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Overrides and Legislative Deference to Courts

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It’s nice to see major bloggers weighing in on what is surely the most interesting and important topic of political discourse, the Canadian Constitution. Like Julie and Matt, I generally support the idea of a judicial override clause. Matt is correct, however, in pointing out that it has not turned out to mean much in practice. Outside of Quebec (which is a different case, because the secessionist government–which saw the Charter of Rights and Freedoms as illegitimate–would attach it to all legislation) it has never been used by either provincial or federal governments in a major constitutional case. Outside of Quebec it has been used only 16 times, only 7 remain in force, and most of those were about obscure administrative law rulings. What is generally interesting about this for people interested in judicial review in general is the question Matt asks–why has this not been used? (And this also applies to the question of why Congress doesn’t use its many Article III powers to attack the courts.) In my dissertation, I offer two theories, and I think both are relevant:

1)Legislative delegation and deferral: The first reason that political actors don’t use the notwithstanding clause is that judicial review is in the interests of legislatures and executives. Many issues end up in the courts precisely because legislators wish to diffuse responsibility for resolving contentious social questions. This is particularly evident in the case of abortion–after the Supreme Court of Canada left Parliament a lot of leeway to create new legislation, they allowed it to be killed by the vestigial Senate (and had previously delegated abortion policy to medical review boards.) But it is true of many other issues as well. You can see this in particular in the American case, where most of the power the courts have in the first place is based on legislation passed by Congress. In general, judicial review is politically beneficial for political actors, and their complaints about it are about symbolism and mobilization. Congress’ intervention into the Schiavo case is another classic example. When all was said and done, Congress didn’t do anything–because it didn’t create a substantive right or order the courts to issue a stay, all it did was allow Schiavo’s parents to file a frivolous lawsuit that had no chance of success. But it served obvious political purposes for Congressional leaders: 1)it allowed them to blame the courts for the choices of Congress and the Florida legislature without actually changing the status quo to a more unpopular position, and 2)allowed them to convince some true believers inside and outside of Congress that they were actually doing something. Political branches generally don’t retaliate against courts because it is in their political interests to preserve judicial power (even if they disagree with its exercise in individual cases.)

2)The Constitutive Power of Judicial Review: Another thing that may inhibit the use of judicial overrides is the extent to which the public conflates rights with judicial interpretations of rights. It is, I think, rhetorically powerful to argue that legislatures that deploy judicial overrides are attacking rights, when really they just disagree about how rights should be interpreted and applied. In the specific case of Canada, there’s no question that the legitimacy of the notwithstanding clause was badly wounded by the fact that the Quebec government used it to pass a law that restricted the use of English on commercial signs during the debate about the Meech Lake Accord (which would have had a clause instructing constitutional rights to be interpreted with the consideration that Quebec was a “distinct society.”) Similarly, I think that norms of judicial independence were important in derailing some American attacks on the courts, such as the Chase impeachment and FDR’s court-packing plan.

A final note would be that I think that the proponents of Section 33 made a serious error when they permitted overrides with a simple majority. An override with a super-majority would have been a useful exception to the extremely centralized and regimentally party-disciplined Parliamentary system, allowing the opposition a significant voice in constitutional construction, and legitimated uses of the override. Both normatively and strategically, I think this was a mistake. But either way, an override clause just won’t be used much. Judicial decisions that don’t have the support of at least one major political faction are pretty rare.

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