Who gets to decide what the U.S. Constitution means? At least since the turn of the century, the Justices on the Supreme Court have made their answer clear: the courts.1 But a growing wave of scholars offers a different answer: Congress.2 These scholars point out the tension between democratic values and judicial supremacy.3 They observe that federal courts have been worse than Congress at protecting minority rights and strengthening democracy.4 They remind that “courts are a potential source of tyranny,” not just “imperfect guardians against it.”5 And they admire the patches of American jurisprudence that have invited Congress to take part in constitutional interpretation.6
In response, defenders of judicial supremacy warn against leaving the Constitution in the hands of politicians. As compared to independent federal judges, elected officials have much stronger incentives to entrench their own power while neglecting the most vulnerable in society.7 Some Canadians have echoed these concerns.8 Canada’s constitutional bill of rights, the 1982 Charter of Rights and Freedoms,9 contains a clause allowing both the federal and provincial legislatures to enact laws “notwithstanding” courts’ interpretations of certain sections of the Charter10 — or notwithstanding those provisions of the Charter themselves, depending on who you ask11 — for renewable five-year periods.12 This “Notwithstanding Clause” (NWC) has never been invoked by the federal government, thus failing to facilitate the horizontal constitutional dialogue that some hoped it would.13 Instead, it has been used by provincial governments to discriminate against same-sex couples14 and prevent Muslim public servants from wearing religious attire.15 These examples highlight the dangers of popular constitutionalism.16
So, which view of judicial review is right? Both are. This Chapter asks what the experience of the NWC can teach us about how to optimize for an enduring, rights-protecting constitutional democracy.17 Based on those lessons, it proposes that the United States should adopt a model “constrained override” power that leverages the benefits of the NWC but avoids its drawbacks.
Unlike the NWC, this constrained override would only empower Congress, not state legislatures. It would thus capture the benefits of giving federal legislatures the power to engage in constitutional interpretation, as many American critics of judicial supremacy would be eager to see, while avoiding the dangers of a vertical override power that Canadian critics of the NWC have lamented. Use of the override would also be subject to further conditions that would promote democratic accountability and dialogue. For example, the constrained override could only be used to immunize legislation that the Court has already declared unconstitutional. And, as a final bulwark against abusive constitutionalism,18 use of the override would be subject to a “double override” by a Court acting in consensus.
The Chapter proceeds as follows. Section A first offers a pessimistic view of the NWC. Section B then turns to a more optimistic interpretation: several checks on the NWC reduce its likelihood of being abused (the negative defense); the NWC prevents a dangerous concentration of power in one branch of government (the first affirmative defense); and the NWC has led to a greater respect for constitutional rights among legislators and the public (the second affirmative defense). Section C identifies remaining problems with the Canadian NWC: it has only been used by provinces, has been used in ways that fail to promote constitutional dialogue or accountability, and lacks sufficient safeguards to prevent the federal government from abusing it. Section D compares the appeal of an override clause in the United States and Canada based on institutional differences; it concludes that even if judicial review is desirable to compensate for weak frictions between the legislative and executive branches in parliamentary countries, that justification has less purchase in the United States, where executive checks on Congress are much stronger.
