Privy Council Blogging

Things have been a bit quiet here. Quiet enough to have driven away all my readers, except the loyal spambots (thanks guys!). This is a common enough tradition in blogging. At some point, the demands of family, work and healthy outdoor activities make even the most opinionated loser wonder about the value of arguing with anonymous people on the Internet about politics. There is a more active Canadian legal blogosphere than back when I started in 2006. So not much comparative value for the Pithlord. Still, and against my better judgment, I am going to try to reboot this thing.

Management has decided on a niche marketing strategy. I am going to try to blog all the Canadian constitutional decisions of the Judicial Committee of the Privy Council between Confederation and the abolition of appeals to the throne in 1949.

Some spambots and accidental googlers may wonder why I am narrowing the focus of the brand so much. After all, Pith & Substance once wandered over larger terrain, for example by triumpahtly predicting the victory of Fred Thompson in the 2008 Republican primary and presciently expressing optimism about the fiscal responsibility of the Ontario Liberals. Well, you are just going to have to come up with that level of analysis for yourselves from now on, spambots. I have my reasons.

The good folks at BAILII have put the JCPC's decisions online. However, they are still image documents. I don't complain, but I think the relative availability of SCC cases on the Internet may give a lopsided view of the constitutional development of this country. I don't claim this is a centralist plot to subject provincial autonomy under the jackboot of Ottawa.

But just in case, I would like to do my bit to make the cases more accessible to google. I also think that going through them in chronological order shows that the JCPC's jurisprudence was a lot more coherent than it is given credit for. Readers are invited to judge for themselves.

If there are any.

Why Constitutional Monarchy Rocks

There are a lot of Yglesias-haters in the comment box, but I would like to point out that he makes a damn good case for constitutional monarchy.

There is glamour in power. That's an irreducible fact about human nature. But democratic politicians shouldn't have access to that glamour.

Also, for some purposes, we need someone who can make gestures on behalf of the nation. Active politicians can't sensibly do that, because about half the population (give or take) hates their guts.

Unfortunately, Yglesias is too sanguine about actual Canadian practice. Liberals don't understand the monarchy, and have spent a lot of time trying to undermine it, so it isn't as unifying as one would hope. Quebec can't really get into it. And first ministers want the glamour, for the very reason they shouldn't have it, so they try to marginalize those in possession of vice-regal authority.

The crazy thing is that people who should know better think the vice regents are a bigger threat to democracy than the desire of the Prime Minister's Office to presidentialize our system.

Bottom line: You should totally be allowed to call the premier or prime minister "dude."

Thoughts on Binnie on Original Intent

Scalia and Binnie had a set-to on originalism at some forgotten conference half a decade ago. It can be found in (2004), 23 S.C.L.R. (2d).

Binnie acknowledges a heavy debt to his clerk, Patricia McMahon, an academic historian, and I don't think he was just being overly generous.

For the most part, it is reasonably sensible and just rejects a cartoon "original intent" school that no serious person supports anymore anyway. Binnie says he can see merit in Scalia's more sophisticated original semantic meaning views. He points out that nineteenth century courts did not look with favour on extrinsic evidence of what politicians thought they were doing when they enacted statutes, including the BNA Act, but of course Scalia hates that more than anybody.

Binnie notes that originalism has played a big role in the Canadian courts' interpretation of education rights and s. 96 (which constitutes the federally-appointed superior courts).

An originalism that is just about linguistic change won't have much effect on interpretations of a document written in 1982. The only significant change since then is that "sex" now just refers to the act and we would no doubt use "gender" in section 15 if it were written today.

Binnie's defence of the Motor Vehicle Act Reference is no good, though. (Perhaps in another post I'll say why._

Canadian Originalism

Via Larry Solum, I see Adam Dodek has written aneo-originalist defence of Bertha Wilson.

He's perfectly within his rights to do so. Originalism has always been a centralizing-liberal slogan in Canada. Frank Scott is our original originalist, as it were.

Is There a Future for Originalism in Canada?

Larry Solum has posted a lengthy paper defending "semantic originalism" as the way to interpret (but not construct!) a written constitution.

The upshot is that originalism is right, but doesn't matter nearly as much as everyone used to think.

As Solum tells it, semantic originalism involves four claims:

1. The fixation thesis. The semantic meaning of the constitution (what is says, not what it does) is fixed at the moment it is adopted. Linguistic change since 1867 does not change what the BNA Act means.

