P & S Gets Constructive

I get a lot of grief about how negative Pith & Substance is all the time. (Well, I think I would get a lot of grief if I could get the daily view stats reliably into the double digits -- for now, let me just argue with my imaginary critics.) So let me set out my constructive views on a matter of public note that I have thought about, if not resolved: judicial review.

I don't share Paul Martin's view that the words of the SCC on questions of public policy should have greater authority than the Pope speaking ex cathedra on a matter of faith and morals. Mr. Martin was against gay marriage and two-tier healthcare until the courts said the opposite. I was for both, but doubted the reasoning by which they were judicially introduced. And we are equally not Prime Minister right now.

Also, as I will explain when I finally get around to finishing that damn Singh blogathon, I don't really believe that the determination of whether a particular law violates somebody's rights is a legal or interpretative judgment. It is always a matter of balancing policy outcomes, and judges and lawyers know this, even though we are not supposed to let the laity in on it.

On the other hand, I don't really have a bee in my bonnet about judicial review as such. I accept Aristotle's view that democracy needs to be tempered by aristocracy (and vice versa). Back in the day, the British tradition of democracy had plenty of aristocratic elements, but they have given way to modernity. No one really thinks the Senate can play the role Macdonald envisioned for it.

The aristocratic elements today are the bureaucracy, the policy academy (basically economists and epidemiologists with the odd IR type), the professions and the judiciary. All are capable of self-interested behaviour. I think all need to give way to the firmly-held opinion of the people. But the people want contradictory things, do not know much, and can act unwisely as a result of passing emotions (so too can the aristocratic types, of course). So mediating popular will is a good thing.

So where does this lead us? It looks as though we can't trust anybody, and we should give way to consistently held popular opinion.

The solution is the notwithstanding clause. Where traditional rights or vulnerable minorities are concerned, let the judges make it difficult, but not impossible, for the majority to get its way. Let them change who plays defence.

The problem with our s. 33 is that it applies only to some rights, but it allows the legislature to overrule with a simple majority. The result is the unstable equilibrium we have now where the Charter can only be maintained as effective if we regard the use of s. 33 as totally unacceptable. But it shouldn't be totally unacceptable, because judges are often wrong and the populace right.

Ideally, we would have s. 33 apply to all the rights in the Constitution, but only allow it to be exercised with a super-majority in the relevant legislature (say 2/3). The legitimacy of the overruling would cease to be in doubt, but would obviously be harder to get. If no one worried that the use of s. 33 once would destroy the Charter forever, then it would be a lot simpler to overrule boneheaded decisions that the whole political spectrum could regard as dumb.

Paradoxically, the existence of the political safety valve of s. 33 actually permits the courts to be more active in the protection of rights. If s. 33 had existed down South, then the pro-life movement would have been less focused on changing the composition of the SCOTUS, and more on getting politicians to commit to using the non obstante. They probably would have failed, which would be fine, because it would still be a political process, rather than a dictated one.

If Harper wants to introduce property rights into the Constitution, I would say fine to that as well, as long as section 33 was available. Some crazy libertarian judge decides to follow Lochner and the people's representatives can use the "notwithstanding" clause. (In fact, Harper could do this without changing the constitution by amending the sadly-neglected Diefenbaker Bill of Rights to give substantive protection to property rights).

I'd like to see a super-majoritarian non obstante introduced into federalism disputes as well. Actually, I think the Federal Parliament should be able to validate provincial legislation struck down on a simple majority. But when federal legislation is struck down, it should require the 2/3 (with some special protections for Quebec, TBA).