What happens if Congress overrules the Geneva Convention?

As a matter of domestic law, Congress can overrule treaties by subsequent enactment. But, as a matter of international law, the US would be in breach of its treaty obligations if they did so.

It might be good domestic politics to stick it to the Court. No doubt Breyer's concurrence will be quoted. But the rest of the West is not going to take well to this.

On Wednesday, Guantanamo was already a problem for Tony Blair and for other pro-US Western politicians. But it could at least be argued that the Geneva Conventions do not apply to captured purported al Qaeda members.

Not any more.

Because this is a matter of the US's treaty obligations to all the other signatories of the Geneva Conventions, it becomes an issue of the politics of each of those other countries. The Khadrs are Canadian citizens in Guantanamo -- clearly, the Canadian government has to consider its diplomatic position. The Canadian courts, and the European courts, are sure to get involved.

Update: Carlos Vázquez, who authored one of the amicus briefs on the application of the Geneva Convention, makes the point better here.

Not Necessarily Net Neutrality, Since Net Neturality's Not Necessary

I don't want to bite the Google hand that feeds, but Robert Hahn and Scott Wallstein convincingly argue against "net neutrality" (i.e., regulations preventing broadband providers from charging different prices based on content). In general, price regulation is bad, so the burden of proof is on the net neutrality types. It's true that monopolistic broadband providers could use price discrimination in a negative way -- but the experience of high-tech industries is that it is difficult to keep a monoploy for long, and it is far more important to have incentives for investment and to keep regulators out.

Fidler-Case Comment-Thumbs Up

Fidler arises out of a conflict well known to employers, insurance companies and disabled people. Someone claims disability benefits on the basis of fibromyalgia and chronic fatigue syndrome - very real conditions which are easy to fake. The insurance company suspects malingering and terminates benefits. The claimant brings legal action. The insurance company concedes entitlement at the courthouse steps.

Since the insurance company conceded that Ms. Fidler was genuinely disabled, there was no doubt she was entitled to the unpaid benefits with interest. But could she also get damages reflecting the anxiety her battle with the insurer created? Should the insurer pay punitive damages as well?

The trial judge found the company didn't act in the kind of bad faith necessary for punitives, but it did interfere with the "peace of mind" at the heart of insurance, and it insurance companies know they have to pay for that. The Court of Appeal interfered with the trial court's finding of good faith, but the SCC properly slapped them down for that. I agree with this part of the decision. Chief Justice Finch of the BC Court of Appeal commented that the company must have acted in bad faith in denying the benefits, since it agreed to settlement before trial -- "the civil equivalent of a guilty plea". But since we want civil guilty pleas, just like we want criminal ones, we shouldn't punish defendants for them. The incentives implicit in a rule like "Punitive damages if you settle, but not if you go to trial" are scary to cotemplate.

The part of the decision which will be of broader interest is the SCC's willingness to give damages for the emotional consequences of the denial of benefits.

Historically, common law courts recognized both that negative emotions are foreseeable consequences of breaches of contract, and that compensation for this distress is not normally part of a commercial bargain. So they ruled that "emotional distress" can't normally be a head of damages for breach of contract. However, if "peace of mind" is what the breaching party was selling, then such damages are available.

This made oodles of sense. Including emotional damages in an ordinary contract action is in nobody's ex ante interests. The financial risk of contract breach would depend on the emotionality of the other side, which makes it unpredictable and creates an incentive to exaggerate these emotions. On the other hand, there is undoubtedly a narrow category of contracts for which protection against these emotions is precisely what is sought, and paid for, and courts should therefore enforce damages for emotional distress in these cases.

The Court's discussion of this doctrine is open to two interpretations. On one view, they are simply rationalizing the doctrine and noting that it is consistent with fundamental principles of contract law. The real inquiry, they say, is whether one of the contracting parties took on the risk of emotional damage to the other in the event of its own breach. If this is just a more precise way of putting what we already knew, then the Pithlord thinks it is all good.

The downside would be if the Court's decision is taken to mean that all the existing case law on which contracts are for "peace of mind" is thrown out. This would mean a lot of commercial and legal uncertainty for no benefit. The Pithlord thinks that what the Court has said in Fidler is consistent with the old cases, but it would have been more reassuring if the Court had said that too.

Still, all in all, a good job. The Court cleaned the law up a bit, but with a sensible overall result.

Case Comment of Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30

Vietnam and Iraq: A Drunken E-mail Exchange

The literatus, undergraduate drinking buddy of the Pithlord and present-day neighbour of Vietnamese refugees, challenges Pith & Substance's program for Iraq:

You got to admit, if that whole dovish Viet-quag analogy holds up here, it's a historical necessity that post-Yankee Iraq get, er, newly invaded, rebrutalised and shot to pieces in a way that makes the original intervention look mellow. (Cambodia = Iran? Sunni insurgent boffos = VC? Saudi = China?) If the metaphor holds true of course, the world-historical next chapter in Iraq's nightmare will be kinda, erm, underpublicised, while the Western world tut-tuts about glamourous American guilt and self-examination. Hey, I'm cool with it, so long as you Yankees-Out sorts take * full* responsibility for your dream coming true, and *keep paying attention* to the Messed-Up Potamians after GI Joe's gone home to talk to his shrink about his screenplay...

Some ancient curse of a disgruntled fairy godmother compels me to respond to all of the literatus' drunken e-mails, and so I did:

There are basically two possibilities in Iraq:

1. A deal between ethnic and sectarian factions with enough clout to crush those outside the deal.

2. Civil war.

Truth is, though, that nobody outside Iraq can have any real influence on which of these happens. We could send some mediators to propose equalization payments and asymmetrical federalism arrangements. A deal that could make everybody better off exists. But we can't ensure that all the necessary people agree to it. And if the deal doesn't exist, we can't prevent civil war.

Foreign troops just make it harder to force the relevant people to come to the available deal. Those not part of the government get to claim they are fighting for national liberation. Those who are part of the government can fantasize that the imperialists can be tricked into crushing their enemies before they, in turn, are required to leave.

I'm not an "Out Now" type. I'm a "Set a Date" type. Are you a "permanent bases" type? Or a "keep doing this until we have to leave anyway" type? Or is there another option, because I'm not seeing it now.

Am I responsible for bad consequences that follow on my preferred option? Not really. All I can propose is the course of action that is the least bad.

My basic retrospective objection to Vietnam was the assassination of Diem. That's the real analogy to deposing Saddam Hussein. The idea, if you will recall, was that Diem was a bad-ass right-wing Catholic dictator, and the Kennedy administration thought that they could replace him with some Swiss-style social democratic fellow who would be nice to the Buddhists. Trouble is that such people were not the sort to make it to the top of 1960s Vietnamese politics. So the US allowed itself to become the government of South Vietnam. Trouble with humans is that there mostly like you, [literatus]. They would rather be ruled by their own kind, even if they are Commies or corrupt with dragon-lady wives.

Once the Americans assassinated Diem, they were pretty much honour bound to stay to the end. Which is why you shouldn't do stuff like that.

Canada: What's the point?

Dana of the Galloping Beaver starts her summer vacation by asking what the point of Canada is. Does the Great Dominion have a telos? Is our (and especially the ROC's) identity merely negative - a not-America not-Quebec? The source of identity can't be a set of recent, and still-controversial, social programs -- if so, those who oppose these programs aren't Canadian, and that line of demagogy didn't really work in the last federal election. And it can't be a blood-and-soil ethnic particularism, because that's just icky. So what is it?

It isn't immediately obvious that a country should have a point. John Rawls thought that a liberal state was precisely one that left goals (the point) up to the people in it, and confined itself to a thin political justice.

Subsidiary theorists would accept that every organization or community, including the federal government and Canada, has to have a purpose, but that its purpose should be confined to those things smaller organizations and communities can't effectively do themselves. Subsidiarity makes a lot of sense of federations, and of Canada. So if we ask what the *point* of the federal government is, then we look at its appropriate constitutional responsibilities -- defence, foreign affairs, maintenance of a common market and common citizenship. These things have a point because we need them. "Globalization" is no substitute for an actual organization.

But Dana's not really asking about the federal government -- she's asking about the Canadian community. What is its point?

Dana's anxiety speaks to several generations of post-WWII English Canadians. It didn't speak to the Victorians who set this thing up. Some of their contemporaries weren't sure about whether the Dominion was a good idea -- Nova Scotia quickly elected secessionists. Others fought to maintain a direct relationship with London for their provinces. But everyone knew what the point was. Canada was to be the British Empire in North America -- and a model for the future development of British colonies elsewhere. The British Empire hardly lacked a point -- it was the fulfillment of the destiny of the Anglo-Saxon people. And Canada was the demonstration that this could be done without sacrificing either freedom or the tie to the Crown.