Importantly, this does not imply that change other than in the meanings of words since 1867 will make no difference in how constitutional cases will be decided.

2. The clause meaning thesis. What matters is not what the authors of the constitutional text intended, but what a competent reader at the time would understand. Competent readers might be the general public, politicians, lawyers or possibly different groups for different clauses.

3. The contribution thesis. The meaning of the Constitution has some effect on the law of the constitution. Not necessarily a big one, though.

4. The fidelity thesis. We ought to respect the law, including constitutional law, unless there is a good reason not to.

Let's take the facts of Edwards v. Canada, [1930] A.C. 124 (P.C.) to see how this plays out. The British North America Act, written in 1867, permitted the Governor General to name "qualified persons" to the Senate. In 1867, women, including peeresses in their own right, were under a legal disability from voting in Parliament.

The Privy Council decided that women could be Senators. It could have done so by referring to the meaning of "person" in 1930, by referring to a secret intention of John A. MacDonald to have women as senators, by deciding that the constitutional law had changed in the interim or by deciding that excluding women from the Senate was too unjust a law to obey. If you attended U. of T. law school, you would be forgiven to think that that is what they did, although of course, they didn't.

The Constitution makers in 1867 presumably thought this disability would continue. However, as the Privy Council decided, the term "person", if unqualified, included women. Even if it was taken more narrowly to include only individuals with legal capacity, by 1930, married women had such capacity and therefore had become "persons," although they would not have been sixty years earlier. The Privy Council was aware that if the BNA Act had used the phrase "qualified men", then it would clearly be saying that women could not be Senators, regardless of whether that was a just result.

Solum distinguishes between "constituional interpretation" (which derives the meaning of the text) and "constitutional construction" (which is what judges do when the meaning runs out. Most cases are decided at the construction stage.

Solum says that "constitutional construction" involves vagueness and pragmatics (meaning of utterance, rather than utterance-type). Here I would tend to disagree. Pragmatics about the constitutional utterance itself go to interpretation. We know that the "United States" means the United States of America because of whose constitution it is, just as we know that "I did it" refers to the Pithlord because of who said those words.

Where vagueness goes is more of a matter of choice, but vaguness definitely does not exhaust the post-interpretive issues of constitutional litigation. The issue in constitutional construction is not usually what side of a vague line a statute is on, but whether certain social/moral facts are true. Whether lethal injection is "cruel and unusual" turns on the social fact of whether there is a less painful method to kill people and the moral fact of whether killing people that way is cruel. Whether the Ocean Dumping Control Act interferes with property and civil rights within the province depends on whether ocean dumping is a trans-border externality that requires a regulatory scheme to address. Whether the pre-1988 abortion law is contrary to the principles of fundamental justice depends on whether the tribunals it set up were unbiased and reasonably speedy.

Solum's form of originalism may not matter very much north of the border. In the Candian case, since our most controversial constitutional provisions are just over 25 years old, there has not been any linguistic change for the fixation thesis to operate on. Almost none of the Charter decisions turn on the semantic meanings of the words.

The exception may be those provisions where the words arguably had a "term of art" meaning in 1982. The critical example was "principles of fundamental justice," which had acquired among lawyers a purely procedural meaning as a result of previous Supreme Court decisions. Unfortunately, in 1985 when this provision was considered, we did not have a sophisticated originalism up here, and the Canadian courts would have been naturally resistant to Reaganite terminology.

Something is only "secular" within a given theology

I continue not to receive unanimous support for my arguments in favour of treating all religions equally in Ontario. I imagine John Tory knows how I feel. The Left is scared of evangelicals (F.R. Scott's defence of the Jehovah's Witnesses would make him unwelcome in all the circles he helped create). The Right wets its bed at the notion of Muslims.

Not that either of them is necessarily wrong. The idea that a society can cohere with a genuine diversity of ultimate metaphysical commitments or "comprehensive conceptions of the good" is hardly justified by either logic or evidence. Few of the traditions of the world would have endorsed the idea, and none of the interesting political theorists would.

Commenter "B" wants religion out of politics altogether. I think this is closer to the French/Turkish notion of laïcité to anything I could recognize as non-establishment and free expression, let alone the Canadian tradition. Canadian politics has always been about religion, even more than language, and certainly more than ideology or class.

