Wednesday, October 04, 2006

We Take Requests: Overriding Correct Court Decisions

In the comments, BKN asks what I think of the Sharpe decision and the "drawings and diaries" exception the Court cut out of the crime of possessing child pornography. I said that I thought the decision was right, but it wouldn't bother me at all if it was overruled by the use of the notwithstanding clause. BKN, reasonably enough, wants me to explain myself.

I honestly don't see a contradiction. Courts, at their best, rely on evidence. Legislatures don't need to. Once we decide to enshrine "freedom of expression" in the Constitution, then a court -- at minimum -- has to require the government to provide some evidence of why it has curtailed some expression, no matter how vile. If the only reason is the vileness, especially if the people who would find it vile aren't exposed to it, then the court probably should not accept that as a sufficient reason. After all, that would pretty much always work as a reason.

So the government would have to show that the decriminalization of this material increases the risk of abuse. I don't really know what I'm talking about here, but my understanding is that this is difficult to do. It's a whole different story if the material uses real kids (in which case it is itself abuse) or is passed around.

In the absence of evidence for the basis of the limitation on expression (which everyone admits that the law was), a court shouldn't uphold it.

Parliament, though, doesn't need to think this way. Its actions do not necessarily require evidence of efficacy, but just the consensus of the community that these actions should be taken. The 1982 Constitution allows Parliament both to limit expression when it has sufficient grounds and to override expression -- even without sufficient grounds -- if it is prepared to take the political step of invoking the notwithstanding clause.

One unfortunate byproduct of the fact that a simple majority is all that is required to invoke the notwithstanding clause is that it is difficult for its use to remain exceptional, but still politically possible. That's a flaw in the 1982 design. Ideally, Parliament would occasionally (but not too often) override court decisions. If I could make one change, I'd require a supermajority for the use of "notwithstanding": paradoxically, that would make it more likely, which I think would be a good thing.

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