having atoned for his crime.
Thus he must be
given that chance to re-enter and that requires ongoing rehab.
b. Lifetime imprisonment is only humane if the criminal has a concrete and principally
attainable possibility
to regain freedom at a later point. There has to be hope that the criminal will be
allowed to leave—this
hope is what makes the imprisonment bearable and reinforces human dignity.

PART II: EQUALITY

1. Foundational Cases
Relevant Constitutional Law
Canada
Section 1
The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society.
Sec 15: Equality
(1)Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the
law without discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object
the amelioration of conditions of
disadvantaged individuals or groups including those that are disadvantaged because
of race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
US
 14th Amendment
Section 1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No state shall make or enforce
any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any person
of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of
the laws.
South Africa
Sec 8 of the Interim Constitution ( now Sec 9
)
(1) Every person shall have the right to equality before the law and to
equal protection of the law.
(2)No person shall be unfairly discriminated against, directly or indirectly,
and, without derogating from the generality
of this provision, on one or more of the following grounds in particular:
race, gender, sex, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief,
culture or language.
(3) (a) This section shall not preclude measures designed to achieve the adequate
protection and advancement of
persons or groups or categories of persons disadvantaged by unfair discrimination,
in order to enable their full and
equal enjoyment of all rights and freedoms.
(b) …
(4) Prima facie proof of discrimination on any of the grounds specified in
subsection (2) shall be presumed to be
sufficient proof of unfair discrimination as contemplated in that
subsection, until the contrary is established.
A. Brown v Board of Education
1.Sweatt/McLaurin/Gaines: lots of intangible benefits of established
schools can’t be mimicked; SC is chipping
away at the separate but equal doctrine
2.Statute: 14th Amendment, EPC
3.Revisionism: Sc says that the growing importance and understanding of
public schools has changed since
Plessy and the ratification of the Reconstruction Amendments, thus the
mood on public schooling has changed
4.Originalism: SC asked both sides to brief the issue of education at the founding
is inconclusive.
 5.Test: is there social stigma or intangible psychological harm? If so
unconstitutional.
6.Brown is about dignity and equal opportunity of Af-Ams; is rooted in the
history and c/l evolution on intangible
benefits.
7.It isnotabout subordination and getting rid of hierarchy based on group
membership. (Jim Crow laws had the
structure of creating pervasive legal subordination) Why not go this route?
a. It’s too controversial compared to an already controversial subject.
b. Might have lost unanimity on the opinion. (Price of unanimity is a watered down
language and remedy)
c.Brown II: “with all deliberate speed” certainly didn’t provide guidance.
constitutional law
8. Is this a clear test for racial discrimination?
a.No. It’s a clear pushback to Jim Crow laws. Ambiguous as to the
framework.
b.Brownis re-read to standing for the use of SS for race-based
classification and the idea that separation based
on race is inherently unconstitutional let alone workable. It’s not read for
dignity, opportunity or
subordination though there are some references to dignity and
opportunity.
9.Prof:B ro w n would fail on narrowly tailored to achieve a compelling
state interest
B. Andrews v Law Society of British Columbia
1.Facts: Andrews, a permanent resident, wants to practice law but
Canadian law says only citizens can; permanent
residents have to wait for 3 years before citizenship can be acquired.
2. Relevant Law: Sec 15(1)
a.“Before the law”- formal rule of law guarantee
b.“Equal protection” – US formulation (of a negative right?)
c. “Equal benefit” – more substantive maybe, seems more like a positive
right
d. Enumerated list of bases of inequality: race, national or ethnic origin, religion, sex, age
or mental or
physical disability
1) Compare to the US: Religion (SS); Sex (IS); Age (RBR); Disability (RBR+)
3. Approach: What framework?
a.Hogg (rejected)-All distinctions engage Sec 15. Then move to Sec 1 and
ask whether the law comes w/in
“such reasonable limits prescribed by laws” that can be “demonstrably justified in a
free and democratic
society.”
1) Ct rejects: if you do this, then no separate investigation into discrimination and
discrimination as an
enumerated prohibition loses its meaning
b.McLachlin (rejected)-ask if a “fair-minded person, weighing the
purposes of legislation against its effect …
and giving due weight to the right of the legislature”
1) Ct rejects: too front-loaded
c. Enumerated grounds is the best approach.
4.Andrews Enumerated Grounds Test to determine if there’s a prima facie
violation of equality
a. Equality standard: equal application of the law, not equality generally
b. Is Sec 15 engaged?
1)Is there disparate impact?
2)Has a distinction on the basis of an enumerated or analogous ground of
Sec 15(1) been made?
A) Enumerated: Race, national or ethnic origin, color, religion, sex, age or
mental or physical
disability
B) Ie: stereotyping, historical disadvantage, prejudice
3)If so, does it rise to the level of discrimination?
A)“A distinction, whether intentional or not, but based on grounds
relating to personal characteristics
of the individual or group, which has the effect of imposing burdens, obligations, or
disadvantages
on such individual or group not imposed upon others, or which withholds or limits
access to
opportunities, benefits, and advantages available to other members of society.”
B) Have to show that the legislative impact is discriminatory.
c. Does 15(2) save it? If not go to Sec 1
d.Sec 1: is the law a reasonable limit which can be demonstrably justified
in a free and democratic society?
(ie, is the limit a legit exercise of legislative power?)
1)State has to explain the objective/purpose of the law at issue.
A) All of the objective/purpose analysis comes in for the first time at this
stage.
B)NB:Oakes held that to override a Charter right, the law must relate to
“pressing and substantial”
concerns in a free and democratic society; but don’t apply when the law
at issue is largely
 administrative or regulatory.
2) Proportionality component orbalancing
A) Nature of the right
B) Extent of its infringement
C) Degree to which the limitation furthers the goal of the law
D) Importance of the right to the individual or group concerned
E) Broader social impact of the impugned law and its alternatives
5. Application to these facts:
a. Is there disparate impact?
1) Yes, a distinction has been made b/t citizens and noncitizens.
2) Sec 15(1) rights apply to all persons, not just citizens.

Does it rise to the level of discrimination?

1) Yes, permanent residents have to wait for 3 years. Thus the distinction
imposes a burden in the form of
some delay on permanent residents who have acquired all of their legal
training.
2)Citing Carolene Products, non-citizens are a good example of a
“discrete and insular minority”
deserving of protection of Sec 15.
c.So Sec 15 is engagedgo to Sec 1.
d. What is the nature and purpose of the enactment?
1) The valid and desirable social purpose of creating and regulating the
legal industry.
e. Balancing
1) The disadvantages to the permanent residents is too great to be
justified.
6. The majority and dissents agreed on the framework but disagreed on
the reasonableness of the limitation in the
Sec 1 analysis.
7.True proportionality: explicit cost-benefits analysis; true proportionality
not done here
8. Compare to the US:
a. Canada does less work at the Sec 15 analysis—most of the analysis
comes at the Sec 1 analysis. This is
unlike the US where sorting into which level of scrutiny largely determines
the outcome.
b. Overinclusiveness/underinclusiveness are characteristics of the SS or IS analysis in
the US; the presence of
those traits influences how much deference to give to the legislature; Canada is less
concerned w/ crisp
tailoring.
c. SCC says public policy rationale is reserved for the legislature.
C.Law v Canada (Minister of Employment and Immigration)
1.Puts a gloss on theA n d re w s framework.
2.Facts: Plaintiff, a 30 year old widow, was denied survivor’s benefits under the
Canadian Pension Plan which
granted benefits generally starting at age 35 for able-bodied surviving
spouses.
3.Law clarified the purpose of Sec 15(1): to prevent the violation of
essential human dignity and freedom through
the imposition of disadvantage, stereotyping, or political or social prejudice and to
promote a society in which
all persons enjoy equal recognition at law as human beings and as members of
Canadian society, equally
capable and deserving of respect, concern and consideration.
4.LawTe s t :
a. Does the law draw a distinction b/t the claimant and others, in purpose or effect?
1) On the basis of personal characteristics
2) Or by ignoring their already disadvantaged position b/c of personal
characteristics?
b. Is the distinction based on enumerated or analogous grounds?
c.Does the law have a discriminatory purpose or effect w/in by imposing
burdens or withholding benefits or
perpetuating or promoting the individual as less worthy or capable as a human or
member of Canadian
society? (dignity concerns overlay the opportunity and group-based
distinctions analysis)
1) To determine whether dignity was demeaned, construe dignity harms both
subjectively and objectively.
2) Subjective: The claimant must show dignity harms by reference to:
A) Pre-existing disadvantage, stereotyping, prejudice of vulnerability by
the individual or group
B)Correspondence or lack thereof b/t the grounds on which the claim is
based and the actual need,
capacity or circumstances of the claimant or others (if law takes into
account claimant’s
circumstances that form basis of claim, harder to make out a claim)
C)The ameliorative purpose or FX of the law on a more disadvantaged
person or group (if the law
helps out the disadvantaged at the cost of the advantaged-claimant,
harder to make out claim)
D) The nature and scope of the interest affected by the law
 3) Thus, the claimant now bears the burden of proving intent to
discriminate.
