Wednesday, May 31, 2006

What would George Grant have thought of blogs?

He would have hated them. Daniel Larison has a longer answer.

More Senate Action!

OK, I can see that a post on externalist vs. intentionalist theories of meaning on the front page is driving down my visits. I believe in giving the people what they want: so more Senate reform action.

Yesterday, Harper unveiled his legislation for senate reform and fixed election dates. The Globe story, including reactions from Western Premiers is here.

Fixed election dates are not the kind of thing that gets the Pithlord's juices flowing. It won't - can't - apply if the government fails to get supply or loses a vote of confidence. The immediate impact on Harper's strategic options are not great, therefore. The public don't want him to just call an election, and he can still do so if the opposition won't let him do something important. This gives him a fair bit of room to decide what the election issue is going to be.

On the merits, the Pithlord doesn't really care. The incumbent party loses a tactical advantage, if it can't control the election timing. On the other hand, we all lose the relatively time-limited scope of Canadian election campaigns. As the Americans show, a fixed election date means that there is no natural limit on electioneering, which in turn means that normal people are heartily sick of the whole thing by the time they are expected to vote.

On Senate reform, I just have to admire Harper's strategic sense. He knows how to turn weaknesses into strengths.

A big obstacle to any reform is that the Senate is constitutionalized. A change in the "powers of the Senate and the method of selecting Senators" requires agreement of the House, the existing Senate, and 7 provincial legislatures representing more than 50% of the population (in other words, at least one of Ontario and Québec must be in the seven). There is also a Chrétien-era statute prohibiting a Minister of the Crown from even proposing a constitutional amendment for ratification unless all of Ontario, Québec, British Columbia, two prairie provinces and two Atlantic provinces, agree, and no government could really repeal that statute.

Nobody, other than existing Senators, likes the existing Senate. But any other option means some region loses. If the Senators are elected, then they have the legitimacy to use their vast constitutional powers. And then the regions that are vastly under-represented as a result of a formula of representation set out in the nineteenth century lose. If it becomes "Triple-E", then Ontario and, most importantly, Québec, lose. On the other hand, the "Triple-E" dream is too strong for the small provinces to be happy with abolition, and for odd sentimental reasons, it has a huge resonance in the Albertan base of the Conservative Party, even though Alberta would lose if it ever came to be.

Harper uses this logjam to provide himself with a reform that might work out for him. Arguably, at least, the terms of the Senators can be changed by federal statute. And since appointment is in the gift of the Governor General, nothing prevents a convention emerging whereby the Governor General appoints only those who have been elected. So Harper's strategy is to limit the terms by statute, and then promise to make replacements from special elections conducted at the same time as the federal general election.

The Liberals are in an impossible political situation as a result. The incumbent Senators -- mostly Liberals -- are going to hate this, but their public image ranks just above sex offenders among the electorate. But creating eight-year terms has the bonus for Harper of putting off the issue of a fully-legitimate rival house into a third Harper term, should such emerge.

On the merits, it is bad for the West and gives an additional veto point in the Canadian political system for no particularly good reason.

Update: The linked-to Bill C-16 does not include anything about the Senate, which would be the constitutionally more difficult. One interesting thing about Bill C-16 is it represents the final triumph of Lord Byng and Eugene Forsey over William Lyon McKenzie King. For the first time, the Commons will have explicitly endorsed the reserve power of the Crown to dissolve (or not dissolve) Parliament in the Governor General's personal discretion.

Monday, May 29, 2006

Philosophy Geeks on Meaning and Legal Wonks on Constitutional Politics

Nate Charlow makes fun of an intentionalist theory of meaning here. Recent readers will be pleased to learn that there is a da Vinci angle.

The serious issue is whether an "intentionalist" theory of meaning makes sense. Everyone seems to think this is politically important because it is tied to whether a constitution should be interpreted as its framers would have done, or should evolve like a "living tree."

Intentionalism, as a philosophical matter, is the idea that the meaning of an utterance depends on a psychological intention of the speaker. The basic argument against such intentionalism is as follows:

1. Suppose that "what the speaker intended" means "what the speaker intended to say."

The difficulty with this version of intentionalism is that what the speaker intended to say must itself be a proposition. So we are no closer to a theory of meaning. If I say "Michelangelo painted the Mona Lisa", I can correct myself by saying that I meant to say "Leonardo." I misspoke, and everyone other than strict Freudians will let you get away with a misspeaking now and then. But if I said "Leonardo painted the Mona Lisa", and you want to know what I meant, then saying I meant what I intended to say can't advance things any further, since what I intended to say was "Leonardo painted the Mona Lisa."

On this view, what we say and what we intend to say will (normally) be the same. But that is just because we are competent speakers. It doesn't define what we mean as what we intend to mean (since that definition would be circular).

2. Suppose that "what the speaker intended" means "what the speaker intended to accomplish", i.e., the (non-linguistic) intended effect of the utterance.

This version of intentionalism at least avoids circularity. But it has the problem that two speakers can say the same thing, intending different effects, or say different things, intending the same effect. For instance, I might yell, "Fire" in a crowded theatre as a distraction so that my confederates can more easily rob a bank next door, while someone else might take up my call in order to save the lives of the theatre goers. We mean the same thing, but are trying to accomplish different things.

At least in typical contexts, when we make a statement of fact, we want our hearers to believe a certain fact that we believe (or that we nefariously want the hearer to believe even though we don't believe it). And, IMHO, belief of a fact is non-linguistic, since animals can believe facts and foreigners can believe the same facts we believe even though we don't understand each other's language. The fact can only be described in language, of course, but that doesn't mean that the fact is linguistic.

But sometimes we don't even care whether the other person comes to believe the fact we are describing (Martin Luther before the Diet, for instance). Whether we care about whether the listener believes us cannot determine the meaning. And we aren't always communicating facts.

So what does this have to do with jurisprudence?

The political valence of this relatively-arcane issue is that American conservatives tend to prefer an "original intent" version of Constitutional meaning. (Canadian conservatives have never been as sure about this, since the Judicial Committee of the Privy Council liberated the provinces from what was originally intended to be a very centralist constitution, and since the Charter was written under the auspices of Pierre Trudeau and Jean Chrétien.)

Linguistic philosophy might help us with this problem. But jurisprudence isn't interested in the "meaning of words" in general, but their meaning in the context of particular social practices, notably litigation.

Most litigation involves the application of legally-binding texts (contracts, trust instruments, regulations, statutes or constitutions) to a dispute over the availability of a remedy (damages, declarations of invalidity of a subordinate legal instrument or injunctions). In constitutional litigation, the issue is whether some constitutional text (e.g., limiting the authority of Congress to "Interstate Commerce" or prohibiting the state from depriving a person of life, liberty or property "without due process of law") is inconsistent with some statutory text (e.g., a federal law prohibiting "partial-birth" abortion).

So when we interpret (or "construct") a constitutional provision, what we are really doing is determining consistency: is what the statute does consistent with the norm the constitution sets forth? How much does intention and meaning, as the philosophy geeks have elucidated them, come into this practice? The answer is not very much.

The ordinary case in which intention and meaning don't line up ("I meant 'Leonardo'") can't apply to constitutions. The framers intended to write what they wrote. This ordinary issue of intention arises in lesser legal documents, like wills and contracts, and even statutes, but no one doubts that constitutions are carefully written in this sense at least. No historian is going to come up with proof that the Fourteenth Amendment contains a typo.