We retain the heritage of common law, free markets (albeit modified by the sulky collectivism of the English working class -- an influence unfelt in the USA), professional sports, culinary incompetence and ironic reserve. We have the Scottish-North American egalitarianism of manners. And we have Protestantism in its decayed state -- divided between sentimental fundamentalism and soggy liberalism.

But we were always British North Americans. We are in a particular place, and that place gives us identity. In addition to blood (whether literal or figurative), we have soil -- hardened, frozen soil, a land with unfamiliar gods, a land only the stupidest politician can patronize with kitschy sentiment. Dana fails to see the achievement implicit in the possibility of ownership of property in multiple jurisdictions, but the Pithlord is prepared to admire the surveyors and developers who imposed Torrens on an unimaginably vast wasteland. A network of rail and roads and electrical lines which neither defeated the land (as in Britain or in the US) nor was defeated by it.

And they left us a unique system of Parliamentary federalism. The model for Australia and India, and maybe Nigeria and Iraq. A federal union under the Crown with a constitution similar in principle to that of the United Kingdom had never been tried before, and some details still need to be nailed down. The Pithlord doesn't like to think of himself as a national chauvinist, but he cannot imagine a better system.

Still, none of this is a point, Dana will say. None of it explains why we should undergo the undoubted inconvenience of showing passports at the border. None of it speaks against the undoubted requirement of the religion of progress that all borders be dismantled.

To this, I am willing to give Grant's answer: the point of all these particularistic loyalties -- to our province, our ethnicity, to our country -- is the obstacle in places in the way of the religion of progress. A stubborn loyalty to Canada complicates the coming of the homogeneous, abstract Empire just a bit, sticks a little grit in the machine.

Things I was expected to believe because I would be a bad person if I didn't

The rules are that (a) someone has to have actually asked you to believe this; (b) it was implicit or explicit that you would be a worse person if you disbelieved it; (c) no evidence was provided to overcome the objections of ordinary experience or common sense:

Gender differences wouldn't exist if it weren't for TV ads.

You can describe the physical appearance of someone of a different race without first mentioning their race.

Québec separatism has nothing to do with "ethnic nationalism".

The average gay man is just as masculine as the average straight man. The average Olympic male figure skater is just as straight as the average hockey player.

Jesus loves me.

Rates of violent crime do not vary between Torontonians of Jamaican descent and those of Scottish descent.

Iraqis love "freedom" in the sense understood by the median Texan.

Squeegee people provide a valuable service.

Legislating Morality -- Everybody Does It

James Calder, who seems like a generally sensible fellow, tries to argue that we ought not to legislate morality and that the churches should stay out of politics. You hear this kind of thing a lot, mostly from similarly sensible people.

The trouble is that these slogans are highly muddled. Whatever else the Canada Health Act and the Criminal Code are, they are an attempt to legislate morality, in some cases controversial moral beliefs (such as that the rich should not be allowed to purchase better health care than the poor). And no right-minded person really thinks the Churches should stop complaining about the treatment of refugees, or of mentally-ill homeless people or about the Iraq war. Social justice is rather at the heart of the Abrahamic religions (at least).

James seems to think it is important to the argument that the moral beliefs in question are controversial -- not everyone agrees with them. But politics is all about normative issues people don't agree about. Decriminalizing murder isn't a political issue, because practically no one -- not even the Supreme Court of Canada -- disputes that there should be some limit on people's ability to kill other people. But decriminalizing marijuana use is a political issue precisely because people disagree about the norms involved. So, of course, any political intervention by any religious organization is going to be into issues people disagree about.

Same-sex marriage would hardly have arisen as a demand without some ideas peculiarly Christian in origin. Even as gay-positive a pre-Christian as Plato could never have conceived of same-sex marriage. The idea that marriage must be for love comes from the Protestant Reformation. The idea that natural, biological distinctions between people are spiritually unimportant comes -- in the West at least -- from Christianity as well. The United Church has combined these principles when it says that loving, committed relationships should be treated the same, regardless of biology. It follows from the United Church's principles that same-sex marriage should be recognized, not just by the Church, but by the state.

The Catholic Church has a different view -- but it too is not a simply about the Catholic sacrament of matrimony, but about the social institution of marriage, whether Catholic or not. The Church views marriage -- and for that matter, sexuality -- as primarily about being open to procreation and new life. Marriage doesn't center nearly so much on the autonomy of the adults. You can reject this view of marriage, but in doing so you come up with some difficult moral problems of your own.

Of course we legislate morality. What else are we supposed to legislate?

Disclaimer: For the purposes of getting hate mail from the right sources, the Pithlord wants to state his support for same-sex marriage, regulated freedom of choice on abortion, a pretty milquestoast process theology and vouchers, so Bible-thumping parents can send their kids to be taught things the Pithlord considers anathema. Please rant accordingly.

Update June 27: I wrote this before the news of Nicole Kidman's annulment on the grounds that her marriage to Cruise was a Scientologistic non-marriage. Any Catholic apologists out there want to defend the consistency of that....?

Ross Douthat steps up to the plate.

Did the Québécois root for the Oilers?

So Matthew Shugart reports from Montreal. In the comment thread, he hedges a bit -- there was a suspiciously Anglo-touristy cast to the crowd at St Alexandre.

But Dave Snow -- an immersion student in Trois Rivieres -- reports that in the very belly of the habitant beast, there were no fans of the Canes. Everyone, of every class and station, was for the Oilers. Good news indeed.

The Empired Strike Back

Newsweek has a copy of the Maliki government's reconciliation plan, which includes demanding a timetable for US withdrawal and amnesty for insurgents. Not too different from what the strange coalition of Zbigniew Brzezinski , the Iraqi Communist Party and Pith and Substance have been calling for.

One hopes that Bush has the sense to declare victory and get out.

Update: The first news about what the Administration plans to do in response is good news. (Via Josh Marshall).

Update 2: Via Henley, I point you to Chris Allbritton's posting of an English version of the reconciliation plan. He complains that it is vague. That's not a bug -- that's a feature.

Canada recognizes an independent Montenegro

Harper announced that Canada would recognize Montenegro as an independent country today. Le Monde has an interesting discussion about whether the 55% threshold could serve as a precedent for Canada. Boisclair, not surprisingly, is insisting that 50% plus one is all that is needed. Le Monde points to a La Presse editorial from the end of May I can't find that says the PQ can't ignore the Montenegrin precedent.

B.W.P.--Case Comment--Reason to vote Conservative

B.W.P. is a young aboriginal man. When he was a teenager, he used to carry around a pool ball in a stocking. One day, he killed a guy by bashing his head with this blunt object repeatedly.

To be fair, the other guy sounds like a jerk, and was the one who challenged B.W.P. to the fight.

The guy he killed, from Iraq, had no friends or relatives, and there was no victim impact statement. B.W.P., on the other hand, had an army of helping professionals, family members and hockey coaches to testify at sentencing.

The judge, who called the killing a "misstep", sentenced B.W.P. to one day in open custody (To be super-duper scrupulously fair, he'd already spent 108 days in pre-trial custody.)

Frankly, I can't care whether the Court interpreted the law right. Assume they did. If this is what the Youth Criminal Justice Act means, then it is time to get ourselves a new Youth Criminal Justice Act.

Case Comment of R. v. B.W.P., 2006 SCC 27.

Leskun: SCC to Mary Southin, "Stop Telling It Like It Is"

Older readers will recall a dashing young Minister of Justice, with a gift for the phrase, who declared "The state has no business in the bedrooms of the nation." Among his accomplishments was "no fault" divorce legislation. No longer would the courts concern themselves with who had committed adultery on whom. An entire industry of private investigators put out of business. A bold new day. In 1985, one of his successors, John Crosbie, an even wittier if less elegant chief law officer of Her Majesty, consolidated the revolution by setting out, in the revised Divorce Act that "the court shall not take into consideration any misconduct of a spouse in relation to the marriage."

This was widely interpreted to mean that custody and support decisions should not depend on who cheated first.

Mr. and Mrs. Leskun married in 1978. They met while they were both working in the bank. She was ten years older than him, already married with two children. She financed his MBA and Certified General Accountant certification. She continued to work in the bank. Fourteen years after Mr. Crosbie's bill, Mr. Leskun had an affair, asked for a divorce and married a younger woman.

Mrs. Leskun took it badly, and is no longer working at the bank. Mr. Leskun thought she could get back to work, become self-sufficient and reduce the burden of spousal support.

