Tascha Shahriari-Parsa has posted The Constrained Override: Canadian Lessons for American Judicial Review (137 Harv. L. Rev. 1725 (2024)) on SSRN. Here is the abstract:
Since the turn of the century, the U.S. Supreme Court has claimed to have the last word on what the Constitution means. But in Canada, the “notwithstanding clause” allows legislatures to override judicial interpretations of the constitutional bill of rights for five-year periods. This Chapter asks what the experience of the notwithstanding clause can teach about how to optimize for an enduring, rights-protecting constitutional democracy. Based on those lessons, it proposes that Congress should adopt a model “constrained override” power that leverages the benefits of the NWC but avoids its drawbacks. The Court may be the least dangerous branch, but the constrained override would yield the least dangerous system.