The difficulty is that laïcité (and, for that matter, the more civilized Protestant traditions of free exercise) are themselves theological conceptions. Indeed, you really only can have a notion of the "secular" within some theological space.

Although maybe that isn't really a difficulty. All states need a civil religion -- and laïcité could in principle provide it, as long as you could make it stick. I don't think you can make it stick in English Canada, because those who like it will never breed enough. Also, you'd need tanks, or at least guns, and again I suspect the social base for laïcité don't know how to use them.

I think it would be better to think through what our civil religion should require in a way that acknowledges that the evangelicals, the Ismailis and possibly other Muslims could be a part of it. Fund everyone willing to take the money on those terms and ruthlessly suppress the rest.

We Respond to Our Critics

I'd like to do a big post on the Ontario schools question, with citations to Rawls and Grant and so forth, but time is scarce. So I'll just reprint my response to the critics in the comment box (especially since the last response got cut off by Haloscan):

DC,

I'm not completely sure whether you are genuinely advancing an argument against public funding of education or are making a reductio to the effect that if non-breeders can't complain about their tax money going to other people's offspring, nobody can complain about any allocation of tax money at all, no matter how sectarian and discriminatory.

It doesn't matter, I suppose, since if the earnest argument doesn't work, the reductio doesn't either. If we think of the tax money as being spent on children, rather than the parents of children, there is no discrimination since everyone is a child at some point in their life-cycle. If that doesn't convince you, there is still the question of external benefits from (a) other people having children and (b) those children being educated. Finally, there are also subsidies to the childless, so maybe things work out in the end (although I wouldn't put a lot of weight on that one).

None of these things are true of funding the religious education of one confession and no others. Protestants don't become Catholics at some point in their lives. If there are external benefits to Protestants of educating Catholics, they can't really exceed those to Catholics of educating Protestants. Moreover, this is clearly a case of a subsidy that has no counter-balance anywhere else in the overall system of public expenditure.

B.

If history has a direction in a descriptive sense, it is impossible to reverse it. If you believe it has a direction in a prescriptive sense, you have a controversial (and false) theological belief. I can't see why people who disagree with this belief should have to send their children to be indoctrinated by those who think otherwise.

The distinction between a sewer system and an educational one is that it is genuinely possible to keep sewage merely technical, bracketing "comprehensive conceptions of the good." We all want our shit to flow somewhere it won't cause trouble. (Even if there are people who feel otherwise, there are non-metaphysical reasons to coerce them.)

Education is different. You can't teach kids in a purely technical way.

Andy,

Are constitutional arrangements a contract of adhesion that those coming here freely can't object to since they had notice of them? I'm probably more sympathetic to that idea than most Canadians, which doesn't make me very sympathetic.

But even on that view, I'd doubt that the original compact has really been maintained. In 1867, the regular public schools could be assumed to be generically Protestant. They'd avoid the disputes between Anglicans, Methodists and Presbyterians, but everyone would be taught the Lord's Prayer and the Whig Interpretation of History.

Neither Protestantism nor the public schools are what they used to be. A generation ago, it might have been possible to assume that they were both travelling in the same self-liquidating secularizing direction. But your future in Ontario is our present in the West: it belongs to the sects that proletyze and have kids, not the United Church. But those sects have as much right to claim descent from the Protestants of 1867 as do the lapsed secular types. So the initial deal, however fair in its time, has become unfair -- even to one of the original parties. We need to apply a cy pres solution, and Tory is approaching it.

It's Time to Curb the Federal Spending Power

Things have gotten a bit soft. Pith & Substance needs a cause, nay a crusade, to renew its vigor. Fortunately, the lazy centralist wetness of the Globe is always good for stiffening up the sinews and summonig up the blood.

From today's editorial condeming the attempts of the Charest and Harper governments to come to an agreement limiting the use of the federal spending power in areas of provincial jurisdiction, comes this teleological tale:

In 1867, Ottawa and the provinces tidily divided their 19th-century duties into distinct spheres that have long since overlapped as technology changed and the economy developed. In the mid-20th century, Ottawa began funding today's social programs, such as old-age pensions, even though it was spending in areas of provincial jurisdiction[...]

Now Quebec wants to draw Ottawa into a formal pact that would curb Ottawa's ability to spend in any area of provincial jurisdiction. The wonderful elasticity of the Constitution, which has accommodated 140 years of federal-provincial jostling, would be frozen in time while the demands on government evolved.

