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Notwithstanding

Julie Saltman's discovered Canada's "notwithstanding clause," a provision that allows parliament to (temporarily) override judges who strike down laws on Canada's equivalent of the bill of rights, and then allows for further extensions of said overrides. It's an interesting idea. What I recall most clearly on the subject from my Canadian Politics and Government class is that, at the end of the day, this makes surprisingly little difference. Because judicial review is the ultimate guaranteur of individual liberties in the United States, Americans have a tendency to believe that an absence of strong judicial review would quickly set us on a slippery slope toward God-knows-what.

Fortunately for those interested in such things, Canada and the United Kingdom manage to be countries with pretty similar political traditions (more similar than those anywhere else except, perhaps, Australia) in ideological and cultural terms, but very different institutions. The UK is a true outlier in terms of majoritarianism, combining a highly centralized form of government (only slightly mitigated by Scottish devolution very recently) with a total absence of judicial review. Canada has an America-esque federalist system and judicial review, but with an opt-out. In a big picture sense, this doesn't seem to make a real difference, liberty-wise. All three are clearly liberal democracies, and references to friendly dictatorship aside, nobody mistakes Canadians for living under the totalitarian boot. On a more micro-level, the differences are real, of course. Canadian politics doesn't have the high-profile "judicial activists" discourse in the way that we do, and the notwithstanding clause has played a role in the Parti Québécois' efforts to enact laws about language use that would almost certainly be seen as unconstitutional in America.

Nevertheless, invocations of the clause are exceedingly rare, which Americans tend to find surprising in light of the vehement denunciations of judicial decisions we're used to here. It's worth recalling, however, that our constitution has a kind of notwithstanding clause of its own -- the congress's power to strip the courts of jurisdiction over certain issues. People -- almost always wingnuts -- are constantly talking about doing this, but they never actually do it. Why that is, exactly, or why Canada's parliaments are so reluctant to pass "notwithstanding" laws, I couldn't quite say.

April 3, 2005 | Permalink

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The first reason that political actors don't use the notwithstanding clause is that judicial review is in the interests of legislatures and executives... [Read More]

Tracked on Apr 3, 2005 5:42:36 PM

Comments

Guarantor

Posted by: Webster | Apr 3, 2005 2:22:58 PM

In the US, elected politicians are very much at the mercy of popular movements and local mobilisation, and so establishment political attitudes (i.e. mild libertarianism and free trade) are constantly threatened by mobilisers for gay marriage, gun rights, anti-abortion, and a wide variety of ethnic and other interest groups. In such a situation, only the courts (and, to a lesser degree, parts of the executive branch) have enough insulation to make unpopular decisions, which the elected and less insulated parts of the political system then rage against.

In the UK or Canada, the elected political systems is much more closed, with vastly higher barriers to entry. So elected politicians are much more rarely threatened by bottom up mobilisation in their constituencies. So establishment attitudes generally pervade all elements of political decision-making, certainly the government executives which monopolise real authority. So there is less mobilisation against adverse court decisions because adversely affected civil society cannot find access to the political system, just as there is less ethnic group capture of foreign policy, and less interest group influence on the specifics of trade decisions. These movements are squashed by the electoral systems and party discipline etc, not the notwithstanding clause.

Posted by: Otto | Apr 3, 2005 2:29:20 PM

My Canadian constitutional law is a little rusty, but I think the Notwithstanding Clause applies primarily to provincial governments as a sort of backdoor around the incorporative aspects of the Charter of Rights and Freedoms, and I think was intended to try (unsuccessfully) to buy Québec support when the constitution was repatriated. In any event, QC is the only province to have used it in any serious way, in defense of Bill 101 (the language laws). This is actually one of the things that Canadians in the ROC (and a lot of QC anglos) often use to indict Québec for being treacherous and uncooperative, and I'd say that sentiment among the Canadian political commentariat is strongly anti-NC, seeing it as a sell-out and an embarrassment. It has occasionally, I think, been used elsewhere for less dramatic purposes, but generally in a furtive way. I wouldn't call it a model for imitation.

Posted by: Evan McElravy | Apr 3, 2005 2:30:34 PM

There is not quite a "total absence of judicial review" in the UK, although there's nothing quite like the Supreme Court. But the Law Lords are the court of last resort: http://en.wikipedia.org/wiki/Law_Lords

They can overturn laws on certain limited grounds including the European Convention on Human Rights, for instance: http://news.bbc.co.uk/2/hi/uk_news/4100481.stm

Posted by: Jacob Davies | Apr 3, 2005 2:52:48 PM

Otto, can you explain your statement that "In the UK or Canada, the elected political systems is much more closed, with vastly higher barriers to entry"? Given that you don't have to be a multi-millionaire to become a British MP and that the UK has a far higher representation from third, fourth and even fifth parties, I don't see what you mean.