4) Usually, if differential treatment is based on an enumerated or
analogous grounds, then there’s some
presumption on finding a Sec 15(1) violation.
d. Then do the Sec 1 analysis.
5. Application:
1) Yes the law draws a distinction b/t the claimant and others.
2) Yes the distinction is based on the enumerated ground of age and
perhaps disability.
3) Does the law have a discriminatory purpose or effect by undermining dignity?
A) Use the subjective and objective viewpoints.
B) No pre-existing disadvantage; she’s not part of some historically underprivileged
minority.
C) Ameliorative purpose: There’s a real need for this legislation and as a young
able-bodied person, she’s
more advantaged than disadvantaged.
D) In the long run, denying her these benefits will force her to work
harder and become self-reliant, thus
the legislature is actually helping her to self-actualize, thereby enhancing
her dignity.

4) Thus under Sec 1, it’s a reasonable limit.

6. This kind of a case could be problematic as it’d be a drain on dockets
and state resources.
7. This is diff from Andrews:
a. The law’s allegedly discriminatory purpose analysis shifts from Sec 1 to
Sec 15.
b. In order to make out a successful claim, the claimant must show that
the law conflicts with the purpose of
Sec 15.
c. Allows the courts to bow out of finding a violation every time there’s a
distinction by focusing on
comparison and dignity harms.
D. President of the Republic of South Africa v Hugo
1. Facts: President Mandela decided to pardon mothers in prison w/ minor kids. Male
prisoners w/ dependent
children who have no other primary caregiver challenged the decision as violating
Sec 8 of the interim (now Sec
9) constitution.
2. Held: It’s constitutionally permissible to pardon mothers w/o similarly
pardoning men.
3. Reasoning:
a. Sec 8 (Sec 9) analysis:
1) Is there a differentiation in treatment?
2) Is it discrimination?
3) Is it on specified grounds or analogous grounds?
A)Specified unfairness is presumed
B)Analogous claimant must prove unfairness
4) Is the unfairness rebutted by the state?
A) Nature of the power?
B)Purpose of the law or rational connection?
i)
Ameliorative purpose?
C) Nature of the interests affected?
i)
Dignity
ii)
Or seriously affect in a comparable manner
b. Application
1) Yes there’s a differentiation in treatment.
2) B/t men and women—specified ground of gender –unfairness is presumed.
3) Is unfairness rebutted?
A) Power: executive orders are discretionary; it’s a common democratic
power to pardon and is
inherently selective
B) Interests affected
i)
Many male prisoners
ii)
In the background, there seems to be a notion that most of these women are lower
level
offenders whereas male offenders would be more dangerous unless they were
differentiated on the basis of specific crimes
iii)
This is not a severance of father’s rights; it’s a temporary delay of giving
them back their
parental rights.
iv)
Dignity: father’s dignity not impaired b/c it’s not an insult to their capacity
as fathers.
c. SA makes a distinction b/t fair and unfair discrimination. The key distinction is whether
or not dignity has
been harmed. If there’s discrimination but no dignity harms, then it’s fair and usually
considered to be a
“necessary (but impermanent) evil” on the road to reaching an egalitarian society.
d.Equality doesn’t mean equal access to benefits but rather, each person
is treated w/ equal respectin the
decision making process. That means that there interests of those disadvantaged by
a decision should be factored into whether or not the general interest is served given
such losses. This requires balancing the interests of the community along with those
disadvantaged.
4. Dissent
a. This relies on the stereotype that women are better caregivers b/c it
makes the distinction on gender.
b. Can’t rebut unfairness by relying on a reason that itself is based on an
overgeneralization that mothers are
more important than fathers.
c. It’s insulting to the dignity of both men and women to perpetuate the idea that
women are better caregivers.
d. There’s no suggestion that there’s an ameliorative purpose or that this is a
measure to combat the
subordination of women.
e. If this is meant to help women, then should be more clear.
2. Race-Based Disparate Impacts
A.Washington DC v Davis
Facts: black police officers challenged the test used by the police
department alleging that it had the effect of
keeping blacks out of the department.
2.Held: Showing disparate impx isn’t enough—to make out a claim, the
plaintiff has to prove the legislature acted
with discriminatory intent. (Sometimes discriminatory FX can be so strong
as to give rise to the inference of
intent, ieGomillion)
3. The plaintiffs could’ve argued under critical race theory that the test
perpetuates race-based policies b/c it’s
based on education standards that themselves are racially problematic,
especially for blacks.
4. Possible harms that P can argue:
a. Opportunity
b. Dignity
c. Hierarchy/Subordination
d.Brown has all 3 going for the plaintiffs.
5.Dignity + Law v Canada
 a.Law said that by denying the petitioner benefits, the court is forcing her
to meet higher objective stds and
that’s good for her self-actualization and self-respect
b. Could say the same thing here: by not calling the test problematic, the
court forces applicants to reach
higher stds, which is good for their dignity
B.SA’sHarksen Test for unfair discrimination in Sec 9 Analysis:
1. Is there a distinction?
2. Does it amount to “discrimination?”
a.If it’s on a specified ground discrimination is established
b. If it’s not on a specified ground, then whether there’s discrimination will depend on
whether the ground is based on attributes and characteristics that have the potential
to impair fundamental human dignity or harm them in a comparable way
c. Discrimination can be direct and indirect (facially neutral that has the
FX of discrimination; intent is not
required to prove discrimination)
3. If there’s discrimination, is it “unfair?”
a.If discrimination on specified ground unfairness is presumed
b.If on an unspecified ground claimant has to prove unfairness
c. (Test of unfairness focuses primarily on the impx of the discrimination
on the complainant and others in his
situation)
d. State must rebut the unfairness by showing fairness. Fairness factors:
1) Purpose of law? To ameliorate past harms?
2) How vulnerable is the group affected? What is the dignity harm?
3)Dignity (is a separate fairness component) OR impairment of a
comparably serious nature
A) Self worth (right to be free from stigma/persecution)
B) Threshold level of capability (right to be free from threat of
prosecution)
4) Intent to discriminate is useful but not required
C. City Council of Pretoria v Walker
1.Facts: Pretoria is an important city, one of the capitals, the de facto
national capital, is Afrikaans-speaking and a
stronghold for the ANC; has symbolic significance. Post-apartheid, predominantly
white neighborhoods had
metered rates for tariffs on water/electricity consumption. The black sections were
on a flat rate through some
had meters but were not used yet, out of fear for violence. The city was phasing in
the use of meters. City also
lied to the white residents about the rates they were getting. This creates a bit of an
issue as to whether this is
 racially motivated or geographic.
a. Walker first argued that the law violated 8(1) and that 8(3) didn’t save it.
b. Walker then argued a violation under 8(2).
2.Issue: Walker, a white, challenged the whole scheme when he was sued
for nonpayment. He argues that it’s
unconstitutional under Sec 8 (now Sec 9) of the interim constitution, for
being racially discriminatory.
3.Held: Although Walker made out a claim for discrimination under Sec
8(2), the state successfully rebutted the
presumption of unfairnessas to the facial challenge. However, the lying is
a violation of dignity.
4. Application to the facial challenge:
a. Is there a distinction? Yes.
b. Is there discrimination? Yes.
c.Is it direct or indirect? The impact is sufficiently racial that the
distinction or discrimination is on the basis
of race,i n d i re c t l y.
d. Unfairness rebutted? Yes
1) Nature of the group?
A) Despite their past power, Walker’s group is now vulnerable
B) Economically powerful but politically vulnerable
C) Huge ANC majority makes white minority potentially powerless
2) Nature of the rate-setting power?
A) Rate setting is always about power and line drawing
B) So some good intentions, ie wanting to avoid violence, but not enough to rebut
unfairness
3) Purpose?
A) An ameliorative purpose is relevant to the fairness inquiry
B) Pretoria is trying to do the right thing, and that counts for something
4) Interests affected?
A) Facially, the policy itself doesn’t invade Walker’s dignity objectively
though he was subjectively
insulted.
B) Application though violates his dignity b/c the city is lying about the
rates and white residents
were targeted to be lied to
5) Result?
A) Facial challenge doesn’t violate the Constitution; city rebutted the
unfairness
B) As applied violates the Constitution; city can’t justify lying.
What would the US court say about dignity?
A.Dignity concerns has the ability to ask the individual to sacrifice a lot in
the name of the community’s health; we
 generally don’t ask people to sacrifice in the name of some greater good;
we don’t impose certain kinds of duties.