Every part of this is wrong. No one in 1867 thought the heads of power were "tidily divided." On the contrary, they were left vague so that the supporters of a legislative union and a more classic federal system could both see their reflections in the Confederation deal. It was over the subsequent decades that the Privy Council and the provinces tried to create a classic federation out of the original constitution. After World War II, this became unpopular in English Canada and the spending power (among other things) was used to confuse jurisdiction again.

The idea that "technology" and the development of the economy drove these developments is nonsense. In the nineteenth century, as in the mid-twentieth and today, there were differences of political opinion. If anything, the more the state does, the more necessary federalism is, and the more important it is that the functions of different levels of government be kept separate. In 1867, most of English Canada wanted a "legislative union" (i.e., all constitutional authority in the hands of the central government): now, even Ontarians know better. And the costlier government is, the worse it is when it overlaps.

It is also nonsense to distinguish the spending power from the power to legislate. In the British constitutional tradition, all spending must be authorized by statute -- the only difference is that a money bill must originate in the lower house, while a bill prohibiting or permitting something can come from either house. The Privy Council held that it was unconstitutional to spend money in areas outside legislative jurisdiction for this reason.

Moreover, this makes policy sense. Tax-and-spend and ban-or-require are substitutes: you can accomplish any policy goal either way, albeit not always with the same efficiency. If one level of government can accomplish political objectives using only one measure, then the disadvantages of concurrent jurisdiction are simply compounded by the disadvantages of picking a less efficient policy tool.

National Review embarrasses itself

Or would do if it were capable of embarrassment.

Their "legal expert" Matthew Franck has got himself into an argument with liberal legal scholar Jack Balkin and shows he does not understand extremely basic concepts in constitutional theory.

In American legal circles, "originalism" certainly started as a conservative slogan. (This is much less the case in Canada, where it began with people like Frank Scott and Bora Laskin demanding that the courts return to John A. Macdonald's highly centralized conception of federation, as opposed to the more provincialist jurisprudence of the Privy Council.) The idea was that the Warren Court had stretched constitutional rights far beyond the "intent" of the framers.

However, over time, it has become clear that private intent at least must be irrelevant to the interpretation of a public document. All that can matter is the "original public meaning" of the phrases used. Moreover, since the important phrases describe very abstract concepts ("due process", "equal protection", "the freedom of speech", "interstate commerce"), then meaning is a very small part of constitutional adjudication. What matters more is the application of these concepts to the impugned government act. This in turn is going to involve questions of social fact and institutional competence that "non-orginalists" worry about. At the limit, the distinction between originalism and the "living constitution" starts to break down. (Although not necessarily totally breaking down: first, we may give some weight to the original generation's "expected application" and, second, some disputes may actually turn on semantic issues.)

Franck barges into this complex conceptual field in the most arrogant possible fashion, declaring liberal originalists to constitute "faking it," to be a "hoot" and to demonstrate "cynicism." Balkin responds with an unreasonable degree of civility here and here.

But in his reply, Franck demonstrates a very basic confusion between judical restraint and originalism. To read him, one would think that Felix Frankfurter wrote the Federalist Papers. Remarkably, he seems to think that the post-New Deal understanding of the "interstate commerce" power as plenary was part of the original understanding, a position I can't imagine any historian agreeing with.

Some of his conclusions are reasonable ones, but assuming that the judicial power implied any power of constitutional review at all, then it must follow that some laws should be invalidated. And if Franck is claiming that the US Constitution did not imply a power of constitutional review, he needs to take the matter up with Alexander Hamilton:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Brad DeLong has observed that there is no shortage of talented right-wing economists who would like to write for National Review, making its reliance on ignorant hacks somewhat inexplicable. The same is certainly true for lawyers. It's a bit of a mystery.

Update: Matthew Festa has studied citations to the Federalist Papers (the "originalist" source par excellence) in the Rehnquist Court, and has shown that liberals and conservatives cite to them at the same rate. Someone should do the same for Blackstone and Reconstruction-related material. I suspect you'd get the same result.

Update 2: I am not saying "judicial restraint" is a bad principle. Any and every theory of constitutional law invokes it some of the time. Total legislative supremacy is perfectly respectable in my book, although I think it is an eccentric view of what the US Constitution requires.