Justice Southin sized up Mrs. Leskun as someone who had "made the litigation her life" to get back at Mr. Leskun. Southin was too honest to deny that the excusableness of this course of action turned on who had screwed around. She couldn't have sympathized with a woman in Mrs. Leskun's position who had decided to find herself, or run with the wolves, and asked Mr. Leskun to pay for it. She could sympathize with a woman scorned.

The SCC has left Southin's result in place, but without the moralizing. I understand their desire to follow the statute, and Crosbie's ill-considered plan to banish human feeling from divorce. But the result is a mess. If Mrs. Leskun had run off with her yoga instructor, and made the same demands she does, the world would howl in fury. But if Mr. Leskun wishes to exercise the successful accountant's privilege of late-life serial polygamy, then the least we can do is force him to internalize the externalities.

Case Comment of Leskun v. Leskun, 2006 SCC 25.

Buschau--Case Comment--Thumbs Up

One of the less-noted, but highly significant, losses of our day is the private-sector defined benefit pension plan. Once, in the golden age of the corporation man, you worked for an employer for decades and, in return, when you became decrepit, your employer agreed to pay some portion of your final earnings until you (and your wife) died.

This system -- along with the triumphs of classical social democracy, government pensions and medical insurance -- did a lot to get rid of one of the scourges of an earlier era of capitalism, the destitute old age.

Unless you work for the public sector (and if you do, get back to work -- I'm paying your salary), then you probably don't have a pension like that from your employer any more. Instead, your employer might contribute a bit every month to a locked-in RRSP or other "defined contribution" retirement vehicle. The story about these is that what they pay when you are all wrinkly and smell funny will depend entirely on how your investments panned out.

On average, one is as good as the other. But half of everybody does worse than average. What the rise of the defined contribution means is that the future means increasing variation in the wealth of our oldsters. When the Pithlord is ready to learn cribbage and complain about loud music, he's going to enter an old age cohort with the class divisions of contemporary Brazil.

There are many villains in the tale of the decline of the defined benefit pension. Some of it is stuff we really wouldn't want to get rid of -- greater freedom, in a word. But the defined benefit plan has also been overloaded with regulatory burdens. The more difficult and expensive it is to live up to these, the harder time unions and employees will have to convince employers to do it, no matter what other things said unions are prepared to give up.

Most of these regulatory burdens are statutory. But it must be said that the Red Nine have done there little part in making the defined benefit pension plan a thing of the past by making extremely complicated one of the potential benefits to employers of defined benefit plans.

I will try to explain without making your eyes bleed. It goes like this. Just as a defined contribution plan has an upside for a lucky employee whose investments do well, an upside which does not quite compensate for the greater risk, a defined benefit plan would seem to have the same upside for an employer. The employer puts away what the propeller-heads tells it is necessary to pay out the promised benefits. If things go worse than expected, the employer has to come up with more money. But if things go better than expected, then it is joy in pension geekdom: there is a surplus.

In any sensible system, the surplus would belong to the employer (just as the deficit does, if things are unpleasant). That is the risk/reward tradeoff inherent in defined benefit plans. As we noted, that risk/reward tradeoff is good for employees, and the Pithlord's chances of avoiding elderly Marxist rabble rousers on his way to the cruise ship a few decades hence.

The unions didn't see it like this. Arguing from the correct premise that pensions are a form of deferred salary to the incorrect conclusion that employees therefore "own" the trust fund that pays for them, they tried to get their hands on the pension monies that accumulated during the Clinton-era stock market boom.

In Schmidt, the Court gave one of its untenable and very-hard-to-follow compromise judgments. The upshot was that the surplus in a defined benefit plan could be used by employers to reduce their ongoing contributions, but on termination, it all goes to the employees. They made this decision based on a particularly obscurantist reliance on trust law. (Which isn't even right as trust law, but you need to buy me another beer to get into that.)

Much trouble has, predictably, ensued. If you get a gagillion dollars as long as a plan continues, but I get it if it stops, then I'm going to do everything I can to stop it and you are going to try to continue it come hell or high water. And that is the situation Rogers and a group of retired employees of one of its predecessors found themselves in.

Rogers inherited from a corporate predecessor a pension trust with a big surplus. For reasons to boring to go into, Rogers couldn't do anything with the trust unless the retirees, who hate it, agreed. On the other hand, the plan document didn't give the retirees the right to terminate it. So they both decided to spend the money on litigation, which has now reached Dickensian excesses. Anytime in the last decade, you could walk by the courthouse in Vancouver, and you had better than even odds of seeing yet another episode of Buschau v. Rogers, playing to a rapt audience of pensioners and actuaries.

The solution the retirees came up with was to invoke an old English case, Saunders v. Vautier so that they could terminate the pension plan without the employer's agreement. A trust consists of property where the power of control is given to one person or persons and the right to benefit from the trust is given to a different person or group of persons. The Saunders principle is that the beneficiaries can, if they all agree, and if they are all grown ups with functioning minds, get rid of the trust and divide the property among themselves.

The Red Nine can see why this rule shouldn't apply to pension plans. First of all, the rule is based on a trust in individual judgment about one's own future, while pension plans are based on the assumption that if you give people a chance they will spend their retirement money on blow and high-priced whores. Second, pension "trusts" are really vehicles to deliver a complicated deal between employers and their employees, and do not resemble the trusts in Jane Austen novels at all.

So the SCC said that termination provisions of the plan and in the legislation govern, and have returned some of the way towards sanity in relation to the application of ancient trust doctrines to modern employment dealings. This is good, although much of the damage is already done.

Case Comment of Buschau v. Rogers Communications Inc., 2006 SCC 28

Update: Stan Rule blogs this decision here.

Is Freedom of (Multiple) Religions Possible? Some Negative Evidence

John Rawls thought different substantive conceptions of the good -- religions, in a broad sense -- could co-exist in a liberal state. George Grant wasn't so sure. He thought that what Rawls would see as greater co-existence and a thin political liberalism was really the "religion of progress" seeking to displace normative Christianity.

The Pithlord -- unconvinced of both normative Christianity and its secular substitutes -- would prefer to think Rawls right. But the trouble -- as always with liberal ideas -- arises out of the fact that we have kids.

Atheist British philosopher Stephen Law hones in on the key issue: the schools. It isn't clear that a modern society can survive unless most of its citizens go to the same public schools. Just because it isn't clear, doesn't mean it isn't possible. Maybe 10% of us can go to madrasssas, and another 10% to bible college and so on, and we can all still live peacefully together as adults. But if this is possible, it is unproven.

On the other hand, if we have common public schools, then they must teach some "values." They must teach some history, or teach that history is unimportant. But to the extent that the common school system is compulsory, or even just heavily subsidized, then we cannot have some liberal truce about comprehensive values. The culture war must be fought. The trouble is that it follows that someone must lose these wars, and our politics will likely follow America's into shouting-matches between uncomprehending opposing religious zealots.

Law worries about the proliferation of religious schools and home-schooling, a proliferation which is far greater in Canada, especially western Canada, than in Britain. Conversely, though, anyone committed to a different religious perspective than the left-wing version of the religion of progress taught in the public schools can fairly complain that their children are being propagandized in favour of a vision no more grounded in empirical science than the doctrine of the Trinity or intelligent design.

Spending time in the blogosphere can only be justified as a way of getting back at exploitive employers. But it does show how irreconcilable the conflict is. The Galloping Beaver, for instance, approvingly links to an anti-Christian rant, which, apparently seriously, advocates the end of religious tolerance in Canada, so long as the Christian denominations persist in their traditional views of human sexuality. I don't think this is as isolated a view on the Canadian left as one might hope.

I would prefer to believe that Rawls was right, and therefore advocate the separation of school and state. Parents should decide where their children's share of public education money goes. I realize that this risks Balkanization if my liberal faith turns out to be wrong. But it may be too late to avoid that anyway: if the public schools are the prize, then whoever controls the Education Faculties and teachers' unions will decide what religion their enemies' children are taught. And we know who that is.

How to get enforceable property rights in Canada

A few posts back I argued that the courts should have the power to strike down legislation if it takes property without compensation or interferes with vested contractual rights, so long as there is a "notwithstanding clause." But as Harper has realized in relation to the Senate, constitutional change is risky and close to impossible in this country.

The alternative is to amend the quasi-constitutional statutes every jurisdiction has to include property and contractual rights -- the Federal Bill of Rights, the Alberta Individual Rights Protection Act and so on. Both of these particular examples have some property rights protection, albeit too weak. Other provinces have none at all.

Bush personally instructed CIA to torture mentally ill man

According to Ron Suskind's new book.

Not suprisingly, the man, Abu Zabdayah, "confessed" to a number of non-existent plots.

