Who decides what the U.S. Constitution means? Since at least the turn of the century, Supreme Court justices have made their answer clear: the courts.1 But a rising wave of scholars offers a different answer: Congress.2 These scholars point to 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 recall that “courts are a potential source of tyranny,” not just “imperfect guardians against it.”5 And they admire the bits of American jurisprudence that have invited Congress to participate in constitutional interpretation.6

In response, advocates of judicial supremacy warn against leaving the Constitution in the hands of politicians. 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 charter of rights, the 1982 Charter of Rights and Freedoms,9 contains a clause that allows federal and provincial legislatures to enact laws “notwithstanding” court interpretations of certain sections of the Charter10—or notwithstanding those Charter provisions themselves, depending on who you ask11—for renewable five-year terms.12 This “notwithstanding clause” (NWC) has never been invoked by the federal government, and so has failed to facilitate the horizontal constitutional dialogue that some hoped it would facilitate.13 Instead, it has been used by provincial governments to discriminate against same-sex couples14 and to prevent Muslim public officials from wearing religious attire.15 These examples highlight the dangers of constitutionalism. popular.16

So which view of judicial review is correct? Both are. This chapter asks what the NWC experience can teach us about how to optimize durable, rights-protective constitutional democracy.17 Building on those lessons, it proposes that the United States adopt a “narrow nullification” model of power that harnesses the benefits of the NWC but avoids its drawbacks.

Unlike the NWC, this narrow nullification would empower only 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 like to see—while avoiding the dangers of a top-down nullification power that Canadian critics of the NWC have lamented. The use of nullification would also be subject to other conditions that would promote democratic accountability and dialogue. For example, narrow nullification 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 clause would be subject to “double override” by a Court acting by consensus.

The Chapter proceeds as follows. Section A first offers a pessimistic view of the NWC. Section B then moves to a more optimistic interpretation: various 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 greater respect for constitutional rights among legislators and the public (the second affirmative defense). Section C identifies the remaining problems with the Canadian NWC: it has only been used by the provinces, it has been used in ways that do not promote constitutional dialogue or accountability, and it 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 on the basis of institutional differences; He concludes that while judicial review is desirable to compensate for weak frictions between the legislative and executive branches in parliamentary countries, that justification has less weight in the United States, where executive checks on Congress are much stronger. Section E sketches the contours of narrow nullification. Section F addresses three remaining counterarguments: Congress lacks the power to implement narrow nullification without a constitutional amendment; nullification will be ineffective in the United States because the country lacks a sufficiently robust constitutional culture; and nullification could be a slippery slope toward further erosions of judicial power. Despite these concerns, this chapter concludes that Congress should implement narrow nullification. Doing so will minimize the dangers of giving one branch of government the exclusive power to interpret this country’s most important 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 narrow nullification would result in 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 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 consent.22

The only province absent from these negotiations was Quebec.23 As Canada’s only majority-francophone province,24 Quebec had held a referendum just two years earlier on whether the province should pursue a path to independent sovereignty, with forty percent of voters in favor.25 Although the referendum was unsuccessful, it reflected tensions between Quebec and Anglophone Canada, which, at the time, made national agreement on a new constitution nearly impossible.26

Soon after the Charter was adopted, the Quebec government was emboldened to defy the constitutional revolution from which it had been excluded.27 Quebec’s unicameral legislature repealed and reenacted its entire law code. 28 In each case, that clause affirmed the operation of the law despite sections 2 and 7 through 15 of the Charter—that is, all derogable Charter rights. 29 Quebec continued to include the NWC in all of its legislation until 1985. 30 The Supreme Court upheld Quebec’s omnibus usage, holding that the NWC was a formal requirement only. 31

