The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

5. The Notwithstanding Clause – The Constitutional Difference in Canadian and U.S. Judicial Review Scholars such as Ryan Doerfler and Samuel Moyn argue that Congress is a better protector of individual rights than the U.S. Supreme Court, which, to them, is a source of tyranny and not just “an imperfect guardian against it.” 187 Erwin Chemerinsky, by contrast, warns against leaving the Constitution in the hands of politicians because elected officials have much stronger incentives to entrench their own power while neglecting society’s most vulnerable. 188 Canada’s constitutional bill of rights, the 1982 Charter of Rights and Freedoms’ NWC allows both the federal and provincial legislatures to enact laws “notwithstanding” the courts’ interpretations of certain sections of the Charter for renewable five-year periods. 189 The NWC has never been invoked by the Canadian federal government but has been used by Canadian provincial governments to discriminate against same-sex couples 190 and prevent Muslim public servants from wearing religious attire. 191 These examples highlight the dangers of popular constitutionalism. 192 In the end, both perspectives on judicial review are correct. However, my thesis is that the U.S. could learn from the Canada’s experience with 187 See e.g.Ryan D. Doerfler & Samuel Moyn, The Ghost of John Hart Ely , 75 VAND. L. REV. 769, 779 (2022); see also Jeremy Waldron, The Core of the Case Against Judicial Review , 115 YALE L.J. 1346, 1404–05 (2006) (noting that the argument for judicial review as a counter majoritarian guardian assumes that sympathy for minority rights is stronger among political elites than among ordinary people). 188 Erwin Chemerinsky, In Defense of Judicial Supremacy , 58 WM. & MARY L. REV. 1459, 1463 (2017). 191 See An Act Respecting the Laicity of the State, S.Q. 2019, c 12, § 34 (Can. Que.). 192 Ira Wells, The Notwithstanding Clause: Is It Time for Canada to Repeal It? , THE WALRUS (Dec. 12, 2022, 3:52 PM), https://thewalrus.ca/the-notwithstanding-clause-is it-time-forcanada-to-repeal-it [https://perma.cc/WZQ3-TSVY]; Jeffrey B. Meyers, It’s Time to Banish the Notwithstanding Clause, The Slow Killer of Canada’s Rule of Law , THE CONVERSATION (Oct. 11, 2023, 5:27 PM), https://theconversation.com/its-time to-banish-the-notwithstanding-clause-theslow-killer-of-canadas-rule-of-law-215106 [https://perma.cc/R49P-83L4]. 189 The Constrained Override, 137 Harv. L. Rev. 1725, 1726 (2024). 190 See Marriage Amendment Act, R.S.A. 2000, c M-5, § 5 (Can. Alta.).

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