Tuesday, November 22, 2005

Tuesday, October 25, 2005

Playing Constitutional Law

I left a comment over here that I like more than most. Publius at Law and Politics was making the claim that constitutional principles are just a thinly disguised form of politics. Here's my take:

"It all depends on the level of abstraction you are dealing with.

Obviously, at some level of abstraction, people pick their process principles based on consequences. If I disagree with what you say, but will defend to the death your right to say it, I probably think that, in the long run, freedom of speech leads to a better society than censorship.

So why don't I just say, "I will defend your right to say it, just so long as your saying it will cause less harm than your not being allowed to say it"?

I don't use that more "pragmatic" rule because it isn't a rule at all, and I figure in the human tendency to want to stop people saying things they don't like.

On the other hand, unless I'm a doctrinaire nutbar, I will eventually come across a situation where I am not going to defend your right to say "it", if "it" is a ransom demand, or shouting fire in a crowded theater or whatever.

How does this apply to constitutional law? Well, we have to factor in the fact that judges, being human, are going to look more unkindly at statutes they disagree with. No principles of constitutional interpretation are gonna change that. At the same time, judges, to retain an ounce of self-respect, have to come up with some principle other than it's unconstitutional if I don't like it. And those of us who aren't judges have to try to hold them to some principle other than it's unconstitutional if they don't like it, particularly if we like different things than they do.

I'm not saying that this principle has to be originalism, or deference to elected branches. It could be representation reinforcement. It could be revealed natural law. But if you don't have some principle other than it gets struck down if I don't like it, you are not playing constitutional law."

Saturday, October 22, 2005

Why Joe Clark was wrong

Quebeckers would split almost evenly on the 1995 referendum question, but would overwhelmingly reject secession honestly described: according to an October 2005 Gregg poll .

Reasonable Canadians accept that Francophone Quebecois will always consider Quebec their homeland and the source of their primary loyalty. Reasonable Quebecois recognize that secession has far more costs than benefits. We can both live with that, as long as we can speak frankly.

Sunday, August 21, 2005

Cross-Examining Vice-Royalty

In Friday's National Post, David Frum takes a break from ending evil to
complain that Ms. Jean and M. Lafond were non-responsive in their statement
proclaiming they are "proud Canadians."

He's quite right, of course. Nowhere do they deny having had separatist
beliefs. Nowhere do they state what their current politics are. It is the
kind of opening testimony that makes a cross-examiner squirm with impatient

But Frum makes a category error when he complains about this. Lafond and
Jean are not politicians. They are vice-royalty. It is inappropriate to
cross-examine them, not because they could never have embarrassing views,
but because we have all agreed to accept them as symbols of unity.

Frum's previous employer shows why this is useful. Americans have no
individual embodiment of their country, other than the President. The
President therefore inevitaby becomes the symbol of unity when calamity
strikes, as it did four years ago. But the President is also a politician.
The combination is dangerous, and when exploited, divisive.

By showing deference to royalty or vice-royalty, we open up psychic space to
treat politicians with appropriate skepticism. No mere politician can embody
the nation, and no mere politician should be allowed to avoid
cross-examination, as Bush has so effectively done.

Saturday, August 20, 2005

And the White N*ggers Have Their Black N*ggers and So on

A good comeback from our new Governor General to Pierre Vallieres, as recorded by Colby Cosh.

As for the rest of the post, it seems to me Cosh's got his cultural stereotyping backwards. I always thought the French were supposed to be Cartesian rationalists, always demanding that the social order abide by the law of the excluded middle, while we Anglos were empiricist muddlers. Cosh's vision is of Gallic dialecticians, laughing at linear Albertans, who apparently really mean it when they tell pollsters they want to secede.

In fact, it was Preston Manning who was the Great Hegelian phenomenologist of recent Canadian politics. From "The West Wants In" (which would have made Roland Barthes green with envy at its multivalency) to his constant tendency, documented by a frustrated Tom Flanagan, to see his own peculiar populism both as a synthesis of the false antagonisms of left and right, and the distillation of the Volkgeist.

[Pictures under Crown Copyright. Reproduction authorized for non-commercial use.]

Justice Major Retires

Justice John Major is going.

It is fair to say he was on the right of the court, most dramatically as one of the authors of Chaoulli, and one third of the maximalist group. The Court will therefore have at least three new members when it decides what Chaoulli means.

He is responsible for eliminating "Your Lordship" and "Your Ladyship." There is something to be said for this innovation. Unfortunately, "Justice" does not work in the vocative.

"A further good has been created"

Is it not true that yesterday's sad mistake has already solved the problem it represents? In fact, a further good has been created: as ordinary persons change their behavior and drop the bulky clothing and unnecessary running, the real terrorists will stand out more. Indeed, if anyone ever behaves like Jean Charles de Menezes again, the presumption that he is a terrorist will be so overwhelmingly strong that the police really must kill him.

A disgrace to the profession.

The Pithlord feels old. He remembers before the term "libertarian" meant apologist for police manslaughter.

Albertan Appeasement

No one talks more tediously about Munich, and appeasement, and Neville Chamberlain, than the Canadian anglo-right. The Pithlord remembers the spring of 2003 fondly, and it was hard to avoid the Asper-funded keyboard jockeys making silly historical analogies between Middle Eastern politics today and European politics in the 1930s.

It was enough to put the Pithlord off such analogies permanently. They may be pithy or substantive, but they are very rarely both.

Today, though, we really do face a real issue of national interest, in which they key is to have courage in our own power. As everyone knows, the US government refuses to reimburse Canada for illegally-collected duties on softwood lumber, and will not touch the notorious Byrd amendment, which subsidizes the US forest industry with such illegally-collected duties.

