Thank you for your patience, for I am not such a patient person as I would like to be.

I would like to talk about Marbury and compare it to Van Gend next week. You should also read McCulloch v. Maryland for next week. So, please have read up to page 97. What we are looking at is judicial review and separation of powers and then at federal power.

One of the points I wished to make yesterday was the power of judicial interpretation, specifically the idea of interpreting laws which infringe human rights strictly, versus laws which protect the weak, which are usually interpreted broadly. I used the example of handicapped people, who have a lower income potential because of their handicap, and are unable to defend themselves from violence, generally speaking. So laws which are written to protect such people are going to be interpreted by courts expansively, and when in doubt the court will protect the person. Every system does this, even military justice, even Russian legal justice. Now lets contrast that with a law which infringes on your right to political protest. In Europe, laws which infringe on the right to political protest are just about always going to be a violation of the European Convention on human rights. I then tried to use the example of gay rights, specifically gay pride parades. Up until about 1990 the ECHR did not protect the rights of sexual minorities. Since 2000 the ECHR does. No legislation changed, just the legal interpretation. I then compared that to the Russian laws prohibiting “gay propaganda”: the Russian supreme court regards those laws as consistent with the Russian constitution. To me, the Russian laws are violations of the Russian constitution because they are vague: just what is “gay propaganda”? It’s like “word salad” – a judge can’t use that as a standard to hold police or protesters properly accountable. The principles to understand are:<br />
laws which protect the weak (widows, orphans, children, handicapped people) are interpreted broadly to extend their protection
laws which infringe on fundamental rights are interpreted restrictively (strict scrutiny; strictu sensu proportionality).
The toughest cases are conflicts between protective laws and fundamental rights. So in Russia there is the fundamental right to political protest, but there is also the protection of the family, and the maintenance of public order: the conflict isn’t just “Joe versus the Government” it is between competing principles.
In Europe and the U.S. that resolved itself; I expect Russia will reach similar solutions, though how and when is a good question. Economic development conditions human rights in practice.

Thank you for your understanding.

Truly,

Eric