(via Matthew Yglesias)

Opening Adoption

Adoption is the only social practice I can think of that is more controversial than it seems. Adoption advocates often come across a bit like anti-drunk driving or anti-cancer people: worthy, but not making any interesting points. Adoption has an obvious utilitarian benefit: people who want to parent are matched with kids who desperately need parenting. Social science shows that these kids do well, and that the parents are more conscientious than average.

But adoption raises powerful, hostile emotions, and some genuinely hard issues. In Canada, the First Nationalist reaction to the "sixties scoop" -- in which large numbers of aboriginal kids were adopted by people like Jean and Aline Chrétien -- has resulted in a domestic adoption system that is paralyzed. Many developing countries, including African countries with millions of orphans, feel conflicted about international adoption: it is only legal in South Africa, Ethiopia and Sierra Leone. India will only let those who are racially sub-continental adopt internationally. China strongly supports international adoption, but its coercive one-child policy casts a real ethical pall over the proceedings. The New York Times has a review of an oral history of pre-Roe v. Wade birth mothers, which is strongly pro-abortion and anti-adoption.

Outside the social welfare bureaucracy (which has proven unable to find adoptive homes) and outside the international adoption system, there has emerged a more-or-less "open adoption" voluntary system. Essentially, would-be adoptive parents try to sell themselves to birth mothers. All kinds of degrees of continuing contact become possible, and are usually desired. From what I can tell, the system works quite well for everyone, although as with any family, there are conflicts. Unplanned pregnancy no longer necessarily means a choice between abortion and a lifetime of no contact and regret.

My big fear is that the courts or the legislatures will respond to a particular dispute by creating great uncertainty about the legal enforceability of these arrangements. Another problem is that strongly pro-choice sex education teachers have an unacknowledged anti-adoption bias. This bias isn't totally irrational, given past practices, but it is out of step with contemporary adoption.

Why did Scots dominate early Canadian politics?

I'm reading Andre Siegfried's long-out-of-print The Race Question in Canada, which was first published one hundred years ago. Siegfried was a Frenchman with the ambition of being Canada's de Tocqueville.

One observation Siegfried makes is that the Presbyterian Scots, very much unlike the Methodist and Anglican English, had a sentimental attachment to the French as a result of the "auld alliance". So the Scots were able to enphasize their religious and linguistic linkages with the English, while keeping on relatively good terms with the canadiens.

Quebec and Catalonia

In English North America, the Zapatero government in Spain is noted mostly for sensibly/appeasementishly getting out of Iraq and giving great Apes human rights (how many great Apes are there in Spain anyway?). But the media in Quebec, with the interesting exception of the Gazette, are playing up Catalonia's referendum on a new, more far-reaching, autonomy law.

Le Devoir compares it to Meech Lake, but it clearly goes much further, including with a reference to Catalonia as a "nation" in the Spanish constitution, and explicit asymmetry of constitutional power. The ROC ought to take note, but probably won't, especially with the Oilers' brilliant win last night in Game 6.

Defending the Daycare in Quebec Study

The feminist blogs have been trying to attack the methodology in the Baker-Gruber-Milligan study of daycare in Quebec. (Abstract here).

The methodological criticisms don't hold up.

The first criticism, by the Human Early Learning Program, is that the study does not compare kids in daycare with kids not in daycare, but kids in Quebec during the time universal daycare was introduced with kids in the ROC at the same time. This is not a bug, it's a feature. One of the limitations of previous studies -- which involved that very comparison -- is that people who choose to put their kids in daycare will be different, in a whole number of ways, from people who make the opposite choice. These differences "confound" the results. It's nobody's fault, but it is a methodological limit of that type of comparison.

Quebec's decision to create this new program -- at a time when no other jurisdiction in Canada was doing the same thing and when high quality data in the National Longitudinal Study of Children and Youth (by StatsCan) was being taken across Canada using the same methodology -- provided an opportunity to side-step this problem. The policy change meant that the very same kind of people who were not putting their kids in daycare in the ROC were doing so in Quebec. So that avoids the particular confounding problem at issue in earlier studies.

The second criticism -- that it is odd to use 6 year-olds as a control group for per-schoolers in daycare -- is also based on a misunderstanding. The basic comparison is between the pre-schoolers in Quebec during the introduction of $5 per day daycare, and per-schoolers in other provinces. But this could pick up trends where Quebec and the ROC are diverging for other reasons. The six year olds are a control to prevent that -- to the extent that six-year-olds in Quebec are getting more throat infections or are more inclined to hyper-activity than their counterparts in Ontario, that trend would be attributed to global differences, and only the divergences of the pre-school kids would be attributed to the policy change.

One commenter on Lawyers, Guns and Money suggests that the study may be picking up declines in daycare quality as a result of the massive expansion of spaces. Baker-Gruber-Milligan do address that possibility, and cite data that -- at least in terms of training and certification -- there was no decline in quality in Quebec either relative to the past or relative to the ROC.

So the results are not really in dispute. $5 per day daycare led to a lot more kids in daycare, more labour force participation by women, increased health and behavioural problems for children and more reported unhappiness and stress by both children and parents.

As with any empirical study, there are still unresolved interpretive issues. It is possible that what is being picked up in the findings of greater stress and health and behavioural problems is a one-time "socialization shock" that happens to all kids, sooner or later, when they go from a home setting to an institutional setting (and to all parents suddenly dealing with the double shift). It could be that experiencing this earlier means that it is less of a problem later on -- and there is other empirical evidence that kids who have been to daycare are better socialized when they reach K-12 schools.

Moreover, B-G-M does not purport to be a full cost-benefit analysis of daycare. There may well be offsetting benefits to the parents and to the family of the higher income, greater work continuity and so on.

This survey doesn't change my own policy leanings, which are for pro-natalist subsidies which we let parents decide what to do with. This is the one major issue I side whole-heartedly with the Conservatives on*, and I can easily see it delivering them the election.

*I side uneasily with them about Afghanistan. I'm against them on Kyoto, Kelowna, taxes and softwood.

Update: An award for pith and substance to Christine who manages to say this better and shorter here.

The Canadianization of American Search Law?

Some interesting discussion about the Supreme Court of the United States' Hudson decision in the liberal legalist blogs, which split that court on liberal-conservative lines. Iocaste, currently a guest at Lawyers, Guns and Money, takes the liberal side. Publius says the conservative majority was right this time.

The case is ideal for law students because it arose out of the smallest possible (but conceded) violation of a constitutional right. Everyone agrees that the Fourth Amendment usually requires that the police knock at the door and wait "a reasonable amount of time" before they enter (Canadian law requires announcement as well, unless the police can justify otherwise ahead of time). This time, the police did announce themselves but waited what the state conceded to be not long enough.

They then found several rocks of crack and some guns. Should these be admitted?

There is no doubt that they would be admitted in Canada. Since the violation was small the issue really seems to be whether there should be a balancing test between the severity of the violation and the seriousness of an exclusionary remedy. I'm a big fan of balancing, so I'd say yes. Under s. 24(2) of the Charter, the Canadian courts do engage in balancing on exclusion applications, and have been known to say that they will let the evidence in "this time", but not if the same violation occurs in the future.

Unfortunately, since it is Scalia, he insists on a categorical rule -- no knocking violations can ever result in exclusion. That doesn't necessarily make sense, because some knock violations are worse than some infirmities of warrants. But, at least at the categorical level, he is prepared to balance, and Pith and Substance salutes him.

Democratic Party: Don't End This War!

Anyone who thinks the Democrats will prove better than the Republicans on the whole question of blindly stupid nationalism should read Jim Henley today. Seems, the Dems have decided to denounce Maliki's attempts to co-opt elements of the Sunni insurgency by dangling amnesty. Duncan Black, naturally, takes the hackiest possible line.

I also want to praise the Economist's belated recognition that the Bush administration cares more about appearances at home than the reality in Iraq. Bush goes to Iraq unannounced, thereby undermining Maliki's manhood at precisely the moment he most needs to establish his nationalist bona fides.

Entrenched Property Rights in Canada

Some talk by Harper in the last election of entrenching property rights in the Charter. The Liberals responded with a parade of horribles based on the Lochner era in the United States. Few in the punditry noted that Trudeau originally proposed including property rights in what is now section 7 of the Charter, although he didn't really care about them one way or the other, and was willing to trade them for support from the NDP.

In Lochner, the US Supreme Court struck down a New York state law limiting work hours in bakeries on the grounds that this interfered with the employers and employees freedom of contract, and could not be justified on the basis of the state's traditional "police powers" (i.e. traditional reasons for limiting common law freedoms). Obviously incompatible with the project of twentieth-century social democracy, Lochner was effectively overruled during the New Deal. It has a few academic supporters today on the libertarian right, but mainstream right- wing judges see Lochner as an exemplar of the kind of "judicial activism" they think they are against.

