High Immigration vs. Affirmative Action

Long-time reader(s) will have noticed that I have stalled on my promised Singh blogathon. But I would like to point you to Thomas Sowell pointing out the tension between a generous immigration policy and affirmative action. Of course, he's against either, but without endorsing his position, I have to agree that you can't reasonably ask the native population to accept both.

Immigration is only defensible if it benefits both the immigrants and the existing community.* And it can't do that if the existing community is denied legal rights that the immigrants will get as a result of their skin colour.

Caveats: Totally separate issues arise in relation to aboriginal people. And, under the cover of bilingualism, the federal government will inevitably practice affirmative action in favour of francophones. I can't say I'm against such things in principle. Ethnicity is a reality, and I do not believe that the results of the free market or "meritocratic" competition are intrinsically more moral than politically-based ethnic allocation. Every polity with more than one ethnic group must have some of the latter.

But I can't defend the interaction of such policies with voluntary immigration. Anyone willing to do so is free to use the comment box.

*I recognize that you could, in principle, deny this. In fact, if you are a utilitarian, you are committed to denying it. But I think that's a problem for utilitarianism at least as a decision-making rule for national politicians. I might get into this more if I get annoyed with Ignatieff again.

George Grant on Dubya, and on Hillary

Many liberals who do not find the events in IraqVietnam easy to stomach talk as if what were happening there were some kind of accident - if only that Texan had not got into the White House, etc., etc. Such a way of thinking is worthy only of daily kos diaristsjournalists.

Technology and Empire (1969), p. 75.

Harper tells Governor General not to attend soldiers' return

Never, in our history, has the death of soldiers in combat been a private matter. The government's claim that it is protecting the privacy of military families has been denounced as a lie by two of those families. Jim Davis, father of one of the soldiers, called it a "terrible mistake" this morning on Canada AM.

The decision to stop flying the flag on the Peace Tower at half mast appears to be coincidental.

The constitutional issue that is raised is whether this is an appropriate occasion for the Governor General to tell her advisers to pound sand. I tend to think it is, although it is a close call. To the extent the government has a policy reason for what it is doing, I would not want the GG to second guess it.

Note that Dalton McGuinty and Ralph Klein are both putting the boots in.

Sellout

Word on the street is that the Softwood Capitulation is doomed.

I certainly hope so. The compromise on the back taxes would be reasonable IF WE GOT SOMETHING IN RETURN. But we don't: Canadian producers are going to be limited to LESS than their current market share.

The only good result of this would be if the "deal" falls apart, and we get some minimally competent negotiators instead.

The Pithlord does negotiate from time to time in his day job. And the only way to do it is to specify that the solution has to be one where all parties benefit, and the way they cut the surplus is rationally defensible.

The only principled base line is genuine free trade. The Americans argue that stumpage policies amount to a subsidy. This is bulls**t, because whatever stumpage arrangements the Crown and the licensees have between themselves just amounts to splitting rents: a genuine subsidy would only occur if the Crown covered some of the producers operational costs, and that actually does not happen in contemporary Canada.

But while the status quo is not a subsidy, the Pithlord is not against increasing the public's share of the rent. In particular, he would be willing to raise the minimum stumpage rate, and let the producers reduce the harvest where it is not economic. The minimum stumpage rate should represent what the tree is worth to the public uncut, which I think is well in excess of 25 cents a metre.

So, the right way to structure a deal is to agree to talk about raising the minimum stumpage rate in return for genuine free trade. "Market" stumpage calculation is basically a contradiction in terms, but I would be willing to talk about how other rates are calculated as well. And I would be willing to split the back taxes.

But the simple point is that this is a deal just for the sake of a deal, since it doesn't actually improve the only thing Canada should really care about, which is market access.

As a great man once said, "Ce gâchis mérite un gros non!"

Update: The market has already pronounced on the deal. Shares of publicly-traded Canadian lumber firms fell. The damage to workers will be even greater. A shift from a duty to quotas which kept sales the same would be good for profits. So if the stock market thinks this is bad for long-term profits, it is going to be even worse for Canadian workers.

It will also be bad for American consumers and the American construction industry. Since quotas are inferior in every way to duties, it is hard to see who wins, other than the protected American lumber industry.

The Globe & Mail editorialists endorsed the gâchis, but the linked article in the ROB is absolutely devastating. Jack Layton and the Canadian business class are going to see eye-to-eye on this one.

Update 2 (April 28): It appears the final deal (after outrage from the provinces and further intervention by Harper and Emerson) is a bit better than was initially announced. Under the deal, the Provinces can exceed their quotas, but Canada has to slap on a higher export tax. It appears Canada has to slap on some kind of export tax anyway if prices fall below $355 per thousand board feet.

I'm still agin' it, but my reasons would have to be a bit more complicated. Maybe when the final shape of the deal comes out, I will comment.

Jane Jacobs Dies

The great urbanist and Queen of the Annex has died. While a Torontonian, the Pithlord felt a civic pride in her presence, but had some second thoughts once he moved to Vancouver, and had to experience the cost of not having adequate traffic corridors.

But what interested me most was her gloss on Plato's guardian ethic in Systems of Survival . Unlike Plato, she did not claim that the guardian ethic of competition/loyalty/hierarchy was better than the commercial ethic of mutual gain/honest dealing/property-contract respect. But she did think they were both necessary.

When thinking about anarcho-capitalist utopias (pretty much the only kind of anarchist utopia worth thinking about, if only as a normative ideal) I could imagine doing without the state, but not without some caste or other that regarded trade as beneath them. Since such castes are pretty much what is objectionable about the state, I don't see where it gets you.

Update: Apparently, Jacobs advocated Quebec separation from a pro-English Canadian perspective. Haven't read it, but I thought I would link to it. I have been reading Peter Brimelow's Patriot Game, which predicted the rise of both the Reform Party and the Bloc Québecois and which apparently influenced Stephen Harper. Brimelow records something of a debt to Jacobs. But Brimelow's book deserves a post or two of its own.