So we can be reasonably sure that when the framers of the Fourteenth Amendment prohibited depriving a person of property without due process of law, they meant to prohibit depriving a person of property without due process of law. But we don't know whether this allows zoning bylaws, or, if it does, whether it requires that the zoning authority provide notice to affected property owners before it makes its decisions.

In old constitutional documents, the issue of linguistic change may be important. "Misdemeanour" undoubtedly meant something different in the eighteenth century than it does now. But it is easy to overstate this. Conceptions of "cruel and unusual punishment" have changed vastly since the eighteenth century -- but this change is not primarily linguistic. A "cruel" punishment, then as now, meant one that was unacceptably harsh for a civilized society. If you say what you mean, then what you intended to say is what the relevant linguistic community understands you to say. Since we are part of the relevant linguistic community when it comes to recently written legal texts, "intention" at this level helps us not at all.

What about what the writers of the document intended to do when they said what they said? A historian could definitely help us with that. The difficulty is that this is not obviously relevant to the social practice of litigation. The framers may not have meant to do anything in particular with the resolution of the particular conflict represented by the litigation. They may have had no idea of how to resolve it, or different ideas. Even if they all would have thought that a life sentence for stealing a slice of pizza would not be "cruel", we are not obliged to agree with them, even if we try to be true to their meaning of the words they used. By "cruel", they meant really, genuinely cruel. So do we. When we disagree about what is cruel, we are not engaging in a linguistic disagreement.

What we are doing is not (at least not primarily) a linguistic exercise of divining meaning, or a historical exercise of divining pragmatic intentions, but a logical/factual inquiry into consistency. We are trying to figure out whether, in fact and in logic, the higher-order norm set out in the constitution is consistent with the lower-order norm set out in the statute. That question of consistency involves evidence and argument, which is a good thing, since that is what litigation is about.

In addition to vertical consistency between higher-order legal texts and lower-order texts, a legal system needs consistency between earlier and later decisions. So every finding that a lower-order norm is (or is not) consistent with the constitution in turn becomes a part of the constitution. This isn't just a matter of convenience or a traditional accretion on the original "plain" meaning (that Protestant holy-of-holies). It is the requirement that the legal order be coherent.

The bottom line is, once again, that legal "interpretation" is not really about "meaning" and therefore is not about "original meaning." It is about a particular social practice -- litigation -- and if we are worried about constraining judicial power (as we should be), we should seek the constraints in the limits of that social practice.

Update: Brian Leiter has pointed to Richard Rorty's most recent thoughts on meta-philosophy. Rorty is OK with the idea that no two utterances ever mean the same thing. If you are OK with that, you don't really need a theory of meaning, just a sociobiology/history of communicative behaviour.

Immigration & Multiculturalism: Disjointed Thoughts

It must be possible for Western civilization to be advanced by people of non-European lineage. After all, the English and the French are both just descendents of the northern European barbarians who painted themselves blue and sacrificed people to oak trees when Athens was really going. As I understand it, Aristotle expressed considerable doubt that such people were naturally capable of anything other than manual labour. He would no doubt have found peasants from 4th century B.C.E. Guangdong a relatively better bet.

To the extent Western civilization is particularly valuable, it is valuable because it discovered the combination of scientific inquiry, free expression, security of property and freedom of contract that appears to be the best way of organizing any modern society. There are more specific conceptions of Western civilization than that, of course, but a liberal order can accommodate them within civil society. The Platonic doctrine of the forms and the sing-a-long Messiah don't need state support. Indeed, the healthiest "Western" culture is the Western culture that has been forced off welfare.

As long as our interactions are peaceful and respect the rule of law and property rights, we can expect them to make us all better off no matter how diverse we become. In fact, the more diverse we are, the greater the gains from trade. And, so long as we preserve freedom of expression and religion, if our descendents end up believing something stupid and heretical, that's their problem.


All this only follows so long as our interactions are peaceful and newcomers accept the underlying rules. We can't just assume that this will always be so. Somewhere in human nature, there appears to be a tendency towards ethnic animosity. It would be nice to think this is just the legacy of history, and will decline as people become more exposed to egalitarian ideas and rhetoric, but this may be too optimistic. I found striking the outbreak of violence between Sikh and Filipino teenagers in British Columbia high schools, because no "legacy of history" can plausibly be invoked to explain it.

Now Canada, by its nature, cannot escape the difficulty of accommodating ethnic diversity. It may be that dozens of potential fault lines are more stable than just one or two. But we have to recognize that we are performing an uncontrolled experiment, and we don't know what the results will be.

Quantity matters. Canada's civil society clearly has substantial reserves of assimilative capacity, notwithstanding the state policy against it. By the third generation, we resemble each other pretty closely. But it can't be unreasonable, or racist, to talk about how far these reserves can be pushed.

What seems particularly unreasonable is to impose legal disabilities on the descendents of the host population in the name of a theory of systemic discrimination. It is one thing (and, I suspect, a necessary
thing) to create affirmative action rights for aboriginal people. It is another to create these rights for the descendents of voluntary immigrants.

Update: To be fair to Aristotle, he only says of the European barbarians, that "they are full of spirit, but wanting in intelligence and skill; and therefore they retain comparative freedom, but have no political organization, and are incapable of ruling over others." Pretty good, compared to what he says about the Asiatics. He certainly could never have made it as Appointments Commissioner.

Dangers of an Elected Senate

Ignoring my crazed premonitions of disaster, Stephen Harper committed to an elected senate in Victoria last week. He also committed to fixed election dates, and more MPs for BC.

Fruits and Votes has all the good poli sci objections to "strong bicameralism in a parliamentary system." It makes for brutal reading, especially if you are Gough Whitlam. The bottom line is the elected Senate makes trouble and fouls up accountability.

But, in Canada, there are additional problems arising out of our precarious ethnic/linguistic/regional issues. Under the current dispensation, British Columbia, for instance, is woefully under-represented on any theory. (And, as Harper made clear, he didn't come to Victoria to tell BC it should be woefully under-represented). But changing to rep-by-pop or rep-by-province (Triple E, as we say in Canadian) are both unacceptable. Triple-E means Quebec is outnumbered 9-1. It also means that small provinces with major dependence on federal subsidies will form a majority in one house, not something Albertans can look on with composure. Harper is sponsoring a no-win regionalist food fight for no apparent reason.

What happens in Iraq?

The Pithlord would like to point his readers (now securely in the daily double digits -- thanks Slate!) to an article from In These Times about the difficulties of US withdrawal from Iraq.

Total withdrawal isn't really an option, but phased withdrawal is beginning to look inevitable. Clearly, a civil war, in absolute terms already as bloody as Lebanon's between 1975 and 2000, is already under way. The author is therefore rightly nervous, and claims the Shi'ite parties want the Americans to stay, but it is clear that the US troops are providing no real source of security.

The best suggestion is from Zbigniew Brzezinski, Carter's (relatively hardline) National Security Adviser. He thinks the government should loudly ask the Americans to leave, and negotiate a phased withdrawal. This will give them some legitimacy with the Sunnis. Obviously, this would have to go along with offers of power-sharing with some of the Sunni militias.