Contra Paul Martin, the prospect of a Lochner revival in Canada if property rights are entrenched is remote. It is remote in the US, and legal libertarianism is even more marginal north of 49. Canada has its own common law tradition for deciding when legislation "takes" private property -- cases like Manitoba Fisheries and Tener and that tradition is certain to be more influential than Professor Epstein's system.

Anyway, if the Canadian judiciary do somehow become converted to Epsteinianism, there is always the notwithstanding clause.

Greater security of investment is good economically - it lessens political risk, and is therefore particularly valuable for those like immigrants and foreign investors who are unlikely to be politically connected. Provincial legislation, where it exists as in Alberta, is very weak. Finally, it seems anomalous that the property of American investors is protected under NAFTA, and the property rights of aboriginal people are protected under s.35 of the 1982 Constitution, but everyone else's property is left to the whims of the legislature.

However, there are significant political obstacles to ever entrenching property rights, so I will devote the next post to a equally effective and more realizable goal for property rights advocates.

They hate us ... because we're in Afghanistan fighting them

I don't care if Harper wants God to bless Canada. It wouldn't bother me if he started wearing cowboy boots, or clearing brush on his "ranch" or giving members of the Ottawa Press Gallery cutesy nicknames. But I have to agree with Peter Scowen that this, from Harper on June 3, is bad thinking:

We are a target because of who we are and how we live, our society, our diversity and our values -- values such as freedom, democracy and the rule of law.

It seems indisputable that we are a target because we are fighting in Afghanistan. That doesn't necessarily mean we shouldn't be in Afghanistan: in the appropriate cause, we ought to be willing to take risks. But nothing is gained by denying the obvious. When Bush first spoke like this in late 2001, I thought it might just be a tribal yell -- understandable at the time. Later, it clearly became an obstacle to thought. Harper is far less likely to be able to have the silencing effect that Bush originally did.

Cut and Run -- Bad; Scheduled Withdrawal -- Not So Bad

The Professor thinks the Iraq war was imprudent, but argues that it would be bad to cut and run. What person with an interest in the well-being of Americans or Iraqis can disagree, if "cutting and running" means some disorderly instant retreat. That would be bad.

But an orderly, staged withdrawal -- preferably requested by the Maliki government -- over a year or so would not be so bad. It would undercut the insurgency's principle point of recruitment. There are risks, but these are not eliminated by staying.

Peace in Iraq requires three things: co-option of elites from all parts of the sectarian/ethnic divide, removal of the occupation and suppression of those refusing to be co-opted.

So are Canadians complacent or not?

In his column in last weekend's Financial Times, Christopher Caldwell couldn't let his "on the one hand" know what his "on the other hand" was thinking about Canada's attitude to terrorism. The fact-based Caldwell noted that Canadians know Bin Laden has singled us out for attacks and that more Canadians than Americans view another major terrorist incident as "inevitable".

But the other Caldwell ignores the empirical facts his twin just cited, and claims to divine a "tendency towards complacency. " The basis for this alleged tendency is the fact that the Muslim Council of Montreal congratulated the authorities on a job well done (which, one would think, is a good thing), and Canadian distaste for the Iraq war and Guantanamo bay.

I realize that pundits never have to pay for error, but why can't we get a little logic?

Postscript: Caldwell is a model of coherence in comparison to the Economist's piece, which opens, "IT HAS long been an article of faith among Canadians—just as it once was among Britons—that their commitment to an easygoing multicultural society protects them from home-grown Islamist terrorism." Sheer nonsense: I know of no Canadians who believe that, let alone hold it as an "article of faith" (I doubt there were any Britons who believed it either). Better clichés, please.

Flagging Ironies

I note that the 40th anniversary edition of Lament for a Nation features a frayed Maple Leaf flag, the very flag brought in by the Lester Pearson Lament excoriates, over the still-warm body of John Diefenbaker, Lament's hero.

Case Comment -- Federal Court Trial Decision in Khadr

Posted June 10: It's Saturday, it's all over the papers, and the Federal Court website still hasn't posted the Khadr decision, in which Justice Phelan decided to require the Canadian government to give a member of the al Qaeda-linked Khadr family a passport. It sounds like it has major implications for the future of the Crown prerogative. You gotta get faster, people....

Posted June 12: OK, the decision is here. My review? I agree with the result, but not with the reasoning.

Basically, the issue is whether the Feds could keep Mr. Khadr (supposedly the black sheep of the al-Qaeda Khadr family) from getting a passport for reasons other than those specifically enumerated in the Canadian Passport Order.

The Feds admitted that they didn't give Mr. Khadr proper notice of the reasons for denying it to him, and that they therefore had to make the decision over again. Justice Phelan probably should have declared the matter moot as a result.

Instead, he decided that passports could only be denied for specifically-enumerated reasons. The better argument for this result is from section 6 of the Charter, which gives citizens the right to enter, remain and leave Canada. Phelan was right that denying someone a passport effectively denies them their mobility rights, correctly dismissing the technical response that it is the foreign country that denies entry to a person without a passport. Since the Charter trumps Crown prerogatives -- including the prerogative power not to issue a passport -- and since the Crown didn't bother to try to prove the restriction was a "reasonable limit" under section 1 of the Charter, that should settle it.

However, Phelan didn't want to decide on constitutional grounds. He held that the Order restricted the discretion inherent in the prerogative to the specifically enumerated grounds. I don't think much of that reading of the order, and it isn't consistent with the clear intention to maintain the prerogative.

Bonus Geekiness: Phelan also continues a pissing match between the federal courts and the Ontario superior courts concerning who has jurisdiction over exercises of federal Crown prerogatives where no order is involved. Only the Supreme Court of Canada can resolve that one, so there is another good reason to appeal.

Charkaoui: Immigration Bar Publicly Lobbying the SCC?

When I read that Barbara Jackman, doyenne of the Toronto immigration bar, had complained that the SCC might not give her and her colleagues a fair hearing in the upcoming Charkaoui, Almrei and Harkat appeals, which involve the constitutionality of the security certificate system, I assumed it was a gaffe.

Apparently not. In today's Globe, a number of lawyers close to the appellants have again tried to argue that if the top court sides with the government, it will be showing it is not independent, and easily swayed by public opinion. It would appear that we are witnessing a strategically-planned public media campaign, and not just a frustrated lawyer mouthing off.

This is remarkable on a number of levels. First, the appellants argument would make almost anyone queasy: if they are right, then Canada must allow any apparent terrorist detained here, including those here illegally, access to everything the government knows about their group, and access to the dysfunctional refugee determination process. Second, if the top court is not independent if it rejects the immigration bar's argument, then the same has to be said about the lower courts, which have already upheld the constitutionality of the security certificate system. Finally, if we really accept that the courts are so easily swayed by news stories, why are we entrusting them with god-like powers in the first place?

It is a risky strategy: chances are good that it will really annoy the judges. The McLachlin court has shown itself willing to assert an essentially-unlimited jurisdiction, but it isn't substantively extreme. I doubt that the appeals will succeed.

Suicide Act of Warfare Against US

Maybe someday a new Solzhenitsyn will arise to do justice to the mentality that describes the suicide of three captives in Guantanamo -- a place chosen because the Bush administration believed it could argue that it was beyond all law -- as an "act of warfare against us."

It is a shame the Stalin Prize is no longer available to award to Rear Admiral Harry Harris.

Is there anything wrong with Canada's abortion status quo? Is it worth doing anything about?

After I spent some time riling up his commenters with my opinion that a legal requirement that a wife notify her husband before she had an abortion wouldn't be so bad, and generally trying to claim that there is a defensible middle ground in the abortion controversy, Scott Lemieux asks what's wrong with the Canadian status quo, in which there are no legal restrictions on abortion and the procedure is publicly funded. Do we see an epidemic of uninformed husbands, or late term abortions, or eugenics?

One point in response is that the Canadian approach wouldn't work in the US, and prbably won't work in Canada in the near future. For a number of reasons, we have a far more paternalistic medical profession than the US could ever have. The Public Health Agency of Canada points out that hospitals tend to have restrictive rules on the gestational age of the fetus. This paternalistic attitude, not backed by explicit law, still has significant effects, although it is bound to be undermined by market forces. Doctors and nurses will take it upon themselves not to tell prospective parents about their fetus's gender, and possibly about other abnormalities if they would disapprove of an abortion for that reason. This system could never be introduced in the US, and is bound to decline here too.

Secondly, we don't really know what the results of Canada's laissez-faire approach are. Canada doesn't keep much data except on the abortion rate, which hovers around 25 per 100 live births. Specifically, statistics are not kept on the reasons for abortion. Inferential quantitative work shows that all may not be well. The right-wing Western Standard has recently shown demographics that suggest widespread sex-selection.