More on the Confederation Debates

Actually, there's lots of great stuff in my Confederation Debates in the Province of Canada (put out in the sixties by McLelland and Stewart as part of the Carleton Library, which oldtimers will remember because all its titles had the same lamo-psychedelic cover design. You have to be careful not to confuse your Dominion Lands Policy from your Adventures and Sufferings of John R. Jewitt, Captive Among the Nootka) For instance, pretty much everyone now agrees with the opposition's substantive criticisms, although the government manages to get most of the yuks.

Those sensitive souls who dislike the compromises of principle in our recent minority Parliaments would have been struck dead with indignation if they had been around in the 1860s. The people's choice in Canada West was George Brown's Reform. Their dearest principle was "rep-by-pop": so long as English speaking Protestants received fewer seats per person than French Catholics, they were suffering under dire papist oppression, in constant danger of having their children forced to eat snails and figure out where "le stylo de ma tante" was located. Cartier's bleus, on the other hand, had swept Canada East warning that rep-by-pop was a plot by Anglos to destroy the canadien language, faith and legal system. Macdonald's Conservatives viewed Brown's Reformers as dangerous pro-Yankee radicals; the Reformers considered the Tories dissolute and corrupt. But in 1864, Brown, Cartier and Macdonald formed a coalition government together, leaving only the relatively moderate Quebec rouges on the outside.

So when the Coalition negotiated Confederation with the Maritimers, it was the rouge Antoine-Aimé Dorion and the maverick Tory Christopher Dunkin.

Dorion's criticised "the scheme" for being an ill-thought out railway subsidy plan and for not creating a real federation. He attacked the limited jurisdiction of the provincial governments and the federal power to disallow provincial legislation. Subsequently, the Privy Council answered the first criticism through its generous reading of the "property and civil rights" power. In an admission of the validity of Dorion's criticism, the disallowance power fell into disuse a few decades after Confederation, leaving Canada today closer to what Dorion would have wanted than what Macdonald and Brown thought they were creating.

Dunkin's criticisms have not been met yet. He pointed out that the Senate would provide no represenation for the provinces, and would instead be a patronage vehicle for the federal government:

The despotism of the Grand Turk has been said to have its constitutional check in a salutary fear of the bow-string: and there may prove to be something of the same sort here. But I confess I do not like the quasi-despotism of the Legislative Council [Senate] even though so temered. Representing no public opinion or real power of any kind, it may hurt the less; but it can never tend to good, and it can never last.

Pretty good, except for the last clause.

Dunkin's point about the difficulties of affirmative-action cabinet making still rings true:

I take it that no section of the Confederatin can well have less than one representative in the Cabinet. Prince Edward Island will wnat one; Newfoundland, one. On just the same principle upon which Lower Canada wants, for Federal ends, to have a proper representation in the Executive Council, on that same principle the minority populations in Lower Canada will want, and reasonably want, the same thing. We have three populations in Lower Canada -- the French Canadians, the Irish Catholics, and the British Protestants.[...] Well, if in a government of this Federal kind the different populations of Lower Canada are to feel that justice is done then, none of them are to be there ignored.[,,,] There has never been a time, I think, when there was not an Irish Catholic in the Cabinet. There have been times when the number of French Canadians has been less than four, and there was then much complaint. Six members -- four, one and one -- are just what you must give to please each section of Lower Canada. Well, sir, if there are to be six for Lower Canada, there must be six or seven for Upper Canada, and you cannot very well leave less than three each for Nova Scotia and New Brunswick...

But the main flaw in Confederation that Dunkin spots, and remains with us to this day, is the mixing up of federal and provincial finances, "Of course, in the mere view of making the scheme palatable, it was clever to make the Federal treasury pay for provincial expenditure; but the system that had need be established should bear testimony, not to cleverness, but to wisdom..."

Oh well, things could have been worse.


*The volume is apparently now back in print, but without the funky cover.

A More Appealing Multiculturalism

Multiculturalism can mean many things. It is unappealing to think that a country must have its institutions purged of their cultural inheritance to make newcomers feel more welcome. It is pointless to hope that all subcultures will have equal status and authority.

But the idea of a political nationality distinct from an ethnic or cultural nationality is a different proposition. It is true that such a thing will inevitably involve a lot of unedifying ethnic brokerage. Communication and trust will be more difficult than in more homogenous societies -- there is a reason that efficient welfare states are ethnically homgenous And there always lurks the nightmare of violent breakdown -- one has to trust pretty firmly in habits of civilization to make it work.