There is no point in doing a deal with people who don't respect deals. There are all kinds of objections to using the experience of the 1930s to illustrate this point in trade contexts, so I won't. But the point remains.

So what do our heroes of the anglo-Right tell us? They are outraged, of course, but we must not use our energy resources as a bargaining chip. That would make the Americans angry! Best to "negotiate" (ignoring, as always, that you cannot negotiate the "pacta sunt servana" principle, since this is the principle that gives negotiation meaning).

There isn't much point in having Dick Cheney up here if we don't tell him, "We are the Saudi Arabia of the twenty first century. Disrespect us, and you will see gas prices so high Republicans won't be able to win election for chief dogcatcher in rural Utah."

Wednesday, August 17, 2005

Arguing with my betters

I get into a fight with Scott Lemieux after he says Quebec sovereigntism is "suffused with racism and anti-Semitism" here.

Dissent on Judicial Review

Ah, ye olde social-democratic debate on the legitimacy of judicial review. No one does it better than Dissent Magazine.

I am biased, but don't Tushnet and Waldron just kick Tribe's butt? This guy is a famous oral advocate and textbook author, and he makes an argument that would sound pious and trite at a Law School commencement?

Monday, August 15, 2005

GG Not Head of State: Why this actually matters

On the topic of the Governor General (not for long, I promise), many a pedant has pointed out that she will not *actually* be head of state: that job is the Queen's.

What is more surprising is that this distinction actually matters. It's why the provincial and federal governments are equal.

It might not have been that way. It has often been observed that if you look at the original constitution -- the 1867 British North America Act -- the provinces seem subordinate to the central government. In fact, the relationship between the provinces and Ottawa is repeatedly analogized to the relationship between the Dominion as a whole and the Empire. Ottawa can reserve and disallow provincial legislation, and the Lieutenant Governors hold their offices at the pleasure of the Governor General, on the advice of the federal cabinet, just as the Governor General was appointed by the Queen on the advice of the Colonial Secretary.

On this vision, Canada was not quite a federation -- a state with two equally sovereign levels of government -- but a self-governing colony with self-governing colonies. The legal basis of this argument was that the Governor General (the embodiment of the federal government) was the representative of the Queen, while the Lieutenant Governors (and hence the provincial governments they embodied) were really delegates of the Governor General.

It was, however, that most imperial of institutions, the Judicial Committee of the Privy Council (see the sexily named Liquidators of the Maritime Bank of Canada v. The Reciver General of New Brunswick, [1892] AC 437 -- not available on the Internet, apparently), that freed us of that interpreation, and made it clear that Canada really was a federation.

The theory is that both the Governor General and the Lieutenant Governor are equally representatives of Her Britannic Majesty (who is the "true" head of state, and when "in Parliament", the sovereign). So both the provincial and federal government are equally sovereign, a concept that was a bit hard for those in the British tradition (and Ontarians) to really swallow, but one that was necessary for federalism.

On the mind-bending fiction side, it ranks somewhere between the Trinity and the Copenhagen interpretation of quantum mechanics. But the idea that the provincial and federal states are equal manifestations of the same sovereign works. It is what has kept this accidental product of British imperialism together and functioning. So, next time some anagram-loving know-it-all tells you that the Governor General isn't really the head of state, you know, suck it up. For Canada.

Background Checks

There are a few things I don't get about the PMO's take on Governor General designate Michaelle Jean's federalism or lack thereof.

Martin called Klein and Harper to "assure them that the viceregal couple are not separatists." He tells them that background checks were done by CSIS and the RCMP.

Is this an admission that CSIS and the RCMP keep tabs on how people voted in the 1995 referendum? Or is it just a statement that M. Lafond and Mme. Jean are not terrorist sympathizers? But no one alleged that. So where is the "smear campaign"?

Boulanger does not seem to have alleged that Mme. Jean is a separatist, but only that she knew many (including, presumably, her husband). Since she was a broadcaster in Quebec, this seems about as shocking as that Ralph Klein knows people in the oil industry, or that Jack Layton has a pal in the Sierra Club.

Should a separatist be Governor General? Obviously, it would be improper if she were to advocate independence (or any other controversial political position) while in office. It would also be improper for her to favour the Bloc in any way in the event she ends up exercising the reserve powers of the Crown.

But if she just voted "Oui" in 1995, then making her Governor General seems like a harmless act of elite assimilation, like putting a former Marxist trade union leader in the House of Lords. As such, a supporter of the British constitutional tradition (and who else should care about the Governor General) should applaud.

Good Intentions

Colby Cosh recently complained that there appears not to be a law professor in the Great Dominion with the vanity, technical chops and spare time to provide the kind of free legal commentary American court watchers take for granted.

I am not a law professor, and I despair both of my technical skills and my spare time. But I have plenty of vanity, and am opinionated enough. So I took the challenge personally. Not to mention that I get annoyed at the Supreme Court of Canada, and the errors of journalists, sometimes including Mr. Cosh, often enough to need an outlet.

The result is this blog devoted to Canadian law and politics. To explain the title, Canadian judges (and before 1949, the British Privy Council), supposedly divine the "pith and substance" of a law before deciding whether it is appropriately enacted by the federal or provincial level of government. Moreover, it sounds cooler than "living tree."

I decided to make this blog anonymous so that my clients and employer are not associated with my opinions. The downside is that I may have some undisclosed conflicts of interest. If they are too blatant, I will just avoid commenting, but readers should, of course, be critical.

My biases are centre-left, pro-legislative supremacy and pro-classical federalism (i.e., in the current context, usually pro-provincial jurisdiction and sympathetic to the historic positions taken by Quebec federalists).

Whether any of the posts are, in fact, pithy or substantive, I leave that to the readers (if I ever have any) to decide. Charitably, I hope.