Regards, Cernig

Posted by: Cernig | Apr 3, 2005 2:58:32 PM

It's worth recalling, however, that our constitution has a kind of notwithstanding clause of its own -- the congress's power to strip the courts of jurisdiction over certain issues.

This is not entirely accurate. While Congress, under Article III, Section 1 has the power to mess around with the District Courts ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish"), it does not have the authority to strip the Judiciary of being the final arbiter of whether a statute is constitutional (see Marbury v. Madison, 5 US 137 (1803)).

Posted by: Matt Taylor | Apr 3, 2005 3:07:24 PM

Otto, can you explain your statement that "In the UK or Canada, the elected political systems is much more closed, with vastly higher barriers to entry"?

Perhaps it's that you can't be as big a moron as some elected to state, and even federal legislative office?

So elected politicians are much more rarely threatened by bottom up mobilisation in their constituencies.

Er, no. In both 1997 and 2001, independent MPs representing local issues were elected in the UK. (Martin Bell in Tatton; Dr Richard Taylor in Wyre Forest.) And even beyond these cases, local constituency parties generally have much more influence in choosing candidates.

Posted by: ahem | Apr 3, 2005 3:09:52 PM

Actually, our constitution provides at least three checks on judicial overreach. Congress has the ability to strip the federal courts of jurisdiction, which essentially never happens (I don't know if it happened at all in the 20th century). Federal judges can also be impeached, which happens like once a decade on average, usually but not always for malfeasance of some sort, rather than policy (http://air.fjc.gov/history/topics/topics_ji_bdy.html). Finally, Congress has the power to structure all courts below the U.S. Supreme court, and organize them into jurisdictions. If it were the feeling of Congress that lower courts were often ruling poorly on issues of environmental law, for instance, it could create special environmental courts and grant them jurisdictions over all such cases. As long as there was a chain of appeal to the Supreme Court, this would effectively strip lower courts of the ability to try such cases.

Like you say, none of this ever happens. Legislation from the bench is in too many people's best interests, and those whose ox is gored by it usually attempt to take over the courts, rather than restrict them. Who knows, when your side gets a turn at power you might need some extra-legislative legislation some day.

Posted by: dave | Apr 3, 2005 3:21:21 PM

Canada and the UK have, by sheer democratic necessity I suppose, much less gerrymandering than one finds in the US. As our political parties have solidified on ideological lines over the past 50 years, it's a shame that our way of electing a legislature has gotten abjectly worse, with the rise of bloody, house-by-house district map fighting. I would like to see something along the lines of Elections Canada draw Congressional districts (hey, why not outsource the job?). One would think this would stop, or at least slow down, the one party ossification that's occuring. The rise of supermajority counties would ensure the result wouldn't be total chaos. There would still be safe Democratic and Republican seats, but many, many more marginal ones.

Posted by: SamAm | Apr 3, 2005 3:23:15 PM

Short sharp summary:

In the USA, powerful sophistry is used to justify
compelling state interests, which are somehow more
powerful than constitutional restrictions on
government power.

In Canada, the Notwithstanding Clause is used to frankly
admit the extra-constitutioanlity of what will follow.

Posted by: dc | Apr 3, 2005 3:53:12 PM

There is a reason why the Charter of Rights of Freedom, outside of Quebec, has rarely been bypassed under the 'notwithstanding clause' - the assumption that the Charter is very popular with the population and that any action to use the notwithstanding clause would prove unpopular. The other point to remember is that any invocation of the notwithstanding clause is, I believe, limited for a period of 5 years. Thus legislatures would have to invoke the notwithstanding clause on a regular basis if they wanted to continue to block the impact to the Charter in a particular area (e.g. gay marriage).

To understand the popularity of the charter it is helpful to understand some of the history of the struggle to bring control of the constitution to Canada from Britain (almost entirely a struggle between Canadians). The charter of rights and freedoms (our version of the Bill of Rights), was conceived as a method by which the federal government would be able to gain popular support to patriate the constiution from Britain. Prior to 1981, the Canadian constitution was the British North America Act and was under the legistlative control of the parliament of Great Britain. There had been several attempts to patriate the constitution to Canada but these had been foiled by the assumption that the unanimous consent of all the provinces was required. The then liberal government of Prime Minister Trudeau decided that they needed something to gain the broad support of the Canadian people, and hit upon the Charter of Rights and Freedoms as a method for doing this. I believe that the evidence supports the contention that it was the Charter, along with the support of the Canadian people, that enabled the Federal Government to begin to prise apart the united opposition of the Provinces.

