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1990 Duke L.J. 1229 (1990)
The Locus of Sovereignty: Judicial Review, Legislative Supremacy, and Federalism in the Constitutional Traditions of Canada and the United States

handle is hein.journals/duklr1990 and id is 1242 raw text is: THE LOCUS OF SOVEREIGNTY: JUDICIAL REVIEW, LEGISLATIVE SUPREMACY, AND FEDERALISM IN THE CONSTITUTIONAL TRADITIONS OF CANADA AND THE UNITED STATES CALVIN R. MASSEY* Introduction ................................................... 1230 I. Calhoun's Concurrent Majority and the Expediency of Sovereignty Doctrine in Antebellum America .............. 1242 A. The Alien and Sedition Acts .......................... 1242 B. The Hartford Convention and New England Secession .. 1246 C. Northern Response to the Fugitive Slave Act of 1850 .... 1247 D. Calhoun, Nullification, and the Concurrent Majority ... 1248 II. The Development of Canadian Federalism: From Cartier to the Charter ............................................... 1255 A. Before Confederation: Two Cultures, One Sovereign .... 1256 B. Confederation: Sir John A. Macdonald's Vision of Federalism ........................................... 1257 C. After Confederation: Judicial Allocation of the Powers of Government ....................................... 1259 1. 'A Matter of National Concern: The Intersection of Federal and Provincial Residual Power .......... 1260 2. Emergency and the Federal Residual Power ........ 1261 3. The Return of a Broad National Dimensions Test .. 1264 4. Judicial Interpretation and Shifts in the Baseline Presumption ...................................... 1265 D. Patriation and the Notwithstanding Clause.......... 1266 E. Quebec and the Notwithstanding Clause ............... 1268 * Associate Professor of Law, University of California, Hastings. B.A., 1969, Whitman Col- lege; M.B.A., 1971, Harvard University; J.D., 1974, Columbia University. I am grateful to the Roger J. Traynor Fund for a research grant which aided this study, to Professors Tom Barnes, Victor Jones, and the Canadian Studies group at the University of California, Berkeley, upon whom I inflicted an earlier version of this paper, to my colleagues Scott Sundby and Bill Wang, who sharp- ened some of my thinking, to Professors Alan Cairns and Ronald Watts, who reviewed and com- mented upon earlier drafts, and to the residents of Hornby Island, British Columbia, from whom I have gained invaluable insight into the Canadian national character. An earlier version was presented to the Association for Canadian Studies in the United States at its 1989 biennial meeting under the title Meech Lake and Calhoun's 'Concurrent Majority.' The errors and omissions are, of course, mine alone. 1229

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