Section E sketches the contours of the constrained override. Section F addresses three remaining counterarguments: Congress lacks the power to implement the constrained override without a constitutional amendment; the override will be ineffective in the United States because the country lacks a sufficiently robust constitutional culture; and the override could be a slippery slope toward further erosions of judicial power. Notwithstanding these concerns, this Chapter concludes that Congress should implement the constrained override. Doing so will minimize the dangers of giving one branch of government exclusive power to interpret this country’s most consequential document. And it will more deeply entrench constitutional norms in their ultimate enforcer: the people. The Court may be the least dangerous branch,19 but the constrained override would yield the least dangerous system.20
A. Critique of the Notwithstanding Clause
This section recounts a pessimistic view of the NWC: that it undermines the constitutional revolution that the Charter otherwise engendered. In the early 1980s, Prime Minister Pierre Trudeau’s draft Charter was transformed through significant public participation.21 But just before it was finalized, the provinces demanded the ability to override most of the Charter’s provisions as a condition of consenting to it.22
The one province absent from these negotiations was Quebec.23 As Canada’s only francophone-majority province,24 Quebec had just two years earlier held a referendum on whether the province should pursue a path toward independent sovereignty, with forty percent of voters in favor.25 Though the referendum was not successful, it reflected the tensions between Quebec and anglophone Canada, which, at the time, made it nearly impossible for national agreement on a new constitution.26
Soon after the Charter’s adoption, the government of Quebec was emboldened to defy the constitutional revolution from which it had been excluded.27 Quebec’s unicameral legislature repealed and reenacted the entirety of its civil law code, adding in a “standard override clause” into every statute.28 In each case, that clause affirmed the law’s operation notwithstanding sections 2 and 7 to 15 of the Charter — that is, every overridable Charter right.29 Quebec continued including NWCs in all of its legislation until 1985.30 The Supreme Court upheld Quebec’s omnibus use, holding that the NWC was a requirement in form only.31
Since 1985, Quebec has used the NWC in sixteen bills,32 with two recent ones drawing the most attention. In 2019, Quebec used the NWC in An Act Respecting the Laicity of the State33 to limit the rights of Muslim women and other religious minorities by banning certain public employees from covering their faces34 or wearing religious garments “in the exercise of their functions.”35 Quebec’s national assembly had originally passed a version of the bill that did not contain the NWC.36 Quebec’s premier affirmed that his government had not used the NWC because the ban was constitutionally justified.37 But after Quebec courts temporarily enjoined the bill pending a final judgment on the merits,38 the National Assembly enacted a new version of the bill invoking the override.39 Despite causing public outcry, the party responsible for the ban was reelected with even more seats in the next election.40
In 2022, Quebec invoked the NWC in Bill 96,41 a language reform law that limited the number of people who could access government services in English,42 required most civil servants to “speak and write exclusively in French” and required adhesion contracts to be drafted in French.43 The law was met with waves of protest44 and lawsuits,45 especially from Indigenous groups46 who successfully pressured the Quebec government to exempt Indigenous students from one part of the law.47 But, as of November 2023, that exemption has not been extended to the rest of the bill.48
Outside of Quebec, the NWC was used only a few times before 2018. In a 1986 back-to-work law, Saskatchewan invoked the clause proactively (before a judicial decision had been rendered on whether the law violated the Charter).49 And in 2000, Alberta used it to exclude same-sex couples from the provincial definition of marriage after the Supreme Court issued two decisions in support of LGBTQ rights.50 But in 2018, use of the NWC began to ramp up. First, in May 2018, Saskatchewan used the NWC semi-proactively to guarantee non-Christian students the ability to attend publicly funded Christian schools, while appealing a lower court decision that held Saskatchewan’s educational funding law unconstitutional.51 Then, in an analogous posture in September of that year, the Ontario government threatened to use the NWC for the first time.52 Bill 31,53 which would have cut the number of local election wards nearly in half right before a municipal election,54 was introduced in response to a superior court decision striking down a previous version of the Act55 that had not invoked the NWC.56
Then came Bill 307.57 Back in 2017, Ontario had passed a law banning campaign spending by unions and corporations and limiting other third-party campaign spending in the six months before an election.58 In 2021, Ontario extended the latter limitation to a twelve-month period through Bill 254.59 The Ontario Superior Court of Justice found that this doubling of the time restriction was unconstitutional as it “did not minimally impair the free expression rights of third party advertisers.”60 Within a week, Ontario enacted Bill 307, which was identical to Bill 254 except for the addition of the NWC.61
Ontario used the NWC again in Bill 28.62 The law prohibited school board employees represented by the Canadian Union of Public Employees (CUPE) from withholding their labor from the Ontario government, subject to fines against individual workers for noncompliance.63 Unlike Saskatchewan’s earlier back-to-work legislation, which used the NWC proactively, Bill 28 had to invoke the clause to survive judicial review because of intervening decisions by the Supreme Court that affirmed the right to strike as an “indispensable component” of the right to bargain collectively (where an alternative dispute resolution mechanism does not exist), and thus, of freedom of association.64
Most recently, the government of Saskatchewan used the NWC in the fall of 2023 in a “Parents’ Bill of Rights.”65 The bill mandates parental consent before teachers and other school employees can refer to a student under the age of sixteen by their “new gender-related preferred name or gender identity at school.”66 After a judge paused the bill’s enactment to allow a constitutional challenge, the Saskatchewan government invoked the NWC in a special, expedited legislative session.67
These examples support the conventional understanding of the NWC as “repugnant to the rights-protecting project” of the Charter,68 even a “trap door out of rights protection.”69 And this view is not limited to Canada: recent calls for a legislative override in Israel were described by former President of the Supreme Court of Israel Aharon Barak as threatening “the beginning of the end” of Israel — the “constitutional equivalent ‘of a coup with tanks.’”70 But this is only half the story.