In These Times argues that the sectarianization of Iraqi politics is a result of bad American policy mistakes. That is possible, but it is hard to see how else a foreign occupier -- basically uninterested in the local language and culture -- could otherwise understand and deal with a post-totalitarian society. The basic problem was foreseeable in 2003.

The best the US can do now is gradually extricate itself from the country. And then run every neocon/neolib pundit responsible for this out of town on a rail.

Sunday, May 28, 2006

The American Right: Idolators or Demon Worshippers?

Publius has diagnosed the problem with the American right as a confusion between what is contingently theirs and what is universally true. I've said something similar, although I doubt that all American nationalism/conservatism is so implicated. Some American conservatives simply express loyalty to their own because it is their own, while recognizing that everything, America included, passes. Equally, many American cosmopolitan liberals imagine the folkways of their own globalized caste are universal when they are merely delocalized.

All this reminded me of Paul Tillich's account of idolatry and the demonic -- putting what is of preliminary or finite concern in the place of what is of ultimate concern. Some corners of evangelical Protestant theology do this deliberately, through the device of reconceiving the covenant with Israel as a covenant with the United States. More, however, do it surreptiously. God becomes identified with bourgeois morality, and with the struggle of America against its enemies, internal and external.

Saturday, May 27, 2006

Case Comment: Placer Dome v. Ontario Thumbs Down

The Pithlord confronts some fundamental marketing decisions. There is already emerging in Canada a partisan blogosphere, and branch plants of Instapundit and Eschaton are easily located. The Pithlord recognizes the inevitability of this development, but has neither the inclination nor capacity to compete. Also, as an addict of the American blogosphere, I have noticed how formerly-reasonable and interesting people become screeching partisans fairly easily when they seek that particular route to blog traffic. I have instead been using this blog primarily as a place to dump first drafts of thoughts I often wouldn't want to peruse much further. I will continue to do this, but I need to be a source of news somebody, however specialized, can use.

All by way of motivating my new feature: I am going to try to do case comments on (nearly) all the Supreme Court of Canada cases that come down, however boring they may be. It will help me keep up on the case law, and will probably improve my hit count from desperate law students googling a few years down the road (Hi!).

Of course, I'm actually quite ignorant of vast areas of law, so my comments may be a bit idiosyncratic. I will start each such post with the words "Case Comment", so the literatus can skip them easily. To encourage user-friendliness, and my delusions of grandeur, I will also include a "Thumbs Up" or "Thumbs Down" in the subject heading, depending on whether I agree with the red nine in each particular instance.

Today, we have a mining tax case, Ontario (Minister of Finance) v. Placer Dome Canada Limited. The key issue is one of statutory construction: what transactions count as "hedging" under Ontario's Mining Tax Act.

(Hey, I didn't promise it was going to be pretty! If you stick around, there is a quasi-political issue here. If you don't, well, I can't really blame you.)

Hedging, in the broad sense, is the use of transactions designed to reduce exposure to risks inherent in a particular business. Even a lawyer can figure out that if you are producing gold, and the price of gold falls, it will be bad for profits. If, though, you simultaneously sell gold short, then if the price of gold goes down, the loss won't be so bad. Of course, that means that if gold goes up, profits won't be as good either, but everyone would like to reduce the variance in their profitability.

Ontario had special tax rules for what its mining tax statute defined as "hedging". However, if you look at the definition, it arguably doesn't encompass purely financial hedging transactions unless they involved ouput from an Ontario mine. At least that's how Ontario's tax bureaucrats interpreted it for many years, and they ought to know.

But at some point, the Ontario tax people changed their mind, and tried to nail Placer Dome for some purely financial transactions done by a subsidiary. Placer Dome was pissed at what it saw as a change in the rules, and it all ends up in front of the red nine.

Too bad for Placer Dome. After winning in the Ontario Court of Appeal, the SCC says that if the old interpretation was followed, there wouldn't be a distinction between "proceeds" and "hedging." Since we expect that different terms in a statute will mean different things, the new, broader interpretation must be correct.

Bad news for your mining stocks; good news for the Ontario treasury. But is there anything of broader interest here? Well, yeah. Everybody agreed that the statute could have been clearer. The old interpretation wasn't crazy or anything. So why shouldn't the tax authority be stuck with its original interpretation, especially since it went against its own interests?

The Court accepts that there is something to this argument. At para. 10, it says that administrative interpretations of ambiguous provisions can be given weight. But it nonetheless holds to a Platonically "correct" interpretation and goes with that.

The Pithlord gives the thumbs down because he thinks that taxpayers should generally be allowed to rely on the taxman's administrative practices. If the Man wants to change the ways of the past, the Man's got easy access to a legislature of voting cattle. It is hard to see what the benefits are of losing this level of certainty, given the lack of an exact science of tax statute interpretation. So, the Pithlord wouldn't do what the Court did except in the clearest of cases, which this one was not.

Friday, May 26, 2006

Iran 2003

If we are going to figure out what to do about Iran, we are going to have to discuss how we got to this point more seriously. Gareth Porter has an important article in The American Prospect about Iran's 2003 overtures to the United States. Iran was prepared to give real concessions on nuclear weapons and Israel/Palestine in return for recognition and the abandonment of "regime change."

On the one hand, the existence of such a conciliatory mood in 2003 shows how strong the US's hand was at that time. The quick disposal of the Taliban and the urgency created by 9/11 altered the balance enough for Tehran to be scared.

The trouble was that the neocons were in no mood to bank their winnings. The State Department, and Richard Armitage in particular, were out of favour, and Doug "Stupidest F**king Guy on Earth" Feith and other "axis of evil" types decided that moral clarity was better than concrete gains.

(Via Matthew Yglesias)

Thursday, May 25, 2006

Free Alaa Abd El-Fatah

Please take a few seconds to sign an electronic petition for an imprisoned Egyptian blogger, who has been caught up in the repression following the "revolt of the judges" in Egypt.

King Ralph? Not so much anymore

Matthew Shugart, always on the look-out for comparative federalism issues, takes note of Ralph Klein's hissy fit yesterday on the subject of including oil revenues in equalization formulae. Ralph claimed, incorrectly, that this would be unconstitutional. Matthew, more wisely, noted the similarity to issues in Nigeria and Iraq (all, with Canada, artificial creations of the British Empire, cursed with ill-distributed fossil fuels).

In a nutshell, in Canada, provincial governments have constitutional jurisdiction over, and to a large extent directly own, natural resources. The central government also has complicated formulae for equalization and transfers, designed in theory to ensure that all jurisdictions can have comparable public services at comparable levels of taxes. Oil and gas revenues are excluded from consideration.

There is no doubt that the system is broken, but much question of how to improve it. Not surprisingly, the debate tends towards zero-sum regionalist bickering. The most recent step in the dance has come from Klein, the Premier of Alberta, who threatens to leave the equalization system altogether.

Much to say on this subject, but for now, I'll just note that Matthew may be reading the politics wrong. In general, fed-bashing is a favourite sport of domestically weak politicians, and Klein is a lame duck. After being humiliated in a leadership review on March 31, 2006, he is going to leave when a new leader is chosen. It is quite possible that the new leader will be closer to Harper than Klein is. So this kind of rhetoric may be more of a sign of weakness than strength.