Quebec Inches to Proportional Representation

Or at least their Citizen's Committee is doing so.

I will try to comment later on Matthew's post and on this development, but for now I thought I would just post the link.

Playground Jurisprudence

I don't pay too much attention to legal academics. But John Mikhail is a worthy exception. He has been arguing that the moral unconscious is structured both like a language (Chomskyan) and like a jurisprudence for a few years. His latest -- on the way children learn moral reasoning -- is worth a look.

Just as Chomsky argued that children are far better at picking up grammar than would be possible unless they, somehow, already knew it, Mikhail argues that kids are better at moral/legal reasoning than they could possibly have picked up from instruction. As the proud father of an eight-year-old who, when motivated, asks more penetrating questions and makes more subtle distinctions than the Court of Appeal, I am convinced he is on to something.

Sunday Morning Patriotism

According to Google, Lord Carnarvon''s peroration on second reading of the British North America Act (Canada's founding Constitutional document) in the British House of Lords is not to be found on the Internet. One of the benefits of blogging is that it is possible to cure such things.

In geographical area this Confederation of the British North American Provinces is even now large - it may become one day second only in extent to the vast territories of Russia - and in population, in revenue, in trade, in shipping, it is superior to the Thirteen Colonies when, not a century ago, in the Declaration of Independence, they became the United States of America. We are laying the foundation of a great state - perhaps one which at a future day may even overshadow this country. But, come what may, we shall rejoice that we have shown neither indifference to their wishes nor jealousy of their aspirations, but that we honestly and sincerely, to the utmost of our power and knowledge, fostered their growth, recognizing in it the conditions of our own greatness.

Update: On the subject of patriotism, Peter Levine has an excellent post on why it is important that it be taught in schools, taking Harry Brighouse of crooked timber to task in the process. Man, I am becoming an old fart, because I nodded all the way through.

Later update: Lord Carnarvon's speech is now here.

P & S Gets Constructive

I get a lot of grief about how negative Pith & Substance is all the time. (Well, I think I would get a lot of grief if I could get the daily view stats reliably into the double digits -- for now, let me just argue with my imaginary critics.) So let me set out my constructive views on a matter of public note that I have thought about, if not resolved: judicial review.

I don't share Paul Martin's view that the words of the SCC on questions of public policy should have greater authority than the Pope speaking ex cathedra on a matter of faith and morals. Mr. Martin was against gay marriage and two-tier healthcare until the courts said the opposite. I was for both, but doubted the reasoning by which they were judicially introduced. And we are equally not Prime Minister right now.

Also, as I will explain when I finally get around to finishing that damn Singh blogathon, I don't really believe that the determination of whether a particular law violates somebody's rights is a legal or interpretative judgment. It is always a matter of balancing policy outcomes, and judges and lawyers know this, even though we are not supposed to let the laity in on it.

On the other hand, I don't really have a bee in my bonnet about judicial review as such. I accept Aristotle's view that democracy needs to be tempered by aristocracy (and vice versa). Back in the day, the British tradition of democracy had plenty of aristocratic elements, but they have given way to modernity. No one really thinks the Senate can play the role Macdonald envisioned for it.

The aristocratic elements today are the bureaucracy, the policy academy (basically economists and epidemiologists with the odd IR type), the professions and the judiciary. All are capable of self-interested behaviour. I think all need to give way to the firmly-held opinion of the people. But the people want contradictory things, do not know much, and can act unwisely as a result of passing emotions (so too can the aristocratic types, of course). So mediating popular will is a good thing.

So where does this lead us? It looks as though we can't trust anybody, and we should give way to consistently held popular opinion.

The solution is the notwithstanding clause. Where traditional rights or vulnerable minorities are concerned, let the judges make it difficult, but not impossible, for the majority to get its way. Let them change who plays defence.

The problem with our s. 33 is that it applies only to some rights, but it allows the legislature to overrule with a simple majority. The result is the unstable equilibrium we have now where the Charter can only be maintained as effective if we regard the use of s. 33 as totally unacceptable. But it shouldn't be totally unacceptable, because judges are often wrong and the populace right.

Ideally, we would have s. 33 apply to all the rights in the Constitution, but only allow it to be exercised with a super-majority in the relevant legislature (say 2/3). The legitimacy of the overruling would cease to be in doubt, but would obviously be harder to get. If no one worried that the use of s. 33 once would destroy the Charter forever, then it would be a lot simpler to overrule boneheaded decisions that the whole political spectrum could regard as dumb.

Paradoxically, the existence of the political safety valve of s. 33 actually permits the courts to be more active in the protection of rights. If s. 33 had existed down South, then the pro-life movement would have been less focused on changing the composition of the SCOTUS, and more on getting politicians to commit to using the non obstante. They probably would have failed, which would be fine, because it would still be a political process, rather than a dictated one.

If Harper wants to introduce property rights into the Constitution, I would say fine to that as well, as long as section 33 was available. Some crazy libertarian judge decides to follow Lochner and the people's representatives can use the "notwithstanding" clause. (In fact, Harper could do this without changing the constitution by amending the sadly-neglected Diefenbaker Bill of Rights to give substantive protection to property rights).

I'd like to see a super-majoritarian non obstante introduced into federalism disputes as well. Actually, I think the Federal Parliament should be able to validate provincial legislation struck down on a simple majority. But when federal legislation is struck down, it should require the 2/3 (with some special protections for Quebec, TBA).

No more M'Lud

In India at least. From now on, Indian judges are to be called "Your Honour".

English judges were known as Your Lordship because they actually were Lords.

Canadians awkwardly adopted "My Lord" and "My Lady". Ontario abolished them a while back, and the Supreme Court of Canada have now taken on the less fawning "Justice."

A few provinces, including British Columbia, still get their lawyers to request their Lordships and Ladyships to take notice of their submissions. I'm not quite enough of an old fart yet to approve.