B. A Defense of the Notwithstanding Clause
This section offers three normative arguments in support of the NWC: The negative argument is that political checks, the NWC’s time limitation, and judicial review of nonoverridable rights reduce the risk that legislators will successfully abuse the NWC.71 The first affirmative argument is that the NWC guards against judicial abuse of power. The second affirmative argument is that the NWC facilitates constitutional dialogue among the courts, the legislature, and the public. If we accept these arguments, we can view the NWC as a tool to preserve constitutional democracy and rights protection in the long run — by both cabining the power of either branch and promoting a public attentiveness to constitutional retrogression.72
1. The Negative Defense: Checks on the Override Power. — At the time of the Charter’s passage, Prime Minister Pierre Trudeau claimed he did not “fear the notwithstanding clause very much.”73 Others pointed out that the Canadian Bill of Rights, the statutory precursor to the Charter, also had an override clause, but it “was only employed once in two decades.”74 Many provinces also had bills of rights with override provisions, and they “show[ed] a similar disinclination” to use them.75 Members of Parliament, scholars, and other commentators at the time of the Charter’s adoption widely shared the prediction that the NWC would be used only in exceptional circumstances.76
Were they right? Until recently, it seemed so. Outside of Quebec, the clause was invoked only three times before 2018. One of those uses was an anomalous rights-enhancing invocation by Yukon in 1982 that never went into effect.77 Quebec used the clause more frequently, but almost always to shield legislation that was likely already compatible with existing Charter-rights jurisprudence.78 And, to this day, the federal government has not invoked the clause a single time.79
Where provincial legislatures have invoked the clause abusively, three other checks have usually guarded against maximally abusive use: immediate public pressure, the sunset clause, and judicial intervention. The first check is best exemplified by Bill 28, Ontario’s 2022 anti-strike legislation discussed in section A. The public response to the bill was unprecedented. What could have been an economic work stoppage became a political strike over Bill 28 itself that forced the closure of schools throughout the province, which most Ontarians blamed on the Ford government.80 Other unions pledged their solidarity, leading to increasingly credible calls for a general strike.81 Premier Doug Ford’s government took twenty minutes to unanimously repeal the legislation, which it “deemed for all purposes never to have been in force.”82
The second check is the NWC’s five-year sunset. The automatic sunset puts the burden on legislatures to justify overrides every five years if they wish to maintain them and gives the public continuing opportunities to assess their representatives’ use of the NWC. That shift in defaults might be enough to discourage most legislatures from persistent override use. Indeed, none of the uses of the NWC outside of Quebec before 2018 were renewed.83
Third, judicial review offers a check on abusive use of the NWC directly and indirectly. Indirectly, an intervening judicial decision explaining how a law infringes on peoples’ constitutional rights can make it more politically costly for the legislature to maintain the law, especially in its most expansive form. For example, early in the Charter’s history, the Canadian Supreme Court struck down a Quebec law requiring all “signs and posters and commercial advertising” to be exclusively in the French language84 for violating the Charter’s guarantee of freedom of expression.85 In response, Quebec’s National Assembly invoked the override clause to enact not the same legislation, but a tempered version that limited the French-only requirement to exterior signs.86 Directly, judicial review checks NWC abuse through nonoverridable constitutional rights. When Ontario changed its campaign finance laws right before an election in Bill 307, the Court of Appeals upheld Ontario’s invocation of the NWC.87 But in the same opinion, it held that Bill 307 violated Canadians’ democratic rights under section 3 of the Charter,88 which is not one of the provisions subject to the NWC.89
2. The First Affirmative Defense: Limiting the Risk of Judicial Abuse. — We are used to seeing constitutional law from the eyes of judges: imagining ourselves in judges’ shoes, wondering how judges can prevent other branches of government from stepping out of line. But like other branches, the judiciary is made of people. Those people can, and do, make mistakes — including grave ones.90 Once we accept this, we can understand the NWC as a way to avoid granting to a single body a power that has “no beginning [and] no end.”91 This view is perhaps best encapsulated by the late Professor Paul Weiler:
