University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1990 The Locus of Sovereignty Judicial Review, Legislative Supremacy, and Federalism in the Constitutional Traditions of Canada and the United States Calvin R. Massey UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Calvin R. Massey, The Locus of Sovereignty Judicial Review, Legislative Supremacy, and Federalism in the Constitutional Traditions of Canada and the United States, 1990 Duke Law Journal 1229 (1990). Available at: http://repository.uchastings.edu/faculty_scholarship/1141 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. THE LOCUS OF SOVEREIGNTY: JUDICIAL REVIEW, LEGISLATIVE SUPREMACY, AND FEDERALISM IN THE CONSTITUTIONAL TRADITIONS OF CANADA AND THE UNITED STATES CALVIN R. MASSEY* Introduction ................................................... 1230 I. Calhoun's Concurrent Majority and the Expediency of Sovereignty Doctrine in Antebellum America .............. 1242 A. The Alien and Sedition Acts .......................... 1242 B. The Hartford Convention and New England Secession ..1246 C. Northern Response to the Fugitive Slave Act of 1850 ....1247 D. Calhoun, Nullification, and the Concurrent Majority ...1248 II. The Development of Canadian Federalism: From Cartier to the Charter ............................................... 1255 A. Before Confederation: Two Cultures, One Sovereign ....1256 B. Confederation: Sir John A. Macdonald's Vision of Federalism ........................................... 1257 C. After Confederation: JudicialAllocation of the Powers of Government ....................................... 1259 1. "'A Matter of National Concern": The Intersection of Federaland ProvincialResidual Power .......... 1260 2. Emergency and the FederalResidual Power ........ 1261 3. The Return of a Broad National Dimensions Test ..1264 4. JudicialInterpretation and Shifts in the Baseline Presumption ...................................... 1265 D. Patriationand the Notwithstanding Clause.......... 1266 E. Quebec and the Notwithstanding Clause ............... 1268 * Associate Professor of Law, University of California, Hastings. B.A., 1969, Whitman Col- lege; M.B.A., 1971, Harvard University; J.D., 1974, Columbia University. I am grateful to the Roger J. Traynor Fund for a research grant which aided this study, to Professors Tom Barnes, Victor Jones, and the Canadian Studies group at the University of California, Berkeley, upon whom I inflicted an earlier version of this paper, to my colleagues Scott Sundby and Bill Wang, who sharp- ened some of my thinking, to Professors Alan Cairns and Ronald Watts, who reviewed and com- mented upon earlier drafts, and to the residents of Hornby Island, British Columbia, from whom I have gained invaluable insight into the Canadian national character. An earlier version was presented to the Association for Canadian Studies in the United States at its 1989 biennial meeting under the title "Meech Lake and Calhoun's 'Concurrent Majority.'" The errors and omissions are, of course, mine alone. 1229 1230 DUKE LAW JOURNAL [Vol. 1990:1229 F. Conclusion: The Effects of the Notwithstanding Clause. 1271 III. American Analogues to the Notwithstanding Power ........ 1272 A. State Legislative Override of ConstitutionalRights ...... 1273 1. Privacy and Abortion .............................. 1273 2. Free Speech and Obscenity ........................ 1275 3. Cruel, Unusual and CapitalPunishment ........... 1276 4. ProceduralDue Process ........................... 1279 5. Free Exercise of Religion .......................... 1283 6. A Concluding Thought on the State Override ....... 1284 B. Congressional Override of ConstitutionalRights ........ 1285 1. Congressional Power to Limit the Jurisdiction of Federal Courts .................................... 1286 2. CongressionalPower Under the Commerce Clause to Override ConstitutionalLimits ..................... 1291 3. CongressionalPower to Define ProceduralDue Process ........................................... 1293 4. Congressional Power to Amend the Constitution ..... 1295 5. A Concluding Thought on the Congressional Override .......................................... 1297 IV. Some Normative Observations about the Legislative Constitutional Override Power ............................. 1298 A. The FederalistConundrum ........................... 1299 B. The Conundrum of Judicial or Legislative Supremacy .. 1300 Conclusion ..................................................... 