"Buster"! thou shouldst be living at this hour

Some on the right have denied that a nuclear option is being considered for Iran. The more ambitious Jonah Goldberg defended it by claiming the Pentagon has plans to invade Canada. Those nationalists among our readers should be aware that these plans were developed by the War department in the 1930s.

More importantly, we had a plan to invade them back. As the journalist Charles Taylor related in the 1980s, Defence Scheme No. 1 was developed by the slightly loopy Brigadier James Sutherland "Buster" Brown, but kiboshed by King. According to Wikipedia, Buster did his own reconnaissance in plain clothes, and even predicted that we would be greeted as liberators during Prohibition.

Update: Steve Sailer points out that Goldberg called for an attack on the CN Tower a few moons ago, when anti-Canadianism was the flavour of the month in the crazy neocon set. I recall much panic among our own local bourgeoisie at this development. Our clients were advised not to worry too much, given the advanced stage of Attention Deficit Disorder attained by the angry American right.

Technology Advances

Cooling Off
Originally uploaded by Catherine Jamieson.

I have been getting a lot of bitching about my copyright-compliant image blogging policy. Some people are tired of pictures of Supreme Court of Canada Justices! Well, at Pith and Substance, we aim to please. Inspired by Lindsay Beyerstein, I decided to see if I can get more interesting public domain images by getting a flickr account.

This was uploaded by Catherine Jamieson on April 18, 2005. Thanks, Catherine, for your contribution to cyberfreedom!

The Rebel Sell: A Mini-Review

Over the long weekend, a friend gave me Joseph Heath and Andrew Potter's 2004 book The Rebel Sell.

Basically, I agreed with the authors' points, laughed as they ridiculed the ridiculous and nodded throughout. But it still left me a bit unsatisfied.

I can't argue with the main points the book makes. All societies require rules of conduct, and being anti-social is not the same as being a political dissident. Counter-culture is not anti-capitalist, since capitalism is just as happy to sell authentic experiences and cultural change as pork bellies. Cool is indeed just a post-sixties word for status (within a certain class: more people continue to seek status the old-fashioned way, by having successful children and numerous grandchildren).

The problem is the genre of The Rebel Sell, the dialectical polemic. Dialectical polemics are big on tracing out the logic of the Idea the polemicist is against, from précis of Big Theorist to pop cultural avatar. Heath and Potter take on a Zeitgeist of counter-culture, of anti-consumerist consumption, which somehow stretches from Rousseau, Freud and Gramsci to the most annoying rock snob and ditsiest hippie chick you ever met at an E party. The Pithlord is not entirely against this genre. It is often the case that the fundamental reason to reject the Frankfurt School professor is the shame you feel for pretending to take the hippy chick's contention that the Body Shop will save the world or the rage that the superior record store clerk inspires. So the Pithlord isn't against the genre altogether.

The problem is that a dialectical polemic doesn't take the time to distinguish between ideas worth doing a sociological analysis of, and those really worth arguing with. Heath and Potter can be quite annoying when they throw off policy ideas (35 hour week, school uniforms, elimination of full deductibility of advertising expenses) without bothering to seriously motivate them. At one point, they introduce quite an interesting issue: is there an aggressive instinct in humans, as Freud thought, or is aggression simply the meeting of pure instrumental rationality with a prisoner's dilemma, as Hobbes said? Heath and Potter assure us that there is nothing in human nature that well-regulated markets can't fix. Personally, I suspect they miss that it is our genes that are rational maximizers, not us, and they certainly don't discuss the recent work to show how "irrational" aggression might have evolved. In effect, they dismiss the idea that civilization must repress dangerous human energies with the lightness of touch more appropriately used when discussing Adbusters' new shoe brand.

Sometimes this tendency opens them up to ethical criticism. At one point, they criticize Theodore Roszak for describing Playboy as on a continuum with Auschwitz, but later they treat those who buy free-range eggs as siblings in spirit with the Unabomber. The critics of "moral equivalence" describe the difference between violent and non-violent environmentalists as "more tactical than substantive" (p. 136).

If the counter-culture was really libertarian-capitalist all along -- if the hippies were always yuppies -- then the question still arises whether it was good or bad. Tyler Cowen or Virginia Postrel happily point out the delusion of leftist avant-garde types, but they celebrate what the competitive process Heath and Potter describes has wrought. And they are on to something: maybe the hippies that brought North America better bread were misguided political analysts, but we do now have better bread. Sure, the bobos abandon openly racist expression in part because it reeks of commonness, but don't we end up a little more civilized, a little more restrained? Heath and Potter's analysis of the counter-culture's essential libertarianness doesn't answer the evaluative question of whether and to what extent it has been good for us. They are entitled not to be interested in this question, but would the polemical force remain if they confronted it?

Even Naomi Klein could be seen simply as someone trying to make development and trade union politics cool, to rebrand it. This might not be as foolish a political move as Heath and Potter say.

Fundamentally, the boys are right that the impulse to turn away from "the system" is not a political impulse. No practical politics can afford to oppose the system as such -- it must always have a concrete object of change: a war, segregation, daycare. The impulse of disgust at the system is, at bottom, a religious impulse. It is the impulse to ask the question posed by our free finitude. Ridiculing the impulse doesn't really make it go away. And the boys don't seem to get religion, even though religious journeys of various sorts (Buddhist, Gnostic, Kabbalistic) are a big part of their story. The boys tell us that "The primary functions of Western religions are to teach morality, sanctify marriage and family, and anchor social stability through shared beliefs, rituals and institutions." An odd thing to say about Christianity, for example, whose founder had little time for bourgeois morality, family or social stability.

Ultimately, the boys refuse to understand why anyone would efficiency and instrumental rationality lacking. They invoke Rawls to say that they don't need to embark on the deeper questions -- that liberalism requires only shallow agreement -- but then they are never going to really understand either the counter-culture, which strained for a deeper-than-bourgeois way of living, nor the limits of it.

Update: The literatus wonders whether "ditsiest" should be "ditziest." My spell checker knows neither, but it has the vocabulary of a six-year-old with a reading disability. Five minutes of exhaustive Internet research reveals that both usages are acceptable.

