Who governs in the United States? In the 2012 presidential election, Barack Obama ran on his record, which included the Affordable Health Care Act, a very poor counterpart of medicare. His opponent, Mitt Romney, promised to repeal the program if elected. Obama got 66 million votes; Romney, 61 million.
Simplistic people would say Obama won and the affordable health program was secure, having passed in both houses of Congress and having been endorsed by the electorate. Not so fast.
The U.S. Constitution says the Supreme Court can set aside legislation passed by the duly elected representatives of the people. Last week, the Supreme Court went some distance in doing just that.
The Affordable Health Care Act stipulates that where an employer is required to purchase a health plan for its employees, the plan must cover certain contraceptives. Several corporate employers claiming religious objections challenged this feature of the legislation. In a 5-4 decision, the court invalidated the contraception provision.
The decision is being strongly criticized by the liberal left and will arguably affect millions of Americans. It could have been much worse. The entire Affordable Health Care Act was challenged and squeaked through by a 5-4 vote. But the notion that a medical care scheme enacted by Congress would be denied to American citizens because of the decision of one judge, unelected and responsible to no one, is mind-boggling.
In Canada we had no such difficulty. The Saskatchewan legislature passed a medical care act and then the federal government passed legislation that effectively made the same scheme national.
But before we get smug about our Canadian system being superior and more democratic, we should remember Canadian medicare legislation predated the Charter of Rights and Freedoms, which went some distance toward revolutionizing Canadian democracy and putting us into the same boat as the Americans. If we had the charter at the time, medicare would have been challenged constitutionally. So would Autopac have been challenged. I don't know whether these challenges would have been successful, but I do know the challenges would have been made.
There are some who have little faith in the democratic process and who favour constitutional provisions that limit the power of elected representatives as being necessary to protect our freedoms. But experience has shown written constitutions limiting legislatures have not resulted in greater preservation of our freedoms than that which is prevalent in Parliamentary democracies with unwritten constitutions.
There appears to be no doubt Canadians have bought into the notion the charter is one of our most valued features. This feeling, however, is prevalent only in the abstract. It does not hold up when you get into specifics.
I remember being at a dinner table with Reform party members and we were discussing the newly enacted charter. The Reformers were criticizing Trudeau for including the notwithstanding clause that was forced on him in the later stages. The clause gave Parliament the right to reverse a decision of the Supreme Court and was correctly criticized by charter proponents as defeating its purpose. I told the Reformers in five minutes I could get them to agree with the clause. They asked me to try. I then suggested that if the Reform party was elected and reintroduced capital punishment, a liberal-minded Supreme Court could cancel the legislation as constituting cruel and unusual punishment. It didn't take five minutes -- they immediately conceded that they would use the notwithstanding clause. In fact, the Reformers went further. In the statement of principles they adopted at their conference, near the head of the list was "The supremacy of Parliament."
I had a similar experience at a federal election candidates' meeting in Winnipeg. The NDP candidate promised her party would never use the notwithstanding clause. In the question period, I postulated the election of a Conservative government that over its years in office drastically changed the complexion of the Supreme Court. I then hypothesized that a case involving a woman's right to terminate a pregnancy came before the court and the court ruled it constituted criminal conduct. What would she do if she was in government when such a decision was rendered? You guessed it. She would use the notwithstanding clause.
The U.S. decision is not the first time the Supreme Court ruled against progressive legislation. In the Franklin D. Roosevelt years, there was a constant struggle between the court and Congress. Yet some people continue to insist a constitutional charter is necessary to protect us from the politicians. The notion that matters such as euthanasia, abortion, capital punishment, separation of church and state and other such issues are best dealt with by citizens who are politically appointed and whose views we do not know, rather than by politicians who have been elected based on their stated positions, is demonstrably incorrect.
Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.