Canadian judges are given the initial authority to determine whether a particular law is a “reasonable limit [of a right] . . . demonstrably justified in a free and democratic society.” Almost all of the time, the judicial view will prevail. However, Canadian legislatures were given the final say on those rare occasions where they disagree with the courts with sufficient conviction to take the political risk of challenging the symbolic force of the very popular Charter. That arrangement is justified if one believes, as I do, that on those exceptional occasions when the court has struck down a law as contravening the Charter[] and Parliament re-enacts it, confident of general public support for this action, it is more likely that the legislators are right on the merits than were the judges.92
Given that the Charter has been around for just over four decades, it is difficult to evaluate whether the NWC has guarded against judicial overreach. It is possible that the Canadian Supreme Court simply has not rendered many objectionable decisions during this time.93 Perhaps the NWC has even prevented the Court from issuing decisions that would be abusive, knowing that the override would likely be invoked in response to trump them. In the United States, however, judicial review of federal legislation has arguably been used to erode the basic norms of constitutional democracy.94 And as we imagine future possible worlds — worlds where both Congress and the Supreme Court err in existentially dangerous ways — we might be more inclined to give both branches a role in expounding the Constitution’s meaning.
3. The Second Affirmative Defense: Promoting Institutional Dialogue. — The NWC has encouraged richer conversations about Charter rights in three ways. First, it has promoted constitutional dialogue within legislatures. As Professor Lorraine Weinrib writes: “The availability of the override has transformed the ways in which Canadians analyse public policy and action. Parliament and the provincial legislatures deliberate in their chambers and committee rooms on the scope of these rights, their justifiable limitation and the possibility of override.”95 Thus, constitutional “values have become an important element of political platforms and election debates.”96 And the Charter has encouraged a constitutional culture where the “institutional arrangements” of democracy are “locations for cooperation and for the production of freedom-enhancing government policies,” rather than merely “locations for conflict and struggle, with the end of protecting liberty by limiting government power.”97
Second, at least outside of Quebec, this cultural shift has translated into greater entrenchment of constitutional norms among the public, as exemplified by the public reaction to Ontario’s anti-strike law. In response to calls for the federal government to stop Ontario from using the clause, Prime Minister Justin Trudeau said that instead of the federal legislature taking action, “it should be Canadians saying, ‘Hold on a minute. You’re suspending my right to collective bargaining? You’re suspending fundamental rights and freedoms that are afforded to us in the Charter?’”98 And “[t]hat’s exactly what happened.”99
Third, the override has allowed for legal dialogue, compromise, and evolution between the legislatures and courts.100 Consider Quebec’s signage law. As discussed earlier, Quebec responded to the Supreme Court’s decision by limiting the French-only requirement to exterior signs.101 That amended version of the law remained on the books until 1993, when the United Nations Human Rights Committee (UNHRC) concluded that the Quebec law contravened the International Covenant on Civil and Political Rights.102 Although the UNHRC decision was nonbinding, Quebec amended the law again, this time to allow bilingual exterior signs as long as the French part of the sign predominates.103
Though the U.S. Constitution does not contain an override clause, there have been patches of constitutional dialogue between Congress and the Court. For example, between 1966 and 1997,104 the Supreme Court “invited Congress to engage in processes of constitutional interpretation” when exercising its powers under Section 5 of the Fourteenth Amendment.105 Professors Robert Post and Reva Siegel note that this judicial deference capitalized on Congress’s “distinct institutional competencies, resources, and forms of democratic responsiveness”106 and generated an evolving constitutional culture.107 Professors Nikolas Bowie and Daphna Renan also argue that the pre-1926 “republican” conception of separation of powers, which “accepts as authoritative the decision of the political branches” on separation of powers questions, sustained a desirable constitutional order “grounded in deliberation, political compromise, and statecraft.”108 And Professor Maggie Blackhawk has explained that legislative constitutionalism in federal Indian Law has produced more varied constitutional discourse and reforms.109
C. Improving the Override
Although the NWC exhibits many desirable features, the Canadian experience suggests that the override power could be improved in several meaningful ways.