My own attitude is certainly that I would not want to see the abortion issue, with all its attendant craziness, brought back on the political agenda just to accomplish such minor regulations as I think are defensible. I think that is generally the median Canadian's attitude as well. But as genetic diagnosis becomes better and better, we are just going to have to start thinking about what it means.

Case Comment -- Canada 3000 -- Thumbs Down

We at Pith and Substance sometimes kid Justice Binnie about his prose style. But we kid because we love. The man did a bang up job of making a statutory interpretation case about who should pay for Canada 3000's unpaid airport charges about as interesting as it could possibly be.

There are some interesting thoughts on statutory interpretation -- the Court was as strong as it has ever been on emphasizing policy over text. I'm not so sure they really know what they're doing when they get to the policy stuff, though.

The Pithlord was an impoverished student when Canada 3000 was in business, and he vividly recalls the unpleasant food and lack of leg room -- which is not generally a problem for him, since the Pithlord's genetic code fated him never to attain the median male height. (The Pithlord is also fated to be bald, and takes such solace as he can from the fact that he is hairier and taller than his father was at the same age.) Canada 3000 is particularly famous for its sudden insolvency, leaving numerous stranded passengers.

The Pithlord is therefore not surprised to learn that the airline didn't even own its planes. It leased them. It's as if anybody can be an airline these days. As Justice Binnie notes, clearly pining for a more innocent time:

After decades of financial turbulence, an airline in the modern era may consist of little more than a name, with its aircraft leased, its suppliers on week to week contracts and even its reservation and yield management systems outsourced to one of the global service providers... [Yes, the use of "turbulence" is pretty lame old-guy humour -- but he's improving! Give the man some slack. It's not a bad image of the post-modern nominalist corporation.]

In addition to forcing thousands of ordinary Canadians to put upon their extended families for longer than anyone really is up for, it didn't pay its airport or navigation services fees. These are the source of revenue for the quasi-privatized entities spun out of Transport Canada in the mid-90s. Those entities decided they wanted to take the unpaid bills out of the owners of the airplanes, who had leased them to Canada 3000. The owners, not suprisingly, responded that those debts weren't their debts. They just leased the planes.

There are basically four options here:

1. The owners of the planes have no liability for the unpaid fees.

2. The unpaid fees constitute a lien on the planes: liability is limited to the value of the plane, but the airports get a proprietary right in the asset.

3. The unpaid fees give the airports the right to seize the planes, but not to use them or any proprietary interest in them.

4. The owners are jointly and severally liable for the unpaid fees. (To more than the value of the plane in the airport.)

The lower courts picked #1. The SCC picked #3. This cannot be the best one from a policy point-of-view, since it imposes an inappropriate degree of judicial discretion, and creates a situation of bilateral veto over the use of a productive asset. From a policy point of view, I would prefer to see a lien system based on admiralty law -- airports should get an interest in planes of insolvent companies equal to the fees they are owed. Because it is a statutory interpretation case, you can't just blame the court if the policy result is bad -- it might be Parliament's fault. But from an interpretative point of view, I think the lower courts were right: the language of the statute was too unclear to justify what is effectively expropriation.

There is definitely a case to allow the airports some kind of remedy against the planes, like admiralty law gives some creditors against ships. The basic public policy goal here ought to be to permit as much competition as possible in an industry where huge capital investments are required as a barrier to entry. The airports are, for practical purposes, natural monopolies. They therefore need to be regulated -- at minimum, they should be required to take all comers on equal terms. The downside with that, as Justice Binnie points out, is they can't take contractual action to control the risk of airline default. The danger that the airports will abuse their market power creates an insurmountable "transaction cost."

One trouble with the solution adopted is the filter of judicial discretion, which is not appropriate in a market economy for ranking claims in insolvency. That is followed by a situation where two parties -- the creditor and the owner -- can each veto productive use of the planes, but there is no clear quantum of claim that the creditor has against the plane.

The issues seem similar in principle to those in admiralty law. Why don't the feds adopt solutions that have been worked out over a thousand years, and apply them here?

On a more narrowly legal level of interpretation, I accept Binnie's points about the importance of policy. But the biggest policy concern for the courts should be the intrusion on private property. Don't let the politicians get away with that without being clear. Binnie dispatches this concern in a paragraph, but it seems to me like it should have been the dominant one.

Case comment of Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006, SCC 24. Picture of Mr. Justice Binnie credit Phillipe Landreville, Supreme Court of Canada collection.

It's not personal, Sonny. It's just business.

Was Zarqawi's location revealed by former Sunni allies wanting to get in on the Defence or Interior ministries in Baghdad?

The best advice about Iraq is not to believe anything you hear. The next best advice is to heavily discount both bad news and good news. But something about Allbritton's theory makes sense.

If this works, Iraq has a chance at stability. It won't be the ideal non-sectarian democracy Maikaya, or the Iraqi left, envisioned. It will be all about elite sectarian/ethnic accommodation. But if the accommodation holds, then it will allow the Iraqi government to establish order and end the occupation, which would be great.

Lazy Link Blogging

Dave at Galloping Beaver has a good post on the latest revelations about the sinking of the Queen of the North.

Assimilation at work, eh?

I don't know how anyone can doubt that our Muslim population is assimilating. 17 men arrested in connection with an alleged plot to bomb downtown Toronto, storm the Parliament buildings and behead the Prime Minister, and Mr. Elmasry uses it as an occasion to bitch about a rejected grant proposal. I doubt Danny Millions himself could have done better. It's as Canadian as grow ops and Polar bears.

Better to be silent and be thought a fool?

Will recent events help government lawyers defending the security certificate system, which allows the feds to label non-citizen non-permanent residents a security threat to Canada without disclosing evidence to those individuals' lawyers, in the Supreme Court of Canada?

Perhaps.

Is it smart for the said individuals' lawyer to say so right before her hearing?

Not so much.

Would a sensible lawyer with a big SCC case on the hopper refer to the recent arrests for allegedly plotting to blow up downtown Toronto while seizing the Prime Minister and beheading him as "an attempt to create a public hysteria on the part of the government"?

Definitely not.

(Via Andrew Coyne).

View from the Iraqi left: Salam Ali's Party Line

One of the things nobody talks about is the role of the Iraqi Communist Party in stitching together the only genuinely non-sectarian, non-ethnic coalition in Iraq, the National Iraqi List, which got 9% of the vote last year, ranking 4th after the Shi'ite Iraqi United Alliance, the Kurdistan Alliance and the Sunni National Accord Front. This classic popular front now controls the Justice, Human Rights, Science and Technology and Communications ministries in the new national unity government.

If you can stand the Comintern-prose, it might be worth taking a look at an interview by a Tudeh (Iranian Communist) Party member and Salam Ali of the Iraqi Communist Party central committee (via Political Theory Daily).

The ICP effectively takes credit for the principles of the new government's programme, which he says "were worked out jointly with other political blocs, and are generally good." Naturally, the Party will be scrutinizing the actual performance in office. Most interesting for us is the idea that terrorism can best be combated by a combination of scheduled withdrawal of Coalition forces and elite accommodation of Sunni leaders.

The Foiled Peace Tower Bombing Conspiracy

I suppose I pretty much have to comment on the attempt to blow up the Peace Tower.

First of all, congrats to the Canadian Fertilizer Institute for some quick thinking. You are patriotic mulchers, mesdames et messieurs, and I salute you.

So far, so good, for our beleaguered spy agency. We can't count on anything, until we have some convictions, and appeals are exhausted, but the spooks appear to have moved at the right moment. Naturally, they made the point that most Canadian Muslims are opposed to these lunatics. Since catching said lunatics tends to require the co-operation of the law-abiding Muslim majority, I can only applaud.

I think Daniel Larison makes the sensible point that hysteria is a particularly inappropriate response when the system works. Not that it will keep the usual suspects from overreacting. The masochistic wing of the Canadian right will doubtless be particularly noisy. The Pithlord advises the use of those foam earplugs. Some excellent brands are available here.

Weekend Mailbag, Part 2: Why care about George Grant?

The literatus, long-time devotee of doomed nationalist causes, writes:

'Sweird I never really encountered George Grant. He seems like my patriot species and so on. Just at fourth hand, I'm troubled by his Lamenting for a Nation he seems to have already coffin'd round the time you and I were born.

The literatus has a point. How can Lament be of contemporary interest if Grant gave up the struggle before either of us were born? It is, however, a point that invites an essay, so the literatus has no cause for complaint if that's what he gets.