That's not to say that Alberta won't fight hard for its interests. But there are multiple dimensions to any deal, and Alberta would have a lot to gain if the federal government visits "tax room" on the provinces. There are bitter memories of the genuinely destructive policies of Trudeau a quarter century ago, but I think Alberta will ultimately compromise.

National Post Apologizes for Badges Story

Via Jim Henley, who has been all over this, we discover that the National Post has apologized for the badges story. It isn't being too generous about internet access either to the story or to the apology.

The Post's reporting never had a lot of credibility, although they initially had a decent art section and still have some not-bad opinionating. Conrad's folly was good for the world of Canadian newspapers, and probably, on balance, opened up Canada's narrow political culture in the late nineties. The trouble was the relentlessness of the political agenda, and the lack of real concern about journalistic values.

The Post has been a big money loser for a long time. If this story (promoted in the most inflammatory way possible) seals its fate, it will be difficult to complain about the justice of the result.

Wednesday, May 24, 2006

Things that depress the hell out of me, part one

The best-selling book in French of all time: Da Davinci Code.

Vile neocon borrows litigiously

The unspeakable Mark Steyn appears to have borrowed generously from Geoff Pullum of Language Log posts ridiculing the prose stylings of the Da Vinci Code, and then threatened litigation when asked for credit.

Steyn's MacLean's review is here. The original Pullum posts are here and here.

(Via bitchphd).

Update: Crooked Timber has a very learned comment thread on the ethical implications of Steyn's heavy lifting. It's like watching some rabbis at the top of their game going at it over when ox-goring is sufficiently addressed by money payment, and when it requires stoning. Not to be missed.

Update 2: Lyle Neff has penned a completely original piece for Dooney's Cafe proving that Jesus Christ's descendents in fact trained polar bears to guard their grow ops here for centuries. Any suggestion that he was influenced in any way by recent badly-written and factually-dubious bestsellers may result in legal action with no further notice to you.

Harper Shoots His Mouth Off

Much in the Canadian media over the last few months about how Stephen Harper has effectively muzzled his caucus, who, we can assume, are inbred lunatics likely to say sexist, racist things and defecate on the Governor General's carpet if the PMO doesn't keep them in line.

But Harper himself talks unwisely. Over the weekend he announced that the Iranian government was "capable" of forcing Jews to wear distinctive badges, even though he had no evidence that it had done so. (And the story now seems to be clearly false.)

Harper's moralistic foreign policy is probably a few degrees less confused than the NDP/BQ's moralistic interventionist/pacifist policy. The Liberals, thank God, have no foreign policy at all. But we really do not need the Canadian Prime Minister stirring up that particular hornets' nest on the basis of false news.

Update: Iran gets even more sinister. (Via Jim Henley.)

Monday, May 22, 2006

Gwyn Morgan: the merits

In my previous post, I neglected to address the merits of the opposition's rejection of Gwyn Morgan as Commissioner for Appointments. I agree that this needs to be a non-partisan post. But that isn't really what matters. What matters is whether someone should be denied the opportunity of public service if, in the course of a speech supportive of higher immigration levels for economic reasons, they say something like this:

Immigration has a social side as well as an economic one. The social side is all too evident with the runaway violence driven mainly by Jamaican immigrants in Toronto, or the all too-frequent violence between Asian and other ethnic gangs right here in Calgary.

It is hard to see what part of this is even susceptible to reasonable dispute, let alone evidence of racism. Immigration clearly does have a social side, as well as an economic one. While economics argues strongly for higher immigration levels, we need to make sure that the society can assimilate the quantity of immigration without such damage to its own fabric that the reason that Canada is an attractive place is lost.

Dozens of gang shootings, including the death of a young woman shopping on Yonge Street at Christmas, could reasonably be characterized as "runaway violence", particularly given Canada's long, and smug, comparison of its own rates of violent crime with those of the Great Republic.

And the fact is that the shooting spree was the work of Jamaica immigrants. That doesn't mean that all Jamaican immigrants should be tarred with some brush. It does not require some Rushton-style theory of genetic propensities to violence. But it does suggest that there are cultural patterns, originating in countries of origin, that continue here. No one with either common sense or specialized knowledge has ever denied such a thing, but if you want to study it further, it would be worth reading Thomas Sowell's Ethnic America or Amy Chua's World on Fire.

Jamaicans have contributed enormously to Toronto. Caribana is a lot more fun than the Orange Day Parade was. But, unfortunately, the Canadian elite is in a pre-Moynihan state of unwillingness to talk about cultural pathologies in particular ethnic groups. Of course, this doesn't do our aboriginal or Jamaican people any good, but it allows smug bourgeois whites to feel even smugger.

If Canada lost the services of Gwyn Morgan for that reason, I am willing to understand Harper's anger.

Update:An astute reader has noticed that I stillhaven't addressed the merits of Gwyn Morgan's failure to be ratified, but only addressed whether he should be penalized for this particular speech. True enough, and not likely to be remedied. After all, who really cares who the Appointments Commissioner for the Federal government is?

Did the National Post Make Up the Yellow Badges for Jews in Iran Story?

Jim Henley argues yes.

Sunday, May 21, 2006

Montenegro: Pretty Clear Question, Fear of an Unclear Majority

Canadians find secession referenda relatively interesting. The BBC is reporting unofficial results that suggest that Montenegrins have voted to secede from what remains of Yugoslavia (basically just them and Serbia). Matthew comments here.

From a Canadian point-of-view, the referendum doesn't do too badly on the "clear question" front. Montenegrins are asked, "Do you want Montenegro to be an independent state with full international and legal legitimacy?" Personally, I would oppose the emotive words about legitimacy, but I'm sure Joe Clark would tell us how oppressive it would be if the people of Quebec were asked something that straightforward.

The super-majority makes sense in the abstract, since it ought to be difficult to undo a constitutional relationship. On the other hand, there is no doubt that there would be trouble if the final result turns out to be somewhere between 50% and 55%. Ultimately, I think that a super-majority requirement can only work if it is bargained for as part of a broader deal. In the Canadian context, if we go down the route of further constitutional negotiations (God forbid), then the ROC should insist on some sort of super-majority requirement in the terms for secession. (I think it is critical to have a secession option set out in the written constitution as part of any further deal.)

Montenegro may show us the trouble that will follow if the ROC insists on something more than 50% plus one without having bargained for it first.

Update: The official results are 55.4% in favour of secession. Assuming these stand up, a bullet has been narrowly dodged.

Matthew has an update as well. He points to something troubling: while other members of the federation had no say in the secession vote, "diaspora" Montenegrins were allowed to vote, and one suspects that they voted disproportionately in favour of secession.

Update 2: Thanks to slate for the link.

Happy Empire and Commonwealth Day

Friday, May 19, 2006

Hirsi Ali: Canuck?

Der Spiegel reports that the beautiful and brilliant Ayaan Hirsi Ali has been stripped of her Dutch citizenship by an erstwhile political ally, Rita Verdonk, Minister of Immigration. The Spiegel report clarifies that the decision was a purely discretionary one, and that Hirsi Ali had already told the public about the misinformation on her 1997 immigration application form.

It appears that she is going to the US, where she has already been offered a job by the neoconservative American Enterprise Institute. I think I speak on behalf of most Canadians to say she'd be welcome here.

English Canadian Political Theory in a Nutshell

A few years back, The New Republic ran an article by Alan D. Wolfe asking why Canadian political philosophers are so willing to bend the standards of liberal justice to accommodate Quebec's language laws.

