The trouble with notwithstanding

The road to the prime minister’s office, my press gallery colleagues are fond of advising, is by way of the middle ground. This bit of ancient wisdom sounds terribly statesmanlike, so long as no one thinks to ask: Hang on a sec, where is the middle? For it emerges that the “middle” these sages have in mind is simply whatever happens to be the case at the moment, and their advice amounts to nothing more than “for goodness sake, don’t propose anything new.” But never mind. If the middle ground is the place to be, you would think that Stephen Harper’s position on gay marriage would be attracting overwhelming support among the punditry. Indeed, until comparatively lately it was the position of the prime minister and government of Canada: no to formal legal recognition of gay marriages, yes to giving gay couples equivalent legal status in every other respect. Or in other words, the status quo, until a spate of recent court decisions overturned the traditional common-law definition of marriage in seven provinces. There is, moreover, another sense in which Mr. Harper occupies the middle ground: between advocates of full and equal marriage rights for homosexuals -- which is the position I support -- and those who would go so far as to invoke the notwithstanding clause to prevent it. That is, the Conservative leader is committed to upholding the traditional definition of marriage, but insists he can achieve this without resort to the constitutional override. We’ll get to the legal issues this raises in a moment. But in substance this is a perfectly respectable position. It’s not one I happen to share, but it is one that is supported by many reasonable people -- including, if the polls are any guide, a substantial proportion of the Canadian public. So what is Mr. Harper’s reward for staking out the middle ground? To be shelled mercilessly from both the left and the right. Sometimes the middle ground looks a lot like the Valley of Death. From the left, Mr. Harper is accused of trying to have it both ways, adopting a statutory definition of marriage he knows the courts will find is every bit as much a violation of the Charter as the common-law definition they have already dispatched, without acknowledging the inevitable corollary: either that he would be forced to give way before the courts, or that he would have to invoke the notwithstanding clause. I think this is very likely true. But he wouldn’t be the first politician to play for time and pray for a miracle. The more intriguing objection comes from the right: namely, that Mr. Harper’s unwillingness to override the Charter is hastening the day when the notwithstanding clause, after so many years of disuse, becomes a constitutional dead letter. Well, we can only hope. Whatever its merits in principle or in law, as a matter of pure politics the course Mr. Harper is steering is the right one for any conservative leader, the only one if he hopes both to keep his fractious party united and to avoid alienating the broader public. He cannot simply write off the social conservatives, as some have urged: not when their concerns are so broadly shared (even if, as I think, groundless) as in the present case. They are a legitimate part of his coalition, and deserve representation. At the same time, both they and he must adapt themselves to the Charter: whatever their cause, it must be advanced within its confines. Even those members of the public who share their views on social issues make it clear they don’t want anyone messing with the Charter. That’s just a fact. But, but, some conservatives splutter: the notwithstanding clause is part of the Charter. Indeed, they go on, it was critical to its eventual passage, part of the famous late-night “Kitchen Accord” between Roy McMurtry and Roy Romanow, representing the provinces, and Jean Chretien. It is not too much to say there would be no Charter without it. How, then, can it be illegitimate to use it? Let’s just pause, first, to consider the irony of this argument. The only reason the provinces were in a position to bargain for the clause’s inclusion was because of the Supreme Court decision preventing Ottawa from patriating the constitution unilaterally. On what constitutional precedent did the court rely? None: it made the whole thing up. Yet it is this, perhaps the most egregious bit of judicial activism in the court’s history (the secession reference is a close second) to which we owe the notwithstanding clause, beloved instrument of parliamentary supremacists everywhere. And what if it was part of the original constitutional bargain? Is that enough to sustain its legitimacy, indefinitely? The Constitution of the United States at one time contained a clause stipulating that the slave populations of the southern states should be assessed, for purposes of representation, at a discount: each slave counted as three-fifths of a person. It was a critical compromise; the whole thing might never have passed without it. Yet would anyone maintain it should still be used on that account? Some things fall into disuse for a reason. If the notwithstanding clause is increasingly seen as illegitimate by the political class, maybe it’s because it never was particularly legitimate in the eyes of the public. And if the public doesn’t like it, maybe that’s because they see it for what it is: a constitutional hypocrisy, a perpetual invitation to mischief, a dagger pointed at the Charter’s heart.