Since 1985, Quebec has used the NWC in sixteen bills,32 with two recent ones attracting the most attention. In 2019, Quebec used the NWC in an Act on the Secularity of the State33 to limit the rights of Muslim women and other religious minorities by prohibiting certain public employees from covering their faces34 or wearing religious clothing “in the exercise of their duties.” 35 Quebec’s national assembly had originally passed a version of the bill that did not contain the NWC.36 Quebec’s premier claimed that his government had not used the NWC because the ban was constitutionally justified.37 But after Quebec courts temporarily suspended the bill pending a final ruling on the merits,38 the National Assembly enacted a new version of the bill invoking the nullification.39 Despite sparking public protests, the party responsible for the ban was re-elected with even more seats in the following 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 requiring most public officials to “speak and write in English.”43 exclusively in French” and required that adhesion contracts be drawn up in French.43 The law was met with waves of protests44 and lawsuits,45 especially from Indigenous groups46 who successfully lobbied the Quebec government to exempt Indigenous students from 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 proactively invoked the clause (before a court decision had been issued 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 supporting LGBTQ rights. 50 But in 2018, use of the NWC began to increase. 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 declaring Saskatchewan’s education funding law unconstitutional. 51 Then, in an analogous stance 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 electoral districts by nearly half just before a municipal election,54 was introduced in response to a higher court decision striking down an earlier version of the Act55 that had not invoked the NWC. 56

Then came Bill 307. 57 By 2017, Ontario had passed legislation banning campaign spending by unions and corporations and limiting other third-party campaign spending in the states. six months preceding an election.58 In 2021, Ontario extended this latter limitation to a twelve-month period through Bill 254.59 The Ontario Superior Court passed legislation banning campaign spending by unions and corporations and limiting third-party campaign spending in the six months preceding an election.59 The Court of Justice found that this doubling of the time restriction was unconstitutional as it “did not minimally affect 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 work from the Ontario government, subject to fines against individual workers for non-compliance. 63 Unlike Saskatchewan’s previous return-to-work legislation, which used the NWC proactively, Bill 28 had to invoke the clause to survive judicial review due to intervening Supreme Court decisions affirming the right to strike as an “indispensable component” of the right to collective bargaining (where no alternative dispute resolution mechanism exists) and therefore freedom of association. 64

More recently, the Saskatchewan government used the NWC in the fall of 2023 in a “Parents’ Bill of Rights.”65 The bill requires parental consent before teachers and other school employees can refer to a student under the age of sixteen by their “new preferred gender-related name or gender identity at school.” 66 After a judge halted the bill’s enactment to allow for 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 Charter’s project of rights protection,”68 even a “trap door out of rights protection.”69 And this view is not limited to Canada: recent calls for legislative override in Israel were described by former Israeli Supreme Court Chief Justice Aharon Barak as threatening “the beginning of the end” for Israel – the “constitutional equivalent of ‘a tank coup.’”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 temporal limitation of the NWC, and judicial review of non-defeasible rights reduce the risk that legislators will successfully abuse the NWC.71 The first affirmative argument is that the NWC protects against judicial abuse of power. The second affirmative argument is that the NWC facilitates constitutional dialogue between the courts, the legislature, and the public. If we accept these arguments, we can see the NWC as a tool to preserve constitutional democracy and rights protection in the long term, both by limiting the power of either branch and by promoting public attention to constitutional regression.72

1. The Negative Defense: Checks on the Power of Defeasance. — At the time of the Charter’s passage, Prime Minister Pierre Trudeau stated that he did not “greatly fear the notwithstanding clause.” 73 Others noted that the Canadian Bill of Rights, the legal 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 “showed a similar reluctance” to use them.75 Members of Parliament, academics, 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 such use was an anomalous rights-enhancing invocation by Yukon in 1982 that never came into force.77 Quebec used the clause most frequently, but almost always to protect legislation that was likely already compatible with existing Charter rights jurisprudence.78 And, to this day, the federal government has not invoked the clause even once.79

When provincial legislatures have invoked the clause abusively, three other checks have generally protected 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 turned into a political strike over Bill 28 itself, which forced the closure of schools across the province, something most Ontarians blamed on the Ford government.80 Other unions rallied in solidarity, leading to increasingly credible calls for a general strike.81 It took twenty minutes for Premier Doug Ford’s government to unanimously repeal the legislation, which it “deemed for all intents and purposes to have never been in force.”82

