Notwithstanding the notwithstanding clause: Political regimes and constitutional politics in the United States and Canada

Abstract

A range of scholars and commentators has recently observed the rise of judicial activism by the Supreme Court of Canada. However, unlike the United States, Canada's elected bodies possess a constitutional democratic check on most of the actions of the Supreme Court via section 33 of the Canadian Charter of Human Rights and Freedoms. Through this “notwithstanding clause”, the federal parliament and provincial legislatures have the power to override a decision of the Supreme Court without the aid of a constitutional amendment. By looking to the American experience, this article explores the significance of this little‐used clause for understanding the role of political regimes in the construction of Canadian constitutional doctrine, and considers its usefulness for resolving future constitutional conflicts.