Abstract
Debates about judicial review and departmentalism have continued to rage, and in the wake of the last three Supreme Court appointments and current Presidential Commission on the Court, only look to intensify. Should the US adopt a notwithstanding or override provision, of the kind that exits in Canada and Israel? These countries take a departmentalist approach to allow the legislature to override the Court, “notwithstanding” its ruling. Although America is a presidential framework, a paradox emerges: evidence exists that its system already makes possible the equivalent of a notwithstanding clause. This consists of Congress and the President together “overruling” the Supreme Court. In another sense, however, this is not an accepted practice—large parts of the legal community hold that the US Constitution establishes judicial supremacy. To better understand this dynamic, we consider two kinds of power: formal and authorized (potestas) as well as direct and concrete (potentia). The contrast between the positions on both power and sovereignty of Thomas Hobbes (associated with potestas) and Baruch Spinoza (linked to potentia) helps clarify these issues in a contemporary context. It turns out that a robust departmentalist equivalent of the notwithstanding clause already exists in the US, as a matter of Hobbesian potestas but not of Spinozist potentia. Another term for the latter is pouvoir constituant. Spinoza’s perspective on political activity further clarifies the in-between nature of the American override capacity: the active or passive character of a multitude is not binary, but is a matter of degree. Without making an institutional recommendation, we note that Spinoza’s understanding of power also allows for dynamic interaction between potentia and potestas: formal authorization can contribute to the expression of direct power. It is, therefore, conceivable that additional codification of the existing American override capacity, either through a joint declaration of Congress and the Presidency or a Constitutional Amendment, can strengthen the effective sovereignty of the American people in relation to the courts.
Highlights
The rule of judges, on the other hand, can point to its influence as potentia: concrete and direct, with effective jurisdiction stripping still isolated and not involving major constitutional issues. That this inversion of the categories is possible is recognized in a recent article on parliamentary and judicial supremacy, which speaks of the courts usurping pouvoir constituant and, in effect, becoming the actualized power in the polity that is potential (Danchin 2017, p. 29)
The potestas/potentia contrast provides additional clarity on the specific ways in which Hobbes and Spinoza set up their courts
In support of the theory that we are presenting, Hobbes’s as well as Spinoza’s texts affirm that potestas and potentia can operate at the same time
Summary
In striking contrast to constitutional developments in Canada, in Israel, it was the Supreme Court that single-handedly, in the United Mizrahi Bank decision, claimed and articulated the power of judicial review for itself It did so by declaring the two most recent Basic Laws as constituting the actual written Constitution. In which the Knesset succeeded in passing the statute despite the ruling of the Court, the notwithstanding clause has not been invoked Despite this relative calm, as the Court in Israel has continued to strike down legislation it deems inconsistent with On Human Dignity and Liberty, a debate has emerged over whether or not the Israeli Parliament should extend the clause’s power beyond economic and occupational rights. The contrast with current US politics, where the equivalent of a notwithstanding clause (or outright abolition of judicial review) is supported by those on both the far left and right, is worthy of note
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