The literatus also complains that I failed in the basic task of the reviewer, which is to tell people whether they should buy the damn book. I was about to invoke the authority of Northrop Frye, and get all snooty about "mere evaluation", when I remembered some pundit (whose name I have forgot/forgotten) who suggested Frye's aversion to evaluating reflected the general unwillingness of the Canadian literary community to piss off somebody who might be in the position to a rule on a Canada Council grant someday. Whether this is fair or not, it stuck with me, and I feel guilty for not pointing my thumbs solidly in a particular direction.

The Rebel Sell is indeed a good book, summarizing complicated ideas effectively and ridiculing stupid ones mercilessly. For a North American born between 1965 and 1980, with some intellectual or leftist pretensions, it is as good an introduction to the Hobbes/Locke/Hume/Smith vs. Rousseau/Hegel/Marx/Freud debate about human nature as you are likely to find, although highly biased to the former side.

My only caveat would be that I would not give it to a brash marketing type or a dweeby economics geek, since it would confirm them in all their prejudices, and that would not be good for their souls. But if you know anybody who ever marched in an anti-globalization parade, or convinced themselves that keeping Wal-Mart out of their backyard was good for the working class, then I wouldn't let another gift season go by without picking one up.

Cosh on Religious Pacifists

I don't read the National Post since they decimated their Arts coverage. The reporting was never any good, and their best opinionators are all online anyway. And since I don't really believe that Canada is an anti-Semitic collectivist hellhole, a Weimar-with-blackflies, I find the sheer discipline of its political agenda exhausting. Also, while I can understand intellectually why so many of our fellow citizens are so much more emotionally invested in the Palestine-Israel thing than the bloodier and more interesting Ethiopia-Eritrea border dispute, I can't really feel it.

The main downside is having to wait a bit for Cosh's more extended reflections. His latest seems to me a tribute to religious pacifists, designed to be misunderstood as a knee-jerk right-wing attack on them. The critical line is "To call the Peacemakers 'moral imbeciles,' as a Sun columnist did on Sunday, seems unkind to imbeciles." A good one-liner bound to please in Calgary watering holes. But the flipside is that the comparison while unkind to imbeciles, lacks the appropriate degree of respect for the Peacemakers' fanaticism.

The underlying intuition of pacifism -- that no expectation of positive consequences can ever justify the deliberate destruction of *this* human life -- is one that ought to appeal to the kind of conservative raised on tales of the unintended results of well-intentioned coercion. And secular conservatives always admire religious faith.

I think Cosh is ultimately right that serious pacifism requires a religious conviction that God will make the consequences all work out, and that the pride of man is inevitably humbled. I find the latter easy to accept, but have not managed the former.

What we might have learned from the pacifists is that war, like revolution, is not something to enter into because we have a plan of social improvement. It ought to be a last resort in response to aggression (or, in the case of revolution, tyranny). The pacifists are, in the last instance, hard-headed in realizing that war/revolution are not good instruments of policy because they are always bigger than we are, and so don't stay instrumental very long.

Update/Suck up: Cosh is apparently starting a roundup of world English-language press.

More Respectful Update: A few days after this post, William Sloane Coffin died. RIP.

Singhing for my Supper: Part Deux

OK. Enough procrastination. I promised I would do a five-part blgoathon on the Singh decision (by which everyone means Madam Justice Wilson's reasons), and that means I'd better get busy.

The first order of business was to explain why the argument the literatus tells me the righties are fond of -- to wit, that the SCC ought never to have included refugee claimants among the persons owed rights under the Charter-- must be wrong. And I was to do it without engaging in politically correct balderdash, or using too much Latin.

The hard part is explaining how the process worked. Back in the day (pre-1985) refugee claimants were not automatically entitled to an oral hearing before the Immigration and Refugee Board. First, they had to appear before a federal government official, where they were asked questions under oath, and a transcript was taken. The transcript was then reviewed by a committee, which decided whether to grant the claimant permission to reside in Canada for the time it took, even in those relatively halcyon days, to get a refugee hearing done. If the committee said "no" (as it did to Mr. Singh), then there was an opportunity to apply in writing to have the Board reconsider the decision. But that application was in writing (i.e. just with the transcript) and the onus was on the claimant to show that he or she would more than likely prevail.

If you think that was complicated, you don't want to be practicing immigration law today.

Anyway, the SCC had to figure out whether this process was consistent with section 7 of the Charter (which Justice Scalia once explained to some law students, including me, was sufficiently "foofy" that any country stupid enough to put it in their constitution deserved the inevitable judicial tyranny that would follow):

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

(Actually, technically, the Court dodged this question, but let's leave that for another part of the blogathon.)

Lawyers love to divide simple sentences up into "tests" and "stages" and no lawyers liked to do that more than the 1980s SCC. So they started with who is included in "Everyone." According to the righties, this is where they went wrong. "Everyone" only means Canadians or maybe landed immigrants.

Sorry, but that cannot be right. Because when the Charter means citizens, it uses "citizen" (Section 3: Every citizen of Canada has the right to vote...), and when it means citizens and landed immigrants, it uses "citizen" and "person who has the status of a permanent resident of Canada" (Paragraph 6(2)(a): Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right [...] to move to and take up residence in any province.).

So, when it says "everyone", it means "everyone" (bracketing controversies about fetuses, corporations, sentient robots and so on).

That doesn't mean that Wilson's at logical home plate yet. She's only gotten past one word: she still has to get through the rest of section 7, and then section 1. Each of the moves she makes on each of these points is one that a reasonable person could dispute, and, to give it its due, the DOJ did.

