The Rule of the Courts

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

declaring the illegality of racially segregated schools and universities were never properly articulated and completely failed to provide appropriate remedies to racial minority victims of government discrimination. In short, although there are obvious risks with the NWC, its obvious benefit is that it allows the reviewing courts greater leeway to enforce the rule of law because the issue of protecting national unity remains with the legislature. As Paul Weiler has written, judges often make mistakes and granting legis latures the final say on those rare occasions where they disagree with the courts and are willing to spend the political capital to override the a court decision interpreting the Charter may well evidence that the legislature is more likely correct on the precise issue than were the judges. 222 As detailed by the HLR, the NWC facilitates constitutional dialogue among the courts, the legislature, and the public, such that it can be seen as a tool to preserve constitutional democracy and rights protection in the long run. 223 The HLR writes that although provincial governments have recently abused the NWC for reasons of political expedience, three checks have usually guarded against maximally abusive use, namely immediate public pressure, the NWC’s five-year sunset clause, and judicial intervention. 224 The first check was manifest in Canadian public opinion’s response to the Court’s creating of nationwide abortion rights in the Morgantaler case detailed above. The decision arguably gave the then-conservative 222 The Constrained Override, supra note 189 at 1735 citing Paul C. Weiler, The Evolution of the Charter: A View from the Outside , in LITIGATING THE VALUES OF A NATION: THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS 49, 57 (Joseph M. Weiler & Robin M. Elliot eds., 1986) (alterations in original) (footnote omitted) (quoting Canadian Charter of Rights and Freedoms § 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K.)); see also Rosalind Dixon, Professor of L., Univ. of N.S.W., Testimony for the Presidential Commission on the Supreme Court of the United States (June 25, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/06/Dixon Letter-SC-commission- June-25-final.pdf [https://perma.cc/HVS6-WTJM] (noting that Canada’s NWC “provides a cabined mechanism for legislative override that respects rule of law constraints and offers a meaningful source of pressure for courts to accommodate

expressions of reasonable democratic disagreement”). 223 The Constrained Override, supra note 189 at 1732. 224 The Constrained Override, supra note 189 at 1733.

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