The Rule of the Courts

M. Akram Faizer

the NWC as a means of facilitating and an enduring , rights-protecting constitutional democracy. 193 Indeed, the Harvard Law Review (“HLR”), no less, has proposed that the United States should adopt a model “constrained override” power that leverages the benefits of the NWC but avoids its drawbacks. Unlike HLR’s proposal, this constrained override would only empower Congress, not state legislatures and therefore give Congress the power to engage in constitutional interpretation, while avoiding the dangers of a vertical override power that Canadian critics of the NWC have lamented. 194 As detailed above, the Charter was the brainchild of Prime Minister Pierre Trudeau who, drawing from his understanding of the Warren Court in the U.S., sought to create and implement an individual rights framework into Canadian federalism. Although the draft Charter was modified and improved based on significant public participation, the provinces demanded the ability to override most of the Charter’s provisions as a condition of consenting to it. 195 Trudeau had to acquiesce to this demand because, in an advisory opinion, the Supreme Court of Canada held that, by convention, a “substantial degree of provincial consent is required” to amend the Canadian Constitution. 196 The one province absent from these negotiations was Quebec, then led by the pro-independence Parti Quebecois government of Premier Rene Levesque. As Canada’s only francophone-majority province, Quebec had two years earlier held a referendum on independence from Canada and forty-two percent of Quebec voters opted for secession. 197 Though the referendum was not successful, it reflected the tensions between Quebec 193 The Constrained Override, supra note 189 at 1726. 194 Id. 195 The Constrained Override, supra note 189 at 1727. 196 Id. citing In re : Resolution to amend the Constitution, [1981] 1 S.C.R. 753, 904–05 (Can.). 197 Referendum on the 1980 Sovereignty-Association Proposal for Québec, Élections Québec (last updated [if available] May 26, 2023 ), https://www.electionsquebec.qc.ca/en/ results-and-statistics/referendum-on-the-1980-sovereignty-association-proposal-for-quebec/ (last visited Dec. 28, 2025).

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