Comparisons are Odious
Erin F Delaney is Leverhulme Professor of Comparative Constitutional Law and Director of the Global Centre for Democratic Constitutionalism at University College London, Professor of Law at Northwestern Pritzker School of Law, and Secretary General of the International Society of Public Law.
As a teenager, when I would bemoan my lot in light of the far superior existences of my friends, my mother would invariably say “comparisons are odious.” Or, in other words, simplistic comparisons can be misleading and, indeed, even harmful to a sense of self or purpose. It is perhaps ironic that I am now a comparative constitutional scholar—but I do try to approach the project with my mother’s warning in mind.
I was therefore struck by the use of comparison in oral argument in EMSB v. Québec. The dramatic and rhetorical flourishes were not put as pointedly in the written submissions; nevertheless, I would like to take the lawyers seriously and assess the claims. The comparator was, of course, the United States, or the neighbour “to the south.”
The United States was used on both sides of the litigation as an appeal to extremes. The worst of all worlds—a reductio ad absurdum in the lived experience of the United States. But in one instance, the slippery slope was hardly illuminating, in that it obscured strengths of the Canadian constitutional compromise while underplaying concerns; in another, it was inapposite, a simplistic analogy that missed the forest for the trees.
“Catastrophic Scenarios”
On the first day of argument, counsel for the Fédération autonome de l’enseignement made a series of arguments pushing for the substantive review of laws insulated by Section 33 of the Canadian Charter of Rights and Freedoms (the ‘notwithstanding clause’). As a background principle of interpretation, he argued for an evolutive reading of Section 33: “We can’t analyse Section 33 in the same way that we did in 1988 and I’m strictly talking about Canada obviously, we could talk about everything that’s happened elsewhere in the Western world and even to the south of us.” He continued:
It would be an error to analyse this current issue in a vacuum as if Canada were sheltered from everything that is happening around the wider world – as if Canada were so much better than any other country, as if the United States in 2013/2014/2015 could foresee what’s happening now, as if France, Hungary, Italy – so many other countries had thought that there could one day be this shift. Am I saying that Canada will have its Donald Trump moment? I hope it won’t.
And in conclusion, “Everything happening in the United States could happen here in a perfectly constitutional way” (see generally 1:40:00 - 2:10:10 of Day 1).
I do not disagree that, at bottom, this Section 33 case is about what constitutional democracy means in Canada, and I do not disagree that there are serious threats to constitutional democracy in the United States. But the analogy obscures what is at stake.
The analogy to the United States both misses the strengths of the Canadian Charter and yet may serve to blind the judges to very real threats to democratic constitutionalism. As a stark textual matter, Section 33 does not apply to the voting rights in Section 3, for example, or the mobility rights in Section 6, a key element to federal cohesion. As a matter of interpretation, Section 28’s gender equality provision is thought to be similarly safeguarded—some of the arguments against Bill 21 on gender grounds take this as an expectation. In other words, the negotiated settlement reached in the Canadian Charter could be understood to constitutionalize and preserve a minimum core of democracy against the actions of recalcitrant provincial majorities (or a future national majority).
Indeed, catastrophic scenarios of this kind failed to land with some of the Justices. Chief Justice Richard Wagner responded that the case was unlikely to “be disposed of by extremist or catastrophic scenarios.” And Justice Malcolm Rowe said, “You have less confidence in the good sense and the good will of Canadians than I do. We’re not teetering on the edge of the precipice of fascism. That’s not the reality” (2:21:57 - 2:27:23 of Day 4).
But of course, democratic backsliding happens by small accruals over time. Any individual rights retrenchment may be perceived as an isolated incident, but courts must be willing to monitor and evaluate the bigger picture.
In comparative perspective, courts struggling with challenges to the foundations of democratic constitutionalism have looked to the “basic structure” of their constitutional systems to try to identify the fundamental features of the regime whose alteration, even if procedurally adequate, may nevertheless be substantively unconstitutional. This judicial practice is highly contentious but has been justified when there are practices of significant democratic backsliding threatening “future exercises of democratic decision-making,” which could, depending on the system, include undermining equality norms or free expression.
The Supreme Court of Canada should be attuned to the possibility that this use of Section 33 (and perhaps its increased use more generally) could well portend greater trouble ahead. The Court has already identified a threat to voter participation and an informed electorate in an earlier invocation of Section 33. The Court should think seriously about what an actual minimum core of democracy would require. Although the protection of voting rights is a necessary element, it is not sufficient, and the areas insulated from Section 33 may not reflect a considered statement of what such a core would encompass. The architects of the Canadian Charter may not have been theorizing a “democratic core” that should be protected from override but rather thinking of political trade-offs that would bring provincial premiers to the negotiating table. There is a distinction between that which ensures the federation and that which ensures democratic constitutionalism.
It may be that in a future moment, the Supreme Court of Canada would be justified in treating some rights as so essential to the ongoing maintenance of constitutional democracy in Canada that they operate as the “basic structure” of constitutional governance and therefore cannot be understood to be subject to Section 33 overrides.1 Even should the Court conclude that this particular use of Section 33 does not present such a core challenge—one swallow does not a summer make—it should not unduly constrain or abdicate its role as an ongoing safeguard for the vibrancy and longevity of Canadian democracy.