Although he takes on Kymlicka and Carens, Taylor and Waldron would be subject to the same question. Perhaps it would be only a small exaggeration to say that anglophone Canadian political philosophy consists of more or less ingenious attempts to show how the Charter of the French Language is compatible with liberalism. That the task is impossible does not detract from the intellectual accomplishment of those attempting it: perhaps demonstrating the compatibility of prosecuting Ms. Ford for displaying a sign saying "LAINE WOOL" with Mill and Rawls will fill the same function for our intelligentsia that reconciling Christian revelation and Greek philosophy filled for Aquinas.

How should democracies weigh the interests of foreigners

Jon Mandle of Crooked Timber reports at length on a Kennedy School Conference on global equality here.

Much of it is the kind of thing that drove me nuts about political theory in the analytical tradition. But I think Larry Summers, who you may recall was recently drummed out as President of Harvard University for musing that chicks may just be naturally bad at math,* asked a big question.

On the one hand, no democracy can possibly equate the well-being of its own people with the well being of foreigners. On the other hand, it equally can't say that foreigners have no moral claims on it at all. So what's the ratio: should the Canadian government value a Canadian life at two Ethiopian lives or 100?

His interlocutor suggested that this was exactly the kind of question that only nacho boys ask, and to please stop.

I think the problem here is that Summers, as an economist, has the utilitarian tendency to equate acts and omissions. His audience, as fuzzy-minded one worlders, share this tendency. But the problem disappears if we reinstate the distinction and presume people have certain natural rights to be left alone if they haven't done anything to us.

With respect to those natural rights not to be aggressed against, foreigners and Canadians are equal as far as the Canadian government goes. In fact, the Canadian government certainly has the right to tax Canadians, and possibly to conscript them, but doesn't possess that right in relation to anyone else. So there is total equality in relation to this right.

On the other hand, while the Canadian government owes non-Canadians equal duties of non-interference, and equal duties to abide by its solemn commitments, it owes no fiduciary duties to non-Canadians. It isn't just that it owes a lesser fiduciary duty to Ethiopians, but it owes no fiduciary duty at all. There is no (formal) inequality here, because the Ethiopian government similarly owes no fiduciary duties to Canadians.

Naturally, a formal equality is consistent with (and, in fact, implies) a material inequality. But we can't dispense with that material inequality by taking on a "duty to protect" Ehtiopinas. On the contrary, when we do that we, for better or for worse, take on an imperial role, and therefore turn what was formerly a material inequality back into a formal one.

*Actually, he suggested that the variance in innate mathematical capacity might be greater for XY types than for XX types, even if the mean is the same. Not that that nuance helped him.

Wednesday, May 17, 2006

Policing Federalism: What is the proper role of the courts?

As someone who has been throwing around a lot of wild-eyed rhetoric about "godlike powers" recently, I should say a bit about an area where I think the Canadian courts should be a lot more active. Scott's post on Cuno provoked me to argue the courts should draw a harder line on excesses of both federal and state/provincial jurisdiction. I didn't call for "watertight compartments," but I came close.

Cuno involved a challenge to a special tax concession by Ohio to Daimler Chrysler to encourage it to manufacture jeeps there instead of neighbouring states. This kind of competitive corporate welfare has an obvious potential for a race to the bottom. The lower courts had found that this violated the "dormant commerce clause": in other words, it was constitutionally impermissible state protectionism. The SCOTUS punted the case on standing grounds, so we don't know whether the lower court's decision is right on the merits or not.

Scott, taking the traditional New Deal liberal view, likes the result of the lower court decision, but isn't really happy about federalism review of any kind. The problem seems to be line-drawing. Dormant commerce clause restrictions on the states are bad enough, but keeping the federal government out of areas that are not plausibly "interstate commerce" really drives him nuts. Scott's an expat Canadian of some kind, so we also exchanged views about the Judicial Committee of the Privy Council, and its generally pro-provincial jurisprudence (I'm pro, he's contra). He's probably got the bulk of legal academia on his side. Given the rarity with which the Canadian Supreme Court strikes anything down on federalism grounds (despite the absence of any clear doctrinal shift from the JCPC days), he probably speaks for the higher levels of the judiciary in this country too.

I think differently, but it's rude to set out controversial theories at length in other people's comment boxes, so I'll try to do it here. I don't claim to be original, but this exercise is valuable to me, and hardly anyone else will likely read it anyway.

One of the minimal reasons to enter a federal union is to have free trade and mobility of individuals among the sub-units. Section 121 of the British North America Act banned explicit tariffs, although the lack of an expansive reading of this clause or of the federal trade and commerce clause meant that we had the anomalous situation after 1988 of giving American (and then Mexican) companies better trade remedies for trade-restricting legislation by the government of Manitoba than Saskatchewan companies would have. Section 6 of the Charter provides for mobility, subject to a lot of exceptions and caveats. But for all the wimpiness of these provisions, they are pretty fundamental to the whole point of a federal union.

You are also going to want a common foreign/security policy. Optional is a thicker common citizenship -- basic civil, human and social rights that we want everyone in the federation to have.

The centralization of foreign policy will mostly take care of itself, as long as the sub-units are not recognized in foreign capitals and aren't allowed to have their own armies. Sure, provincial and state governments will likely have some cross-border functional relationships, but not being Andrew Coyne, I see nothing wrong with that.

But the common market and the common citizenship are going to require either judicial definition or a highly empowered central government to work. There will always be protectionist pressures within the sub-units and reasonably strong provincial/state governments at least potentially threaten meaningful citizenship rights, particularly of local minorities.

So far, we don't need judicial review, as long as we let the federal government keep protectionist and oppressive provincial/state governments in line.

But we chose a federal union precisely because we want to maintain a large amount of state/provincial sovereignty. Here we get into basic ideological commitments, but I have trouble arguing with the math. If 10 jurisdictions decide a controversial policy issue on the basis of majority vote, a lot more people are going to get the result they want than if it is decided at the higher level by majority vote. Moreover, minorities in a sub-unit have the option of exit, which minorities in the overall federation don't. In other words, if Quebec and Alberta both get to decide their own gun rules, then we have a lot fewer unhappy Quebecois/Albertans.

There are other benefits to powerful sub-units as well. Smaller jurisdictions are more accountable. It is easier to learn from other people's mistakes. And a division of sovereignty protects against tyranny. Having experienced both the federal and a provincial bureaucracy, I can tell you that the federal one is always worse. There is little real doubt that federal tax money is spent less effectively than provincial tax money.

These classic arguments for federalism point to the need to have powerful sub-units. But if the sub-units are doing something important, then they are doing something politically rewarding. And if it is politically rewarding, the politicians in the centre are going to want to have their hands on it. Paul Martin didn't want to talk about what he was doing for the Arctic or for migratory birds -- he wanted to talk about health care and education.

If no one polices the boundaries, then the tendency will be to have both levels of government legislating on everything and spending on everything. This can't be eliminated altogether, but it messes up accountability and reduces the ability of any jurisdiction to take a laissez-faire regulatory approach, since this will be cancelled out by the other.

So the courts need to take a role. They need to make sure that the federal power is not going where it shouldn't, and they need to make sure that the provinces respect the common market and common citizenship. The federal power should be limited to transactions where the costs are external to the province that benefits.

