Comparing the Establishment of Judicial Review in Canada and the United States

Abstract:     
Judicial review cannot be established without support from the incumbent regime. The early U.S. Supreme Court exercised a great deal of caution in asserting its power because it feared the ruling Jeffersonian coalition would ignore its decisions. After enactment of the Charter of Rights and Freedoms, the Supreme Court of Canada has been more aggressive in striking down legislation. We might expect legislative bodies to cling to their old constitutional authority (parliamentary supremacy) by invoking the Notwithstanding Clause, which forecloses judicial review on a piece of legislation. Public opinion has created a political barrier to utilizing this clause, thus legislators have chosen more cooperative tactics in dealing with judicial nullifications.

working papers series