The ''Notwithstanding'' clause, that constitutional pariah, has suddenly found itself surrounded by well-wishers.

Liberal leadership contender Jean Chretien positively boasts of his role in slipping the clause into the 1982 Constitution. His chief rival, Paul Martin Jr., also wants to keep the override, unless he could be assured the charter could not be used to invalidate laws that discriminate, say, in favor of the disabled. (It can't: the charter says so. But who has time to read these days?)

Prime Minister Mulroney has declared the Constitution ''isn't worth the paper it's written on'' as long as it includes the clause, but no one thinks he means anything by it: not when Secretary of State Lucien Bouchard affirms the clause is ''essential to ! Quebec's[ survival.''

Even Alan Borovoy of the Canadian Civil Liberties Association thinks the clause, which allows Parliament or the legislatures to gut almost every right in the charter, is a ''useful safety valve,'' though he balks at Quebec's recent use of it. This mealy-mouthed defence of rights is in the proud custom of his association: give me liberty, or give me a good excuse. But it is at least sincere.

The numbers of those who will actually come out and oppose the charter these days are few. Attacks on the charter have instead been sublimated into support of the ''notwithstanding'' clause. And rather than an open statement of disdain for constitutional protection of rights, this is justified by the concern that democratic legislatures will be subverted by a handful of unelected judges.

COMPROMISE

''The courts are fallible,'' Professors Peter Russell and Paul Weller warn in the Toronto Star, ''and their judgments may go awry.'' We do not want to start down the road of letting judges make law. And then the clincher: the ''notwithstanding'' clause reflects a ''distinctively Canadian'' approach to constitution-making, in that great tradition of compromise of ours which goes all the way back to Wolfe and Montcalm.

The ''notwithstanding'' clause reflects a Canadian tradition, all right. It's called trying to have it both ways. It draws on the belief that we can have all the benefits of freedom, and none of the costs: that we can brag to ourselves and the world of the liberties our citizens enjoy, though they be discarded at the first conflict with the state's desires.

This is not by any means the only override on charter rights. The charter itself contains at least four and perhaps a dozen sections exempting laws that would otherwise be unconstitutional. These include not only the blanket ''such reasonable limits'' clause, but specific exceptions for laws relating to affirmative action, aboriginal peoples, and separate schools, among others.

An Ontario court recently held that ''hate literature'' could not come under the umbrella of freedom of speech, citing a clause instructing that the charter be interpreted in such a way as to enhance ''the multicultural heritage of Canadians.'' So it's not as if eliminating the ''notwithstanding'' clause would of itself lead to ''absolute judiciary supremacy,'' as Russell and Weller imply.

For that matter, judges make law now. All law, written or convention, is subject to interpretation, which must to some extent mean making law. Every civil servant interprets the law in his own fashion: ever been through Customs? Judges are civil servants, too. It just happens that interpreting the law is in their job description.

As it happens, the courts have done rather a better job over the years protecting our rights than the legislatures. That's the real fear of the ''notwithstanding'' advocates: not that the judges will make the wrong decisions, but that they will make the right ones. Strip away the protective layers of judiciary-bashing rhetoric, and you usually find a few policy pearls they would hate to see taken away merely because they might violate a basic human right or two, be they French-only signs, or Canadian content rules, or bans on private political advertising.

But if we're that concerned about an ''unelected'' Supreme Court making law, here's a suggestion: why not elect them? No one doubts we will eventually have to move to a U.S.-style system of legislative hearings on Supreme Court appointments. As the Robert Bork case showed, these are effectively elections, except only a handful of people get to vote. Why not let the rest of us in on it? If Teddy Kennedy or Joe Biden - or Brian Mulroney - are fit to judge the moral and professional qualities of a Supreme Court justice, then so is my barber.