At this point, I'm just going to assert that the Privy Council, despite its formalism and aversion to evidence, filled this dual role better than the Supreme Court of Canada has. The SCC has sometimes had the clearer statements of doctrine: the "provincial inability" test is great, for example. But it hasn't really been willing to strike down significant laws. And since Hydro Quebec, the criminal law power has expanded to include almost everything. And the spending power seems immune from question.

On the other hand, the Court hasn't done much about provincial protectionism. Indeed, the provinces end up negotiating free trade deals with each other, as if they were completely sovereign entities, like the Agreement on Internal Trade, and the new BC-Alberta deal.

It isn't really anybody's fault. If you live in Ottawa, and are at the head of an important part of the federal government and are appointed by federal Prime Ministers, you can't help but see a lot of federal legislation as necessary, even though it isn't. And you don't really have the authority to keep the provinces in line either.

O Come, O Come, State-Racism-Biopolitics Post

Our favourite anarcho-Christian lunatic, Old Doug Johnson is promising the definitive state racism/biopolitics post next Thursday, as he bitches about the nationalism of the American religious left.

Devoted readers of "The Weblog" know that this post, like the eschaton, has been promised before. But Old Doug has now made the same transition that the nineteenth century Seventh Day Adventists made, and has named a date. So on Thursday, we must either get the explanation for why the modern nation-state is necessarily racist, or the explanation of how the Old Doug Johnson cult can be maintained in light of a clearly-falsified prediction. Either way, keep an eye out.

Update: It has arrived. As I predicted, with a reference to Galatians 3:28.

I'm not sure that the rhetoric of national covenant (based on the original precedent at Sinai) played a huge role in the development of English Canadian identity. Sure, Protestants everywhere talk like that when they are being irritable, and we all know how irritable the original Canadian Protestants could be. But the over-arching original conception was of Britishness expressing itself in a non-British space. It probably owed more to Rome than to Jerusalem.

If we then look at the post-WWII need to reconceive Canadianism (provoked by the termination of the British Empire, the extreme power of the US, and the threat of Quebec nationalism), the key biblical rhetoric comes from the Babylonian captivity, not the establishment of the covenant. Grant is the obvious example. He laments for an ideal that he insists was impossible from the outset. Our lamentation, unlike Jeremiah's, is not caused by disaster and ruin, but by uncertainty and loss of purpose. Our god, like Israel's in the captivity, can no longer be located in his home. But, like Israel in the captivity, we claim that this homelessness makes our god all the more powerful. Our uncertainty becomes our weapon against the Americans and against the Quebec nationalists: they can never truly be liberals because they have identified themselves with too concrete a substantial liberalism.

Of course, the anxiety does not solve the fact that someone (albeit someone invisible) must continue to negotiate an accommodation with all the substantial nationalisms -- American, Quebecois, aboriginal and new Canadian. Just as a corporation is a placeholder for all the contracts it negotiates with others, so too the ROC ("Rest of Canada").

Upon this ROC, though, someone built something. We will have to explore what at a future time.

Roadbump for the Accountability Revolution

As Lenin advised all would-be revolutionaries, you can't make an omlette without breaking eggs. In other words, if you are serious about your transformation, you can't feel constrained by too many procedural niceties. Of course, this is why anti-revolutionaries like procedural niceties. It is an old debate but the sides seem clear.

But what if the content of your revolution is precisely process? Once upon a time, we lived in a very bad (albeit prosperous, peaceful and tolerant) "friendly dictatorship" in which all power was centralized in Jean Chrétien's Prime Ministerial office. During this dark time, MPs were not allowed to freely advance their or their constituents' views. Appointments to Parliamentary committees were made by Prime Ministerial fiat. And because there was a majority government, the executive passed whatever legislation it wanted, without any meaningful input either from the opposition or from backbenchers.

Why any journalist would call a politician prepared to do his own strangling "friendly" is beyond me, but let that pass.

We all know that there was unrest at this horrible regime, and up stepped a Kerensky-like figure in Paul Martin. Naturally, he quickly betrayed the cause, appointing Supreme Court justices without consultation and generally acting like a desperately-eager-to-please jackbooted thug.

So the people sent this Menshevik to the dustbin of history. And the revolution was complete. Accountability would soon be the theme of the day.

And so now we have centralization of power in the PMO, MPs who are not allowed to voice their or their constituents' views and appointments made by Prime Ministerial fiat. So far, Harper hasn't throttled any of his own protesters, but if he keeps to his new exercise regimen, I think he might be up for it.

But it is a minority government, and, sadly, the accountability revolution has had its accountability moment. This has led the Prime Minister to demand a majority, so that he can on with the work of making the government of the day accountable to the electorate.

The Pithlord, as a constitutional reactionary, is delighted by the contradiction between the methods and aims of this revolution.

The very centralization of power in the first minister's office that everyone complained about a few years back was the result of the ill-thought-out reform of taking the election of party leaders out of the hands of the relatively representative Parliamentary caucus and turning it over to internal party elections (whether by convention or by direct vote) conducted from an electorate of partisans and recent immigrants using methods that would make LBJ squeamish. Once elected through this process, the party leader cannot then simply be removed by his caucus colleagues, which makes a first minister in a majority Parliament essentially an elected dictator.

The electoral system is difficult to defend in the abstract, but a more proportional one will institutionalize minority Parliaments. Maybe this will lead to a more responsible mode of coalitional politics. Maybe it will lead to Italian or Israeli-style politics. Probably a lot depends on such dull and technical details as the threshold for representation, and open vs. closed lists.

But I think we would all be better off if we concentrated our reformist energies, and our political debates, on substantive, rather than process, questions. The Tories have a debatable, but reasonable, program here: sentencing reform, direct subsidies to parents, refocusing the work of the federal government on its clear areas of responsibility. If these things make sense, and they show progress on them, who really cares what the relationship between the PMO and the backbench is? The Parliamentary Press Gallery cares, and Hill addicts care, and PoliSci profs care, but does it matter in comparison to how daycare is going to be delivered?

Not really.

Update: Thanks to Matthew for the link. Had I known that references to the Russian Revolution could bring me some of that Fruits and Votestraffic, I would have put my illspent Trotskyist youth to use long ago.

Unfortunately, the post isn't really an adequate take on electoral reform and other "process" issues, and I really shouldn't be so dismissive of them. When Harper asks for unaccountable power to bring about accountable government, he is definitely in a contradiction. Whether the kind of power the Westminster system gives the first minister is a good thing because it makes substantive reform, even against the wishes of a majority of the public, easier, is a bigger question, and not one I'm up to right now. Living in Ontario through the wild swings between NDP and Harris Tory governments -- swings that did not reflect the basic moderation of the populace -- I came to think that PR and coalitions would be a big improvement. On the other hand, I always found the "Friendly Dictatorship" stuff overblown inside-baseball, and the last few years federally have hardly been a ringing endorsement of coalitional, minority government. On balance, I'm still for MMP and more coalitions.

But I don't want to retract the point about focusing more on substantive issues. Parties with clear agendas of reform -- like Attlee in 1945 and Thatcher in 1979 -- tend, even in opposition, to be OK with the Westminster system. The only problem is that it is in the hands of their enemies. (OK, Attlee is a bad example because of the war-time coalition -- but the point is that Old Labour liked the British constitutional structure just fine.) An opposition party like New Labour in 1997 without a clear substantive agenda has a greater propensity to focus on procedural and institutional issues.

