“Notwithstanding” liberal outrage: a critical race perspective

Posted September 14, 2018
By Anver M. Emon

I’ve been trying to figure out how I feel about Doug Ford’s use of the Notwithstanding clause, and in particular the anxious liberal handwringing about it. Yes, his actions are certainly threatening to a liberal democratic conception of the rule of law. But if I adopt a critical Indigenous perspective, I'd have to say the same thing about how doctrines of terra nulliusdiscovery and the sui generis (read exceptional or ghettoized) nature of “aboriginal rights” are implicitly or explicitly normalized by the Supreme Court of Canada as consistent with a liberal, democratic rule of law. 

I'd have to be equally troubled by Section 1 jurisprudence, and its tendency to limit the rights of communities on the margins in the name of national security (see, Hutterian Brethren). While I join my friends and colleagues in their critique of Ford’s defiance of the courts, I am not able to do so without also wondering whether what makes it easy to get on this train of liberal outrage is the implicit white privilege that passes in the guise of liberal rule of law principles. 

For that reason, the words of Martinique poet of negritude, AiméCésaire haunt me. In his Discourse on Colonialism, where he takes anti-colonial aim at the excesses of an imperial Europe, Césaire applies a racial lens to contrast European attitudes toward colonial violence with European attitudes toward Hitler and the Holocaust:

“Yes, it would be worthwhile to study clinically, in detail, the steps taken by Hitler and Hitlerism and to reveal to the very distinguished, very humanistic, very Christian bourgeois of the twentieth century that without his being aware of it, he has a Hitler inside him, that Hitler inhabits him, that Hitler is his demon, that if he rails against him, he is being inconsistent and that, at bottom, what he cannot forgive Hitler for is not crime in itself, the crime against man, it is not the humiliation of man as such, it is the crime against the white man, the humiliation of the white man, and the fact that he applied to Europe colonialist procedures which until then had been reserved exclusively for the Arabs of Algeria, the coolies of India, and the blacks of Africa.” (emphasis added).