US Constitutional Law in a Nutshell

You do what Kennedy thinks. If you can figure out what that is...

Update: I am actually not as down on Justice Kennedy as some. I think there is a coherent and laudable theme there.

The critical difference between US and Canadian constitutional law is not that rights are absolute in the Republic, but not in the Dominion. In both cases, the critical work occurs in deciding whether the governmental act is justified. And in both cases, there are basically two issues: (a) is the government act overinclusive or underinclusive; and (b) how seriously should the judicial system test the rationale for the law?

In the US, though, almost all the work is done under (b). If a law is to be subject to "strict scrutiny", it nearly always loses. If it is subject to "rational basis scrutiny", it nearly always wins. There are varying standards in Canada too, but they aren't as determinative. The government can get "deference" and lose, and it can receive no "deference" and win.

Kennedy's principal contribution is to make American constitutional law more Canadian in this respect. As Randy Barnett has noted, in Lawrence, he struck down sodomy laws without concluding that they attracted strict scrutiny. And a number of his 2007 decisions have the same quality. I think this is a good thing for a number of reasons. The one that may appeal to my originalist friends is that there is nothing in the Constitution about tiers of review.

A Moment's Pity for Karl Rove on the Occasion of the Implosion of "Comprehensive Immigration Reform"

I mean, how would you like to be known to history as "Bush's Brain"? Personally, I'd prefer "Turd Blossom."

Dangerous Places

Further to our recent immigration discussion, StatsCan indicates that big cities have the lowest crime rates in Canada. Homicides are most frequent in rural areas, followed by small cities.

The PreMo as PoMo

For all of you who have written in to say this blog needs more abstruse philosophical argumentification, I point you to Akrasia's post on Richard Rorty, which has led to a debate on the tenability of his "relativism." In the comments box, I try to play the post-modern Thrasymachus, while avoiding Akrasia's Socratic traps.

On an interesting and tangentially related note, this post by Daniel McCarthy (a comment to which "inspired" my heading above) takes note of a new book drawing connections between American conservative godfather Russell Kirk and (formerly?) fashionable European thinkers like Gadamer and Lyotard. The connection seems like a natural one for me once you dispense with the cartoon version of Continetnal thought. The "post-modernists" did not doubt that there can be meaning and reason. With Nietzsche, though, they tended to think that the reasonableness and meaningfulness couldn't go all the way down. Sooner or later, somebody has to fix the signifier and it isn't pretty to watch. Some such acts make possible productive disciplines of beauty, truth and goodness; others don't.

It seems to me that this way of looking at things is a natural fit with conservative anxiety about order and the threat "reason" unmoored from any tradition poses to it. Foucault certainly appreciated all the effort that went into breeding and training the contemporary Frenchman. Should all that effort be lost because it conflicts with a rationalised Europe only Jeremy Bentham could love? It's possible to see such destruction as just desserts for all that went before, but also as a complete waste. Had Foucault's excesses not killed him in early middle age, it is possible to imagine him sympathizing with the Front National.

Theistic conservatives have to ultimately disagree with the po-mos, but can concede they give a good account of life after the fall.

Jacques Derrida card uploaded to flickr by Smarthrob. Photo public.

Village Atheist Pact with Fundamentalist, Part XXXIII

Stanley Fish is one of the subtler beasts of the field. Apparently, he has an argument for why God is necessarily not susceptible to proof. Unfortunately, the Pithlord is a cheap soul and said argument is behind the subscription wall, so I am unable to evaluate it.

P.Z. Myers on the other hand has all the subtlety of a [unsubtle thing]. He believes he has a killer response:

Not only won't Fish show us any evidence for a god, he can't — by his eminently convenient definition, any being who deigned to show so much as a bit of lace from the edges of his/her robe wouldn't be a god at all. It creates an interesting potentiality. Imagine that a great bearded man, 10 miles tall, suddenly manifests himself on Earth, and shouts out in a voice every human being on the planet can hear, "I AM JEHOVAH, LORD OF LORDS, CREATOR OF THE UNIVERSE, ULTIMATE JUDGE OF YOUR WORTHINESS," and he's accompanied by a flock of winged angels with trumpets, and all the birds and beasts congregate around him, bowing and acknowledging his majesty, everyone who uses his name in vain abruptly bursts into green flame and crumbles to ash (I won't even mention the horrors that descend on those who break the other commandments), laws of nature are suspended, televangelists are teleported to his outstretched right hand and stand there wearing crowns of gold, etc., etc. etc.

Every atheist will be saying "Right, well, I guess I was wrong then—there is an almighty awesome being." And we'll be rummaging in our closets for that tatty old bible we got from our devout spinster aunt years ago.

Stanley Fish, on the other hand, will be standing there squeaking, "I can see him, therefore he isn't a god."

Silly old Stanley Fish. Surely, such an event would prove that there is a God and it is the 10 mile high bearded dude.

