The Rule of the Courts

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

incorporation of the Charter in 1982 and the willingness of its Supreme Court to borrow from U.S. Supreme Court decisions in articulating its individual rights jurisprudence. The Charter, which was highly controversial when implemented is now broadly accepted by Canadians and the NWC that allows the federal and provincial governments to override Charter-based decisions by Supreme Court of Canada for renewable five-year terms has been a highly innovative means of reconciling individual rights protection and the rule of law with democratic accountability. Having the U.S. incorporate a Canadian-style NWC does not come without significant risks. First and foremost, it risks delegitimizing the rule of law should Congress promiscuously use the power for reasons of political expediency alone. Another concern is that U.S. political culture has degraded to the point where the broader public is simply too disengaged from politics to adequately constrain Congress’s inclinations to overturn unpopular court decisions. The NWC’s importance to Canada’s superior performance in terms of the rule of law and human development should also not be overstated. This paper has already noted other superior features of the Canadian court system such as the apolitical judicial selection process, the mandatory retirement requirement at age 75, and the requirement that the Supreme Court of Canada’s justices be chosen in a regionally representative manner. Beyond this, and as confirmed by the member states of western Europe and the European Union, Canadian human development is aided by a superior safety net that guarantees all Canadians a far higher floor than Americans when it comes to health care, welfare, housing, schooling, higher education and social connectivity. Although Canada does have a lamentable history of treating its indigenous population unfairly and, at times, murderously, it has historically been far more humane in its treatment of its racial minority and immigrant populations as compared to the U.S., which still struggles with the legacy of slavery and racism in its treatment of its Black, Hispanic and Native American populations. To put it bluntly, the rule of law requires human development and this requires a level of state capacity and political cohesion that is altogether lacking in the U.S. today.

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