Monday, October 15, 2018

Who loves the notwithstanding clause?

Well, there's Premier Curly in Ontario and Premier Legault in Quebec and Christy Clark, who used to be somebody in British Columbia. Now there is progressive legal scholar Christopher Sprigman in the USA, who thinks the way for future Democratic Congresses to overcome decades of Republican courtpacking is to adopt an Canadian notwithstanding clause to allow Congress to ignore Supreme Court decisions.

Sprigman doesn't seem to know the Canadian notwithstanding clause only applies to a limited range of matters covered in Section 2 and 7 to 15 of the Charter of Rights and Freedoms, not the main body of the constitution. But he argues that no constitutional amendment would be required to create an broad American override, only a majority resolution of Congress.
We could have the equivalent of a Notwithstanding Clause in the United States. And we wouldn’t have to amend the U.S. Constitution to get it. How could that be done? Congress could pass a law stating that Congress may override any Supreme Court decision (other than the negligibly small area of the court’s original jurisdiction) by the ordinary legislative process. And then it could use the Exceptions Clause and its power to limit the jurisdiction of lower federal courts to strip the judiciary of power to resist overrides.
"Such a step may appear radical," he acknowledges.

A little more cautiously, Amelia Thomson-DeVeaux at notes that historically the US Supreme Court has tended to follow public opinion and to avoid extreme decisions that might delegitimize it.
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