Presidential Commission on the Supreme Court of the United States
America (2012); Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persp. on Pol. 564, 565 (2014).
- ↑ 384 U.S. 436 (1966) (holding that the Fifth Amendment bars the prosecution from “us[ing] statements, whether exculpatory or inculpatory,” made by a person in police custody “unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination,” and that those safeguards require that “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney”).
- ↑ See Dickerson v. United States, 530 U.S. 428, 444 (2000) (holding that Congress could not overrule Miranda v. Arizona, 384 U.S. 436 (1966), by legislation, since “Miranda announced a constitutional rule”).
- ↑ See, e.g., Presidential Commission on the Supreme Court of the United States 1–3 (Aug. 2021) (written testimony of William G. Ross, Samford University), https://www.whitehouse.gov/wp-content/uploads/2021/08/Professor-William-G.-Ross.pdf.
- ↑ 570 U.S. 529 (2013).
- ↑ See, e.g., Doerfler & Moyn, supra note 2, at 1713; Presidential Commission on the Supreme Court of the United States 10–11 (Aug. 17, 2021) (written testimony of Mark Tushnet, Harvard Law School), https://www.whitehouse.gov/wp-content/uploads/2021/08/Professor-Mark-Tushnet.pdf.
- ↑ See Stephanopoulos, supra note 135, at 264–69, 290–92; Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245, 247, 265, 275 (1995).
- ↑ See Tsvi Kahana, Understanding the Notwithstanding Mechanism, 52 U. Toronto L.J. 221, 222 (2002); Peter H. Russell, Standing up for Notwithstanding, 29 Alta. L. Rev. 293, 297 (1991); Stephanopoulos, supra note 135, at 254–59; Rivka Weill, Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power, 39 Hastings Const. L.Q. 457, 457–59 (2012).
- ↑ See Kahana, supra note 159, at 223 (Canada); Weill, supra note 159, at 461 (Israel). In Canada, the provincial legislatures, particularly Quebec, have been the primary proponents of legislative overrides, known as “notwithstanding clauses,” in legislation. Early on, the province of Quebec attempted to craft an omnibus notwithstanding clause to immunize its laws against all court attacks. This approach was invalidated by the Canadian Supreme Court but narrower approaches have had some limited success. See Stephanopoulos, supra note 135, at 255–56; see also Law Testimony, supra note 89, at 4–5 (discussing Canada’s experience and noting that “[a]t one extreme, the province of Quebec has overused the override power to the point of preemptively immunizing all laws against constitutional challenge, and dragging the override power itself into disrepute in the process,” while “[a]t the other extreme, the federal government has effectively abandoned the override power”).
- ↑ Weill, supra note 159, at 461.
- ↑ Bowie Testimony, supra note 2, at 4–5; Moyn Testimony, supra note 2, at 6.
- ↑ For example, in Australia and New Zealand, judicial review is “constrained,” with courts exercising a “privileged, but not a supreme, role,” without any evidence of resulting harm to minority rights. Alon Harel & Adam Shinar, Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review, 10 Int’l J. Const. L. 950, 951–52 (2012). Moreover, in most European countries, constitutional questions typically are reviewed by specialized courts and through referral by parliamentary or executive officials, rather than in individualized cases. In this model, the court serves as an aide to the legislature in determining the conformity of legislation to the constitution. Albert H. Y. Chen, The Global Expansion of Constitutional Judicial Review: Some Historical and Comparative Perspectives 3 (Univ. of H.K. Faculty of Law Research Paper No. 1, 2013). Such inquiries take place on a theoretical level and not in terms of a case or controversy involving the rights of an individual allegedly harmed by such a law. This approach, it has been argued, is equally if not more protective of rights than the U.S. model. See, e.g., Víctor Ferreres Comella, Constitutional Courts and Democratic Values: A European Perspective, at xiii–xvi (2009). Of course, it bears remembering that Europeans’ rights are also protected by the European Court of Human Rights and the European Court of Justice, among other institutions. See Waldron, supra note 50, at 1353 n.20.
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