Should the Senate draw a line at the notwithstanding clause?

John A. Macdonald once assured the pre-Confederation Legislative Assembly of Canada that an appointed Senate, then under consideration, would «never set itself in opposition against the deliberate and understood wishes of the people.»

It's important to note what Macdonald said immediately before those words.

«There would be no use of an Upper House if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House,» the future first prime minister said.

«It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body ...»

Macdonald's words offer a nuanced take on the Senate. They describe an institution that would have no purpose if it didn't periodically exercise its constitutional powers — an institution that's also bound by deference to the elected House of Commons. In that sense, the question is not whether the Senate should be willing to oppose, amend or postpone, but when or how — or to what extent.

A motion tabled by Sen. Peter Harder this spring suggests at least one answer to the question of when. His motion, which is likely to be debated this fall, proposes that the Senate «should not adopt any bill that contains a declaration pursuant to section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the 'notwithstanding clause.'»

Even if a majority of senators were to agree, the motion is non-binding. And because of the Senate's