On the other hand, the very fact that ethnic nationalities are different creates a potential for gains from trade, and for breaking up the kinds of political cartels Mancur Olson went on about. The very fact that one's loyalty to the state cuts against one's pre-political ethnic affinities may make it harder to romanticize it, reducing the risk of tyranny.

This kind of liberal multiculturalism isn't just a wet late twentieth century invention. Here is Cartier's speech on February 7, 1865 to the Legislative Assembly of the Province of Canada:

Now, when we were united together, if union were attained, we would form a political nationality with which neither national origin, nor the religion of any individual, would interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races was utopian -- it was impossible. Distinctions of this kind would always exist. Dissimilarity, in fact, appeared to be the order of the physical world and of the moral world, as well as the political world. But with regard to the objection based on this fact, to the effect that a great nation could not be formed because Lower Canada was in great part French and Catholic, and Upper Canada was British and Protestant, and the Lower Provinces were mixed, it was futile and worthless in the extreme. Look, for instance, at the United Kingdom, inhabited as it was by three great races. (Hear, hear.) Had the diversity of race impeded the glory, the progress, the wealth of England? Had they not rather each contributed their share to the greatness of the Empire? Of the glories of the senate, the field, and the ocean, of the successes of trade and commerce, how much was contributed by the combined talents, energy and courage of the three races together? (Cheers.) In our own Federation we should have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success would increase the prosperity and glory of the new Confederacy. (Hear, hear) [I view] the diversity of races in British North America in this way: we were of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare. (Cheers) We could not do away with the distinctions of race. We could not legislate for the disappearance of the French Canadians from American soil, but British and French Canadians alike could appreciate and understand their position relative to each other.

Image of George-Étienne Cartier property of the Manitoba Archives

Whither Pith & Substance?

Those sensible souls who avoid meta-blogging should skip this next bit.

Some have written in to say how pointless are those blogs without any focus based on the proprietor's (relative) expertise. I suppose it's interesting that Brad DeLong thinks George Bush and Dick Cheney should be impeached, and that the media is unfair to his political perspective, but were it not for the fact that he is an expert in economics and can express this expertise well, I doubt I would return very often.

The loss of Supreme Court of Canada case blogging obviously could render this site nothing more than my rants and meditations on stuff I don't really know much about. I am "opinionated and vain", but I'm not opinionated and vain enough to think that people will keep coming back for that.

The Court is a fine website, but it is narrowly focused on recent SCC decisions. There is much to say about the constitutional present. But what is this thing -- the Canadian constitution -- which Good Queen Bev and her crew are screwing up? It's a constitution "similar in principle to that of the United Kingdom", so it imports the whole constitutional history from Runneymede to Bagehot. It develops out of British colonial policy to a French Catholic polity in North America through Durham to the Confederation debates. And someone in the blogosphere needs to stand up for the Privy Council. There is a lot there, and it would be interesting to see if it can be made into reasonable blog fodder.

If I have a thought about anything that could be a blog post, I'm not going to let my internal editor stop me form posting it. Turning off that editor is the key to blogging at all. So who knows what you will get. But I will come back to the Anglo-Canadian constitutional history theme.

Is there a Convention against the use of the Notwithstanding Clause?

I've argued before that if we are going to have a notwithstanding clause with continued popular legitimacy, it needs to import a super-majority requirement, so that overriding a Charter decision isn't just routine.

Commenter BKN asks whether there is not a "constitutional convention" against the use of the notwithstanding clause. He also suggests that the Court is too smart politically to ever strike down legislation so popular that a super-majority could be summoned against it.

One response on the political savviness of the courts is that the Court has struck down a number of laws which Parliament simply reenacted, sometimes without much of an attempt to address the court decision, and the court has usually just accepted this. One example that comes to mind is the "drunkenness" defence, struck down in Daviault: see Kent Roach's article on this phenomenon here. As long as courts react this way, then the override becomes unnecessary.

Has a political convention emerged against the use of the notwithstanding clause, no matter the circumstances? I tend to think the last federal election disposes of that idea. Martin got no real bump from proposing to do away with the notwithstanding clause for the federal government. Harper defended it effectively.

The genuine difficulty is that the notwithstanding clause can only coexist with judicial review if its use is at least somewhat exceptional. I think the best way to underline that it is exceptional, while legitimizing its more frequent use, is to add a super-majority requirement.