The Case for the Legislative Override
47 Pages Posted: 12 Feb 2007 Last revised: 19 Aug 2015
Date Written: 2005
What is the optimal arrangement of judicial review? Most scholars who have sought to answer this question have assumed that there are only two worthwhile alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. Under this model, the courts retain their authority to invalidate legislation on constitutional grounds, but their decisions may be overridden by the legislature.
The Article begins by describing and evaluating the experiences of the two countries that have adopted the override: Canada and Israel. It concludes that the override has functioned reasonably well in both cases, though its performance could have been improved through better institutional design. The Article then introduces a refined override arrangement that promises to protect fundamental rights while also promoting democratic decision-making. The hallmarks of this arrangement are a supermajority requirement, a ban on preemptive override use, and a sunset provision. The claim is that these features would foster vibrant inter-branch dialogue and result in court decisions being overridden only when they incite deep and abiding opposition. Finally, the Article explains which institutional and political contexts are hospitable to the override and which are not. The override is well-suited to countries with respected legislatures and strong human rights records, but a poor fit for countries in which minorities face the realistic threat of majoritarian oppression.
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