Except, of course, it wouldn't. It would prove -- contrary to the expectation of Myers, Fish and myself -- that there is an extremely powerful supernatural demiurge with a propensity to take on the religious imagery of first-century apocalyptic Jewish sectarians. It wouldn't prove that this fellow was God, and Fish's argument would be as valid as ever. (It might be unwise to make it to the demiurge's face, but no one ever claimed speaking truth to power was always prudent.)

Bring Back the Head Tax (Sort of): A Proposal on Immigration

Immigration policy is the thing right now, south of the border, what with Bush's "comprehensive immigration reform" proposal. In Canada, it is one of those tempting big issues that no respectable person is supposed to talk about for fear that race riots would immediately ensue on Eglinton Avenue.

From what I understand, the economic case for immigration is a powerful one. The immigrant presumptively benefits, since otherwise they wouldn't have come (people make mistakes, but in the aggregate they balance out). People in the receiving country will lose if their skills are substitutes for those of the immigrant, but will benefit if their skills are complementary. In a diverse economy with a well-developed division of labour, far more people will have complementary skills to substitutionary ones (and economic growth will make this increasingly the case). Economically, the limiting factor is fixed natural capital, of which Canada has a lot relative to its population. So, to the extent people interact voluntarily through the market, immigration is good.

However, people don't just interact voluntarily though the market. Some people commit crimes and become net recipients of the benefits of the welfare state, thereby impoverishing the receiving population. More subtly, too large a group of unassimilated immigrants can undermine the economic, cultural and political institutions that made the receiving country desirable in the first place.

So there are two tasks of a good immigration policy. First, the total number of immigrants must be sufficiently limited that they can be assimilated over the medium term without detrimental change to the institutions of the receiving country. Second, given this constraint on the total number, the immigrants who will provide the most benefit should be the ones chosen.

On the second point, Megan McArdle makes the useful point that scarce goods are best allocated by the market. She proposes "auction[ing] off various tranches of visas, classed not by type but by length of stay." I think we could be more market-oriented than that and still avoid the obvious accusation that we are only letting the rich in. Decide on how many people we want to let in for a year. Divide that number by the Canadian population and allocate every citizen a number of people-days. People-days can be banked for as long as desired or transferred to any Canadian individual, non-profit or for-profit enterprise, either for money or as a donation. If you donate your people-days to a refugee-oriented charity, you get a generous tax credit; otherwise, you get what the market can bear. Excluding tourist visas, the only way to get into the country is with the requisite number of people-days. Permanent residency status is abolished. After five years, you can apply for citizenship, but on the condition you renounce your past citizenship. The government can exclude people who have committed certain crimes, or just by name if it has security reasons it doesn't wish to disclose. The current economic class, family class and refugee process would be abolished and the federal government's role would otherwise be limited to specifying the total, maintaining records and enforcement. Since ease of assimilation has external benefits and language is the only proxy we are likely to use for this, we should require two people-day credits per day for anyone without fluency in French or English.

Inevitably, there would be a market for people-days. Enterprises who wanted particular employees could just purchase the units for the people they wanted. People who wanted family members to come could save up their units or buy them. Do gooders would be responsible for deciding which refugees could come, and would have to make choices. The economic rents arising out of the scarce good of being able to come to Canada would be internalized for Canadians and distributed equally among them, which is how things should be.

Approximately 4 million people immigrated to Canada between 1981 and 2001, giving an average of 200,000 a year. As a result, the most recent census in 2001 showed 18.4% of the population as foreign-born. Since 2000, the targeteted levels for new permanent residents have been 220,000 annually: see 2005 Annual Immigration Plan. Just over half were economic immigrants, with the remainder either family reunification or refugees. These ratios are set by policy, although the government can't completely control the number of refugees. In addition, there are 90,000 temporary worker permits per year and 130,000 student visas.

Take 220,000 for annual permits. Permanent residents should be the equivalent of five annual permits, so we get a total of 1.3 million annual permits. There were 28 million citizens of all ages in 2001. Let's say we allocate for all citizens, giving the benefit of minor children's share to their guardians. That gives everybody about 17 person days every year if we want to keep roughly the current aggregate level.

Update: I've rethought the abolition of permanent residency status. There shouldn't be such a strong material incentive to choose citizenship. So my amended proposal is that after being here 5 years legally, a person gets permanent residency status. If they never obtain citizenship, they can trade the stauts in for a one-year transferable credit.

Are Metaethicists Lying About Their Own Unimportance?

In most realms of human endeavour, specialists are convinced of the importance of their subject. The broader public, on the other hand, is mindlessly indifferent.

A comment at Overcoming Bias reminds me that things are exactly the opposite in meta-ethics. This is the discipline that studies what we mean when we say something is right or wrong, whether there is any truth to such judgments and, if so, whether we can ever know what that truth is. Pope Benedict thinks it matters what your answers to these questions might be. Dostoevsky thought it mattered. Alfred Hitchcock's Rope is about a murder inspired by moral noncognitivism.

