And just for the info of those interested, the 1982 Canadian constitution does contain such a clause, based on the tradition of "parliamentary supremacy". This item was also posted in J/PS, which normal people don't frequent, so I'll take the liberty of reposting here what I offered there.
http://www.efc.ca/pages/law/charter/charter.text.html (emphasis added)
EXCEPTION WHERE EXPRESS DECLARATION / Operation of exception / Five year limitation / Re-enactment / Five year limitation.
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. ...
It amounts to basically what the US proposal is (if it were a proposal to amend the US Constitution, of course) -- except that a judgment of the Supreme Court would not be required before Parliament or a legislature overrode a provision of the Charter of Rights. Parliament or a legislature may pre-empt a constitutional challenge by enacting legislation notwithstanding what certain sections of the constitution say.
The sections in question address these matters:
-- fundamental freedoms (e.g. speech, association)
-- legal rights:
- life, liberty, security of the person
- right against unreasonable search and seizure
- right against arbitrary detention or imprisonment
- rights upon arrest
- rights in the criminal justice system (trial, bail, etc.)
- right against cruel and unusual treatment or punishment
- right against self-incrimination
- right to an interpreter
-- equality rights
Parliament or a legislature may not override, for instance, "democratic rights" (voting and elections), "mobility rights", and the other rights and freedoms set out in the Charter.
The provision was a compromise between the proposal to entrench a "bill of rights" in the constitution and the tradition of "parliamentary supremacy" which holds that the will of the people, through their elected representatives, is supreme and must not be fettered.
The latter school of thought does not adequately address the notion, fundamental to a liberal democracy, that minorities must be protected from majority rule.
The former school of thought is regarded as potentially hamstringing a government faced with serious public policy reasons for limiting the exercise of some rights (e.g. during wartime).
The famous instance in which the notwithstanding clause was invoked was Quebec's requirement that French be the primary language of commercial speech (signs), based on the provincial legislature's grave concern for the survival of francophone/québécois society and culture in North America -- i.e., in the conflict between the collective right of cultural survival and development, and the individual right of free expression (not to mention the conflict between anglophones' and francophones' collective rights), it came down on the side of the collective right. That legislation was allowed to sunset by a subsequent government.
As in the whole ball of wax that is constitutional democracy,
the good will and good faith of the people and their elected representatives is the only real guarantor of freedom and democracy one ever has, whatever the written arrangements are. No piece of paper is going to stop a government that has widespread support, and the various powers of government, from doing what it wants to do.
The commentary in the battered Charter of Rights and Freedoms booklet by my elbow, published by the Cdn government in 1982, says (emphasis added):
... In other words, if a government should propose a law that may limit some of the rights and freedoms set out in the Charter, it will have to say clearly that this is what it is doing and accept full responsibility for the political consequences.
One can't say whether it was a direct "political consequence" of invoking the notwithstanding clause, but the Quebec government that did so was voted out of office in the next election.
The right-wingers up here mumble about invoking the clause, if they're elected, all the time -- to restore the death penalty, to outlaw abortion, to prohibit same-sex marriage. So far, nobody's electing them. And I generally say that if we did elect them,
we'd already have a lot more problems (a population that chose to elect a fascistic government) than the notwithstanding clause.
Anyhow, obviously the problem in the US is that the fascistic government in question is a little closer on the horizon, and the likelihood of such a clause being used for reasons other than the public/national interest is just a bit more foreseeable. But again,
surely the real problem is whom one elects -- like the sponsors of the proposal in question in this thread -- not what one allows them to do once they're elected.
And I'd just point out that the US Supreme Court's contribution to Bush's occupation of the US presidency, in case anyone saw that as "judicial activism", was really just plain old corruption, and there's no piece of paper that can prevent that, either.
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