Advocacy Notwithstanding the Notwithstanding Clause

  • Robert Leckey


My topic is a fundamental social and political change and how it prompts advocates to think differently. We see the change on the part of legislatures. It’s a change from a paradigm of respect for rights to one of majoritarian willingness to override them without justification. I think this change imposes on advocates two responsibilities. One is to help judges to recognize the paradigm shift and its implications for them. The other is to conceive and frame arguments appropriate to the new paradigm — what I call advocacy notwithstanding the notwithstanding clause.