1. Federal Exclusivity. — Critics of the NWC in Canada have, above all, regretted the absence of judicial supremacy in vertical review (the Supreme Court’s review of state legislation).110 Meanwhile, critics of judicial supremacy in the United States have primarily questioned the absence of constitutional dialogue in horizontal review (the Court’s review of federal legislation), while sometimes justifying federal judicial review of state legislation as consistent with principles of democracy at the federal level.111 As Bowie and Renan have noted, seminal cases like Brown v. Board of Education,112 Roe v. Wade,113 and Obergefell v. Hodges114 — the supposed paragons of American judicial supremacy — were brought as suits against state officials under 42 U.S.C. § 1983.115 That is, they involved judicial enforcement of a federal statute that Congress can revise.116 Thus, the critical perspectives from both countries can be straightforwardly reconciled by favoring an override power only at the federal level.
Federal exclusivity of the override power would be appealing for an additional reason: to encourage the federal legislature to actually use it. The Canadian Parliament has likely been deterred from invoking the NWC to avoid backlash from a public that sees the government as taking its rights away.117 But Parliament has an even stronger reason to avoid the override: even a single federal invocation could normalize its use, emboldening provincial governments to use the clause too. Such a result would be plainly against the federal government’s long-term interest in federal supremacy and national cohesion.
To the extent that this consideration deters federal use of the NWC,118 it counsels against giving the override power to subnational governments. Doing so effectively produces strong-form judicial review of federal legislation and weak-form review of state legislation — an asymmetrical regime in which state legislatures enjoy extraordinary and exclusive power to wrestle over the federal constitution with the federal courts.119 And insofar as the federal legislature is dissuaded from using the override, that will “weaken the case that the clause fosters a valuable dialogue on what the Charter means,” at least on the federal level.120
2. Promoting Democratic Accountability and Dialogue. — The NWC could have better achieved its purposes of promoting dialogue and democratic accountability if not for four defects, owed at least partially to the Supreme Court of Canada’s formalist interpretation of the clause.121 Though these shortcomings of the NWC have manifested in its use by the provinces, they would likely persist even in a world where the clause could be invoked only by the federal legislature.
The first defect is the risk of overbroad override use that dodges political accountability. After Quebec applied the NWC to all of its legislation right after the Charter’s enactment, the Quebec Court of Appeals held that the NWC was meant to “bring into sharp focus the effect of the overriding provisions and the rights deprived,”122 and thus to “set[] in motion political repercussions” specific to the rights being overridden.123 The Supreme Court overturned that decision; but it could have agreed with the lower court and held that legislatures (1) need to invoke the specific Charter right(s) that they are overriding (rather than listing all of them), (2) must do so in every individual law (rather than through one omnibus bill), and (3) need to be clear about which specific provisions the NWC is shielding.124 These requirements would have increased the likelihood that citizens are informed about which of their judicially recognized rights are being abrogated and by which statute — necessary information to assess the costs of the override’s invocation and, in turn, decide whether to hold governments accountable.
A related defect is that legislatures do not have to provide a justification for using the override. Neither the public nor the courts can appropriately evaluate legislators’ reasons for invoking the clause when those reasons are not provided.
The third defect is permitting proactive use of the clause: where legislatures use the NWC not as a sword against an existing court decision, but as a shield against a potential future judicial nullification. Given that litigating up to the Supreme Court can easily take five years125 — the length of the NWC’s sunset — proactive use severely inhibits the Court’s ability to meaningfully engage in Charter dialogue with the legislature. Moreover, to promote constitutional rights, legislatures should make a good faith effort to pass legislation that they think is constitutional. Only after the Court disagrees with them, when the two branches’ divergent constitutional opinions can be put on the table for individual legislators and the public to examine, should legislatures be allowed to invoke the override. After all, the NWC should promote “a further stage in the dialogue between courts and legislatures as to the meaning of Charter rights, not . . . prevent such dialogue altogether.”126
Finally, the NWC would have been better if it clarified that legislators are overriding judicial interpretations of Charter rights, not the rights themselves. This would ensure proposed uses of the NWC trigger public debate on different interpretations of the Charter, not different interpretations of whether the Charter should be followed. However, it might also make it more acceptable for legislators to invoke the clause, with the upside of increasing constitutional dialogue and the downside of empowering legislators to subtly erode constitutional norms.
