Ford Focus

Constitutional Context and the Notwithstanding Clause

Abstract

In this article, I return to the broader constitutional perspectives that the Ford judgment temporarily pushed aside. Examining the notwithstanding clause’s early academic reception, pre-Ford judicial treatment, and the arguments the Supreme Court considered and left unattended in Ford reveals the deep currents of constitutional argument and thought that have always characterized the notwithstanding clause. Excavating the plural perspectives that formed the background of the Ford litigation about the constitutional law of section 33 reveals the tangled weave of constitutional law and politics and the inchoate theories surrounding the clause’s meaning that defined the notwithstanding clause from the outset. Section 33 has always inspired multiple, sometimes conflicting, aspirations, accusations, and ideas about its function in Canada’s constitutional arrangements. Appreciating and navigating the balance points among these diverse constitutional perspectives helps to illuminate the full context of the notwithstanding clause in a way that should matter in generating a constitutional law of section 33 attentive to its distinctive place in Canada’s constitutional arrangements.