Notwithstanding Which, He’s Going to Lose

The Liberals, in the midst of what looks like a dismal bellyflop into the upcoming election, came out with an attempted debate bombshell: eliminate Canada’s “notwithstanding clause,” which permits provincial and federal governments to override certain judicial interpretations of the Charter of Rights and Freedoms. Cathie from Canada likes the move, both as a political strategy and on the merits. I have defended the notwithstanding clause before, and have also expressed doubts about judicial supremacy, so rather than rehashing that I’ll turn the argument over to Liberalism Without Cynicism:

Which is well and good except for the small problem that judicial supremacy is an American institution, not a Canadian one. The Canadian system is based on Parlimentary supremacy, not on “checks and balances” between the legislature, executive and courts. Martin’s proposed constitutional amendment would make Canada more American, not less. And both liberals and conservatives in the US have at various points feared and complained about the abuse of power by the appointed federal courts and especially the Supreme Court… imposing decisions on social issues that are too progressive or “elitist” for the population, or, on the other end of the spectrum, curtailing the power of Congress to legislate and regulate across state lines. The basic problem is that the courts don’t just “enforce” Charter/Constitutional rights. They also interpret them. Anyone who follows US politics at all knows that this is what it boils down to: judges and the legal theory they rely on is as polarized into liberal and conservative schools as are the political parties themselves.

I agree from a normative perspective. However, as a matter of political strategy, I would have thought Cathie was right; the use of Section 33 isn’t popular (and indeed, the debate is almost moot because there is a near-convention that it should not be used to override judicial determinations of rights.) Despite this, however, it certainly doesn’t seem to have been effectual; the Liberals are in free-fall. A Conservative minority would be constrained enough not to be disastrous, but a Conservative majority would be very bad. I hope it’s the former, but the latter is a lot more possible than it looked even two weeks ago.