But before we get there, a theoretical intermission: the Pithlord is oddly comforted by his sense of certainty on even the first stage. Like most quibblers, he has had his dark nights of the soul when he doubted that the law really meant anything, other than what some damn fool judge preferred it to mean. Back in law school, he read the "Realists" who made an ideology of this doubt, and liked to argue their side when classroom participation marks were being dangled. But there is *something*, however underdetermining, to the technical canons of the profession. The DOJ didn't try to argue that Mr. Singh was outside the category of "Everyone" and Wilson dispensed with that issue in a paragraph, for reasons that I think almost all lawyers would agree with. In some ultimate sense, these certainties may be the folkways of the guild, but they are certainties nonetheless, and that they could be taken advantage of by somebody as far from the obvious sources of power as Mr. Singh gives the quibblers something to be proud of.

OK, the literatus reasonably, if impatiently objects, but it can hardly be possible that everyone in the world is owed the same concern and attention of the Canadian government as those here and paying taxes. How can "everyone" really mean everyone on Earth?

It works, but just so long as the Charter is a classically liberal document creating negative obligations on government. To make this doable, we need a strong act/omission distinction, and we have one in the Dolphin Delivery doctrine. All rights have correlative obligations, and, for the Charter those obligations are all on the government, and (although the SCC hasn't always been consistent here), they are all either negative or conditional obligations. The Charter is not violated when criminally-minded Canadians deprive others of their life or liberty, nor even when the state fails to effectively prevent this.

There are very few classically liberal ("libertarian") Canadians, thank God, and certainly none of those responsible for the Charter answered to that description. But, as I suggested previously, the Charter was intended to preserve that consensus between classical liberalism and social democracy. It allows, but does not require, affirmative action to redress social inequality. It allows, but does not lift a finger to defend, a free market economy based on private property and contractual freedom.

So, when it is said that "everyone" means everyone, no positive obligation has yet been created. The Canadian government cannot kill anyone, even a foreigner, without going through some more hurdles. But it need not save anyone's life. We expect it will do something for the literatus and myself when we are in trouble, but our basis for that expectation is a political one.

OK, but then how do we get to a positive and costly obligation to refugee claimants, which an oral hearing certainly is? Here Wilson makes a move that I must approve of in principle. She says that entry into the country is a pure Crown prerogative, but that the Crown and Parliament has substantively defined what a refugee is through the Executive's agreement to the relevant Convention and the latter's use of that definition in legislation. So while Canada had no constitutional obligation to do this, once it has created this substantive right, it has a constitutional obligation to have adequate procedures to determine whether the substantive right exists or not.

One possible response would be that if the federal government could, constitutionally, allow no refugee applicants at all, how can it be in trouble if it allows them, but doesn't give them all oral hearings? I'm not sure Wilson squarely addresses this thought, other than to say that such a privilege/right distinction was exactly the kind of thinking that made the Diefenbaker Bill of Rights such a joke.

The counter-argument that I think is right is that section 7 was intended to do something, and what it was intended to do was to allow the courts to look at procedures affecting people's vital interests and make sure those procedures were adequate. The framers of the Charter knew that section 7 was a bit "foofy" in its wording, but thought that the procedure/substance distinction would keep it under control. The evidence that this was what they intended is overwhelming: unfortunately, the SCC didn't listen.

But if they had listened, then this would have justified this part of Singh. Parliament would have free reign to decide what substantively constitutes a refugee, or whether we should even have such a category: the judges could then determine whether the procedures for assigning this status are fair. This division of labour -- which was genuinely intended -- would require the courts to take a look at procedures even where the status sought is, in some sense, a "privilege."

Defining procedures is a more modest task for courts, but it is the one that the authors of the Charter really did mean to give them. The Pithlord is OK with that, particularly since the political system has the notwithstanding clause -- and, more importantly in practice, the ability to bring social policy issues into play under section 1.

All of which just gets us to the legitimacy of the Court considering the real questions: Is an oral hearing required to determine fairly whether a person is truly a refugee? Is the extra stress on the immigration system of requiring such a thing really worth it? The actual consequences of the decision put the Court's judgment on these matters in doubt. But that's the subject of the next post.

Picture of Bertha Wilson from Supreme Court of Canada collection. Credit: Michael Bedford.

Singhing for my supper, Part Un

The Pithlord takes requests.

Oh, he'd rather not. But the Pithlord knows his low station in the blogosphere. Anonymous part-timers who refer to themselves in the third person, using Star Wars-inspired handles no less, cannot afford to be choosy. With a chosen area of interest of Canadian constitutional arcana, one cannot help be aware that one's social standing ranks below that of the Secretary-Treasurer of the Grade 10 Dungeons & Dragons Club.

The reader asks:

Been reading some righties who say the Singh decision was *textbook* [expletive deleted] judicial arrogation, expansion or power-grabbing bloat. That no real jurisprudentialist could interpret the Charter's "persons" to mean "all passersby, visitors and even petitioners are kidnapped into Canadianism and may at any time draw from the scanty, the limited, the put-upon public purse," into which the natives, I remind you, must tithe on pain of Kingston Pen.

I bet these ideologues are eliding some part of the Singh thing. Wanna give me a quick, non-goofy précis? Yes, you'll be marked. And Colby Cosh will give you a tentative little wave and try to approach you at parties, and you'll pretend you don't see him.

The Pithlord was raised to respect the social graces, and so wishes to preface his précisifying with thanks to the reader for his confidence in my eventual position in the Canblogger primate hierarchy, but most of all for braving the right-Canuckosphere to come back with such chilling reports. As Jack Pickersgill accurately, albeit arrogantly, noted, Tories are like mumps--you get them once a generation. Their time being the present, the Pithlord is glad to know a mump expert.

The furthest the Pithlord has yet ventured was into Andrew Coyne's comment threads. Unfortunately some minor electoral success had got the locals all riled up. The Timbits-treasuring Tories triumphalist denigration of adequately-caffienated beverages ("lattés are worse than capital gains taxes", "people who don't order double doubles should be disenfranchised", and similar drivel) annoyed the Pithlord. The election had already seriously divided Canadians on beverage-preference lines, and I was late for a same-sex wedding reception where I was to discuss with some top Grit bagpersons how we could blow Alberta's oil wealth on paving contracts in Shawinigan on our inevitable return to power, so perhaps my impending exposure to the work of Gloria Gaynor made me grumpy. In any event, I typed out "You can pry my no fat grande cappucino from my cold, dead fingers, so con" and pressed the Post button. Needless to say, it isn't just ethnic watering holes in the Dufferin-Bloor area where the Pithlord is unwelcome anymore.

