Federalism and the Notwithstanding Clause

Abstract

This paper looks at possible responses to section 33 that could deeply affect the country’s underlying federal structure. It discusses three responses — disallowance, judicial review, and formal constitutional amendment — that have either arisen in public discourse or, I argue, warrant serious consideration. The ultimate goal of the paper is to offer a more complex way of thinking of about section 33 focusing on its relationship to Canadian federalism and, by implication, to the future course of the country’s democratic constitutionalism.