The Desuetude of the Notwithstanding Clause -- And How to Revive it

The Court/Constitution and Public Policy (Emmett Macfarlane ed., Forthcoming)

Boston College Law School Legal Studies Research Paper No. 425

15 Pages Posted: 10 Dec 2016

See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; Yale University - Law School; University of Toronto - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: December 10, 2016

Abstract

The Supreme Court of Canada’s controversial invalidation of the Criminal Code prohibition on physician-assisted dying prompted suggestions that the federal government should invoke the Notwithstanding Clause to restore the law. Yet both the Harper and Trudeau Governments rejected this advice; the former refused to reenact the impugned law using the Notwithstanding Clause retrospectively; and the latter, newly-elected with a majority in October 2015, rejected the suggestion that it should pass its new law using the Notwithstanding Clause preemptively. It should come as no surprise that both governments took the same view of the Notwithstanding Clause. The reason why is clear but not easily explained: the Notwithstanding Clause has become politically toxic and is at risk of falling into constitutional desuetude, a phenomenon that afflicts a textually entrenched constitutional provision that political actors no longer see as politically usable despite there being no legal prohibition on its use. In this Chapter, I explain why the Notwithstanding Clause is at risk of desuetude, how this came to be, and also how political actors can halt its decline toward obsolescence in order to make it more likely that Parliament will in the future have a real choice whether or not to exercise the policymaking power that the Notwithstanding Clause confers upon it — rather than being compelled to accept the judgment of the Supreme Court of Canada as final and irreversible.

Keywords: Notwithstanding Clause, Legislative Override, Constitutional Change, Constitutional Convention, Canadian Constitution, Supreme Court of Canada, Constitutional Desuetude, Reservation, Disallowance

Suggested Citation

Albert, Richard, The Desuetude of the Notwithstanding Clause -- And How to Revive it (December 10, 2016). The Court/Constitution and Public Policy (Emmett Macfarlane ed., Forthcoming), Boston College Law School Legal Studies Research Paper No. 425, Available at SSRN: https://ssrn.com/abstract=2882456

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

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HOME PAGE: http://law.utexas.edu/faculty/richard-albert

Yale University - Law School

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University of Toronto - Faculty of Law ( email )

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Universidad Externado de Colombia - Facultad de Derecho

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Colombia

HOME PAGE: http://https://www.uexternado.edu.co/derecho/

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

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