Back in the old Reform Party, Harper led those who wanted to focus on substantively conservative policies against Preston Manning's woolly Hegelian rhetoric and institutional enthusiasms. The base was kind of into both, but over time, there is no doubt that much of the wacky populist institutional stuff has been dropped. On the other hand, Harper found himself in a position analogous to Blair's: the median voters were tired of the governing party, but didn't really want to reverse its policies. So he gave very focused and relatively appealing conservative policies along with the accountability stuff.

For lots of reasons, established pundits and journalists are more comfortable talking about scandal and process than about the substance of policy. We have had a lot of calls for an informed debate about Afghanistan, for example, but we don't get much in information.

Enough. Like Matthew's my update is going to be longer than the original post, and I'm going to have to take "Pith" out of the blog name altogether if I don't shut up.

Shouting from a tiny soapbox

Since publicity is critical, I want to increase the Google count for the April 27 arrest of Iranian political theoristRamin Jahenbegloo. I get into a bit of an argument with uselessly-macho (as my daughter used to say "nacho boys") American righties who think they know better than Amnesty International how to free political prisoners here.

Monday, May 15, 2006

"Rule of Law" or Rule of Lawyers: Once Again on the Godlike Powers

Much commentary in the media on whether the Supreme Court of Canada has claimed "god-like powers" when it said it could strike down laws on the basis of unwritten constitutional principles.

If you want to refer to somebody who knows what he's talking about, and defends the contemporary court, there is Jake Ziegel in today's Globe. Ziegel is a leading expert on court appointments and compensation, and he knows that the Provincial court judge's reference created a mess. Ziegel likes the Secession reference, which is his right, but we have yet to actually experience what it will mean in the event of a secession vote.

Almost everything else the Pithlord has read in the national media is crap. In particular, it trades on confusion to pretend that the Supreme Court of Canada has not engaged in a revolutionary overthrow of our constitutional order.

The first confusion is between the existence of unwritten principles as canons of interpretation and controls on executive government and unwritten principles as the basis for declaring legislation invalid. The former have always been part of our system, and are probably inevitable in any legal order with limited government. The latter is a new innovation dating back to 1997.

A more subtle confusion is between the institutional question of who has the final word -- the court or the legislature -- and the methodological question of natural vs. positive law. Natural law holds that there are some underlying principles in any just legal order which are accessible to all normally-constituted people. I agree with that claim, although I don't feel like justifying it here.

I doubt that natural law will tell us much about judicial compensation, tax policy on legal bills or the proper formula for a secession of a province, but who knows.

But the question of natural law is orthogonal to the question of the proper institution to have the last word. Whatever institution has the last word, it can be said to be bound by natural law (and by accumulated customary right), but it can only be bound internally. Since that institution has the last word, if you think it has ignored natural law, there is no one you can appeal to.

This is equally true whether the institution in question is Parliament or the Supreme Court. If the Supreme Court has done something fundamentally immoral (e.g., the Dredd Scott decision), then, since it is final, there is no human authority that can overturn it. On the other hand, if there is a system of legislative supremacy (with an override clause, for example), then if the Supreme Court violates natural law, it is still possible to go to Parliament to overturn that decision,

The same applies if Parliament has the last word. You can still say that Parliament has an obligation to be bound by natural law, but the obligation must be internalized by Parliament itself.

The difference (in addition to the principle of popular election) is that Parliament's word is never really final. It can always be opposed at the next election. Courts, by their nature, claim to state the law for all time. I have no particular objection to this in a system of legislative supremacy, but it does amount to "god-like power" in a system of judicial supremacy.

Finally, there is confusion as to whether the principle enunciated by the Chief is really a new one. I have tried to collect a few more citations of the principle of legislative supremacy in Canadian law, since, in the long run, it will inevitably be Google who determines this issue. As most lawyers know, there really are thousands of such statements by the courts prior to 1997:

The Courts of law cannot sit in judgment on the Legislature, but must obey and give effect to its determination.

Labrador Co. v. The Queen, [1893] A.C. 104 (P.C.) at p. 123

The mistiness of view as to possible grounds on which an Act of Parliament might be avoided by the Courts has been cleared away by the modern doctrine as to the Sovereign power resident in the Legislature, and I do not know of any example, even in early days, when a concrete case arose of an Act of Parliament being overruled or displaced by the Judges.

Smith v. London (1909), 20 O.L.R. 133.

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do these things. If Parliament chose to do them the courts could not hold the Act of Parliament invalid.

Madzimbamuto v. Lardner-Burke and George (1969) 1 AC 645. Cited by the SCC in the 1981 Patriation Reference.

It would be anomalous indeed, overshadowing the anomaly of a constitution which contains no provision for its amendment, for this Court to say retroactively that in law we have had an amending formula all along, even if we had not hitherto known it.

1981 Patriation Reference (This is a cool bit of dramatic foreshadowing, since the court said exactly that seventeen years later in the Secession Reference, in regard to a formula for provincial secession.)

It has become a truism that the totality of effective legislative power is conferred by the Act of 1867, subject always to the express or necessarily implied limitations of the Act itself.

Murphy v. CPR, (1958) SCR 626 at p. 643.

The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws.

Chief Justice of Canada Beverly McLachlin, December 2005

Friday, May 12, 2006


A wise man once told me that the key to any travel writing is to generalize irresponsibly from your experience. So blame him if this post wastes 3 seconds of your life.

I just got back from Calgary, a place I'd never really been to before, and now the centre of the sweet Chinese-demand driven universe.

Most things I expected. Nice backdrop of snow-peaked mountains, everybody talking real estate prices, a lot of recent hastily-converted Oilers fans.

But what I didn't expect was all the Bruce Cockburn. "Lovers in a dangerous time" in a downtown bar is one thing. But they had some really irritating, mid-80s leftist groupthink thing called "Laugh", where he laughs at all the bourgeois meat eaters or something at a Tim Horton's near the airport.

Calgary is an English Canadian city. In the end, hippie values will triumph.

Did you see that? Did you see them repressing me? That's what I'm going on about. If only people would listen...

Things did not go well for poor Mr. Vellacott, the pol who suggested the courts are claiming god-like powers. No doubt after a warm chat with an imposing gentleman from the Prime Minister's Office, he resigned as chair of the House aboriginal affairs committee.

His replacement is a former mayor of Salmon Arm, nationally famous for recently calling for locking up journalists who publish "misleading" information about the Conservative Party. An all round win for freedom of speech.

This change has, naturally enough, been greeted with great approval by the national media, still at large.

The Site Meter tells me I get a number of American visitors, and I prefer to believe that some of you are not spam bots. This little incident, along with Northrop Frye's theory that literary criticism should never criticize anybody, can tell you all you need to know about the English Canadian preference for politeness over honesty.

Personally, I care not a whit for Mr. Vellacott, who appears to be an anti-abortion zealot. But I'm a little bit worried on the whole "first they came for the communists" basis.

Every society has propositions, which have reasonable support on the evidence, but which only bad people believe, or are even willing to give a hearing. So it is and so it should be. I don't want to argue about the merits of genocide or big-ice hockey.