B.As a test, it’s very slippery b/c it grants a lot of discretion to the court
to determine what it thinks is wise, and that
might undercut the role of the legislature. US cts generally take the
position that they don’t substitute their own
wisdom for that of the legislature’s.
Is the SAC overreaching its judicial bounds and encroaching on
democracy?
A.Maybe not: The elected Council made the decisions about the rate-
setting, the differences and the phase-in
1. The lying and selective enforcement decision was made by bureaucrats
(whom we also assume to be
democratically accountable).
2. The selective application is not a written policy.
B.But the Court might be saying that you Council can’t do it in this sloppy
incoherent way. If this policy was written
and clear, then maybe the Council could’ve gotten away with it. The Court
is exercising its powers in a way that
leaves a lot of discretion to the Council to do what it wants.
1. If this program was ok’ed under 8(3) aff action grounds, then that might be
problematic and regressive as it’s
limitless and any kind of program that grants benefits to one group w/ costs to the
other could be green-lit.
2. Can’t use other parts of the constitution like property rights to be a backstop to
excessive aff action b/c that
would heavily protect the white minority and that’s the last group and right that they
want to give a robust
reading to.
3. Walker has to pay and the Council can’t keep doing this in secrecy—kind of balancing
b/c judiciary wants to help other branches of govt to sell the idea that everyone has
to do their part; don’t want everyone to resort to self-help like Walker did
Can Walker be used to explain Washington v Davis?
1. If the US was going to look at cases based on disparate impx, then that
would explode the number the claims and
clog the ct’s docket.
2. Title VII: does look at impx for disparity and discrimination. So it’s possible to address
discrimination claims in
terms of disparity of impx.
A. SoP and federalism
B. If you didn’t like the law, you could change Title VII but changing constitutional
law is much harder to either
 amend the constitution or change the justices.
C. SA Con: very weak form of f’ism. Much easier to amend than the US;
3. Histories?
A. In Walker, the problems are far more recent.
B. Davis: much greater reliance on case law and less on textual sources. There’s a
plausible argument that the
Reconstruction Amendments were meant only to protect against state-sponsored
discrimination more along the
lines of slavery.
C.The SA Constitution is more explicit but the SA Con is explicit about
repealing apartheid as well as the
achievement of a nonracial society. similar histories but very diff
reactions
4. Textual differences:
A. SA explicitly discusses direct and indirect discrimination. Indirect is on
the same footing as direct.
1. Might say that the USSC and SA CC got it right given their own texts.
Comparative Con Law 2009
B. If the text is key, then Walker might have less to say about Washington
v Davis
5. SA has the Hugo-Harksen framework whereas the US, after Brown, is committed to
SS.
A. SS makes it very hard to uphold the law.
B. SA Test creates a leaning that the rule is presumptively unfair but that is a
rebuttable presumption thus it’s for
sure easier to uphold a law.
C. If the US had decided Davis the other way, it would’ve had to nuance
its SS analysis or else it was committing
itself to very searching scrutiny.
D. The SA commitment is less searching and is doctrinally diff b/c the SA,
even on a finding of unfairness, doesn’t
automatically tilt it to the unconstitutional side.
E.In the US, the lower cts do a lot of the work of deciding equal protection
cases. SA had a diff structure: for 2
years, no decision could be implemented until it was signed off on for being invalid
by the Constitutional court (much of the old judges had stayed on). If there’s a con q,
it’s very likely that it’ll reach the con ct whereas US has more discretion over
choosing its own docket.
6. Point of View
A. Dissent in Davis: would’ve reviewed purpose
B. SA: multi-racial court
 C.Point of view of legislature: are they intending to discriminate US
point of view
D. PoV of victim: how does this law affect the recipient? More used in SA.
E.Critical race theory: the US is too focused on legislature and we should
be more multiple-viewpoint oriented
F. Realist overlay: 1 black judge vs a critical mass of black judges changes
the perspective that the court will have.
3. Equality and Affirmative Action
9. Equality (SA)
1. Everyone is equal before the law and has the right to equal protection
and benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative and other measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination
may be taken.
3. The state may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race,
gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion,
conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of
subsection (3). National legislation must be enacted to prevent or prohibit
unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the
discrimination is fair.
D.Minister of Finance v Van Heerden (SA 2004)
1.Facts: After new Parliament is elected in 1994, the new rules include a
new pension plan scheme whereby the
state would pay higher contributions for the new members of Parliament
(79 % black). Returning members
(from the apartheid era, mostly whites)) would be under the older scheme
which paid out less.
2. Issue: Does the 2-pension scheme violate the equality provision of the
Constitution?
3. Held: No.
E. Moseneke Reasoning:
1. No violation, decide this under 9(2). This is restitution and not
discrimination.
2. 9(1): formal declaration about the formality of (positive and negative)
equality rights.
 3.9(2): aff action programs are permissible.
a. 9(1) and 9(2) are complementary to each other.
b. Aff action ≠ positive discrimination or reverse discrimination
4.Mosekene Analysis:any restitutionary measure, even if based on a 9(3)
basis for discrimination, must pass
muster under 9(2). If so, then can’t be presumed to be unfairly
discriminatory.
a.Target: Does the law target people who have historically been discriminated
against?
b.Purpose: Does the law serve an ameliorative purpose?
c.FX: Does it promote equality?
1) Look at larger societal context
2) Some measures might come at a price for those who were previous advantaged
3) Measure should not constitute an abuse of power or impose such substantial
harm on those excluded
such that our long-term constitutional goals would be threatened.

Comparative Con Law 2009

5. Application:
a. Target
6. Moseneke is ok w/ some costs to achieve long-term equality
F.Mokgoro’s Reasoning:
1. No violation, decide this under 9(3).
2. Historically, the inequalities perpetuated by the entrenched minority
were used to suppress, degrade and
dehumanize the majority.
3. Why doesn’t this go under 9(2)?
a. This appears to be restitution based on race. But it’s not clear that all the members of
the newly advantaged class constitute a majority of the historically disadvantaged
class. Thus not all the new beneficiaries have been the victims of discrimination.
b.Thus use 9(3). Focus on fairness factors not used in 9(2):
1) Vulnerability of the group
2) Is nature of discrimination serious
3) Does it impair the fundamental dignity of the claimants?
4.9(3) Analysis:
1) Yes there is a distinction being made b/t old and new Parliamentarians.
2) Yes it results in a discriminatory impact to the old Parliamentarians.
3)Yes it’s on prohibited grounds—race of the minority presumption of
unfairness
4) State has to rebut the presumption.
A) No impact to dignity.
 B) Only loss here is pecuniary.
C) Measure advances an important remedial goal—aimed at creating equity b/t the
new MP’s (mostly
black) and the old ones (mostly white).
5. Mokgoro is very deferential when evaluating the fairness factors.
G.Both Moseneke’s and Mokgoro’s analyses are permissive as to the
costs of aff action to the outgoing “advantaged
group.” This is unlikely to stand the test of time as it’s rather deferential.
H. Sachs
1.Concurring; endorses the “essential rationale” of the judgments which
is that both Moseneke and Mokgoro are
balancing the fairness of the law w/ the effects on the “disadvantaged”
group.
A. How do you choose b/t the constitutional mandate of using aff action to remedy
inequalities on the one hand, and the duty of the state not to discriminate unfairly
against anyone on the grounds of race, on the other.
B.9(3) focuses on the group advanced and the mechanism used to
advance them (confers positive rights)
C.9(2) focuses on the group of persons being discriminated against
(confers neg rights)
2.But says that you have to use 9(3) first b/c you won’t know if it’s
restitutionary or not until after there have been
some effects.
3. For Sachs, 9(2) confirms that the vision of equality espoused in 9(3) is
not just formal equality but substantive
equality.
4. 9(2) Analysis:
a. Yes there’s a distinction.
b. Yes it’s on the basis of race, an enumerated ground.
c. Yes the state rebuts the presumption of unfairness.
1) Good purpose: to achieve equality
2) No impact to dignity.
3) The rebuttal to unfairness is anti-materialism.
4)(Sachs is using theHugo- Harksen test which is more rigorous on the
fairness prong)
I.Over time, Moseneke (restitution) and Mokgoro’s (vulnerable group)
deferential analysis will be difficult to
operationalize once it becomes harder to tell the diff b/t affirmative action
and naturally occurring political power
differences that may result in a less advantaged group. Sachs’ rigorous
use of factors to determine fairness under the
Hugo-Harksen test is more likely to stand the test of time.
 India
Art 14: The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory
of India.
Art 15: Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth.
Comparative Con Law 2009
(1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of
them.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from
making any special provision for the
advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled
Tribes.
Art 16: Equality of Opportunity in Matters of Public Employment
(4) Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion to any
class or classes of posts in the services under the State in favour of the Scheduled
Castes and the Scheduled Tribes which, in
the opinion of the State, are not adequately represented in the services under the
State.