American Dysfunction
On the second day of argument, counsel for the Mouvement laïque québécois addressed the question of whether the Court should make a declaration of incompatibility regarding the constitutionality of the underlying Québec law, shielded by Section 33. The claim: A judicial declaration of incompatibility with the Canadian Charter would allow it to “become a campaign issue. … This would lead to an Americanization of our Canadian court system. Why is our court system better than that of the United States? In part, because of Section 33 which avoids the politicization of our legal system” (2:16:37 - 2:31:32 of Day 2).
Once again, I do not disagree that the Section 33 case is also about allocation of institutional authority and the relationship between courts and legislatures within Canadian democracy. Nor do I disagree aspects of the U.S. legal system are contentious because they are highly politicized, such as appointments to the Supreme Court and close decisions of that body on divisive issues. But the comparison is confounding.
First, the Canadian judiciary is not unfamiliar with politics, though it has thus far avoided politicization. As to appointments, the question of judicial legitimacy has been raised by Québec since the mid-1980s, as arguments for a greater provincial role have dovetailed with a deep sense that the Supreme Court is biased against the province. And the preliminary reference mechanism is often used by provinces and the federal government alike to force critical issues onto the national agenda—operationalizing the court for decisions that can serve as focal points around which to bargain. While there may be procedural distinctions between the preliminary reference and a declaration of incompatibility—the practical result would be similar: an opinion about a topic that does not present a live case or controversy, but about which the Court provides an assessment. If the former is not thought to create undue politicization, why would the latter?
I assume the response would focus on the fact that Section 33 engages rights, and thus implicates a fear that declarations of incompatibility could generate in the Canadian system the same kind of polarization that Supreme Court cases on same-sex marriage and abortion have done in the United States. But this wildly misunderstands the rights architecture and role of federalism in the United States.
In the United States, when a right has been incorporated as a “national” right, applying to both the federal government and the state governments, its content is understood to be the sole interpretive responsibility of the U.S. Supreme Court. States are not invited to weigh in on the articulation of the national norm, which also operates as a federal floor. Should they wish to deviate and provide greater protection, they are required to do so clearly and explicitly as a matter of distinct state constitutional law. The politicization and tension surrounding rights in the United States is driven at least in some part by pressures for this uniformity in rights articulation—with no release valve at the state level and a very limited scope for Congress to provide alternative interpretations—all parties on all sides seek a winner-takes-all approach at the Supreme Court. The Canadian Charter, through the inclusion of Section 33, proposes something fundamentally different. Through the notwithstanding clause, the Canadian Charter offers an opportunity for subnational demoi—organized through provinces—to participate in the articulation and interpretation of Canadian Charter rights.
There is, however, a useful lesson to be drawn from the United States—though not in the area of rights elaboration but in the area of federalism: How should we ensure that the national demos organized as a federal government, and the multiple subnational demoi, organized as states or provinces, can together produce the double security of liberty that federalism is thought to provide?
In a series of cases over the past 30 years relating to the interpretation of federalism within the United States, the U.S. Supreme Court has made it clear that informed voters are foundational to this aspiration of a double security. Do voters know “who to blame” for the operation of law within their communities? For example, a federal law administered by state actors might obscure responsibility and the ability of voters to ensure accountability at the voting booth.
How does this translate to the Canadian experience? The use of the notwithstanding clause in a preemptive posture by a province provides a statement of how the provincial demos thinks a particular right should be operationalized as a matter of the underlying law; it also provides an assessment by that provincial community of what the national perspective, as provided by the Canadian Supreme Court, might be. This presupposition—that possible provincial interpretation of rights might not comply with the Court’s potential interpretation—may be accurate. It also may not be. How is a voter to know whether a preemptive use of Section 33 presents a dramatic challenge to the national framework or a subtle distinction that may have merit in a regional context?
A declaration of incompatibility in this context is not a “politicization” of the judiciary, but a statement of the national community about a point of possible difference with a provincial demos. Members of that provincial voting population have the right to hear from the national community, through the Court, about where and how their views may differ. Voters seeking to extend the use of Section 33, for example, would need this information to make an informed decision on reauthorization, to know whether the provincial position dovetailed with or was in opposition to the national view.
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Certainly, it is useful to have a foil for rhetorical reasons, and the United States presents as good a one as any right now. And it has played this role historically—from the allocation of competences in the 1867 British North America Act to the recent election of Mark Carney. But, as I began, comparisons with others can obscure important aspects of your own situation. The Supreme Court of Canada should use the comparison to evaluate the strengths and weaknesses of Canadian democracy on its own terms and pay less attention to whether the U.S. gets to stay out later at the party.
Suggested citation: Erin F. Delaney, “Comparisons are Odious,” Constitutional Theory Monitor (25 May 2026), online: https://constitutionaltheorymonitor.substack.com/p/comparisons-are-odious
This post is part of a Symposium on the Notwithstanding Clause Appeals.
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