“Ideologically, democracy is an absurdity because it means that the ignorant, those suffering from false consciousness, may choose their rulers, a right which becomes irrational as well as absurd once it is clear that the knowledge of how to perfect the human condition has evolved, and is in the possession of a vanguard. Ideology thus approaches what we might call, in celebration of his concern with totalitarian democracy, Talmon’s Fork: either a democratic vote elects the enlightened power, or it does not. If so, it is unnecessary. If not, it is pernicious” (Kenneth Minogue, Alien Powers: The Pure Theory of Ideology).
In the January 9th leaders’ debate, Prime Minister Paul Martin surprised Canadians, including his own party members, by promising to revoke the federal government’s ability to invoke section 33 of the Canadian Charter of Rights and Freedoms, the so-called, “not-withstanding” clause. This clause is a peculiarity of the Canadian constitution because it enables Parliament (and provincial legislatures) to override some Supreme Court decisions concerning fundamental rights and freedoms. It reflects the character of the Canadian constitution as a mixture of Westminster-style parliamentary supremacy and American-style constitutional supremacy. Thus, Conservative leader Stephen Harper responded that he prefers to keep sec. 33 to reflect the fact that “our Charter and our Constitution sets up the dialogue where there’s a balance between parliamentary supremacy and the supremacy of the courts, that’s the balance I support.” Harper’s view was later echoed by several authors of the 1982 Charter of Rights and Freedoms as well as by constitutional experts.
Harper’s view that the constitution requires a balance between the Court and Parliament (which, dominated as it is by the Prime Minister, in reality means a “balance” of executive and judiciary) contrasts with Martin’s view that judicial supremacy is the best means to guarantee human rights. As American skeptics of the judiciary understand, it takes a leap of faith to assume that the members of the judiciary will always be virtuous, not to mention restrained and infallible interpreters of the Constitution; it takes a leap of faith to think they do not require any institutional mechanism to be restrained. Moreover, Canadian Supreme Court critics argue the “dialogue” between Court and Parliament is in reality a “monologue” where the Court sets policy for Parliament.
In Canada, those who agree with Martin are often referred to as the “Court Party,” a term coined for Canada by political scientists Rainer Knopff and Ted Morton. The Court Party regards the Supreme Court as the vanguard of a rights revolution that is transforming Canada into an egalitarian, tolerant, pluralistic, cosmopolitan, and multicultural society. Court Party members are ambivalent if not hostile toward legislative bodies because they regard them as unenlightened and driven by partisan bickering, and thus unreliable protectors of human rights. Whatever the problems with parliamentary democracy in Canada, and there are many, the Court Party’s position is inherently undemocratic insofar as it places extraordinary emphasis on the ability of an unelected and irresponsible body of nine men and women to guard democracy.
The Court Party exhibits what the historian of revolutionary movements, Jacob Taubes, refers to as a fork: “democracy” is only relevant when it elects an enlightened power, which means democracy is irrelevant. In his book, Democratic Faith, Patrick Deneen argues that this “democratic faith” is predicated not on how human beings are, but as they may be: “Very few contemporary democratic theorists actually can be said to believe in humans ’as they are’ but, rather, prefer to envisage democracy as it might be—if people can only be transformed into beings good enough for democracy” (emphasis added). The Court Party believes in democracy on the basis of their belief that the Supreme Court can transform people to become “good enough for democracy.” We need the oligarchic component of our regime to make us democratic, so the argument goes. But if the oligarchic part sets out to transform democracy, then we face “Talmon’s fork.”
Martin’s gambit to revoke the federal government’s ability to use the not-withstanding clause, then, displays a fundamental division in Canadian politics over the nature of its constitutional regime. Martin appeals to the democratic faithful whose failure to provide a check on the Court renders the institutions of democracy meaningless. Just as not everyone in the Liberal Party is on board with Martin’s proposal, it would be misleading to identify the Conservative Party as “democratic realists.” Their leader, Stephen Harper, possesses deep knowledge of Canada’s constitutional history and the notion of responsible government, and he understands the difference between representative government and the more populist streak that pervades various members of his party (and here). In fact, western populists have always been ambivalent toward him for not sharing their fundamental distrust of representative institutions. In this sense, he is a Madisonian leading a party that includes Madisonians as well as Rousseauans.