Ev Chinnaiah v Andhra Pradesh
A. Facts
1. India’s constitution not only provides for the possibility of aff action, but
embodies the expectation that such
programs will occur, per Art 15(4).
2. Under the Constitution, the President is allowed to designate those who
fall into the “scheduled castes”
category.
3. AP tried to further subdivide the category of “scheduled castes” into 4 sub-groups
which had the effect of giving more preference in govt/edu seats to a miniscule
proportion of the scheduled castes relative to the others under the idea that some
sections of the scheduled castes were more advanced than others and thus less
needy.
B. Held: The Act further subdividing the scheduled castes violates
principles of federalism and is unconstitutional.
C.Reasoning: Only the fed govt can determine the entire set of people
who will be entitled to special protections from
aff action. Once that designation is made, states are not free to further subdivide the
class and grant more benefits to
some over others w/in the designated class. States are free however, to choose how
 to execute aff action policies
and set-asides.
D. Justice Sinha:
1. Making the initial reservation gets RBR and we’ll usually defer to the legislature.
But if the state further
subdivides w/in that category, then that subdivision gets heightened scrutiny—
something like IS.
2. Cites Ginsburg in a deliberative fashion—we’re so suspicious of using immutable
traits like race or
untouchability that if it purports to be used in a “positive” way, we’re still
going to be very suspicious.
3. So the state action fails IS b/c there’s no good reason to further
subdivide.
E. Justice Hegde:
1. Something akin to SS—the subclassification is per se illegal.
US Affirmative Action
A.Croson:Richmond’s minority set aside program which gave
preference to minority business owners in municipal
K’s was held to violate the Constitution’s EPC for lack of a compelling
interest. They were trying to remedy general
societal discrimination and not something institutionally specific.
B.Adarand:All racial classifications imposed by the govt must be
analyzed under SS. For state action, use EPC. For
USFG action, use the 5th’s DPC to import EPC ideas. The program awarded
a DOT K to a minority business over
the lowest (white) bidder. App Ct ruled against the white bidder but SC
vacated and remanded.
C. Grutter v Bollinger:
1. O’Connor’s Majority:
a. Race as a loose factor in law school admissions is permissible.
b.Is willing to use SS in a more nuanced way so that it’s not fatal for the
govt; diversityis a compelling
interest
2. Ginsburg/Breyer Concurrence:
a. Cites stats showing that predominantly minority communities have unequal and
inadequate resources and educational opportunities. Despite these problems, some
minorities nonetheless can meet the high stds for getting into top schools.
b. They use something closer to intermediate scrutiny or something less stringent than
heightened scrutiny b/c
they are willing to justify the state’s interest as correcting educational inequalities
and providing equal
opportunities.
 3. Renquist/Scalia/Kennedy/Thomas Dissent:
a.Applies SS in such a way that the state fails; the state’s goal is to
achieve a “critical mass” of minorities but
the actual program is just an effort to achieve racial balancing.
D. Gratz v Bollinger
Comparative Con Law 2009
1.Renquist’s Majority: Using a point system to judge each candidate’s
abilities, including giving a big bump for
race, is not a real individualized consideration as required byBak ke. Thus
in some cases, the boost for race
becomes the decisive factor and that amounts to impermissible outright
racial balancing.
2.O’Connor’s Concurrence: All diversity factors don’t have to be weighed
equally but the effect of the race boost
ensures that all diversity factors aren’t considered once you assign point
values.
3. Souter/Ginsberg Dissent:
a. Using racial diversity in the admissions process means that race is
being considered in some way to
increase an applicant’s chance for admissions. Thus using a point system
helps to achieve that goal.
b. Colleges want to maintain their minority enrollments—this system is
candid but if you strike this down,
their attempts will just become more covert.
Comparing India and the US
A.India has a constitutional mandate to use affirmative action, thus aff
action policies are ok as long as they fall w/in
the 4 corners of the Constitution. AP tried to do something that violated the SoP of
aff action and thus it was
stricken. The fed govt designates the classes who receive special protections. Then
states can set aside slots for
members of that class but the state cannot further discriminate w/ in that class.
B. US:
1. Possible rationales for aff action:
a. To remedy specific past instances of discrimination
b. To remedy societal discrimination
c. To remedy de jure institutional discrimination
d. Diversity
2. Judicially accepted rationales:
a. Diversity
b. Institutional (in the diversity + education contexts)
3. AT: societal discrimination: can’t do it; it has to be institution-specific
otherwise everything will be opened up
 to aff action
4. AT: institutions: even though it’s permissible, it might open up
institutions to a flood of litigation every time;
hard to set boundaries to cabin litigation; thus institution + diversity
might be a better fit.
PART III: SPEECH
Hate Speech
•
“Hate speech”-speech designed to promote hatred based on race,
religion, ethnicity or national origin
•
Became an issue after WWII; international covenants call for or condone
the criminalization of hate speech.
Canada
Section 1: Limitation of Rights
The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society.
Section 2: Fundamental Freedoms-Everyone has the following
fundamental freedoms
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of
communication;
c) freedom of peaceful assembly; and
d) freedom of association.
Regina v Keegstra (SC Canada, 1990)
A. Facts: Keegstra, a HS teacher, was criminally charged w/ unlawfully promoting hatred
against an identifiable group
by making anti-Semitic statements and teachings in class. Keegstra appealed his
conviction arguing that the
criminal law violated his FoE rights under Sec 2(b) of the Charter.
B. Held: Keegstra’s claim was rejected. The criminal law is a reasonable
limitation on his Sec 2(b) rights under Sec 1
of the Charter.
C. Reasoning:
1.OakesF rame work:
a. Is the right prima facie protected under the Charter?
b. Is it a reasonable limit under Sec 1 of the Charter?
1) Is the govt interest substantial and pressing?
2) Is it proportional?
A) Rational connection?
B) Narrowly tailored?
 C) Extent of the impairment of the right?
D) Alternate means to achieve the same objectives?
E) Is there true proportionality b/t FX and objective?
2. Application
a.Is the right prima facie protected? Yes, Sec 2(b) protects hate speech,
which is not considered violence.
b. Is it a reasonable limit under Sec 1?
1) Govt interest substantial and pressing? Yes.
A)International treaty obligations require us to condemn hate speech.But
SCC is careful not to be
too heavy-handed about this obligation.
B) Moral-cosmopolitan use of treaties: they reflect universal values; the
reasonableness of this action
is supported by some international consensus.
2) Balancing:
A) Rational connection? The point of the FoE is to get to the truth and promote the
common good. Hate speech is rarely true nor does it better the political process.
And in fact, it undermines the democratic process.
B) Tailoring? Maybe the crim law doesn’t work perfectly (it might promote hatred due to
increased media exposure or galvanize the opposition) but nonetheless, it sends the
message that hate speech is harmful and threatening to a harmonious society.
C) Extent of impairment? Is minimal. Tailoring need not be as narrow as
possible—the existence of
less restrictive means doesn’t mean that this is a bad policy. At any rate,
this is low value speech.
3. Canada treats all hate speech equally; doesn’t create subsets of hate
speech, unlike Germany.
Germany
Comparative Con Law 2009
Article 5 (Freedom of expression)
1.Everyone has the right freely to express and to disseminate his opinion
by speech, writing and pictures and freely to
inform himself from generally accessible sources. Freedom of the press
and freedom of reporting by radio and
motion pictures are guaranteed. There shall be no censorship.
(explanation of the basic right)
2.These rights are limited by the provisions of the general laws, the
provisions of law for the protection of youth and
by the right to inviolability of personal honor. (authority to limit 5(1)
rights)
3. Art and science, research and teaching are free. Freedom of teaching
does not absolve from loyalty to the
constitution.
 Holocaust Denial Case (Germany CC, 1994)
A. The Public Assembly Act allows the govt to prohibit meetings where the likelihood of
things said will themselves constitute crim law violations. Sec 130 of the crim code
makes “criminal insults” illegal. The govt made an NDP meeting conditional on the
grounds that revisionist historial Irving would not propagate the “Auschwitz Hoax,”
denying that the Holocaust ever happened. Irving challenged the condition as
violating his Sec 5(1) rights to FoE.
B. Held: Under Sec 5(2) gives the govt the authority to limit 5(1) rights b/c
the factual utterances are “demonstrably
untrue” and would violate the dignity rights of Jews.
C. Reasoning:
1. Explanation of Sec 5(1)
a. Opinions and expressions of opinion are prima facie protected.
b. True facts are prima facie protected.
c.Demonstrably untrue facts are not protected.
d.But usually it’s very hard to disentangle opinion from fact, thus the
utterance is viewed as a whole as
opinion and gets protected.Thus opinions + true/untrue facts get weak
presumption of FoE protection.