The second check is the five-year sunset of the NWC. Automatic sunset places the burden on legislatures to justify overrides every five years if they wish to maintain them and gives the public ongoing opportunities to assess their representatives’ use of the NWC. That change in defaults might be enough to deter most legislatures from continuing to use override. Indeed, none of the uses of the NWC outside of Quebec before 2018 were renewed.83

Third, judicial review offers both a direct and indirect check on abusive use of the NWC. Indirectly, an intermediate judicial decision explaining how a law infringes on people’s constitutional rights can make it politically more costly for the legislature to maintain the law, especially in its most expansive form. For example, early in the Charter’s history, the Supreme Court of Canada struck down a Quebec law requiring all “signs, posters and commercial advertising” to be exclusively in French84 for violating the Charter’s guarantee of freedom of expression.85 In response, the Quebec National Assembly invoked the override clause to enact not the same legislation but a watered-down version that limited the French-only requirement to outdoor signs.86 Directly, judicial review checks abuse of the NWC through non-defeasible constitutional rights. When Ontario changed its campaign finance laws just before an election in Bill 307, the Court of Appeal 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 defence: limiting the risk of judicial abuse. —We are accustomed to seeing constitutional law through the eyes of judges: we put ourselves in the shoes of judges and ask how they can prevent other branches of government from stepping out of line. But, like other branches, the judiciary is made up of people. Such people can and do make mistakes, even serious ones.90 Once we accept this, we can understand the Charter as a way to avoid granting a single body a power that has “no beginning [and] no end.”91 This view is perhaps best summed up by the late Professor Paul Weiler:

Canadian judges have the initial authority to determine whether a particular law is a “reasonable limit [on a right]…demonstrably justified in a free and democratic society.” Judicial opinion will almost always prevail. However, Canadian legislatures had the final say on those rare occasions when they disagreed 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 rare occasions when the court has struck down a law for contravening the Charter[] and Parliament re-enacts it, confident of general public support for this action, the legislators are more likely to be right on the merits than the judges. 92

Given that the Charter has been in force for little more than four decades, it is difficult to assess whether the NWC has prevented judges from overreaching. It is possible that the Canadian Supreme Court simply has not issued many objectionable decisions during this time. 93 Perhaps the NWC has even prevented the Court from issuing decisions that would be abusive, knowing that nullification would likely be invoked in response to invalidate 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 possible future worlds—worlds in which both Congress and the Supreme Court make existentially dangerous mistakes—we may be more inclined to give both branches a role in expounding the meaning of the Constitution.

3. The second affirmative defense: promoting institutional dialogue. The NWC has fostered richer conversations about Charter rights in three ways. First, it has promoted constitutional dialogue within legislatures. As Professor Lorraine Weinrib writes: “The availability of override has transformed the ways in which Canadians analyze public policies and actions. Parliament and provincial legislatures deliberate in their chambers and committee rooms about 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 electoral debates.”96 And the Charter has fostered a constitutional culture where the “institutional arrangements” of democracy are “sites for cooperation and for the production of freedom-enhancing government policies,” rather than simply “sites for conflict and struggle, in order to protect freedom by limiting the power of government.” 97

Second, at least outside Quebec, this cultural shift has translated into a 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 prevent Ontario from using the clause, Prime Minister Justin Trudeau said that rather than the federal legislature taking action, “it should be up to Canadians to say, ‘Wait a minute. Are they suspending my right to collective bargaining? Are they suspending fundamental rights and freedoms that are granted to us by the Charter?’”98 And “[t]his is exactly what happened.”99