It all depends, I think, on how we interpret Grant's dictum that "the impossibility of conservatism in our modern era is the impossibility of Canada". The dominant interpretation, present in Lament, but which Gad Horowitz really deserves the blame for, is that Canada, as originally conceived, was at least partially conservative in the pre-modern, throne and altar, anti-liberal capitalist sense. Horowitz turned this "Tory touch" theory into an apologia for NDP-style socialism, and it was quickly picked up my every manner of Trudeau-era statist paternalist. Canadians were supposedly natural social democrats because of the Loyalists' and Family Compact's alleged Jacobite hostility to the society of contract.

This narrative has the plot arc of a bodice ripper. The original virtue of organic conservatism is always threatened by the liberal individualism of the United States. With the collapse of pro-British anti-American Conservatism, Canada's collectivism loses its maidenhood to nasty capitalist America. Somehow this maidenhood repeatedly revives itself, to be ravished not only by the unlikely figure of Dalton Camp pointing out the onset of Mr. Diefenbaker's dementia, but then by the Free Trade Agreement and finally, most farcically, by the dim Peter Mackay tricking the still-dimmer David Orchard into letting the liquidation sale of the old Progressive Conservative party go forward.

It is a highly demeaning story for any red-blooded patriot, and while I cannot acquit Grant of responsibility for it entirely, that narrative is not why I would ask anyone interested in theorizing Canada's current crisis to pay attention to him. We are much better off recognizing that the Fathers of Confederation, especially the Anglo ones, were Victorian devotees of technology and individualism. They loved railways because they were the biotechnology, the Internet stock bubble and the space race all put together. They believed the British race to be obviously superior to all others, and the contract-oriented common law to be the pearl of British civilization. They would undoubtedly have condemned Mike Harris as a dangerous radical soft on Fenianism. Macdonald read the Federalist Papers, admired Hamilton and was a conservative in a thoroughly bourgeois, Victorian sense, and alternated between supporting protection and reciprocity, caring about such economic questions no more than did Pierre Trudeau or Jean Chrétien. English Canada was always part of liberal Protestantism, and Grant knew this. He knew too that the Canadian people, including the Protestant farmers of Pictou County, while conservative enough in the value they placed on Church, work, family, order and allegiance to the Crown, were hardly enemies of social egalitarianism and making a buck.

Anyway, the "Tory touch leads to sensible social democracy" story is precisely the kind of self-congratulatory approach to the past that pushed Grant's buttons.

So, if we reject the Tory touch theory, what does it mean to say that the "impossibility of conservatism" entails the "impossibility of Canada"? What is living in the work of George Grant? Plenty, but in order to get to it, we have to entertain (not accept, but entertain) a slightly embarrassing proposition, one that would undoubtedly put him on the wrong side of the multi-cultis, but also of Christopher Hitchens, the latest hero of the Canadian right. We have to entertain the possibility that a state needs a single public religion.

A religion, for Grant, is not just a set of supernatural or theistic beliefs (although he, of course, believed that the true religion was Christianity -- but we don't need to spoil the ending quite yet). It is a way of looking at the world, a set of stories and of virtues and vices, held on a pre-philosophical basis and capable of being understood by the mass of humanity. A religion is what Rawls would call a "comprehensive conception of the good." But where Rawls believed that the lesson of modernity was that it is possible for comprehensive conceptions to co-exist, providing that they are "reasonable" and accept an "overlapping consensus" of political and legal institutions, Grant was not so sure. As far as Grant was concerned, what had happened to traditionally Protestant countries is that they had adopted a version of the "religion of progress" as the real ideology that "binds together." In Grant's day, that religion came in two opposing forms -- Marxism and Kennedy-style technocratic liberalism. Today, neither of these strands continue (except in the reactionary laments of intellectuals), but new forms -- a libertarian/neoconservative free-market technophilia and a feminist, "anti-racist" social constructionism -- battle it out, leaving their respective Jewish, Protestant and Catholic camp followers to pick over the inherited assets and liabilities of their denominations to see what might be useful in the "secular" battle.

And Grant may be right. It may, in fact, be impossible for religions to coexist, except if the sub-dominant ones are willing to be confined to dhimmi ghettoes, or to be private hobbies. The great weakness of liberals like Rawls occurs when it comes to education. It is impossible to teach the young without inculcating a more comprehensive conception of the good and the true than Rawls would allow in the public sphere. To take a matter of current controversy, a school system cannot be neutral about whether homosexuality or homophobia is a sin, even if the law, in principle, could.

I won't get into all of Grant's objections to the religion of progress. Some of them I share; some I don't. But one objection is important for the literatus' project of maintaining a nationalist movement in this country. To the religion of progress, which is the national religion, Canada is an embarrassment.

Why? It seems like such a progressive place, n'est-ce pas? It is because the religion of progress is ultimately a Christian heresy (perhaps in encounter with a Jewish one). From Christianity, it derives the idea that natural divisions of race (Jew or Greek), gender (male or female) and class (slave or free) are of no spiritual significance. But, unlike Christianity, it places its heaven in a future acquired without supernatural help. It therefore reacts with hostility to the particular loyalties that may arise out of these concrete situations. The leftist version of the religion of progress is prepared to accept the particular loyalties of the oppressed, since they theorize that such loyalties will ultimately lead to the overthrow of the distinction. The rightist version (neo-conservatism) is just hostile to any expression of difference at all. But either way, Canada has no reason to live. At best, it is a preparation for something more universal -- either an Anglosphere or the world federalist rule of the United Nations, depending on one's political proclivities.

Against this is the natural reaction of normal people to love their own. Grant was a conservative in the sense that he approved of this reaction, and saw it is a bulwark against the universal, homogenizing tyranny of a global, super-state. This love of one's own does not depend on one's own having a "history before the age of progress". If it did, Canadian nationalism or the regionalist particularisms of the United States, would be absurd. Grant is complex enough that he sometimes seems to treat them as absurd. But what he notices in Diefenbaker (and in Lévesque, for that matter) is this normal, natural love of one's own and consequent willingness to put the boots to the universal super-state, however inevitable and logical its triumph might seem.

Of course, as a Christian and an Augustinian, Grant would have seen any historical state as of only relative significance, no matter how great his loyalty to it. If even the Roman Empire must not be mourned too much, then Canada shouldn't either, if we in fact lose it altogether. But we needn't follow Grant in accepting that the battle is lost. As long as we possess a legal fiction of sovereignty, and as long as ordinary people retain their stubborn attachment to what is theirs and particular, rather than what is abstract and universal, then there is a chance to give all the social engineers a poke in the eye once in a while.

Weekend Mailbag, Part 1: What to do about immigration?

More mail from the literatus. He is bitching about P&S's tendency to the abstract, its refusal to deal with the real issues about Canadian identity -- its failure to deal with people.

You know I'm a proud Canadian, [name redacted]. This free country *ought* to be a shelter to the oppressed. But when Sarajevan Moslems are living on one side of Commercial Drive and snarling at the Kosovar Serb arrivals on the other side, we aren't so much a haven as we are a jurisdiction of chumps, well-intentioned nerds whose scrupulous neutrality is even slimier than the Swiss version; and whose lack of self-confidence ensures that foreigners will use us a staging ground for their conflicts, over and over again.

I think Canadians ought to choose sides, in wars where one side is evidently fascist; but we should always be on our own side first; and that we ought to abandon the nonsensical "principles" of immigration and asylum which, for example, put FARC guerrillas *and* ex-paramilitaries into the same class, as being people who'll get killed upon returning to Colombia. Actually, [P.], I would end immigration from Colombia for now; how do we know who's the good guys? And of the many millions who *say* they've been oppressed, how much expensive work should we put into verification, when simple, decent, ambitious people are living in camps on borders everywhere...?

It looks like Pith & Subs. is slowly, handwringingly, coming round to my way of thinking, as regards immigration policy. What would you do, practically, lawfella? Me, I'd cut landings to perhaps 150,000 annually (but these people could *quickly* become citizens) -- as they would be in possession of *crucial* skills and a genuine ability to speak and read English or French. Family members could be sent for, if they were immediate family -- spouse and children, maximum six people, say. Any costs associated with family members' language disabilities, pre-existing medical conditions, inability to gain employment and/or desire to maintain their culture, will be borne entirely by said immigrants and their head of family, until such time (not long) as all family members can accede to full Dominion citizenship. Anyone who wishes to become a Canadian citizen must repudiate and renounce all other citizenships.