But just because I recognize we must have taboos, I don't want things I think are true, and important, to become those taboos. The courts *are* claiming god-like power. There are lots of reasons for this, and the judges often resist the real enthusiasts. I know some judges personally, and they are lovely people - workaholics, reasonable to a fault, Inclined to understated humour. My impression of Beverley McLachlin is that she is one of their number. I can hardly imagine a better benevolent dictator. But they get way too much respect for the democrat in me. And they are changing basic institutional understandings way too fast for my tory half.

I don't think this week has provided good signs about the health of my country.

Wednesday, May 10, 2006

Supremes v Maurice Vellacot

As Spiderman's Uncle Ben pointed out, with great power comes great responsibility. In a democracy, it at least comes with the need to put up with potshots from the rabble and their elected representatives. The opposition parties and the CBA are demanding the head of Maurice Vellacot, Tory chair of the Commons aboriginal affairs committee. His offence is saying that Chief Justice McLachlin claimed "god-like powers" in her speech to Kiwi law students I was just blogging about before this storm erupted.

The Chief herself intervened, alleging that she had been misquoted.

Now, the Pithlord doubts that the man on the Clapham omnibus, or the woman on the Yonge Street line, would have trouble figuring out that Mr. Vellacot was paraphrasing, rather than directly quoting the Chief on the subject of the court's divinity. So that aspect of the contretemps is just bogus.

What is more disturbing is the attempt to shut down critics of McLachlin's view, critics who include former NDP Premier and broker of the 1981 deal, Allan Blakeney, former Supreme Court JUstice Gerard La Forest, and, I think, most constitutional lawyers. Certainly, the notion that "the rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws", which the Chief expressed, is contrary to all judicial authority on the subject predating 1997. And 1997 is not so long ago that critics of this development should be the ones on the defensive.

If they aren't Gods, they are mortals. And mortals need to develop a thicker skin.

Monday, May 08, 2006

"Language? Language? We Don't Need No Stinkin' Language"

Lord Coke's decision in Dr. Bonham's case is the great path-not-taken in British constitutional law. Lord Coke felt he could not enforce a statute of the British Parliament if it offended a principle of common law.

The cases holding otherwise are legion. Mr. Justice Riddel in Florence Mining put it thusly:

In short, the Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine. If it be that the plaintiffs acquired any rights, which I am far from finding, the Legislature had the power to take them away. The prohibition "Thou shall not steal," has no legal force upon the sovereign body. And there would be no necessity for compensation to be given.

The appellate courts, including the highest in the Empire, found nothing odd about these words. In British law, it was clear that the legislature could do what it wanted. In Canada, this was always restricted somewhat by the written constitution (which, as imperial legislation, was paramount over merely colonial statutes). But Dr. Bonham's case was roundly rejected.

But that was then.

Chief Justice of Canada Beverly McLachlin has told some New Zealand law students that she intends to imitate Lord Coke and strike down laws for violating unwritten principles.

The difficulty is not with the idea of unwritten principles. Surely, these exist. But someone must be final on the subject of what they mean, and how they apply to the issues of the day. In our system, that has always been the legislature.

McLachlin is willing to take the argument to the enemy, since she is in the current issue of whatever Western Report is now called. I would be less cynical about this development if it did not always seem to benefit lawyers in the crudest possible way.

Sunday, May 07, 2006

Social Hosts Can Party On: Drunk Driving Victims Hosed by Tort System

The Supreme Court of Canada ruled that hosting a party does not make you legally liable if one of your guests drives drunk and hits somebody.

The result is a bit tragic. The dilemma the tort system has faced for a century is that it is the only close-to-adequate compensation scheme for the terribly injured (other than workplace-based first-party disability insurance), but it is supposed to be based on the fault of the defendant. But when that fault is most extreme -- drunk driving, for example -- the insurance companies claim breach of the conditions of coverage. This creates a desire to find some other insurer. The plaintiff lawyers here looked around, and found the home insurers of the party hosts.

The court was right, though. The benefit of policing our friends' liquor consumption is outweighed by the costs. A decision the other way would really be burying personal responsibility.

The way they got there wasn't too bad. The Anns framework was as useless as ever, and the Court didn't even do it right: it acted as if the issue was whether this injury was foreseeable to these hosts, but the question of duty of care surely depends on whether drunk driving accidents are, in general, foreseeable to social hosts, which they are (but surely that isn't enough). One of the good things about the Cooper revolution was that it made clear that this is not good enough. The other is that it correctly returns us to categories and analogies/distinctions. The Supreme Court made sensible distinctions between commercial liquor establishments and party hosts, including pointing to regulation and the incentive bars have to over liquor their patrons.

The people who lose here are the victims of drunk driving accidents. And they lose because we insist on tying their compensation to the tort system, instead of developing a cheaper no-fault compensation system (or, at minimum, preventing auto insurers from walking away from drunk driving liability).

Tuesday, May 02, 2006


I really, really, really gotta get something done, so no more posts until next Monday (May 8).

Update: But I can't help but link to Matt's revelation that there is now a Social Credit Prime Minister of the Solomon Islands. How cool is that. The Pithlord grew up under Social Credit in B.C., and was taught that they were evil capitalist oppressor. The Pithlord's lovely wife grew up among Social Credit voters in rural Alberta, and was taught that the Progressive Conservative party of that province was part of the international communist conspiracy. But I had thought that Social Credit was among the things that had passed from the earth.

So, good luck, Solomon Islands with Major Douglas and funny money! I hope you don't take it too seriously, because it seems unlikely that the Judicial Committee of the Privy Council will bail you out.

In Birmingham, the Guvnah loved them back

Scott Lemieux has a good time at the expense of righties who misinterpret rock anthems with lefty lyrics.

At the level of the latent text, he is clearly right about Neil Young's "Rockin' in the Free World" and Springsteen's "Born in the USA." Even at this level, I have my doubts about a progressive reading of "Sweet Home Alabama." It is said that George Wallace loved that song, and the Pithlord sees no reason to blame him.

But the deeper issue is whether there is bad faith in the leftism of white-male working-class guitar heroes. I wonder if it isn't the artists with their left-liberal pieties above a chorus of nationalist anthem that are fooling themselves. If all those French intellectuals taught us nothing else, they taught us that the listener helps construct the meaning of the text.

Take the Clash, the only band that matters. No major group had more overtly leftist politics. They genuinely took Marxism seriously. But it is hard to miss how they celebrate war and tribe. And that probably matters more.

Nothing beats the tragic irony of "Rock the Kasbah" as theme song for the various Gulf Wars. How many bombs have been rained down on Iraq by nineteen-year-olds with Combat Rock blaring.

I even must confess to a certain twinge of atavistic spine-tingling when I listen to that verse in The Card Cheat:

From the Hundred Years War to the Crimea
With a lance and a musket and a Roman spear
To all of the men who have stood with no fear
In the service of the King.

It doesn't matter that the verse is ironic. It has exactly the same effect on me as the Saint Crispin's Day speech. I certainly distrust that emotion, but that doesn't mean I don't feel it.

"Born in the USA" leaves me cold, but then there is no particular reason for American patriotic iconography to appeal to me. I don't like the Popular Front aesthetic Woody Guthrie created, and one of the most interesting things about Dylan is how he escaped from it. Lefty Springsteen fans (Springsteen himself seems to have some doubts) still imagine that aesthetic isn't wholly owned by their enemies.