Third, nullification has allowed for legal dialogue, compromise, and evolution between legislatures and courts.100 Consider Quebec’s signage law. As mentioned above, Quebec responded to the Supreme Court decision by limiting the French-only requirement to outdoor signs.101 That amended version of the law remained on the books until 1993, when the United Nations Human Rights Committee (UNHRC) concluded that Quebec’s law contravened the International Covenant on Civil and Political Rights.102 Although the UNHRC decision was not binding, Quebec amended the law again, this time to allow bilingual outdoor signs as long as the French portion of the sign predominates.103

Although the U.S. Constitution does not contain an override clause, there have been bits 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” by 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 the separation of powers, which “accepts as authoritative the decision of the political branches” on separation-of-powers issues, upheld a desirable constitutional order “founded on deliberation, political compromise, and statecraft.”108 And Professor Maggie Blackhawk has argued that legislative constitutionalism in the federal Indian Act 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 nullification power could be enhanced in several significant ways.

1. Federal exclusivity. — Critics of the NWC in Canada have lamented, above all, 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 the principles of democracy at the federal level.111 As Bowie and Renan have noted, seminal cases such as Brown v. Board of Education,112 Roe v. Wade,113 and Obergefell v. Hodges114 — the supposed paragons of American judicial supremacy — were brought as lawsuits against state officials under 42 U.S.C. § 1983.115 That is, they involved judicial enforcement of a federal law that Congress can review.116 Thus, the critical perspectives of both countries can be squarely reconciled by favouring a federal-only override power.

Federal exclusivity of the override power would be attractive for an additional reason: to encourage the federal legislature to actually use it. The Canadian Parliament was likely deterred from invoking the NWC to avoid backlash from a public that views the government as taking away its rights.117 But Parliament has an even stronger reason to avoid override: even a single federal invocation could normalize its use, emboldening provincial governments to use the clause as well. Such an outcome would clearly run counter to 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 advises against giving the override power to subnational governments. In this way, there is effectively judicial review of federal legislation in its strong form and review of state legislation in its weak form, an asymmetrical regime in which state legislatures enjoy extraordinary and exclusive power to contest the federal constitution with federal courts.119 And to the extent that the federal legislature is deterred from using override, that will “weaken the argument that the clause encourages a valuable dialogue about what the Charter means,” at least at the federal level.120

2. Promoting Democratic Dialogue and Accountability. — The NWC might have better achieved its purposes of promoting democratic dialogue and accountability were it not for four flaws, which are at least partly due to the Supreme Court of Canada’s formalistic interpretation of the clause.121 While these shortcomings of the NWC have manifested themselves in its use by the provinces, they would likely persist even in a world in which the clause could only be invoked by the federal legislature.

The first flaw is the risk of overly broad use of nullification that bypasses political accountability.

After Quebec applied the NWC to all of its legislation immediately after the Charter was enacted, the Quebec Court of Appeal held that the NWC was intended to “bring to the fore the effect of overriding provisions and private rights,”122 and thus “set in motion policy repercussions” specific to the rights being overridden.123 The Supreme Court reversed that decision, but it could have agreed with the lower court and held that legislatures (1) must invoke the specific Charter right or rights they are overriding (rather than enumerating them all), (2) must do so in each individual statute (rather than through an omnibus bill), and (3) must be clear about which specific provisions the NWC is protecting.124 These requirements would have increased the likelihood that citizens would be informed about which of their judicially recognized rights are being abrogated and by which statute—information necessary to assess the costs of invoking the NWC. override clause and, in turn, decide whether governments should be held accountable.

A related flaw is that legislatures do not have to provide a justification for using the override clause. Neither the public nor the courts can adequately assess legislators’ reasons for invoking the clause when those reasons are not provided.

