Political Legitimacy, Judicial Review, and the Legislative Override

Abstract This paper argues that (1) political community requires an agreed method of deciding disputes about the norms that will govern; (2) a decision method that includes a legislative process, strong judicial review, and a legislative override is a method with components that work at cross purposes; and (3) that such a method cannot be agreed upon responsibly. Points (1) and (2) describe Canada’s method of decision-making in which the legislative override is called the notwithstanding clause. An argument at cross purposes is incoherent and cannot responsibly be accepted, nor can someone responsibly obey a command that involves contradictory directives. By analogy of reasoning, steps that work at cross purposes in a decision-making system can weaken or erode agreement to it. In other words, the political legitimacy of that method is weakened and contributes to its illegitimacy. Optimally for democratic decision-making, eliminating strong judicial review removes this weakness.