Revolutionary Moderation

More on the notwithstanding clause.

Bear claims that rather than revoking s. 33, it might be easier simply for parties in power to stack the bench American-style.

I couldn't disagree more - in fact, I think revoking the notwithstanding clause is a sure way to make sure the bench is stacked that way. The existance of s. 33 gives the government an emergency pressure valve - a release. The French-language debate proved that beyond a shadow, with Jack Layton coming out as the defender of a clause that the Liberals accuse the Tories of wanting to use for social conservative purposes.

Remember, s. 33 is hard to use. There's enormous potential political consequences for using it. Further, any law invoking the clause has to be renewed every five years, so no idiocy goes unrevisited. Not every decision by the Supreme court since 1982 has gone the federal government's way, and yet the fed has never used s. 33. The notwithstanding clause is a uniquely Canadian compromise.