2. Explanation of Sec 5(2)
a. Textually grants authority to the govt to limit Sec 5(1) rights based on
protecting 1) youths or 2) the
inviolability of personal honor.
b. Balance:
1) Value of the expression
2) Harms to dignity
3. Application:
a. Irving’s speech gets the weak Sec 5(1) presumption b/c it’s got a mix of
opinion and facts.
b. Balancing:
1) Value of the expression:
A) Gets weak presumption
B) This is an issue of importance to the public
2) Harms to dignity:
A)Singular statement that Holocaust didn’t happen is demonstrably
untrue.
B) Defamation to the group: denying the Holocaust is an affront to the
group’s worth (resilience,
bravery etc) as survivors of tragedy.
C) B/c the Holocaust is so bound up with the identity of the Jews, the Jews are entitled to
special
respect and status. To deny the Holocaust denies their special status and personal
 worth. (kind of
circular).
US Free Speech Jurisprudence
A. Political speech:
1. SS—highly protected
2. But reasonable time/manner/place restrictions are permissible
3. Viewpoint-based regs are per se invalid
a. But when it’s the govt as speaker, some viewpoint discrimination is ok.
B. Intermediate Scrutiny: substantially related to an important state
interest
1. Used when law is content or speech neutral but has an incidental or
demonstrable burden on speech
2.O’Brien: A criminal prohibition against burning draft cards did not
violate claimant’s FoE rights. The draft card
laws were facially neutral towards speech and even though the law wound up
addressing both speech and non-
speech elements, a sufficiently important govt interest in regulating the nonspeech
elements could justify the
incidental burden on free speech.
C. Commercial speech: something b/t IS and RBR
D. RBR
1. Commercial speech, might have reasonable time/manner/place
restrictions
2. Obscenity
3. Fighting Words
Comparative Con Law 2009

a.Chaplinsky: fighting words-incite an immediate breach of the peace

4. Threats
5. Libel
E. RAV v St. Paul
1. MN passed a law banning symbols, objects etc, including burning crosses, that will
arouse anger, alarm or resentment in others on the basis of “race, color, creed,
religion or gender.” MN SC interpreted this to ban fighting words only.
2.Held: This is unconstitutional viewpoint discrimination. Yes MN can ban
fighting words but if they only ban
some fighting words, then that gets SS and it fails here.
a.Fighting words are low valued speech. But if you only proscribe some
types of fighting words and not all
or the most core kinds, then use SS to justify the subdivision.
b. Content-based distinctions w/in the category of unprotected speech
must satisfy SS w/ 2 exceptions:
 1)Particularly germane exception: a content-based distinction, where the
basis for the distinction is also
the reason to proscribe the entire class
A) How do you know? Don’t know! Cts know b/c they carved out the
exception in the first place so
they can add or subtract from it.
2) If the law remedies a secondary effect and incidentally also proscribes a subcategory
of a proscribable
class of speech, that’s permissible
A) Example: Title VII generally prohibits sexual discrimination in the workplace. This
law probably
has the effect of limiting sexual fighting words but not other kinds of
fighting words. But that
effect is nonetheless permissible.
c. Application: the MN law prohibits hate speech on the basis of race, religion, color
creed or gender but
excludes political affiliation or sexual orientation. Thus, hateful speech, no matter
how bad, is ok as long
as it’s not one of the enumerated topics. This fails SS under tailoring as there are
other content-neutral
ways of prohibiting public violence.
d. Pretext: the city has excluded a particularly offensive mode of
expression and when it does so selectively,
then we have to be worried about the city really trying to handicap the
expression of particular ideas.
F. VA v Black
1. D was convicted of violating a statute that made it illegal to burn a
cross. Cross burning was prima facie
evidence of intent or intent to intimidate.
2. Held: The statute criminalizing cross burning w/ the intent to discriminate is
constitutional, implying that given
the long history of its use to incite hatred and violence, it’s a true threat or fighting
words. But SC struck down
the prima facie evidence of intent part.
a. It’s ok to ban cross burning. But the burden of proving intent remains; can’t be
inferred. It’s possible to do
it w/o intent to intimidate.
b.This seems like viewpoint discrimination w/in the category of fighting
words and might be problematic
underR AV. But it’s permissible if it’s proscription is based on the reason to proscribe
the entire category. Cross burning has historically amounted to threats and inciting
violence thus it’s a “particularly germane” exception to subdividing w/in that speech.
c. Why have a targeted law instead of something more general? Sends
the message that city is really against
this b/c it’s a particularly virulent form of intimidation, a form of low value
speech.
ComparingKeegstra and the Holocaust Denial Case to the US:
A. Text:
1.Canada/Germany both have constitutional textual limitations on FoE.
Their constitutions explicitly allow the
govt to limit FoE rights whereas in the US, the 1st A seems to be
expressed in categorical terms.
2. The Canadian and German constitutions tell you
3.The Canadian and German constitutions tell youwh ysuch rights can be
limited: to promote a free and
democratic society and to protect youths and personal honor. The US in
contrast, typically doesn’t (explicitly)
derive overarching constitutional values to inform the analysis or any
limitations.
B. International obligations:
1. Canada is following its international hate speech treaty obligations. The US has
ratified such treaties but also
exercised its right of reservation on the clauses that have become imperatives for
Canada and other signatories.
2. Canada sees the number and type of treaties as moral-cosmopolitan
justifications. US isn’t going beyond its
borders in the hate speech context.
C. History and culture
1. Anti-Semitism and hate speech (that doesn’t rise to “violence”) is
protected in the US, maybe in part b/c the risk
of anti-Semitism as a political movement is less in the US than it is
(perceived) in Germany.
2. Better comparison: racial hatred (Jim Crow etc) and anti-Semitism:
cross-burning rises to the level of violence
as it was historically followed by lynchings, beatings etc.
Comparative Con Law 2009
3. But jurisprudentially, speech (that doesn’t amount to incitement to
violence) is just viewed differently.
D. Harms
1. In the US, the harm level of the speech has to rise to something akin to
physical violence before hate speech can
be proscribed.
2. In Canada and Germany, dignity harms are enough to justify speech
limitations.
3. The feeling in the US is that even if speakers say false things like denying the
Holocaust, let the debate play out.
Objectors to that position will respond and the truth will emerge. Thus the US tends
to be very protective of
speakers. Idea is that majoritarian politics will stomp out unpopular or untrue
viewpoints, especially held by a
bare minority. The best antidote to false statements is through further speech in the
MoI.
4. US is also worried about the slippery slope: assuming that we can distinguish
violence-inciting speech from
other speech, curbing all hate speech might also curb legitimate speech. Drawing a
sharp line at defining
violence-inciting speech from all other might be more workable than the fact/opinion
distinction that Germany
uses.
E. Context
1. US: tends to promote individualism and the individualist assimilationist
ideals
2.Canada/Germany: greater value on group identity, cultural diversity,
and co-existence
F. Balancing
1.In the US, most of the work gets done in trying to decide what category
of review you go under. The amount of
protection the right gets is determined early. Pure dignity harms don’t outweigh if
you’re in SS.
a. US does not create and rank order constitutional values.
b. Though they are operating in the background.
2.In Canada, the Oakes frameworklets most speech get prima facie
protection under Sec 2(b). Then under Sec 1,
the Court engages in balancing than the US but less than Germany. Looks like
something b/t SS and IS.
Canada-style balancing looks at what works for the “common good.” Canada-style
tailoring also need not be
tight; it’s good enough to send the message and criminal stigma that hate speech
won’t be tolerated.
3.Germany: does all-out balancing including looking into the value of the
speech and what it contributes. Weak
presumption for speech but dignity harms can outweigh.
2. Pornography
Canada
 Section 1: Limitation of Rights
The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society.
Section 2: Fundamental Freedoms-Everyone has the following
fundamental freedoms
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of
communication;
c) freedom of peaceful assembly; and
d) freedom of association.
R v Butler (Canada 1992)
A. Facts: An adult bookstore was convicted of criminal obscenity. They
now challenge the law under Sec 2(b).
B.Held: The criminal law does impinge on Sec 2(b) rights but the
limitations are justified under Sec 1.
C. Reasoning:
1. To qualify as “obscene,” the material must contain the “undue”
exploitation of sex as the dominant
characteristic.
a.Community stds test: “Undue exploitation of sex” as judged by
community stds of what Canadians would
not want other Canadians to see; not about offense or insult or Keegstra-
dignity harms; cts judge on the
basis of the degree of harms that flow from such exposure.
b. Types of pornography:
1) Explicit sex + violence = covered by this crim code
2) Explicit sex + degradation and dehumanization: covered by this crim code
3) Explicit sex w/o degradation or violence = not covered
2.OakesF rame work:
a. Does Sec 2(b) protect the right, prima facie?
Comparative Con Law 2009

b. Is the limitation justified under Sec 1?

1) Is the govt interest substantial and pressing?
2) Proportionality?
A) Rational connection b/t limit and objective?
