Bad Medicine

The past two leaders debates have heard much discussion about the Charter of Rights and Freedoms and the Notwithstanding Clause. Paul Martin wants to abdicate Ottawa's right to use the Notwithstanding Clause. Stephen Harper may be tempted to use it to overturn rulings on same-sex marriage and establish property rights. Jack Layton says an NDP government would use it to overturn Supreme Court rulings that might expand private health care. As for Gilles Duceppe, he'll recognize the Constitution when hell freezes over and the Nordiques come back from Denver to skate on it.

All of these aspirations would require some pretty delicate work. Re-opening the constitution is one thing, doing the preferred cosmetic surgery, then successfully closing up the patient without too much political bleeding is quite another. An operation of this kind requires the support of 7 provinces representing 50% of the population, or if you go by the method forwarded by Dr. Mulroney in the 1990 edition of the Meech Lake Journal of Medicine, consent must be unanimous.

An alternative to surgery may lie in a treatment that has been a hallmark of American constitutional medicine for decades: politicize the judiciary to interpret the constitution as the government of the day sees fit.