The notwithstanding clause was opposed by the Prime Minister, but he was eventually persuaded to compromise on the issue on the grounds that the clause would be limited (to 5 years) and that invocation of the clause would necessitate a government taking a public position against the charter - not a a light undertaking in view of public support for the charter.

There has been some discussion about 'judicial activism', particularly related to the Supreme Court under the previous Chief Justice. There has been a rise in the profile of this issue recently due to court decisions related to the issue of homosexual marriages. I think that in Canada, however, the level of political discourse has remained far more civilized. Part of the reason may be due to the fact that we have a public broadcaster and lack the right wing echo chamber that seems to be all to prevalent in the United States

Posted by: Doug Brunton | Apr 3, 2005 4:35:47 PM

In the USA, powerful sophistry is used to justify
compelling state interests, which are somehow more
powerful than constitutional restrictions on
government power.

The Schiavo farce notwithstanding, in the USA powerful sophistry is used mostly by the judicial branch which is for the most part totally in tune with the rest of the government. This has been going on since 1930s. They all represent pretty much the same group, same business/money elite. They don't need to override each other, they work together.

UK and Canada are probably pretty much the same to a degree.

Posted by: abb1 | Apr 3, 2005 4:46:17 PM

Canada and the UK also don't have their parliaments run by people like Tom DeLay. We have a much stronger tradition of irresponsible wingnuts and proto-fascists running the executive and legislative branches in this country. We need strong judicial review much more than do our fellow Anglospherists.

Posted by: Geek, Esq. | Apr 3, 2005 5:06:50 PM

The word 'notwithstanding' should be banished from legislative, legal and everyday use. It's use seems to be the exact opposite of what the word pretends to say.

In the Canadian Charter the word seems to mean that some laws can be passed that ignore or contradict certain sections of the Charter.

The American Heritage Dictionary defines three uses of the word - as a preposition, adverb and conjunction - none of which seem to fit in the Charter context.

...that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

The middle English origin points to a meaning of 'not resisting', which seems opposite to its use in the Charter and American law.

OK, language pet peeve over.

Posted by: JimPortlandOR | Apr 3, 2005 5:12:16 PM

Matt--that is almost certainly incorrect. Article III gives Congress the power to make any "exceptions and regulations" to the jurisdiction of the federal courts, and Congress' use of this power has been upheld, most recently when Congress stripped the courts of the ability to issue certain inunctions in the Norris-LaGuardia Act. Marbury says that the courts can rule legislation unconstitutional *when the have jurisdiction*, but that doesn't stop Congress from just removing their jurisdiction over certain types of cases.

Posted by: Scott Lemieux | Apr 3, 2005 5:48:26 PM

(Matt Taylor, I should specify.)

Posted by: Scott Lemieux | Apr 3, 2005 5:48:55 PM

My knowledge of Canadian politics is limited to watching a lot of CBC political coverage, but didn't the Conservative Alliance/Party shoot themselves in the foot by merely suggesting that provinces could sidestep abortion and gay rights legislation by invoking the notwithstanding clause? Peter Mansbridge seemed to talk about this for months, and it wasn't in connection to Quebec but rather some right wing Alberta plot.

Stockwell Day, the Alliance (Far[ther] right party--the Tories still existed as a rump party then) candidate in the 2000 election, seemed to take this quite seriously, and even believed that somehow a national referendum on abortion could be called, if I remember right. I don't remember the link between "notwithstanding" and the referendum, but those kinds of ideas continued to plague his successor Steven Harper, seemingly killing his chances when people realized a Conservative government was a real possibility. The fact that Harper and others in the new Conservative Party never seemed thrilled about the Charter seemed telling, at least to my American eyes, but that may be some Western Canadian contempt for all things Federal that local knowledge is required for.

Posted by: Doris Day Liberal | Apr 3, 2005 6:39:16 PM

If the "Notwithstanding" clause is rarely invoked, and when it is, it is used for indefensible purposes like dictating the language citizens must use, Matthew has hardly made much of a case for it.

