Notwithstanding the notwithstanding clause: Political regimes and constitutional politics in the United States and Canada
The US Supreme Court and Canada’s constitutional design –
The balance between rights and democracy:
In the essay Notwithstanding the notwithstanding clause: Political regimes and constitutional politics in the United States and Canada, author Kevin J. McMahon considers how “US Supreme Court decisions that constitutionally discard statutes enacted by democratically elected legislatures” (p. 45) have affected the democratic value of Canada’s notwithstanding clause. McMahon weighs the effectiveness of the clause and its infrequent use, while offering a comparative look at the US Supreme Court and counter-majoritarianism; the judiciary’s ability to overrule laws that reflect the will of the majority. When relying on the Courts to address constitutional problems, McMahon suggests counter-majoritarian rulings are necessary in maintaining an appropriate balance between rights and democracy. The author of this report agrees with McMahon’s assertion, albeit remains skeptical of the prominence of counter-majoritarianism within the US Supreme Court.
In a general overview of the US Supreme Court, McMahon contends there are several predominant forms of Court-centered analysis: the attitudinalist approach, judicial independence, and political regimes analysis. The attitudinalist approach argues that the judicial review is a deviant institution, “that the justices act as unconstrained policymakers, insulated by the institutional features of the Court, in pursuit of their own policy preferences” (p. 45). It is maintained within this approach that US Supreme Court justices vote in accordance to their dedication to a respective particular political party. This is contrasted with judicial independence; legalistic explanations of the Court’s decisions emphasizing the Court’s independence, highlighting the justices’ commitment to legal principles such as stare decisis. The tertiary approach is political regimes analysis, which, under the control that presidents and congresses have over the judiciary, emphasizes the foundation of the Supreme Court’s decision-making on “factors such as electoral realignments, presidential authority, intra-party divisions, and divided government… ” (p.46). According to scholars, political regimes analysis advocates that judicial review is politically constructed.
McMahon suggests that he US Supreme Court operates under the cloud of counter-majoritarianism. The author of this report contends that the aforementioned approaches of Court-centered analysis are not reflective of counter-majoritarianism and that the political construction of the US Supreme Court does not favor a democracy, specifically citing the lack of a constitutional amendment such as Canada’s notwithstanding clause. In supporting the democratic value of Canada’s notwithstanding clause, the author of this report cites its presence in advocating democratic principles and reflecting the will of the people while subtlety acting within its constitutional framework.
The absence of counter-majoritarianism in the US Supreme Court –
Assessing the value of Canada’s notwithstanding clause:
The absence of counter-majoritarianism, the judiciary’s ability to overrule laws that reflect the will of the majority, and its democratic weight is considered by McMahon in reflection of presidential appointments to the US Supreme Court from 1969-1993. During this time, Republicans occupied the White House exclusively with the exception of a 4-year term, with the respective presidents appointing 7 of the 9 justices during that span, suggesting that the US Supreme Court is “constrained by the political order of the time” (p. 46). McMahon suggests that a Court appointed by a dominant regime, such as the Republicans in the late-twentieth century, may stray from acting in a counter-majoritarian fashion and may instead operate with an attitudinalist approach, performing in pursuit of their own policy preferences and advancing Republican interests. With the political construction of the judiciary, the author of this report acknowledges McMahon’s notion that dominant political regimes are steadily supported. The practice of fostering such support within the judiciary is displayed during the presidency of Franklin D. Roosevelt where “through the traditional appointment process, [he] filled the bench with jurists sympathetic to his constitutional vision” (McMahon, 2005). McMahon further supports the attitudinalist approach frequented by representatives of democratic institutions, such as the judiciary in the US Supreme Court, in acknowledging that the aforementioned representative are “influenced by the same political and societal forces” (p. 47) as the governmental forces that put them in power. Despite the prevalence of the dominant political regimes referenced with respect to the Republicans of the late-twentieth century, McMahon summarily asserts that the US Supreme Court has operated under a cloud of counter-majoritarianism, albeit with criticism. While acknowledging this notion in part as accurate, the author of this report disagrees that the US Supreme Court operates in such a way; there is no constitutional factor to regulate the decision-making of the judiciary at the US Supreme Court. A recent source of debate with regard to the political construction of the judiciary is the ruling in Bush v. Gore (McMahon, 2005).
The Canadian Charter of Rights and Freedoms’ notwithstanding clause restrains political regimes without the necessity of a constitutional amendment (McMahon, 2005). In acknowledging Ran Hirschl’s contention that Canada has “surpassed the United States in terms of deference to the judiciary” (p. 48), McMahon asserts that Canada’s notwithstanding clause has been a non-factor. Expressing skepticism over its effectiveness, McMahon questions whether the notwithstanding clause “provide[s] a false sense of a democratic check… ” (p. 48), asserting that the clause does not restrain judicial power. In response to McMahon, the author of this report contends that the presence of the notwithstanding clause assures counter-majoritarianism and reflects the will of the majority. Canadian Parliament and the provincial legislatures have been cautious about invoking the clause due to the proverbial act of ‘political suicide’ that would be associated with such a challenge. In sum, the author of this report contends the infrequent use of Canada’s notwithstanding clause does not represent failure or judicial supremacy as openly suggested by McMahon, but instead demonstrates the government’s respect for the judiciary to enact democratic principles reflecting the will of the people.
Continuing to reflect on McMahon’s discussion:
In reflecting on the aforementioned subject matter, the author of this report agrees with McMahon’s closing remarks that “the disuse of the notwithstanding clause is not a sign of its weakness, but rather the existence of a democratic connection between Canada’s governing regime and the judiciary’s decisions” (p. 50). Further supporting McMahon’s assertion that Canadians “would be wise to retain their ability to legislatively override their nation’s highest court” (p. 50), the author of this report contends the effectiveness of the notwithstanding clause lies with the political repercussions it wields. In assuring the enactment of democratic principles reflecting the will of the people through the Courts or through legislative action, the notwithstanding clause and its 5-year renewal provision allows Canadians to react in a democratic manner; dismissing elected representatives that have failed the constituency through abuse of the notwithstanding clause. The author of this report acknowledges McMahon’s notion that “the premise that all exercises of judicial review are counter-majoritarian is misleading” (p. 50), as well as echoing the sentiments shared as follows:
… during times of higher lawmaking, judicial action typically has some degree of democratic legitimacy by virtue of the Court’s link to the dominant national regime. However, during times of higher lawmaking, judicial action is more democratically suspect as holdovers from the previous governing alliance continue to staff the courts and may openly challenge the democratically elected institutions (McMahon, 2005).
Although the principles of the attitudinalist approach, judicial independence, and political regimes analysis may be prevalent when considering judiciary decision-making within the US Supreme Court, the author of this report contends that, when addressing issues of higher lawmaking, the Supreme Court of Canada has 2 forms of democratically sound principles: the will of the people, and the notwithstanding clause.
References:
Canadian Charter of Rights and Freedoms, Section 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
McMahon, Kevin J. (2005). Notwithstanding the notwithstanding clause: Political regimes and constitutional politics in the United States and Canada. Canadian Foreign Policy, 12(3), 45-52.
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