B) Extent of impairment of the right?
C) Balance FX of limitation against legislative objective?
3. Application
1) Yes, pornography presumptive gets protected under Sec 2(b).
2) Govt interest:
A)Pornography undermines the Charter value of morality—gender
equality—that is necessary in a free
and democratic society.
B)The law is about tangible harm avoidance: preventing exploitation,
victimization, abjection of women
and kids which leads to sexual violence and deceased self-worth and
acceptance
3) Rational connection
A) Loosely applied.
B)Irwin Toy reasonability rule: if social science data is inconclusive on
harms, then ask if there’s a
reasonable basis for the legislature to enact this law.
C) Yes, the social science data on FX of such materials is inconclusive but
the legislature had a reasonable
basis: the dissemination of these materials will perpetuate attitudes that
will negatively harm women
D) Court is being very deferential to the legislature.
E)KeegstraDistinguished: There the minority argued that suppressing
hate propaganda had the perverse
effect of gaining media coverage and therefore attention to the cause, making the
link b/t suppression
and harm of hate propaganda weak. But here, suppressing pornography will not
promote the
pornographer’s cause.
4) Impairment
A) Loosely applied.
B) Opponents say do education and reasonable time/manner/place
restrictions. Court says that’s not
enough.
C)Court says that the legislation need not be perfectly tailored or be the
least intrusive route. Question is:
is it appropriately tailored?
D) The prob of obscenity requires a multi-pronged approach and this is
just one component.
E) Plus the law still allows for sex w/o degradation or violence and allows
porn in the home b/c of privacy
rights. So the right to see this isn’t entirely taken away.
5) Balance FX of the limit against legislative objective:
A) How serious are the free speech values here? Not very. This kind of
expression doesn’t go to the heart
 of the FoE rights. So letting this run wild in the MoI isn’t a core concern.
B) These materials only appeal to the most base aspect of self-fulfillment.
C) And anyway, the right is somewhat limited in the face of avoiding a serious
constitutional harm.
D. Why aren’t dignity harms good enough?
1. In Canada, dignity harm is a subjective/objective evaluation. People could be
subjectively insulted but
objectively, it might be harder to determine especially if we’re socialized about
gender roles—then we might
not be able to really evaluate what’s an insult to self-worth and what isn’t.
2. When women represent 50% of the population, they aren’t really a
minority that might need special protection
in the way that Jews or other minorities might. Thus we want the harms to
be tangible.
3.InButler, “dignity” harms is used more rhetorically to refer to gender
inequality but the law’s animating
purpose is the tangible harm about sexual violence.
Feminist Critique of Pornography
A.Catharine MacKinnontheory of pornography: porn portrays women as
sexual objects or objects of sexual violence;
that becomes the self-perpetuating foundation for gender relations as it
becomes ingrained in both women and men’s
opinions of women. It’s deeply conducive of inequality and on top of that,
it perpetuates violent sexual crime.
B.Canada is using this MacKinnon definition; it is built into the Explicit sex
+ degrading and dehumanizing def
C. Response to MacKinnon
1. If we took MacKinnon really seriously, then women would be silenced
by porn. It overplays domination and
underplays people’s capacity for agency. This is too persuasive a view of
hierarchy.
2.Porn, per Judith Butler, is how we get out of the binary gender roles. By
sexual play, cross-dressing,
pornography etc. lets us dispel traditional gender lines.
US on Pornography
Comparative Con Law 2009
A.Miller Test for Obscenity: whether the avg person, applying
contemporary community stds, would find that the
work, as a whole, appeals to the prurient interest or depicts sex in a
patently offensive way. Work must as a whole
lack serious scientific, literary or artistic value.
1.But if law is targeting the secondary FX, then time/manner/place
restrictions are ok.
2. If it fails the Miller test for obscenity, then use SS.
B.American Booksellers v Hudnut (7th Cir. 1986)
1.Facts: Catharine MacKinnon and Andrea Dworkin drafted an anti-
pornography ordinance that was passed in
Indianapolis. The statute defined pornography as the graphic sexually explicit
subordination of women through pictures and/or words that also included one of the
following. (Then gives a long list of conditions that define porn as a practice that
discriminates and degrades women.) Statute was challenged as violating the 1st.
2.Held: Yes it violates the 1st b/c it does not refer to the prurient interest,
to offensiveness, or to the standards of
community nor does it consider the artistic, literary or scientific value of
the work. It’s based on impermissible
viewpoint discrimination.
3. Reasoning:
a.If something fits the Miller definition of obscenity, then it becomes
easier to regulate b/c that speech isn’t at
the heart of what’s protected under the 1st.
b.To regulate pornography, the porn being regulated must be “obscene”
but the statute doesn’t regulate
materials that could be “obscene:” doesn’t refer to the prurient interest or patently
offensive sex nor does it
carve out an exception for meritorious works. (But Mackinnon would say that we’re
too socialized to
believe that subordination can be valuable thus we can’t really judge what’s
meritorious and what isn’t.)
c. Biggest prob: this is viewpoint discrimination. The law has taken the
view that speech treating women in
an approved way is ok but if it’s in a disapproved way, then it’s to be prohibited.
d. Thus b/c it’s viewpoint discriminatory, use SS. Viewpoint discrimination almost
always spells invalidity.
e. Truth is not a prerequisite for the right of free speech. Everything is open to
revision and contestation.
Govt shouldn’t be able to suppress speech if it’s false b/c that’d put the
govt in the position of determining
truth and driving out falsity, thereby supplanting the role of free speech
altogether.
f. Something being called “low value speech” doesn’t refer to the content
of the work, ie female subordinate
pornography isn’t “low value.” Low value refers to the entire category.
Comparing the balancing done by Germany, Canada and the US
 A. German and Canadian cts tend to do balancing in a kind of subjective
and unconstrained way that almost makes
them like quasi-legislatures.
B. US does balancing but the big q is whether to get into SS, IS or RBR. Once there,
discretion is constrained.
C. Internal balancing: putting into categories:
1. Which category it gets into first will greatly affect the decision
2. More explicit balancing for Germany/Canada opens up the dialogue for
more political debate as opposed to a
technical debate about which category you go to first.
3. The 2-stage generalized approach: promotes a more informative debate for the polity
to understand; also
engages the legislature better. In the US, most of the analysis happens at the early
stage of which category to go
in to. Also, this implicates who should have more input in to the decision and
institutional competence.
D. Comparing:
1. US: uses categories; it’s a kind of balancing but the balancing is always
pre-determined based on what category
you get into first. So lots of analysis gets done in the sorting phase. Most
things are either RBR or SS.
2.Canada:Oakesframework; see if something gets prima facie protection.
Then use Sec 1 analysis. Canada
seems to apply it in such a way that it seems to move b/t SS or
intermediate scrutiny. (Placing a high burden for
the state to overcome.) More balancing than the US but less than
Germany.
3.Germany: all out balancing and reasonableness review; what the US
used to do underLochner. For example, in
the Holocaust Denial Case, there’s a weak presumption in favor of speech
but it goes away if the comment is
“demonstrably false.”
E. Is there an interest in protecting people from hate speech in terms of
constitutional values?
1. US doesn’t rank order constitutional values nor does the US make any suggestions
about values per se; instead
there are values operating in the background. We don’t create and order values.
a. “Truths” are to emerge after competing in the MoI.
b. The Constitution stands on the side of the individual and the state must show a
compelling interest to
override; it’s probably unlikely to draw on other constitutional values to
justify a govt interest
 2. Canada/Germany: yes there are constitutional values which can be
rank ordered.
a. Explicit recognition ov values
b. Open-ended balancing
c. Is more concerned w/ popular and democratic input
Comparative Con Law 2009
d. The constitution favors both the limits on the regulation and the
regulation itself
F. What forms of hate speech are particularly pernicious? 1. US: cross burning b/c of the
particular history of it 2. Germany
a. Special dignity harms to the Jewish; part of what it means to be a German Jew is the
special entitlement to
protections and the statute must provide that protection (sui generis); lots of regs ok
but the broadest
protections go to the Jews
b. Generalized hate speech regs are ok.
3. Canada: all hate speech is treated equally; does not carve out a special
concern for a subset of hate speech
PART IV: DIGNITY AND AUTONOMY
1. Abortion
Sunstein /Segal
A.A minimalist decision: is narrow (rather than broad) and shallow (rather
than wide or deep) – decide as little as
possible; limit the impact of the holding to the facts, as much as possible
1.Narrow : frames decision in the facts of the case rather than in terms of
a broad rule
2.Shallow : skirts issues of basic principles in explaining its decision;
allows people who disagree on the deepest
levels to converge; thus judges can agree onhow to decide a case w/o
agreeing onwhy it should be decided a
certain way
3.Deep reasoning: usually produces widely applicable rules.
