The structure of constitutional rights in the United States and most other countries grants to legislatures a limited power to override rights when they conflict with certain public policy objectives. This limited override power contrasts with an absolute one, as enshrined in section 33 of the Canadian Charter of Rights and Freedoms, and is also both general and noninterpretive in nature, unlike the “substantive” congressional power claimed by some under Section 5 of the Fourteenth Amendment. This override power tends to be somewhat obscured in the United States by the absence of express limits on rights and, thus, a textually mandated two-stage process of rights adjudication.
In this Article, I first highlight the existence and nature of this limited override power and then present a normative justification of it and the general structure of rights that underlies it. In moving beyond description to defense, I also aim to respond to the highly influential, but largely unanswered, antibalancing critique in constitutional law. Specifically, I offer a democratic justification for the modern structure of rights as presumptive shields rather than peremptory trumps against conflicting public policy objectives—that, at least when certain substantive constitutional criteria are satisfied, rights should be overridable by legislatures for democratic reasons. My justification in turn has important consequences for how courts should go about their task of reviewing exercises of this legislative power.
My specification and defense of the limited legislative override power also provide fresh perspective on two other vigorous debates in constitutional theory. First, both opponents and proponents of judicial review have overlooked the role that the near-universal override power plays in rendering systems of judicial review less vulnerable to democratic critiques. Second, this power represents a form of popular constitutionalism that does not challenge—indeed is entirely consistent with—the interpretive supremacy of the U.S. Supreme Court and other constitutional courts.