Posted by: epistemology | Apr 3, 2005 6:53:44 PM

Following Scott Lemieux above, some examples of court-stripping in the 1990s are addressed in this blog entry: http://talkleft.com/new_archives/001010.html#001010.
I'm not an expert on the USA-PATRIOT Act or other post-Sept. 11 statutes and orders reducing judicial independence, but I have the sense that things have been getting worse under Bush, together with Cheney a vociferous partisan for executive discretion and against legislative and judicial checks on the president's power. The epitome of this arrogance is the administration position on enemy combatants (rejected 8-1 at the high court), arguing people can be locked up forever without charges, without access to counsel, without trial, all solely on the word of agents of the executive branch. Although unenumerated rights and those rooted in the common law are important, I'm glad we have less of a "notwithstanding" clause in the constitutional text -- things get plenty repressive already for criminal and terror suspects or presumed associates of same.

Posted by: inip | Apr 3, 2005 7:02:42 PM

I would also hazard a guess that legislatures are reluctant to write the judiciary out because most legislators are, or were, lawyers, and they are well aware of the nature and importance of the judicial function.

Moreover, one aspect of that function is to serve as an independent check on the executive branch, which is regularly more of a threat to the legislative branch than is the judiciary. Legislators technically have an oversight function, but they don't have anywhere near the resources necessary to effectively oversee and govern a modern executive branch. The judicial function, both by saying "what the law is" and by direct orders to executive agencies, helps to keep the executive in check.

Posted by: bleh | Apr 3, 2005 8:58:01 PM

The reason why Congress has yet to use its power to override Supreme Court decisions seems to me perfectly obvious: both parties are well aware that by doing so they would be opening the gates of Hell by setting a precedent for the incumbent party to redefine ALL of the Constitution to its heart's desire -- including the First Amendment and the election rules -- and thereby assure either a dictatorship or a second Civil War. We came close to having precisely that, after all, during the Adams-Jefferson fight and the passage of the Sedition Act. The only reason the Founders put the override clause in the Constitution in the first place was their naive belie that politicl parties could and should be prevented from coming into existence at all, and that Congress a a whole could therefore be counted on to be an honest judge of the Constutition's meaning. Once that assumption was disproved (as the Adams-Jefferson fight did in no uncertain terms), the need for Marbury vs. Madison was clear to everyone, and has been ever since -- at least up till now.

I think it very unlikely that even the Fundies will be able to persuade the GOP as a whole to light that stick of dynamite which is still planted quietly in the central foundations of American democracy, but you never know. And I remain convinced that at some point Britain will rue the day that it decided not to have a Bill of Rights and a similar judicial supremacy system, and instead chose to continue relying on good manners alone to maintain the existence of its democracy.

Posted by: Bruce Moomaw | Apr 3, 2005 9:15:23 PM

Neither Canada nor Britain are nearly as enormous or heterogenous as us. We need more checks on the tyrrany of the majority, because we have a larger majority with more (and more different) minorities.

In other words, things that work for smaller, homogenous societies don't work here.

Posted by: Kimmitt | Apr 3, 2005 9:28:27 PM

Demographically enormous, you mean, not geographically, I presume. But even then, if you're calling Canada more homogenous than the US, I submit just for starters that a quarter of the population speaks a different language than the other 75%. Yer on crack.

Posted by: Wrye | Apr 3, 2005 10:12:50 PM

Although there have been populist movements in Canada, to a considerable extent (and I think some of your posts imply this), the country has been governed by a system of elite accomodations among important groups. For a number of reasons, this is changing, but it explains some of the differences between Canadian and American politics.

When it comes to the judiciary, Canadian Supreme Court judges are selected differently than they are in the US. Basically, the justices are appointed by the Prime Minister. The PM operates within some informal constraints (geographical and linguistic balance) and there is usually a lot of informal consultation before making an appointment, but ultimately it is his decision. There is now talk about opening up the process to involve Parliament or Parliamentary Committees in some formal way; however,nobody wants to adopt the US system of selecting judges because of fears the process will become too politicized. The adoption of the Charter has made the courts more powerful--since they adjudicate cases involving Charter rights--and has resulted in increased criticism of judges as being too "activist" and reducing the power of Parliament. Still, judges and their rulings are given much more respect and deference here than they are in the US.

Wheezer

Posted by: wheezer | Apr 3, 2005 10:27:03 PM

Using the "notwithstanding clause" is unpopular in Canada, largely because the judiciary tries not to make highly unpopular decisions about broad issues of public policy. When they do make an unpopular decision (such as creating a drunkenness defence to sexual assault), usually the politicians just reenact the old law, and the judges accept it.

The "notwithstanding clause" is a useful device to give the elected politicians, not the courts, the ultimate say on how to balance interests (which is really what all "rights" jurisprudence is about).

Posted by: Gareth | Apr 3, 2005 11:30:18 PM

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