4. Professor:
a.Broad : provide guidance under the full range of where this is
applicable; tries to pre-judge future analogous
cases
b.Narrow : just decide the single issue w/o providing much guidance on
other possible cases (Roe is raised as
a narrow issue about whether she can get an abortion for rape b/c the law
doesn’t make an exception for
rape; but decision is broad and addresses abortion in multiple contexts)
 c.Shallow : theorize the minimum that you need
d.Deep: very theorized, very normative
B. Why might minimalism be beneficial?
1. Narrow and shallow decisions leave many issues undecided, thereby giving the
legislature the democratic room
to maneuver.
A) That reduces the costs of judicial decision-making b/c the Court can converge on
a result w/o having to
converge on the reasons or implications of the result
B)It also leaves the court free to reach diff results in future cases w/
similar facts. The court can reason
analogously from the minimalist precedent but need not be strictly bound
by the prior case. Thus
minimalism allows for flexibility b/t the judiciary and the legislature.
2. Narrow and shallow decisions can be tailored to promote deliberation and
accountability in political decision-
making.
a. Rather than face a controversial constitutional question head-on, the court can
interpret or invalidate
political decisions in ways such that it encourages the legislature to re-
think the issue.
b.For example, striking down legislation for vagueness, improper
delegation, unclear legislative statements
(clear statements of intent influence interpretation) or desuetude are
examples of drafting or procedural
defects that then allow the legislature to come up w/ a “revision.”
3. If the decision is narrow, that provides guidance to lower courts while
leaving space for debate and discourse—
the democratic process is then engaged.
C. Critique:
1.But having a narrow decision isn’t always enough to kick the legislative
process back into gear. Sometimes, a
legislature cannot reach true majoritarian preferences w/o a dictator
setting the agenda. (See Canada’s post-
Morgantalerpolitics.)
2.And issuing a broad decision doesn’t mean that the legislature cannot
“rethink”either. The German legislature
pushed back by adopting essentially the same law but w/ some tweaks—
so some rethinking happened.
3. The kind of interest group mobilization to re-think will only happen if there’s enough
money and deep-seeded sensitivities to make it worthwhile to engage in
contestation that leads to political, democratic and legislative change.
 D. Segal
1. Instead of trying to avoid pushback and promote engagement, let there
be backlash.
2. Backlash from a broad or deep decision is good. People will yell more, debate more,
giving them a sense of ownership in the Constitution as well as a stake in the
democratic project. It enhances legitimacy and stability of the democratic system.
US
Roe v Wade
1. Women’s interest?
A. Textual basis enormously unclear
i.Liberty and due process clause of the 14th.
ii. Griswold: contraception; Douglas uses the “penumbras and
emanations” of the bill of rights—right to
privacy is inherent in all these cases
Comparative Con Law 2009
iii.9th: rights and liberties reserved to the people; rights that predate the
constitution remain (but marital
contraception was not historically an issue at the time of the founding, so 9this
weaker for marital
contraception but stronger for marital privacy generally). 9thpurports to be
preservative. (It could preserve
natural rights or clearly historically grounded rights).
a. US really uninterested in enforcing god-given natural rights
b.If the 9th preserves discrete rights, then one interpretation is that the
court can’t use it to add on more
rights.
c. Alternatively..?
iv. Balancing (women + physician) vs (fetus + state)
a. Blackmun sees this as an interference not only w/ a woman’s decision
but also the state is messing
w/the dr’s autonomy and w/ the decisionmaking done together by the dr
and the woman.
b. But there’s a prob w/ this argument: if we recognize that a dr has a
privacy or liberty right to make
medical calls, and the court then had to regulate that right, that would
push the court into Lochnering.
v. Countervailing rights:
a. Fetal rights?
b. Health/life of the mother?
B. Precedent, c/l: fundamental rights, EPC cases and privacy cases:
there’s a fundamental right to privacy that’s
derived from the case law.
C. SS and Trimester framework:
i.
1st trimester: mother’s privacy rights trump; state cannot regulate
abortions
ii.
2nd trimester: state can regulate abortion procedures to protect health of
the mother
iii.
3rd/Viability: fetal life is compelling, which means you can prohibit it as
long as there’s a health and
life exception for the mother.
D. Trimester framework: like SS but more category based.
E. Stewart/Douglas:
i. You need to give careful scrutiny—this law is too broad but doesn’t want
to go as far as Blackmun. Very
narrow reasoning, and doesn’t tell the legislature how much scope it has.
ii. Douglas: fetal life is compelling whenever state says so but this isn’t
tailored properly.
Planned Parenthood v Casey
1. In b/t Roe and Casey, politically:
A. Red states: trying to protect fetal life pre-viability; not by banning it
outright but by imposing onerous liability;
and then post-viability, they take out the mother’s health exception
B. Very mobilized pro-choice and pro-life movements
C. Strong Republican judges were appointed w/ the hope that they’d overrule
Roe, but that never happened.
2. Casey keeps Roe’s essential holding: right to choose abortion pre-viability w/o
undue interference from the state.
3. Casey gets rid of the trimester framework. They get rid of the really broad part of
Blackmun’s opinion.
4. Change: The trimester framework notwithstanding, the state from the outset has
an interest in the woman’s health
and life, ie fetal life.
5.Rule:undue burden test: if the purpose of the law is to impose a
substantial obstacle on the decision to get an
abortion or the effect is to impose a substantial obstacle. It’s not undue
just b/c it’s more difficult or expensive.
6. Diff from the ‘undue burden’ in Germany?
A. On board w/ purpose effect
B.Undue burden in Germany: if it causes an undue burden on the
pregnancy; tells you the content of the rights;
don’t know if you have the right to an abortion or not until you decide
whether or not the pregnancy will pose
 an undue burden
C.US: can’t impose an undue burden on the right to choose to have an
abortion; so the burden is a standard b/c of
the prima facie right to get an abortion
7. Casey: (this is a facial challenge)
A. Strikes down spousal notification
i. Which women are more likely to be adversely affected by this? --women subject to DV
(Alito at the
appellate level said the common denominator is all women and this is a small
burden on the group as a
whole. Here O’connor says this component is only relevant to battered women and
for them it’s an undue
burden.)
B. Uphold the 24 hr waiting period, counselor + sign off, parent
notification
C. The spousal notification is more an affront
8. Why drop the trimester framework?
A. More sophisticated understanding of medicine now.
B. Plus abortion plus keeps getting safer so that pushes out when you can regulate
to later and later. Viability is
also moving forward. So science has made these sharp divisions
unworkable.
Comparative Con Law 2009
C. But the core part of pre-viability and post-viability is supported by a
number of factors.
i.
Reliance
ii.
When ct is being pushed back upon, we mustn’t overrule under fire—we’d
lose faith as an institution.
Ct spoke, everyone should’ve complied and ct should stand.
9. Kennedy/Souter: seen as sell-outs for the republican perspective; seen as having
abandoned the ideology that got them appointed in the first place. So they are
saying that Roe might’ve been a bad decision but we have to stand behind it.
Canada
Sec 7: Legal Rights
Everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance
with the principles of fundamental justice.
Morgentaler, et al v. The Queen (Canada, 1988)
A. History:
1. Prior to 1969, taking steps to effectuate an abortion was a criminal
offense subject to life imprisonment.
 2.In 1969, Canada passed a law in the criminal code which made
abortions permissible providedthat it took place
in a hospital and was certified first by a 3-committee team of doctors who certified
that the pregnancy would
likely endanger “life or health” of the pregnant woman. “Health” was not defined,
thus doctors were free to
come up with their own theories on risk factors which could include psychological
health, to justify a
“therapeutic abortion.”
3. As a result, stds were inconsistently applied; abortions were delayed ad
women had to surmount many hurdles
to get one.
B. Facts: Morgantaler, a dr and abortion rights activist, challenged the
abortion law, claiming that it violated Sec 7 of
the Charter.
C.Held: Yes, Sec 251 violates Sec 7 of the Charter.
D.Dickson Majority Reasoning:
1. “Fundamental justice” refers to both the substantive and procedural
parts of the law. Thus Sec 7 allows for
limitations on life, liberty and security of the person if the limitation
comports w/ “fundamental justice.”
2. “Security of the person” per Sec 7:
a. At the least, this includes not just physical integrity but also psychological integrity and
the right to be free from serious state-imposed psychological stress, including
stigmatization of the individual, loss of privacy, stress and anxiety, possible
disruptions to family, social and work life and uncertainty as to legal outcomes and
sanctions.
b. Majority expressly declines to determine whether the right extends to
protect interests central to personal
autonomy such as the right to privacy.
3.OakesF rame work:
a. Is the govt interest substantial and pressing?
b. Balancing to ensure that overriding the right/freedom is reasonable and demonstrably
justified in a free and
democratic society:
1) Are the means rational, fair and not arbitrary?
2) Extent of impairment of the right?
