> In the United States, the Constitution only specifically empowers the courts to resolve "cases and controversies." This was taken to mean, early on, that they must have the ability "to say what the law is" and interpret the Constitution, but the role as defender of rights of minorities is something that didn't really develop until the 20th Century. For instance, I believe that between 1803 and about 1850, the Supreme Court didn't strike down a single act of Congress.
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Our Supreme Court isn't even specifically provided for in our Constitution. It was established in 1875 by Act of Parliament under the authority to "provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada". And until 1949 it wasn't even "supreme", because there was a further appeal to the Privy Council in England.

But your country was sort of started from scratch. We have "a Constitution similar in Principle to that of the United Kingdom", and that's where our courts get a lot of their inherent powers and jurisdiction.

And to top it off, we didn't even have Constitutional civil rights until 1982. We had a Federal Bill of Rights and some provincial laws along the same lines, but they were just ordinary laws and any other law could detract from them. And the Federal law didn't apply to the provinces. Before 1982, the Supreme Court pretty well admitted that it couldn't strike down a blatantly discriminatory law that was enacted within the confines of the Federal/Provincial division of powers.

> You seem to make the concession readily that we *need* unelected officials to protect minorities. What about other methods? If you read Madison, he seemed to think the only real way to protect minorites was a system of checks and balances, in which power is greatly diffused over different branches of government and over wide geographic and demographic areas.
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Maybe I'm oversimplifying, or misunderstanding your paraphrase of Madison, but I think I'd rather rely on a centralized Court that can grant relief based on well-defined principles than hope that sheer bureaucracy will make it too hard for government to violate my rights.

> Many countries get by without allowing their courts to strike down laws. In the Netherlands, for instance, the high court cannot exercise judicial review over legislative acts. And yet the Dutch have some of the strongest personal liberty and privacy laws -- things generally thought of as protecting minorities -- in the world. In part that's due to the Dutch culture, but also in part it's due to a very proportional representation system that forces different parties to work together in strange coalitions. I'm not convinced courts are the only way to protect minorities, and if we're going to give considerable power to institutions that are exceptions to democratic principles, we should be careful in doing so.
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I'm not sure exactly what would happen in the Dutch system if the government decided it *wanted* to take away someone's civil rights. I'm thinking of things like imprisoning people of Japanese descent during WWII or passing laws against gay rights, either of which might be tremendously popular and have the support of several parties. If they passed such a law despite the "culture", what recourse would be left for the oppressed?

> But judges change their opinions and methods over time.
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Of course they do. They're human, as I think I pointed out earlier. A good judge will check most of his personal opinions at the door, and strive to interpret laws fairly and come to sensible decisions. I think this is more of an issue of procedural fairness anyway, so as long as you can make your case before a judge who will come to a fair and reasonable decision that balances everyone's rights and obligations, you have a remedy against the tyranny of the majority.

> Furthermore, Saying a bad decision is "just too bad" is a pretty strange thing in a democracy. What is the point of democracy? Why don't we just pick smart people and let them control all future political appointments? Then we wouldn't have to worry about the tyranny of the majority at all. But I suspect that being tyrannized by a minority is no better.
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We shouldn't be tyrannized by anybody, of course. It's hard to argue against majority rule, especially when you're outnumbered ;-) The basic idea is that the majority gets what it wants *almost* all the time, except when it wants to imprison people without due process or take away their stuff or something along those lines. My "just too bad" comment was an overly glib way of saying that sometimes the majority really does rule, and not everyone who thinks he's oppressed has a right to win his case.

> If courts are able to get creative, is there any particular limit to their power? Can they do things the law does not authorize them to do in order to reach conclusions that are good?
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As you pointed out, the Supremes intervened in the case you mentioned and imposed a limit on the power of the Courts. In general, the judiciary can't perform the functions of the legislature (e.g. enacting laws) or the executive (e.g. law enforcement, setting government policy). But there's no right without a remedy, so the limits can't really be set in stone. The Courts still have to be left with the inherent power to make whatever order is necessary to resolve cases and controversies.

^v^:)^v^
FB