But enough prefacing. Is the righties' critique of Singh on the money or not? At this point, the Pithlord needs to confess that he cannot live up to his name. On such a sensitive issue, it is better to be substantive than pithy. The reader has provoked me to a four-part blogathon (five parts, if you count this meandering preamble). The subsequent posts will attempt to show that:

1. The righties have unerringly picked the aspect of Wilson's judgment in Singh which is most undeniably beyond reproach. There really is no way to interpret "Everyone" in section 7 of the Charter such that it excludes applicants for refugee status. The other parts of Wilson's decision, although more open to reasonable dispute, do not contain an obvious logical flaw.

2. Nonetheless, Singh was a mistake, and has contributed to the clusterf**k that is our immigration policy.

3. The root of the problem was that Wilson (and Beetz too) acted too much like "real jurisprudentialists" and not enough like the cunning politicians that the Charter requires judges to be.

4. The whole thing could be sorted out by a federal government with the will to do so. In other words, the problem (at least here) isn't the Charter, so much as the political system's preference to have these hot potatoes dealt with by people in Santa Claus outfits.

Picture of Jon Cary as DJ taken by Nathaniel Meo of Utopium Photography, and donated into the public domain. Thanks, dudes. Pithlord biographical details may or may not be completely fictional.

Meaning -- Not in the Head; Constitutional Controversy -- Not About Meaning

Matthew Yglesias explains, to the Pithlord's satisfaction, why meaning isn't about the private intention of the speaker/author. Somebody in the comments thread points out that private meaning might be important in certain kinds of speech/writing. But it is beyond dispute that legal documents are not that kind of utterance.

This was all inspired by Stanley Fish's embrace of the "What would Madison do?" kind of originalism, which everybody in the legal world considered dead. In Canada, it is paradoxically even more silly than in the US with its long-dead framers, since the drafter of the Charter, Barry Strayer, is an intermediary appeal judge on the Federal Court. If the WWMD types were right, he would decide all his cases by trying to reminisce about what he would have done back when he was a wet-behind-the-ears DOJ hack, and once he introspected this, then his panel colleagues and the SCC would just have to do what he said.

If Constitutional adjudication were about meaning, then this would all be very important. But, at least most of the time, constitutional adjudication is *not* about the meaning of terms like "equality" or "liberty", but their application. Is a ban on Sunday shopping contrary to freedom of religion? You don't find out by asking English speakers what "freedom" and "religion" and "of" mean; you find out by inquiring as to the secular purposes of such legislation, its effect on religious minorities and so on.

The Pithlord is very sympathetic to the concern behind originalism. He worries about judicialization of decisions that ought to be decided democratically. But originalism isn't going to do anything about this concern. If it is of the WWMD type, it is absurd, and would require the kind of communing with the dead that has wisely not been part of the Canadian public policy process since King. If originalism is recast in more plausible form, then it doesn't actually do anything useful, at least not in the cases that people worry about.

Hockey Link of the Week

Michael Berube reflects on the structure of the NHL playoffs since 1967.

When Neorealists Get Normative: Jacob Levy on Mearsheimer & Walt

Many, many stupid things have been said about Mearsheimer & Walt's piece on "The Israel Lobby", not all of them by Glenn Reynolds. Even though Dan Drezner avoided calling them anti-Semites, I didn't think his post warranted all the praise it got.

But Jacob Levy doesn't say stupid things. Read Multiculturalism of Fear if you want to understand Trudeau better than Trudeau did. Or read Loyalties of Federalism and Liberal Thought if you want to know how we ought to be responding to the separatist movement.

So Levy's post on M&W is, unsurprisingly, worth reading.

Generational Reflections of an Ex-Leftist

Publius has an interesting and moving account of attending the big pro-undocumented worker demonstration in Washington, D.C. and reflecting on his generational sense of belatedness/annoyance in relation to the sixties.

I think I'm a bit older than publius, but I know what he is talking about, so I posted this in his comments box:

I was born in 1970, so I know exactly what you mean about the feeling of belatedness. I remember the first Gulf War --after a few years of tiny demonstrations of Trotskyists and anarchists on every conceivable subject, we had thousands. And then it all dried up again a few weeks later when it was obvious that US military victory would be pretty easy.

We had a decade of stupid identity politics, and then in 1999, Seattle and the whole traveling anti-globalization stuff. By then, I had enough. I didn't sympathize with the cause, which seemed to be a generalized objection to international trade and governance per se, and I realized I didn't *want* to see another wave of leftist protestors.

Just like the sixties, the 1999 period was quickly followed by the triumph of right-wing ultra-nationalists who shared the hostility to international cooperation, but had the benefit of a realistic sense of how politics actually works. They took what the neoliberals had built in the 1990s and wrecked it out of a sort of Dionysian rage at the constraints of civilization.

Fighting for equality and dignity for the people who have worked and lived in your country is a real cause. Opposing another stupid war is a real cause. Good luck.

Of course, then we get into a big Usenetty thing about libertarianism. But it was an interesting moment.

Creation Science at SSHRC?

According to Panda's Thumb, Nature is reporting that SSHRC denied a research grant proposal on the grounds that "the committee felt there was inadequate justification for the assumption in the proposal that the theory of evolution, and not intelligent-design theory, was correct."

As I read this, I was immediately struck with panic. "But I thought Stockwell Day became Minister of Public Safety."

Sure enough, SSHRC apparently reports to the Minister of Industry, Maxime Bernier. Un avocat Québécois . So what's up with creationist infiltration of SSHRC?