The Conservatives still need to demonstrate its commitment to reforming Parliament as an institution of deliberative democracy. It is for this reason, as political scientist Janet Ajzenstat has pointed out, that the democratic faith of the Court Party and democratic realism of representative democracy is not a divide of left and right, however it might appear in this election.
As early as 2002, Paul Martin campaigned on addressing the “democratic deficit” through parliamentary reform. He did nothing to address it, as displayed eloquently on the website the government established to communicate progress on democratic reform. Martin’s lack of sincerity regarding the democratic deficit leads one to wonder, constitutional visions aside, whether he is serious about opening up the constitutional amendment procedure. The Liberal Party “red book,” which contains its election platform, makes no mention of it, and the Liberal Party only posted it to their website (and emailed journalists) the moment Martin announced it in the debate. Moreover, in December 2003 he proclaimed he would in fact invoke the not-withstanding clause if he thought a Supreme Court decision would force churches, mosques, and synagogues to perform same-sex marriages. Whatever Martin’s constitutional thinking, he mentioned it to bait Harper on the wedge issue of same-sex marriage and whether Harper would invoke the not-withstanding clause to overturn the Supreme Court’s decision that same-sex marriage is constitutional (more on that below).
The court’s fearlessness, and its role in framing the human rights debate in Canada (or its “linguistic contribution,” in the words of Chief Justice Beverly McLachlin), has created the impression that the “not-withstanding” clause is a dead letter. Not only that, but parliamentarians are extremely reluctant to invoke it because no one wants to be seen to take away rights of minorities.
The jury remains out whether section 33 is indeed a dead letter, and whether repealing it would simply make its demise official. One school of thought, represented by Christopher Manfredi of McGill University, thinks s. 33 is a legitimate constitutional tool but that its disuse has emboldened the Supreme Court to act in an activist way. Supreme Court justices at first can convince themselves that if Parliament regards their decisions as overreaching, Parliament can always reject them. But once (or twice, or three times) overreaching, then a pattern gets established, especially when Parliament shows reluctance to invoke s. 33. This is why Patrick Monahan of York University thinks s. 33 makes no difference and repealing it would be appropriate and straightforward.
It is then ironic that Martin himself provides a case study of the effectiveness of invoking the not-withstanding clause. In December 2003 he indicated he would use it in case the Supreme Court would force religions to marry same-sex partners against their will. In October 2004 the Supreme Court ruled on the question of legalizing same-sex marriage, and its decision is circumspect (by the Court’s standards, of course). It argued that the Charter requires Parliament to include same-sex partners for marriage. However, it explicitly refused to deal with the question of whether the traditional definition of marriage is unconstitutional. The Conservatives used this explicit omission as evidence that the Supreme Court would not strike down a parliamentary statute that defines marriage as between a man and a woman (on the basis that the Court only struck down common law definitions, as Harper argued in Parliament). The Liberals, on the other hand, argue that Parliament would have to invoke the not-withstanding clause to maintain the traditional definition of marriage.
Whether or not the not-withstanding clause would be necessary to maintain the traditional definition of marriage, the Supreme Court left room for religious institutions to conduct themselves according to their understandings of traditional marriage. To call traditional marriage unconstitutional would render it illegal. While one cannot prove beyond a doubt the Supreme Court had in mind Martin’s warning to invoke the not-withstanding clause when they wrote their decision, they seem to have heard it and wrote their decision accordingly.
Martin then wants it both ways. He finds the not-withstanding clause useful as well as inappropriate. With the Conservatives ahead of the Liberals in the polls by as much as ten percent, it is unsurprising this weak leader takes desperate measures like politicizing the Constitution to gain votes. However, the political use of the constitution is exactly what the Court Party’s “democratic faith” entails. Whether Canadians share this “democratic faith” by which they would view themselves as they might become, and not what they are, is a question of whether they trust themselves as having the character to govern themselves.
It remains to be seen whether the Conservative lead in the polls has more to do with their own appeal, or whether Canadians have finally had enough of the Liberals.
John von Heyking is an associate professor of political science at the University of Lethbridge in Alberta, Canada.