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Bork Neutral Principles

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The Constitution and the Charter of Rights and Freedoms are composed of broad values like equality and liberty, but judges who attempt to give concrete meaning to such general concepts without specific precedent and law from the text or history overstep their proper role. If Robert H. Bork were to review judicial process today, he will assume all judges decide constitutional cases in accordance with “neutral principles.” In his article “Neutral Principles and Some First Amendment Problems” (1971), Bork insists these principles must be strictly neutral in origin of the text and from such cases that derive from precedent. He continues his argument by stating if the Court strikes down legislation on any other basis, it abuses its power and invades …show more content…

However, by excluding subversive advocacy and substantive due process in any case creates a problem in legal reasoning. Bork fails to realize that it is important for an individual to claim their right is violated in any circumstance under the Constitution, since he renders that procedural due process plays a more practical role over substantive due process. Subsequently, the Charter of Rights is intended to operate as a limitation upon the powers of the State. Bork’s judicial review is referring to the way Courts should be principled. In his view, if the judiciary is inconsistent with their theory of ruling of the majority, he claims the supremacy of Court will become “illegitimate” (1971). To add, he explains that enabling the minority freedom upon the constitution may overrule the majority and will undermine the power of the judiciary. I do not agree with Bork’s statement since it only concerns the power structure in the political sphere. The foundation of law should not be interpreted based on power but, solely on the Constitution and how it is translated through fair and fundamental values that should most importantly reflect an individual’s right and

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