Bringing the Administration of Justice into Disrepute

I participate in an argument about the "exclusionary rule", i.e., whether it is a good idea to exclude probative but unconstitutionally-obtained evidence in criminal trials over at Lawyers, Guns and Money.

Bottom line: exclusionary remedies are a bad idea, but the kind of people who are most against them wouldn't like the alternative, making personal injury lawyers rich suing cops.

One of these days I will tell the story of how current Chief Justice of Ontario Roy McMurtry came up with the current s. 24(2) in an attempt to keep exclusionary remedies exceptional, how Lamer CJC overruled this relatively obvious intention, and what it means for the idea of original intent in Canada. But, today, I got work to do.

Update: I know, I know. The politically correct term is "original understanding", not "original intent." I was just being pejorative.

Update 2: Got an e-mail from the literatus complaining about all the typos on this site. I just fixed one on this post, but don't think I'm going to make a habit of it. I will be better about using the spell check, but I am not getting paid, unless you count $0.11 Canadian from Google Ads. If you want typos fixed, post a bleeding comment, and I'll fix them.

It's Getting Meta Over There

Link

[Note: I'm sure someone else has done this, but I haven't seen it.]

We're # 4

Apparently, this site comes up in 4th place if you google "Pith" + "Substance". More remarkably, we're #1 for "Foucault"+"Trudeau".

Good work everybody, and bonuses all round.

Insider/Outsider Trading and Property Rights

Stephen Bainbridge has a good post on how to analyze when trading on non-public information should be illegal and when it is just the market functioning as it should. The key is whether someone other than the trader should be considered to have a "property right" in the information.

I think this is right, but would add that this just pushes the analysis to the next stage: who has property rights in information? Where the information is received as a result of a fiduciary role (e.g., a lawyer knowing something from a client or a manager knowing something the firm has an interest in keeping secret), then it is pretty easy. But there will be border line cases.

Rights under the International Covenant on Economic, Social and Cultural Rights : Should They Be Read Into Canada's Constitution

Patrick Macklem argues "yes." He bemoans the relative absence of reference to ICESCR in Charter decisions.

The Pithlord is not a strict originalist, by any means. But he thinks both right and left need to accept that the 1982 deal bracketed the struggle between social democracy and classical liberalism. That is the real meaning of the absence of property rights or specific social guarantees in the Constitution. The Pithlord knows that it isn't too hard to come up with interpretive arguments incorporating either the principles of Alabaman laissez faire or Swedish welfare statism in sections 2, 7 or 15. But the courts shouldn't entertain them, no matter how ingenious. Social democracy needs to fight it out with libertarianism in the political sphere.

In a nutshell, that's why the majority was right in Gosselin and the minority was on the money in Chaoulli.

Seymour Hersh: Bush Plans to NUKE Iran!

If it was anyone else, I'd dismiss it as crazy conspiracy crap. But Seymour Hersh has a pretty good track record. He claims that the Bush administration has plans to bomb Iran, including with tactical nuclear weapons.

Hersh reports:

One of the military’s initial option plans, as presented to the White House by the Pentagon this winter, calls for the use of a bunker-buster tactical nuclear weapon, such as the B61-11, against underground nuclear sites. One target is Iran’s main centrifuge plant, at Natanz, nearly two hundred miles south of Tehran.

According to Hersh, some members of the Joint Chiefs of Staff sought to have the nuclear option removed, including threats of resignation, without success.

The level of immorality and criminal stupidity involved in the first use of nuclear weapons far, far outweighs the Iraq war. If it happens, Canada must leave all its military alliances with the US immediately, including NORAD and NATO. If Harper refuses, then he must be brought down.

Sometimes hyper-ventilation is appropriate. An unprovoked first nuclear strike is one of those times.

Update: Matthew Yglesias wonders where the evidence is that sanctions inspire revolution. He is right, of course. They don't. Sanctions result from the famous syllogism:

1. Something must be done.
2. This is something.
3. Let's do it.

On the other hand, sanctions are way preferable to nuclear first-strikes.

Update, Part Deux: On Monday, Bush called Hersh's article "wild speculation." That is not a denial, and therefore, in the odd literalism of DC discourse, it is the next best thing to a confirmation. One with Nineveh and Tyre.

Inside Stuff

I need a better nickname for the reader, since that was becoming confusing. I have hit upon the literatus. And so, congrats, to the literatus on a fine, published, piece of writing.

Surreal Moments in Blogging, Part I

Smarty-pants theocon Ross Douthat "fisks" the Gnostic Gospel of Judas.

According to technorati and Google Blogsearch, Judas has nothing to say in response to this devestating takedown at his own blog, 30piecesofsilver.blogspot.com.

Paging Dr. Zeno

The federal government has terminated an untendered contract to Marie-Joseée Lapointe, a well-connected Quebec Tory. The subject of the contract was the reform of the government's tendering process.

Naturally, it follows that the contract must now be tendered. But who will provide the evaluation of that competition? The Tories do not trust the public service, so it must be an outside consultant, who must, it follows, compete. And so on, and so on.

The impulse to respond to the violation of laws with new laws is the source of all bureaucracy. Discuss.

The Grand Unified Theory of Bushism & the British Constituion

Publius reflects on the recent Libby revelations by accurately summarizing the grand theory of Bushism: the Executive defines the limits of its own power. Not a good theory, and one with dreadful practical consequences for America and the world.

Unfortunately, many liberal Americans have thrown around the phrase "King George" or, on a more sophisticated level, emphasized the discontinuity between the British traditions of the royal prerogative and America's post-revolutionary constitution (Cass Sunstein, I'm looking at you).

These discontinuities exist. Clearly, there is a link between Article I's list of powers given to Congress, and Blackstone's list of the King's Prerogatives in relation to war and foreign affairs. The British Crown could (and can) declare war, issue letters of marque and reprisal and enter into treaties, and the framers thought the American President shouldn't be allowed to do these things (although in the 20th century, these restrictions have been honoured principally in the breach).