1309 INTRODUCTION Every federal system of government must grapple with the defining element of federalism-the apportionment of authority between the cen- tral government and the constituent elements that make up the federal arrangement. Every representative democracy committed to written constitutional limits upon legislative power must resolve the tension be- tween enforcement of those limits through the relatively unrepresentative institution of judicial review and reliance upon the self-restraint of legis- lators. The performance of these central tasks in the federal constitu- tional systems of Canada and the United States is a study in irony. The Canadian founders intended to create a strong central government with plenary authority over all matters not expressly delegated to the prov- inces.I By contrast, the American founders sought to create a central government supreme within certain delegated spheres, with the states left in possession of plenary authority over all matters not assigned to the 1. See infra notes 44-48 & 141-51 and accompanying text. Vol. 1990:1229] LOCUS OF SOVEREIGNTY 1231 central government. 2 Both countries have seen their original visions of federalism reversed. In the reversal, Canada implicitly adopted major aspects of the rejected American theory of federal union developed pri- marily by antebellum southerners, particularly John C. Calhoun.3 Judi- cial review of the constitutional legitimacy of legislative action has a long history in the United States, but judicial review with respect to a broad range of explicitly guaranteed constitutionally-based individual rights is less than a decade old in Canada. Although Americans debated but gen- erally accepted the legitimacy of judicial review, Canadians embraced the concept far more gingerly. Canadian visions of federalism and judicial review are vividly re- 4 flected in the "notwithstanding clause" of Canada's 1982 Constitution, which permits either Parliament or a provincial legislature to declare that its legislation supersedes the fundamental legal rights and freedoms 5 guaranteed under the Constitution's Charter of Rights and Freedoms. 2. It is, of course, always dangerous to generalize about original intentions. As Professor Powell has pointed out, one cannot assume that a consensus existed among the founders on any particular issue. Powell, Rulesfor Originalists,73 VA. L. REv. 659, 684 (1987). Nor is it possible to divine one single original meaning, for history often "justifies plausible but opposing interpreta- tions." Id. at 688. Given the sharp differences of opinion that quickly surfaced about the appropri- ate limits of federal power, it is evident that any consensus which existed evaporated like morning dew. Jefferson's and Hamilton's opinions provided to President Washington concerning the consti- tutionality of the first Bank of the United States furnish a clear illustration of these differences. See 19 T. JEFFERSON, THE PAPERS OF THOMAS JEFFERSON 275-282 (J. Boyd ed. 1974); 3 A. HAMIL- TON, THE WORKS OF ALEXANDER HAMILTON 179 (H. Lodge ed. 1885). Moreover, there was hardly consensus on ratification of the Constitution. The votes in the important state ratifying con- ventions were close, and the delegates were selected in a fashion that biased the conventions toward ratification. See Massey, Federalism and Fundamental Rights: The Ninth Amendment, 38 HAS- TINGS L.J. 305, 307-09 (1987) [hereinafter Massey, Federalism]. Anti-ratification pressure spawned the first ten amendments, numbers nine and ten of which were attempts to limit the central govern- ment's power to invade unspecified individual liberties and to reserve to the states all residual sover- eignty not constitutionally delegated to the central government. See Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U. CHI. L. REv. 61 (1989); Massey, Antifederalism and the Ninth Amendment, 64 CHI.[-]KENT L. REv. 987 (1988) [hereinafter Massey, Antifederalism]. Given the divisions of opinion, about all we can be sure of is that some measure of agreement was mustered as to the text of the constitution. Even that agreement, however, is tempered by the feder- alist character of the 1787 text and the anti-federalist flavor of the 1791 amendments. 3. See infra notes 93-130 and accompanying text. 4. Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), ch. 11 [hereinafter CONSTrrUTION AcT, 1982]. By this Act of the United Kingdom Parliament, Canada obtained both a new Constitution and full legal authority to amend its Constitution without further approval of the U.K. parliament. 5. CANADIAN CHARTER OF RIGHTS AND FREEDOMS, pt. 1 of the CONSTrrUTION AcT, 1982