The American-dominated oil patch's sneaky attempt to create a Saudi/German-style "guest worker" class of semiskilled foreign workers -- been following this? Yankee Oil underpays a few thousand Mexicans and/or Filipinos to weld and pump, and then requires Edmonton/Ottawa to fork over the passports? -- is vigorously discouraged; unless you have paid for the apprenticeship and trade education of one (1) Canadian aboriginal, no resource company may hire any semi-skilled foreigner whatsoever. Canadian immigration policy is, statutorily, cyclical and choosy in nature; in any ten-year period, immigrants will only be accepted from a short list of regions/nations [...]

Meanwhile, we get radically natalist; it becomes very easy to have babies and family life in Canada -- not that the taxpayers generally directly subsidise anyone's child-raising, but one does get more and more of a tax break as each infant Canadian emerges. And if you're a solipsistic member of our idiot generation and you're looking for a fat pension in the 2030s, even though your failure to procreate shows you kept a disproportionate chunk of the nation's wealth for your own purposes -- well, your pension's a bit smaller. Also your non-existent kids aren't coming to seeya, are they...? Die in your own arms, nihilist! *Exceptions are made for the infertile.

There's also a bit about George Grant. I'll get to that on some other occasion.

So have I come around to the literatus' way of seeing? Not quite.

I do want to be able to think the way he does. We ought to love our own, and we ought to be realistic about the world and its dangers. No nation can afford to ignore its borders, base its diplomatic policy on sentiment or fail to claim the loyalty of its people. Not even this one: Grant imagined Canada as the stockbroker's son, willfully ignorant about the source of the money, about the facts of life. Sooner or later, though, the trust fund runs out, the stockbroker's son has his own kids, and its damn hard to find an apartment that is big enough. So, we have to figure out what neighbourhood we live in, and how we can safely earn a living in it.

So, yes, I agree that we need to see some of what the literatus wants us to see. We do need to insist on a single nationality for all Canadian citizens. We have to speed up refugee determinations, which may mean allowing the executive the unreviewable power to say that some countries are not to be sources of refugees, and some people are not to make claims. We have to keep immigration to an assimilable level, and we cannot allow corporations to take advantage of rightless "guest workers," especially when we have reserves with 90% unemployment. I haven't figured out what the magic assimilable number is, but I think the current target of 1% per year may be too high.

And I agree on the pro-natalist public policy, although I think the literatus needs to work on the specific pension policy. A better idea is subsidies to parents. Parents should control where the enormous amount of money spent on their children's education or childcare goes. If anything would persuade me to vote Conservative, that would be it.

But while we need to ensure that refugee applications are genuine, we do benefit from immigration, and so do those who come here. Canada has done well being a refuge for "market-dominant minorities" run out of their own countries by populist hostility. And we do have some moral obligations to the wretched of the Earth. If we aren't willing to have them all come here, we had better figure out a better road to development.

Iraqi government starts to turn on the occupation

As related here. This is good. Hopefully, the Iraqi government will feel powerful enough to set a date for the U.S. to leave.

Case Comment -- Champagne Tastes & Barbie Dreams at the SCC

Two trade mark cases today: Mattel Inc. v. 3894207 Canada Inc., 2006 SCC 22 and Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée, 2006 SCC 23.

Binnie is working hard on his prose style, but it still needs improvement. He opens Veuve Clicquot as follows:

Among those with champagne tastes, the brand of Veuve Clicquot Ponsardin is considered among the very best. It has been building its fine reputation with the drinking classes since before the French Revolution.

The Pithlord writes his posts in too much haste to draw attention to the clunky repetition of "among" in the first sentence. But "fine" should not modify "reputation," and "drinking classes" was hackneyed before Oscar Wilde had his unfortunate encounter with the civil justice system.

Anyway, the Pithlord is happy with the result. We should all take a dim view of the imperial claims of trademark holders. The purpose of trademark protection is to prevent customer confusion -- if it doesn't exist, then we should tell litigious companies to buzz off. In Clicquot, that's more or less what the Court did.

In Mattel too, the corporate giant lost. A small chain of restaurants in the Montreal area called "Barbie's" obtained an exemption from Mattel's "famous trade mark," and the Court upheld this with much mumbo-jumbo about standards of review and patent unreasonableness.

Unfortunately, the Court gave a sizeable bone to the International Trademark Association. In the name of promoting branding across product lines, the Court limited the Pink Panther and Lexus doctrines that the possibility of confusion should focus on the "nature of the wares, services or business." I agree that companies should be able to let consumers know whose reputation stands behind a particular product, including in a new line, but I see no particular reason for the law to protect branding for the sake of branding.

Still, the good guys won, so thumbs up.

Redneck Barbie is parodic and is protected as fair use. Thanks to Robb Guy.

What are you committed to when you deny meta-ethical relativism?

Much out there in the collective hive mind about "relativism". On the one hand, everybody who knows an undergraduate has been earnestly informed that right and wrong depend on your culture. On the other hand, after September 11, right-wing talking heads sternly instructed us that "relativism" will lead to the West's downfall in the struggle against "Islamofascism". The current Pope has even warned about a "dictatorship of relativism", which sounds a bit odd, but may be a precise political description of the European Union.

The analytical philosophy set find all this cultural noise a mess of confusion. At the same time, I find the analytical debates to be a tad frustrating. Everyone seems to be a highly conventional liberal atheist materialist of the affluent, educated North American sort (core Kerry voters), but wild accusations of believing in mysterious entities (on the one hand) and tolerating baby rape on the other abound.

Personally, I am not a metaethical relativist, but I don't feel any need to commit to weird entities or to claim that there would be moral truths if there were no agents. I think my denial of meta-ethical relativism commits me to the following:

1. Deontic logic holds. A course of action is forbidden if and only if it is not permissible and if and only if not doing it is obligatory. A course of action is permissible if and only if it is not forbidden and if and only if not doing it is not obligatory. A course of action is obligatory if and only if not doing it is forbidden and if and only if not doing it is not permissible.

2. There is at least one course of action that is forbidden or obligatory.

3. There is no person or group of persons such that if that for all moral propositions, it is necessary that if that person or persons believes that the proposition is true, the proposition is true.

None of these commit me to the existence of any entities other than moral propositions. Nor do I have to accept a summum bonum or an implausibly rationalist account of how we come to know moral propositions. Finally, they are completely consistent with the permissibility of a course of action depending on the circumstances.

Update: Reading this over, I realized that there might be some misguided souls out there who think that these propositions only deny ethical relativism, and not some higher metaethical relativism. After all, I might believe all 3 of the above propositions, agree that I can't help but believe them, but say that I do so because of certain contingent facts of biological and cultural history. Deontic logic, the capacity to consider some courses of action morally impermissible and a willingness to think anyone might be wrong about moral matters all carry a selection advantage (at least if they are leavened by hypocrisy and self-interested bias, as they undoubtedly are). Or alternatively, they may just be a product of Judeo-Christian development (although I don't personally believe this). Either way, there is a causal story explaining why we hold these beliefs that is unconnected to their truth.

If believing this makes me a meta-ethical relativist, then I am a meta-ethical relativist. But, then, I am a meta-scientific relativist and a meta-common-sense-perception relativist too. All the capacities involved have a historical causal story (if history includes human natural history). How could it be different for a human mind that is a product of history?

But this kind of relativism is completely untroubling to me. It is really just an admission that I, and everyone and everything I know and love, are finite. So it is.

Canada-India Free Trade Agreement?

Wendy Dobson recommends it in a study for the C.D. Howe Institute.

The rational economist and romantic Tory in me both like the idea. We should try to make it a template for other Commonwealth and Francophonie countries.

Case Comment -- Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21 -- Thumbs Up

Traditional insurance policies covered liability arising out of "occurrences" during the policy period. As liabilities reach further and further into the past, as liabilities for institutional sexual abuse certainly do, a market has arisen for a claims-made approach, in which the coverage kicks in if there is a claim during the policy period. There is much case law about when the liability occurred, but the new form of insurance requires some court guidance about when claims occur. Is it when a formal demand from a lawyer appears on the institution's door, or is it when the claim is known to be "out there."

In Jesuit Fathers, the Supreme Court of Canada has confirmed that the common law rules for when a "claim" occurs between insured and insurer (i.e., when a communication arises from or on behalf of the claimant stating an intention to hold the recipient responsible for the claim) also apply to when a claim occurs in a claims-made coverage contract. The Jesuit Fathers let their insurance policy lapse after becoming aware (through internal investigations) of the possibility of sexual abuse claims, but before these claims were communicated by lawyers for the plaintiffs. The Court held that the claims did not occur until they were formally communicated.

This case will likely be used by insurance company lawyers' in broader contexts. While it recognizes that in insurance law coverages will be read broadly, and exclusions narrowly, it also asserts that in the end, it is the text of the policy that governs.

This was a sensible decision, since it creates clear rules about when key events happen (always good). The message to institutions is to make sure to renew claims-made insurance.