But, at a more basic level, the principle Yoo and Bush are asserting is an attack on the British Constitution as Blackstone would have understood it, and as Hamilton and Madison would certainly have wanted to preserve it. The Crown *does not* determine the limits of its own preorogative.

The key to the prerogative is that it is a matter of common law. Common law is defined by the courts, and subject to alteration by Parliament. Since the prerogative is a matter of common law, its existing limits are ultimately decided, not by the executive, but by the judiciary, and its limits can be restricted to any degree by Parliament.

Amazingly, even Henry VIII accepted this principle: "We are at the height of our sovereignty when we act by and with the advice and consent of the Lords Spiritual and Temporal and the Commons." As a result, statutes were the Crown acting at the *height* of its sovereignty, while ordinary executive action were the Crown in a relatively subordinated position. There could therefore be no limit, in principle, to Parliament's ability to restrict executive power. By John Yoo's standards, Henry VIII was a wuss.

Read this, Iggy

The Pithlord would be a lot happier about Ignatieff as Prime Minister if he would read some Jim Henley. Iggy would know a lot more about the DC Universe and why liberal imperialism doesn't work.

Here is Mr. Henley noting the odd American fixation on personality over structure.

I'm glad a Yank is bringing this up, because I was worried it might be impolite to mention how stupid this makes the US look. What *is* the deal with taking obscure Arab politicians and terrorists and making them into individual megastars when you have a whole mass movement that hates you, and can easily replace these individuals?

Rae Joins the Liberals

Bob Rae has come home again.

Some see the fiscal and uber-PC train wreck he led in Ontario a while back as a major obstacle to Rae making it to 24 Sussex. The Pithlord disagrees. He would rather not recall what he did and believed in the early nineties, and would be pleased to see a PM in the same position.

Freedom's just another word for limitation period expiry.

Image of toothy ex-premier subject to Crown copyright. Reproduction for non-commercial purposes licensed.

Will the American left finally embrace federalism?

I had an argument a few months ago with Scott Lemieux about whether the left should be so centralist on federalism issues. For a while, I have thought that the US left could do well to refocus its energies at the state level, and to start defending some constitutional autonomy for states in court. As far as I can see, if the American left is going to have any forward momentum in the next generation, it is going to be in the states.

Well, Massachusetts is now poised to become the first state to offer universal health care. More would follow, and would have done so earlier, were it not for the Court's imposed restrictions on residency requirements for state social programs.

Update: Sensible man-of-the-left Kevin Drum complains about the "kludges" in the Massachusetts plan. The Pithlord is no helath economics wonk, but counters that this misses the bigger point. Once the principle of universality is conceded, it is always possible to come up with more efficient ways of delivering it, since there will be no lack of pressures to do so. Its the principle itself that matters. Massachusetts, then Hawaii, then NY and CA. LBJ ain't coming back, so there's no point pining after Washington any more.

Treaties to be ratified in Parliament

Not much surprising in the throne speech. I already mentioned the misguided commitment to democratize the Senate.

Everyone has already noticed that the déséquilibre fiscal is the doozie.

But I hadn't noticed the "Significant treaties will be submitted for a vote in Parliament" promise before. As it currently stands, signature and even ratification of a treaty are exercises of the Crown prerogative, but legislation is necessary to make a treaty effective as a matter of domestic law. (Very different from the US system.) What changes does the government have in mind?

Stephen, Don't Say I Didn't Warn You

If the Pithlord could abolish the Senate, he would. If that is impossible, then we should just make the best of a bad situation, and leave the status quo in place. There is no way to rework the Senate without it descending into zero-sum regional competition. Triple-E means that Quebec is outnumbere 9-1. Rep-by-pop duplicates the House. The current distribution makes BC livid.

All of which is just a mildly annoying grievance as long as the Senate is unelected and therefore without the legitimacy to exercise its constitutional powers. But you add election to the mix, and you have just what we don't need -- raw regional power struggle.

So, naturally, our Prime Minister wants to get the party started now.

Lawyer Guild Privileges: The Next Unwritten Principle?

Through the lawless device of striking down legislation on the basis of "unwritten constitutional principles", the legal profession has obtained tax free status in British Columbia. But if you want to see where the game will be played next, it is wise to look at the law reviews.

In "Unwritten Constitutional Principles and the Enforceability of the Indpendence of the Independence of the Bar" (2005), 30 SCLR (2d) 463, Blakes associate and former clerk to Chief Justice McLachlin Roy Millen calls on the Court to establish "the independence of the bar" as the latest unwritten principle.

Shaw pointed out that all professions are conspiracies against the laity. For the most part, they are effective enough that few governments do much about them. But occasionally, the public may demand some constraint on the interests of a profession. If the Court takes up Millen's proposal, then lawyers will still be able to lobby politicians to avoid regulatory scrutiny, as pipefitters and doctors do, but will be able to ask the highest lawyers in the land to reverse any lack of success.

The Pithlord recognizes that there are some reasons for the guild privileges of lawyers, and that these need to be balanced against the benefits of external regulation. But he thinks the legal profession is strong enough to take its lumps in the political arena. The profession's guild privileges are based on the premise that lawyers are genuinely willing to uphold the rule of law. If the Dominion's barristers and solicitors are prepared to throw out hundreds of years of British/Canadian constitutional law to win perquisites for themselves, then the Pithlord is going to have to learn some lawyer jokes.

McCain: Warmonger, but, other than that, a great guy

Publius argues, from a centrist Democratic perspective, and much to the disgust of his commentariat, that John McCain might not be so bad after all, except that he "never met a war he didn't like."

It seems to me like an exception that swallows the rule. I suppose as an American, publius is entitled to care about the domestic policies of a possible Presidential contender. But, from my perspective, the worst possible Republican nominee would be (a) more militaristic than Bush and (b) not tied in the public mind with Bush's Iraq policy. At least a dyed-in-the-wool Bushie would have trouble using the whole "Weapons of Mass Destruction" line again. And a conservative isolationist like Hagel might actually have a rational foreing policy. So McCain seems like the worst of all worlds.