3. Guarding Against Constitutional Retrogression. — Given the rise of autocratic figures in many constitutional democracies, including at the federal level, it would be naive to assume that these checks would fully preclude such would-be autocrats from making use of the override power to entrench their own power.127 As a last resort, a Supreme Court acting in consensus (or by supermajority vote) should have the power to “double override” legislation invoking the override clause.128
D. Judicial Review as One of Many Checks and Balances: Differences in the Structure of Government
Reasonable minds may continue to disagree about the utility of the NWC in Canada’s constitutional order. But whichever conclusions one draws about the NWC, the applicability of those conclusions for judicial review in the United States must be mediated by considering a crucial way in which Canada and the United States differ.
In a contemporary parliamentary system like Canada’s, checks and balances between the legislature and executive are weak. This wasn’t always the case.129 But, as Professor Stephen Gardbaum posits, political parties have become better at “organiz[ing] mass democracy outside [of] parliament, resulting in the ever-greater disciplining of members inside through the whip system.”130 Accordingly, “the major task of (the majority in) parliament became to support the government . . . rather than to hold it to account.”131 Parliamentary democracies, especially Canada’s, have also witnessed a greater “centralization of power in the office of the prime minister and away from the cabinet as a whole.”132 Both developments have led to “a concentration of power both in and within the contemporary parliamentary executive.”133 Stronger forms of judicial review thus might be seen as “compensation” for the weakening of political checks and balances in parliamentary democracies.134
Meanwhile, checks and balances between the American legislature and executive are much stronger. The President is elected by the people, can veto legislation (subject to congressional override), and can arguably refuse to execute statutory provisions that she believes are unconstitutional.135 Severe party polarization in the United States has made these checks and balances even stronger: these days, unless one party maintains control of both houses and the presidency, Congress is all but paralyzed.136 Reducing the power of judicial review could thus provide breathing room for effective government.137
E. The Constrained Override: A Proposal for Congress
Following the lessons for judicial review from Canada and the United States, this section proposes the constrained override. The constrained override is a rough model for weak-form review that the United States should adopt. It can do so by constitutional amendment.138 Or it can do so through an ordinary bill passed through bicameralism and presentment139 pursuant to Congress’s power to regulate the Supreme Court under the Exceptions Clause of Article III.140 The constrained override would have the following features:
Time-Bound. The invocation of the override power is time-bound, like the five-year sunset on uses of the NWC in Canada.
Retrospectivity. Congress can invoke the power only to shield laws that are clearly unconstitutional under existing judicial precedents.141
Discreteness. The override cannot be used as an omnibus clause. The legislature must make a good-faith effort to explain, in plain English, which constitutional rights and statutory provision(s) are at issue.
Justification. Congress has to give reasons for using the override power. Those reasons have to be included in the same provision that invokes the override.142
Overriding the Court, Not the Constitution. Each time it uses the power, Congress must make clear that it is overriding the Court’s interpretation of the Constitution, not the Constitution itself.
Federal Exclusivity. The override power can be used only by the U.S. Congress, not by the states.143
Double-Override. After Congress employs an override, a Supreme Court acting in consensus (or, alternatively, as a supermajority) can double-override Congress.
Judicial Review. When the constrained override power is invoked, courts can review both the underlying claim and the validity of the override. On the merits, the Court can still declare the statute unconstitutional and explain its disagreement with the legislature144 — just without providing a remedy. If the Court finds that procedural conditions for invoking the override have not been met, it may rule the legislation ultra vires, this time with a remedy.
Purposivist Interpretation of the Override Power. If other unforeseen questions come up, the scope and bounds of the override power should be interpreted functionally to promote democratic deliberation.