3) Balance FX of the limitation w/ the legislative objective
4. Has the Sec 7 right been infringed? Yes. (Look at both purpose and
effect.)
a. Sec 251 causes delays which are harmful to the woman’s psyche,
emotional and physical well-being, even
 for those who would otherwise qualify for the abortion.
b. Earlier abortions have lesser health risks and complications
c. Major psychological stress from the uncertainty of waiting to find out if a woman
qualifies for an abortion.
5. Does this comport w/ fundamental justice? No.
a. The amount of delays and barriers, both administrative and substantive
make getting an abortion difficult.
b.The procedures to get an abortion contain so many barriers to actually
getting an abortion that it becomes
practically unavailable to women who would prima facie qualify for an
abortion. Thus doesn’t comport w/
FJ.
6.Sec 1/Oakes Balancing
a. Some notes:
1) Majority expressly declines to evaluate any “fetal rights” or assess any
“right to life” as an independent
constitutional value.
2) Do not need to measure the “full extent of the state’s interest in
establishing criteria unrelated to the
pregnant woman’s own priorities and aspirations.”
Comparative Con Law 2009
3)Must “evaluate the particular balance struck by Parliament in s. 251 as
it relates to the priorities and
aspirations of pregnant women and the govt’s interest in the protection of
the fetus.” Thus the law says
fetal interests are not to be protected when the “life or health” of the
mother is at risk.The Canadian
Court is double-checking on the balancing done by Parliament: when the
woman’s health/life is at
risk, her right outweighs the fetal interest, whatever that is. But there is
some fetal interest.
b. Is the govt interest pressing and substantial?
1) Yes, govt is pursuing the valid govt objective of protecting the fetal life.
2)Yes govt is protecting the interests of the pregnant woman when her
health or life is at risk. (At that
point, the mother’s interest outweighs the fetal right.)
c. Balancing:
1) Means
A) Means are not rational or fair.
B) The procedures and administrative structures of Sec 251 are arbitrary
and unfair.
2) Extent of the rights impairment?
A) Pretty bad b/c Parliament has ID’ed a class of women who should legally get an
abortion but b/c
of the practical unavailability of the supposed defense to liability, women suffer
psychological and
physical trauma, inconvenience or expense.
3) Legislative objective vs FX of the Limit
A) Legislative objective is actually defeated b/c of the practical barriers.
E. Beetz: Sec 7 inherently grants the right to medical treatment if your
health is threatened. You should not be forced
to choose b/t criminal sanctions or protecting your health.
F. Wilson: Liberty is the key interest that needs protection:
1.Abortion is a fundamental decision that women should be allowed to
make. (UsesRoe in a more favorable way
than was received in the US).
2. Decisional autonomy and dignity count. Abortion is part of a woman’s
quest for equal dignity not to be
conscripted into using her body to carry a fetus to term.
3. First female justice on the Canadian Court.
G.Morgantaler left abortions pretty much de-regulated.
Post-Morgantaler Politics in Canada
A. The Mulroney govt tried to enact a new abortion policy. It kept abortion in the crim
code but did away w/ the
committee, broadened the def of “health” to mean mental and psychological health
and lifted the “hospitals only”
restriction.
B. The pro-life and pro-choice groups opposed the law wanting something
more restrictive and less restrictive,
respectively. But their amendments didn’t pass.
C. Mulroney then re-introduces a similar compromise bill as the earlier one and orders
party discipline. Warns the pro- lifers that this is his last attempt at introducing
restrictions on abortions. One house passes the bill but it’s defeated in the other
house by a pro-life + pro-choice coalition.
D. Thus the judicially created “no law” policy status continued by default
and not b/c it commanded majority support
by the public or by Parliament.
E.This illustrates what happens when you have a large plurality or
majority bracketed by two opposing minorities.
Neither the pro-lifers or the pro-choice people could get exactly what they wanted
b/c they aren’t strong enough. This might show that the issue then isn’t a priority to
the (disinterested) majority of the voters either way b/c the minorities can’t swing
enough people to vote w/ them.
F. The priority for most govts on such “moral issues” is to avoid them b/c
they cause strife, political division and can’t
be used to sway the otherwise disinterested majority.
Germany
Article 2(2)(1)
Everyone has the right to life and inviolability of his person. The freedom of the
individual is inviolable. These rights may
only be encroached upon pursuant to a law.
German Abortion Decision I (Germany, 1975)
A.This is an abstract judicial review of Article 2(2)(1) and the Abortion
Reform Act which liberalized abortion on
demand by:
1.Not punishing abortions performed in the first 12 weeks of pregnancy
by a physician w/ consent of the pregnant
woman after preventative counseling (Law decriminalizes abortions in the
first trimester.)
2. Crim penalties would continue to be enforced w/ respect to abortions
performed after 12 weeks unless necessary
to protect the woman’s health or life or justified by genetic indications.
B. Article 2(2)(1) protects the fetal life as an independent legal interest.

Comparative Con Law 2009

1.Gives rise to State’s duty to protect it as against state attacksand
requires state to protect the life as against the
mother.
2.Fetal interest trumps the mother’s right to self-determination. The
legislature cannot make the woman’s right to
self-determination the sole justification for an abortion. The condemnation of
abortion must be clearly
expressed.
a. Simply removing the legal condemnation of criminalizing abortion isn’t actively
condemning abortion.
b. If there are other ways to equally condemn abortion though, that’s ok. Need not
use crim law.
c. There may be circumstances where an abortion is justified, ie when it threatens
the mother’s life or health.
But the ordinary burdens imposed by an ordinary pregnancy doesn’t
justify an abortion.
d. The decisive factor is whether the totality of the measures serving the
protection of the fetal life guarantee
an actual protection corresponding to the importance of the legal value to
be secured.
3. Art 2(2)(1) also implies Art 1(1) dignity, which also gives rise to the state’s obligations
to protect fetal life. Wherever human life exists, it’s entitled to human dignity. The
potential faculties present at the fetal stage suffice to establish human dignity.
4. Balancing: Dignity is the touchstone:
a. The rights of the woman to self-determination and also health, life and
avoiding undue burdens = dignitary
basis
b. Respecting the fetus = respect for human life as a person = dignity
c. W/ dignity on both sides of the equation, the balance tips if the woman’s dignity
claim outweighs (b/c of
risks to health or life, rape or more-than-ordinary burdens.)
C.Upshot: The fetal life has a right to life. State has a duty to use social,
political and welfare means to foster the
development of the fetus, and that these are preferable to criminalizing
abortions though that is not impermissible.
(This had the effect of striking down pre-unification E. German laws that
permitted abortion in most circumstances.)
D. NB: This decision could’ve been broader by:
1. Defining extraordinary burdens more broadly to encompass more disabilities
2. Defined the other forms of condemnation in addition to criminal condemnation
German Abortion Decision II (Germany, 1993)
A. Germany then passes a new law allowing abortions on demand in the
first trimester if woman underwent
preventative counseling + a mandatory waiting period.
B. Holding: Under the law, a woman’s own determination that continuing her pregnancy
would impose “unreasonable
demands” is not legally conclusive. The legislature can decriminalize abortions but it
could not define “unevaluated
abortions” as justified or lawful. To do so would violate the State’s duty to protect the
fetus.
1. Lawful abortions are those where treating the abortion as unlawful would impair
the counseling system.
2. For example, decriminalizing abortions is justified b/c women might prevaricate in
counseling or avoid
counseling under the threat of crim punishment.
C. Reaffirmed the independent fetal interest per Article 2(2)(1) which
triggers the state’s duty to protect its life under
Art 1(1) which says that human dignity is inviolable.
D. The duty of protection is not absolute. Sometimes the mother’s right to
her own life, bodily integrity and personality
can trump:
 1.Fetal life interest doesn’t vary w/ time (a laRoe); starts at fetal
development
2. Abortions are legally permissible where the pregnancy imposes a hardship beyond the
typical pregnancy; types
of “unreasonable demands” of a woman:
a. Risk to mother’s life or health
b. Pregnancy results from a sex crime
c. Sever birth defects
d. Other situations of personal necessity (which in prior years had been interpreted
too loosely)
E.“Unreasonable demands” don’t automatically discharge the state’s
duty to protect. Instead, the state must do more
for the purposes of winning her over to voluntarily continuing the
pregnancy; state must offer comprehensive
counseling:
1. Financial subsidies
2. Counseling w/ father
3. Counseling and working w/ her employer to meet demands of
pregnancy
F. Upshot:
1.If woman undergoes counseling + some other requirements and then
gets an abortion in first trimester, she can’t
be legally sanctioned. Later abortions can’t be punished if done b/c of risk
to mother’s health/life or if fetus is
deformed.
2. Only low-income women can get public funding for abortions.
3.Majority said that the legislature can decriminalize unevaluated (by 3rd
parties) abortions after counseling but
cannot go so far as to call them justified or lawful abortions.