The third flaw is allowing proactive use of the clause: where legislatures use the NWC not as a sword against an existing judicial decision, but as a shield against potential future judicial override. Since litigating all the way to the Supreme Court can easily take five years125—the length of the NWC’s expiration—proactive use severely inhibits the Court’s ability to meaningfully engage in a Charter dialogue with the legislature. Moreover, to advance constitutional rights, legislatures must make a good faith effort to pass legislation they deem constitutional. Only after the Court disagrees with them, when the two branches’ divergent constitutional views can be put on the table for individual legislators and the public to examine, should legislatures be permitted to invoke the override clause. After all, the NWC should promote “a further stage in the dialogue between courts and legislatures about the meaning of Charter rights, not … preclude such dialogue altogether.”126

Finally, the NWC would have been better off clarifying that legislators are bypassing judicial interpretations of Charter rights, not the rights themselves. This would ensure that proposed uses of the NWC trigger public debate about different interpretations of the Charter, not different interpretations of whether the Charter should be followed. However, it might also make it more palatable for legislators to invoke the clause, with the advantage of increasing constitutional dialogue and the disadvantage of empowering legislators to subtly erode constitutional norms.

3. Protection against constitutional backsliding. —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 entirely prevent such would-be autocrats from using the override power to entrench their own power.127 As a last resort, a Supreme Court acting by consensus (or supermajority vote) should have the power to “double-strike” legislation by invoking the override clause.12

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 whatever conclusions are drawn about the NWC, the applicability of those conclusions to judicial review in the United States must be mediated by considering one crucial way in which Canada and the United States differ.

In a contemporary parliamentary system such as Canada’s, checks and balances between the legislature and the executive are weak. It was not always so. 129 But, as Professor Stephen Gardbaum posits, political parties have become better at “organizing mass democracy outside [of] parliament, resulting in increasing discipline of members within through the whip system.” 130 Accordingly, “the main task of (the majority in) parliament became to support the government… 131 Parliamentary democracies, especially Canada’s, have also witnessed a greater “centralization of power in the prime minister’s office 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 could therefore be seen as a “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 laws (subject to congressional override), and can refuse to carry out legal provisions he deems unconstitutional.135 Severe partisan polarization in the United States has further strengthened these checks and balances: today, unless one party maintains control of both houses and the presidency, Congress is virtually paralyzed.136 Curtailing the power of judicial review could therefore provide some breathing room for effective government.137

E.  The Constrained Override: A Proposal for Congress

Following the lessons of judicial review from Canada and the United States, this section proposes restricted nullification. Restricted nullification is a rough model of weak-form review that the United States should adopt. It can do so through a constitutional amendment.138 Or it can do so through an ordinary bill passed by bicameralism and introduced139 pursuant to Congress’s power to regulate the Supreme Court under the Exceptions Clause of Article III.140 Restricted nullification would have the following features:

Temporal limit. Invocation of the nullification power is limited in time, such as the five-year expiration for the uses of the NWC in Canada.

Retrospectivity. Congress can invoke the power only to protect laws that are clearly unconstitutional under existing judicial precedents.141

Discretion. Nullification cannot be used as an omnibus clause. The legislature must make a good faith effort to explain, in plain language, what constitutional rights and statutory provisions are at issue.

Rationale. Congress must give reasons for using the nullification power. Those reasons must be included in the same provision that invokes the nullification.142

Nullification of the Court, not the Constitution. Each time it uses the power, Congress must make clear that it is nullifying the Court’s interpretation of the Constitution, not the Constitution itself.

Federal exclusivity. The nullification power can only be used by the U.S. Congress, not by the states.143

Double nullification. After Congress employs a nullification, a Supreme Court acting in consensus (or, alternatively, as a supermajority) can twice override Congress.

Judicial review. When the restricted nullification power is invoked, courts can review both the underlying claim and the validity of the nullification. On the merits, the Court can still declare the law unconstitutional and explain its disagreement with the legislature,144 but without providing a remedy. If the Court finds that the procedural conditions for invoking the power of annulment have not been met, it may issue an ultra vires judgment, this time with a remedy.

Purposivist interpretation of the power of annulment. If other unforeseen issues arise, the scope and limits of the power of annulment must be interpreted functionally to promote democratic deliberation.

