The federal government is intervening in the slow-moving Supreme Court case over Québec’s pre-emptive invocation of Section 33, the notwithstanding clause of the Charter of Rights and Freedoms, for Bill 21, An Act Respecting the Laicity of the State. In a filing submitted on September 17, Ottawa argued that courts should be able to prohibit long-term use of Section 33 to override Charter rights, warning that prolonged suspensions amount to an unconstitutional denial of rights themselves.

This is ill-advised. The political left in Canada should oppose any weakening of the parliamentary supremacy preserved in Section 33. As a political theorist with a populist view of democracy, I argue that the final say on legislative authority should remain in the accountable institutions of democratic politics. The left ought to rally to this cause.

The notwithstanding clause was inserted into the Charter during the fraught negotiations over constitutional repatriation in November 1981. For decades, disputes over an amending formula had stalled progress. Pierre Elliott Trudeau’s “magnificent obsession” with an entrenched Charter of Rights was fiercely opposed by the “gang of eight” premiers, determined to block him.

Section 33 emerged as the compromise that allowed Trudeau to peel away the seven English-speaking premiers from René Lévesque and secure support for the new Constitution. The clause was proposed by Alberta Premier Peter Lougheed and brokered by then-Justice Minister Jean Chrétien in the now-legendary “kitchen accord.” Its purpose was to allay provincial fears that the Charter would transfer too much power to the courts at the expense of parliamentary sovereignty.

Defenders like senior Trudeau aide Thomas Axworthy called Section 33 “a historic Canadian compromise,” balancing the British tradition of legislative supremacy with North American-style judicial review. Critics, such as columnist Andrew Coyne, have long argued that it fatally weakens the Charter, allowing legislatures to override rights protections at will. Former Prime Minister Brian Mulroney shared this view, declaring in 1989 that Section 33 “holds [individual rights] hostage” and renders the Constitution unworthy of respect. His political downfall amid failed constitutional reforms remains one reason why few politicians today openly echo that line.

In recent years, however, conservative thinkers have embraced the notwithstanding clause. What Mulroney saw as a flaw, they present as a safeguard for democracy. Their case rests on longstanding conservative grievances about “judicial activism,” most famously argued by Ted Morton and Rainer Knopff in their book The Charter Revolution and the Court Party (2000). Today, scholars like Geoffrey Sigalet of UBC contend that Section 33 is not only constitutional but vital for ensuring legislatures—not courts—retain the final word.

Unsurprisingly, when Ottawa filed its argument seeking limits on the clause, conservative voices close to Pierre Poilievre denounced the move. His former Communications Director Ben Woodfinden warned that entertaining Ottawa’s position would spark “a serious constitutional crisis.” Another former adviser, Yuan Yi Zhu, argued that any judge voting to restrict Section 33 should be removed by Parliament.

This sorting of opinion has hardened: defending Section 33 has become coded as a conservative cause. But it wasn’t always this way, and it shouldn’t remain so. In 1989, leftist legal scholar Michael Mandel published The Charter of Rights and the Legalization of Politics in Canada, arguing against the Charter itself. Mandel warned that unelected judges and legal elites were seizing authority over rights that should remain in democratic politics. Pointing to the judiciary’s history of privileging private property over the public good and undermining social welfare, he urged progressives to normalize use of the notwithstanding clause to demystify and counterbalance the Charter.

It’s an argument I find persuasive. For democracy to be meaningful, the people must have the final say. Courts may claim to insulate rights from the “grubby incentives” of partisan politics, but as political theorist Leah Downey recently noted, ceding control of crucial institutions to unaccountable elites may feel safe in practice but is indefensible in principle. At a time when Canada faces housing crises, generational inequality, foreign policy drift, and climate catastrophe, protecting and expanding democratic control should be paramount.

Left-populists should take hold of this issue and defend the legislative authority of Parliament. It matters not that the invocations of the notwithstanding clause in recent years by Québec, Ontario, and Saskatchewan have been in the name of illiberal and regressive causes. By reifying exclusive ownership of the power to determine the scope and nature of rights in the hands of the judiciary, the left willingly acquiesces to the dilution of its ostensibly axiomatic principle: the moral and political power of the many, not the few.

The idea that the rights protected by the Charter exist outside or beyond the realm of democratic contestation belies an utterly undemocratic view of politics. The left must never endorse this, even if the appropriate balance between judicial review and the messiness of popular sovereignty expressed through representative institutions is not and never will be clean cut or easy. This is the burden of self-government. Foreclosing that challenge in exchange for the rule of technocrats or legal elites cannot be countenanced, even if the Charter has been an instrument of progressive reform on certain matters over the past four decades.

In a statement issued on the morning of September 18, Justice Minister Sean Fraser said that “this case is about more than the immediate issues before the Court. The Supreme Court’s decision will shape how both federal and provincial governments may use the notwithstanding clause for years to come.” One gets the impression that neither Fraser nor Prime Minister Carney fully appreciates how incendiary this will be, mostly to Québec where the scars of Levesque’s “night of the long knives” in 1981 and the reappraisal of the erstwhile clause dérogatoire into les clauses de souveraineté parlementaire show exactly how it is understood in La Belle Province.

Even if this intervention by the federal government didn’t risk a national unity crisis, it’s bad on its merits. Mandel argued in 1989 that ”logic and experience show that where the [Charter and representative government] … clash, representative government is more often on the side worth being on.”

The left would do well to remember that today.

Dónal Gill teaches Political Science at Dawson College and Concordia University.