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The Court's myopia leaves it unclear whether the search warrant requirement amounts to a constitutional rule or a prophylactic rule.
Consider too how the democratic process might have benefited from the fuller reasons afforded by recognition of prophylactic rules.
Even if the Court had concluded that certain measures were not prophylactic at all but were in fact mandated by the constitution, by incorporating the idea of prophylactic rules into its judgments, the Court could have made other branches of government more invested in the process of constitutional interpretation.
It is to say, rather, that the Hunter Court would have done more to involve Parliament in the constitutional process had it recognized a distinction between constitutional rules and prophylactic rules.
30) But the case reflects muddled thinking about the distinction between constitutional rules and prophylactic rules.
Yet the Court in Taillefer continues to describe the right to disclosure as "constitutional" rather than prophylactic.
Because they must, for the sake of judicial legitimacy, be read as broad norms rather than as precise requirements, a wider spectrum of prophylactic rules is available.
Campbell represents a rare case where the written constitution ostensibly offered no protection for an implied constitutional rule, and the Supreme Court majority accordingly found it necessary to create a prophylactic rule that would offer the necessary safeguards.
Campbell nicely illustrates how judicial use of the idea of prophylactic rules might have rescued the courts and Parliament from politically charged confrontations.
Had the Court recognized prophylactic rules, it would have regarded itself as bound either to justify its claim that the strategy generated in Campbell is dictated by the terms of the constitution (knowing that its reasons would undergo scrutiny and possible challenge at a later date), or to concede that the strategy is strictly prophylactic.