Dialogue or Defiance: Legislative Reversals of Supreme Court Decisions in Canada and the United States

International Journal of Constitutional Law, Vol. 4, pp. 347-370, 2006

24 Pages Posted: 2 Jun 2010

See all articles by Kent Roach

Kent Roach

University of Toronto - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2006

Abstract

This article examines dialogue between courts and legislatures in the context of legislative attempts to reverse pro-accused Supreme Court constitutional decisions in Canada and the United States. It focuses on a case study comparing Congress's unsuccessful attempt to reverse Miranda v. Arizona with the Canadian Parliament's so far successful reversal of Daviault v. The Queen, a similar due process decision in favor of the rights of the accused. In the context of the Supreme Court of Canada's record in other cases where legislatures have reversed its decisions, the author explores the hypothesis that the reasonable limitations clause and the override or derogation clauses of the Canadian Charter of Rights and Freedoms, as well as the ability of Canadian governments to refer abstract questions to the courts, provide more room for dialogue between courts and legislatures than is available under the U.S. Bill of Rights. The author concludes that Charter provisions offer a useful alternative to the polar extremes of legislative and judicial supremacy.

Suggested Citation

Roach, Kent, Dialogue or Defiance: Legislative Reversals of Supreme Court Decisions in Canada and the United States (2006). International Journal of Constitutional Law, Vol. 4, pp. 347-370, 2006, Available at SSRN: https://ssrn.com/abstract=1619582

Kent Roach (Contact Author)

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

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