F. Counterarguments
1. Does Congress Have the Power to Enact the Constrained Override by Statute? — A comprehensive legal defense of Congress’s power to enact the constrained override by statute is beyond the scope of this Chapter. But according to the Presidential Commission on the Supreme Court of the United States, there is a legitimate constitutional argument that “Congress could enact a statute that affirms congressional authority to reenact a statute after a negative Court ruling; Congress could also establish procedures for such reenactment, consistent with bicameralism and presentment requirements.”145 This follows textually: Article III “never expressly states that the Supreme Court is the final or sole arbiter of statutes’ constitutionality.”146 And it is consistent with a long history of the political branches independently interpreting the Constitution.147
The Supreme Court might rule otherwise.148 But deference to the Supreme Court’s view on judicial supremacy “begs the very question at issue” and “makes the Supreme Court judge in its own cause.”149 Ultimately, Congress will have to convince the public that the constrained override power is legitimate and desirable. Whether it is successful in so doing, even over the Court’s objections, will dictate whether Congress has “the power” to enact the constrained override.150
2. Does the United States Have the Constitutional Culture to Make the Override Work? — Another counterargument to implementing the constrained override power might be that the people of the United States lack the kind of constitutional culture necessary to check legislators for their use of the clause. Scholarship on Congress’s role in various areas of constitutional lawmaking already counters this premise.151 But even accepting it as true, it commits a chicken-and-egg fallacy. Did Canadians have such a culture prior to the Charter? Or was it the Charter that helped create such a culture? Within Canada, the Charter has been voted by Canadians as the country’s most important national symbol — even more popular than hockey.152 It seems likely that the NWC has promoted popular engagement with the Charter.153 The constrained override could play the same role in the United States.
3. Will the Constrained Override Precipitate Further Erosions of Judicial Power? — In the absence of a constitutional amendment, a current Congress likely cannot bind the Congress of tomorrow.154 Thus, the constrained override might be a slippery slope towards an “unconstrained” override and other erosions of judicial power, including through increased executive assertions of constitutional authority.155
These are legitimate worries. Congress can mitigate them by being clear that the constrained override is not an erosion of constitutionalism, but a deepening of its principles156: by providing additional checks and dialogue between the different branches to ensure that neither are capable of capturing enough power to descend the polity into autocracy. Congress should plan extensive public outreach and civic education around the constrained override and its function within constitutional democracy, with an emphasis on the importance of the constraint. Congress must also affirmatively distinguish between congressional authority to enact the override clause through legislation from any alleged executive authority to challenge the Supreme Court’s understanding of the Constitution, which could carry much graver consequences.157
Ultimately, these risks must be weighed against the risks under the status quo: not only the everyday harms of uncheckable judicial decision making, but also the democratic debilitation that it carries with it.158 Consider these words from Chief Justice Barak:
A nation that does not want a constitution, a nation that does not want rights, will get its wish. . . . I hope that the people will demand their rights, will want their rights, will support the court so that it will be able to protect their rights. . . . [I]f there is no spirit of freedom, if there is no aspiration to have rights, then no court would do any good.159
The status quo of American judicial review treats courts as the exclusive guardians of rights, freedoms, democracy, equality — everything we hold dear — instead of recognizing that the people are the ultimate protectors of these values.
Further, expounding and defending a Constitution is something that must be learned, tried, and developed in practice. Just as judges undergo years of legal training before they make binding interpretations of the Constitution, the people need to develop their constitutional reflexes too. The current system does not give the people that opportunity. It therefore leaves us with the grave danger that Chief Justice Barak warned of: that an autocrat ushers us into despotism with the public behind him and no judge able to stop it. An override power might be the only way to ensure that a Constitution that is “of the people, by the people, and for the people” does “not perish from the earth.”160
Conclusion
As President Abraham Lincoln remarked in his First Inaugural Address, “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”161 To “protect the Constitution for the people,”162 Congress should pass legislation reclaiming its role in interpreting the Constitution. Canada’s experience with the Notwithstanding Clause suggests that such power should be accompanied by meaningful constraints that stimulate public constitutionalism, political accountability, and constitutional dialogue between the branches. If implemented, the constrained override power will also help protect freedom, equality, and democracy from erosion by any branch of government. And it will reaffirm that the Constitution belongs neither to the Court, nor to Congress, but to the people themselves.