Abolish notwithstanding? If only

My Wednesday column. Strangely, it seems dated already... If I thought for one second that Paul Martin meant what he said when he proposed, during Monday night's debate, that Parliament should formally abjure all recourse to the notwithstanding clause -- if he had campaigned on the issue from the start, if he had forged a reputation as an opponent of the constitutional escape hatch, if he had ever once even mentioned the idea in nearly two decades in public life before that moment -- well, I still wouldn’t vote for him. But should the member for LaSalle-Emard rise from his seat one day to propose a private member’s bill abolishing Section 33 of the Constitution, at least as it applies to the federal government, I will be among the very first to applaud. And quite possibly the last. I can’t even be sure whether Martin himself believes what he says. But I am at a loss to know what his party thinks about the idea. Has the Liberal caucus signed on to this? Were party members consulted? Was anyone outside Mr. Martin’s circle of advisers even told this was coming? Has the Liberal Party become the party of abolition? Or was this radical alteration to the nation’s constitutional architecture devised, arranged and announced … on the fly? And if the latter -- if the Constitution of Canada is just another prop in the Prime Minister’s year-long quest to evade the voters’ wrath; if he lacks even the support of his own party, let alone the opposition -- then why should we believe this latest passionate commitment will have any greater shelf-life than, say, the remainder of this campaign? But let us not be cynical. Let’s assume he means what he says. Let’s suppose we are now embarked on a great national debate on the notwithstanding clause and whether it has any place in the constitution of a modern democratic state, one that will continue beyond this election and perhaps into the next, in which the leader of the Liberal Party -- whoever he or she may be -- will resolutely champion the abolitionist cause. That would be something to celebrate. I don’t know how so many conservatives managed to come out on the wrong side of this issue, as Parliamentary supremacists, advocates of unlimited government power, passionate foes of any constitutional limits on the discretion of the executive. Perhaps it is yet another symptom of one-party rule. Just as many conservatives in the West have come to equate the federal government with the Liberal government, and to reject the one with the other, so many social conservatives have tended to confuse the judiciary with Liberal-appointed judges, judicial review with judicial activism. Fix the appointment process, yes. But do not use one evil to justify another. The notwithstanding clause was not an “integral part” of the Charter: it was a last-minute political fudge, which the premiers were only in a position to demand by virtue of that pièce de résistance of judicial activism, the patriation reference. It is not a means of “balancing” the authority of the legislature against that of the courts: it completely unbalances the relationship, not so much in favour of Parliament over the judiciary as of capriciousness over clarity. Because the Charter, never forget, was itself the handiwork of Parliament. Why does that implicate the Courts? Because having written the Charter, Parliament cannot also be its adjudicator, any more than I, having written a cheque, should also be the one to vouch for its creditworthiness. If the Charter is to mean anything, there must be an independent adjudicator to assess what it means; if Parliament is to be held to its word, someone else must do the holding. That’s what the courts are for, not only with respect to the Charter, but to all written law, whose whole purpose is to bind the discretion of lawmakers: to make them “put it in writing.” If laws meant whatever the Parliament of the day said they meant, they would be of no use to anyone. And a Charter that means what it says, unless it doesn’t, is of scarcely more use. The notwithstanding clause does not “inform” the Charter: it infects it. Whether or not it is ever invoked, it is always at work, undermining the Charter’s legitimacy, sapping our commitment to the principles it espouses. For as long as it is a part of the Charter, it will remain an invitation to abuse, a light in the window for partisans of arbitrary rule. Think, by contrast, of what a bracing exercise it would be to remove it -- to summon the national will, at long last, to say out loud and without apology: this is what we believe, this is what we stand for, and not always instantly, reflexively, cravenly equivocate. At long last, Canada! At long last!