The only way to pursue minority protection effectively is presumably to interpret the moral provisions of a bill of rights, not in terms of the community’s possibly biased and oppressive own morality, but in terms of Platonic morality. Judges should seek moral truth in deciding bill of rights, not the morality of a possibly misguided majority against whom the bill of rights is supposed to serve as protection.
But to repeat, the role of a judge is not to bow to the moral sentiments and opinions of the majority. Her task, under the proposal herein defended, is to respect and to enforce the true commitments of the community’s constitutional morality in reflective equilibrium. And this morality – at least as it exists within all the contemporary constitutional democracies with which we are concerned here – thoroughly rejects any opinion that oppresses a minority group, harbours the prejudices of patriarchy, and so on. Judges within such systems, who decide on the true commitments of their community’s constitutional morality in reflective equilibrium, will inevitably le bed to protect minorities from the tyranny feared by Mill. They may not always succeed in making the right decisions. But to the extent that they do, minority protection will be the result. Furthermore, we must also remember that the community’s constitutional morality in reflective equilibrium includes the judgments of courts in influential legal cases. In other words, we must not forget the role of legal judgments in shaping the principles of the community’s constitutional morality. Both our communities’ constitutional moralities and the more specific laws created to express and enforce these moralities condemn the oppression of women and minorities. (s.n. -M.M.-B.)
W. J. Waluchow
(Constitutional Morality and Bill of Rights în Expounding the Constitution (ed. G. Huscroft), Cambridge University Press. 2008, la p. 89)