F.  Counterarguments

1. Does Congress Have the Power to Enact Restricted Repeal by Law? — A comprehensive legal defense of Congress’s power to enact restricted repeal by law is beyond the scope of this Chapter. But according to the President’s Commission on the Supreme Court of the United States, there is a legitimate constitutional argument that “Congress could enact a law affirming Congress’s authority to reenact a law after a negative judicial decision; Congress could also establish procedures for such reenactment, consistent with bicameralism and filing requirements.”145 This is clear from the text: Article III “never expressly declares the Supreme Court to be the final or sole arbiter of the constitutionality of laws.”146 And it is consistent with a long history of independent interpretation of the Constitution by the political branches.147

The Supreme Court could decide otherwise. 148 But deference to the Supreme Court’s view on judicial supremacy “breaches the very question at issue” and “leaves the Supreme Court to adjudicate its own cause.”149 Ultimately, Congress will have to convince the public that the narrow override power is legitimate and desirable. How successful it is in doing so, even over the Court’s objections, will dictate whether Congress has “the power” to enact narrow override. 150

2. Does the United States Have the Constitutional Culture to Make Override Work? —Another argument against implementing the narrow override power might be that the American people lack the kind of constitutional culture necessary to rein in legislators for their use of the clause. Studies of Congress’s role in various areas of constitutional lawmaking already contradict this premise.151 But even accepting it as true, it commits a chicken-and-egg fallacy. Did Canadians have such a culture before the Charter? Or did the Charter help create it? Within Canada, Canadians have voted the Charter 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 Restricted nullification could play the same role in the United States.
3. Will restricted nullification precipitate further erosions of judicial power? — Absent a constitutional amendment, the Congress of today is unlikely to be able to bind the Congress of tomorrow.154 Restricted nullification could therefore be a slippery slope toward “unrestricted” nullification and other erosions of judicial power, including through increased executive assertions of constitutional authority.155

These are legitimate concerns. Congress can mitigate them by being clear that restricted nullification is not an erosion of constitutionalism but a deepening of its principles156 — by providing additional checks and dialogue among the different branches to ensure that none is able to capture enough power to descend the political system into autocracy. Congress should plan for broad public outreach and civic education around narrow nullification and its role within constitutional democracy, with an emphasis on the importance of the restriction. Congress should also clearly distinguish between Congress’s authority to enact the nullification clause through legislation and any purported executive authority to challenge the Supreme Court’s interpretation of the Constitution, which could have far more serious consequences.157

Ultimately, these risks must be weighed against the risks of the status quo: not only the day-to-day harms of unchecked judicial decision-making, but also the democratic undermining that comes 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 what it wants… I expect the people to demand their rights, to want their rights, to support the court so that the court can protect their rights… If there is no spirit of liberty, if there is no aspiration to have rights, then no court will do any good.159

The status quo of American judicial review treats the courts as the exclusive guardians of rights, liberties, democracy, equality—all that we hold dear—rather than recognizing that the people are the ultimate protectors of these values.

Furthermore, expounding and defending a Constitution is something that must be learned, tested, and developed in practice. Just as judges undergo years of legal training before making binding interpretations of the Constitution, so too do the people need to develop their constitutional reflexes. The current system does not give them that opportunity. We are thus faced with the grave danger that Chief Justice Barak warned of: that an autocrat will lead us into despotism with the people at his side and no judge capable of stopping him. A power of nullification may be the only way to ensure that a Constitution that is “of the people, by the people, and for the people” “does not disappear from the face of the earth.”160

Conclusion

As President Abraham Lincoln noted in his first inaugural address, “If the policy of the government on 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 thereby virtually delivered their government into the hands of that eminent tribunal.”161 To “protect the Constitution for the people,”162 Congress should pass legislation restoring its role in interpreting the Constitution. Canada’s experience with the Notwithstanding Clause suggests that such a power should be accompanied by significant restrictions that encourage public constitutionalism, political accountability, and constitutional dialogue among the branches. If implemented, the restricted override power will also help protect liberty, 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.