Metaethicists, on the other hand, will without exception tell you that it doesn't matter. Noncognitivists, error theorists and skeptics can all oppose torture and donate to Oxfam. Nothing turns on what they do for a living. As the comment says:

Most meta-ethicists tend to be rather impatient with people who think that if objectivism is false then everything is permitted, or morality is undermined, or relativism is true, and so forth. None of these things follow. Nor do any substantive consequences for the major disputes within normative ethics -- e.g. that between consequentialists and Kantians. The fact that someone is an expressivist or subjectivist or naturalist or fictionalist doesn't tell you anything about their substantive views.

But should we non-experts trust them on this? After all, they can't agree about whether morality consists of feelings or judgments -- how come they agree on this? Don't they have an interest in persuading the taxpaying student-spawning public to believe Hitchcock and Dostoevsky wrong? You're going to trust a self-proclaimed moral fictionalist to tell you the truth about the negative externalities associated with his industry?

Third Parties in First-Past-the-Post Systems: Unsafe at Any Speed?

One of the themes over the years at Lawyers, Guns and Money is anger at those who voted for Ralph Nader in 2000. It is claimed that said persons bear disproportionate guilt for the subsequent worst.presidency.ever. Rob Farley proposes to bring an end to this theme in a recent post, but the length of the comment thread suggests that passions have not cooled. With any luck, they never will and Generation X socialists will argue on the subject with the same obscure passion their grandparents reserved for Kronstadt and the fate of the POUM.

The Pithlord is able to view the battle with a certain Olympian detachment. At the time, I did not prefer Nader to Gore. Of all the motives for taking up anti-capitalist populism, "consumerism" struck me as the lamest. Capitalism is damn good for consumers, and I dobut lefty activists are going to improve on it. Nader was undoubtedly right about how bad Detroit's cars were, but it was Japanese and Korean imports that actually did something about it. Nader was as responsible as anyone for the risk-reduction state, and the Pithlord has an uneasy feeling that Guantanamo is its direct descendent.

But I could understand a Nader vote. The critical issue in 2000 turned out to be whether the US should ignore international law, traditional understandings of strategic interest and the just war tradition to forcibly establish a global regime of "human rights". That was what was at issue in Kosovo a year before, and in Iraq a few years later. On that issue, Gore was the most extreme representative of forcible democratization. Bush had few substantive disagreements, but was rhetorically better, talking about a "humble foreign policy" and opposing "nation building." For those unwilling to sign up with Pat Buchanan, Nader uniquely opposed perpetual war for perpetual peace. As we know, the defeated Gore opposed the war in Iraq and it is possible that an elected Gore would not have started it. But all that was unknowable in 2000. What was knowable was that the overthrow of a sovereignty-based international regime and its replacement with human rights imperialism was on the agenda and Gore was more enthusiastic about it than the man from Crawford. That would eventually have led to an Iraq, whether in Mesopotamia or not.

Anyway, Rob and Scott's anger is not based solely on a preference for their own candidate over Nader. Rather, it is the argument that Nader, as the most left-wing candidate, cost Gore, the most left-wing-feasible-candidate, the election, and therefore a strategic vote was morally obligatory.

The first part is clearly true. If half of Nader's voters in Florida had voted for Gore instead, Gore would have won comfortably (by 2000 standards at least).

But what are the assumptions that make a strategic vote morally mandatory? Take an individual whose preference order is (Nader, Gore, Bush). Even in 2000, her own vote will make no difference to who gets elected. On a purely consequentialist basis, she may as well vote for Nader.

Is there some non-consequentialist argument making strategic voting obligatory? The categorical imperative requires us to ask whether we can will what would happen if everyone acted as we do, whether or not we find the consequences of our own actions acceptable. If "everyone" means "all Nader voters", then it might seem problematic not to vote for Gore for someone unable to will a Bush victory. But this seems like an arbitrary value for "everyone". If all left-of-centre voters voted or the whole electorate for Nader, then he would win. The Nader voter is acting in a way consistent with universalizing the maxim of her own action -- it is the strategic voter who isn't.

So Nader voters have nothing to apologize for.

BC: Most Skookum Place on Earth?

Andy has taken the opportunity to record Manitoba's contributions to world civilization. I feel I should do the same for my home-and-native province, British Columbia, but I find myself getting stuck at Bryan Adams and high-quality weed.

I am a big fan of the Chinook pidgin. It can't rival Yiddish for uesful words unavailable anywhere else (what can?), but I am partial to "skookum" (a general term of appropabation) and "potlatch" (mass community get together/ceremony with destructive status competition).

Tyler Cowen and the Anti-Parizeau Fallacy

Tyler Cowen's favourite choses québécoises include Oscar Peterson, William Shatner, Rufus Wainright, Charles Taylor,* Saul Bellow, Steven Pinker and Mack Sennett. Hmmm... Premier Charest notwithstanding, I don't think Professor Cowen quite gets what that word means.

*Half point for Taylor.

When did you bail on Bush?

Brad DeLong has an interesting post about who counts as an "honest conservative." One must clearly be anti-Bush, and one's anti-Bushism must precede 2007. I think I agree with those criteria concerning other people.

What about myself? For some valences of the word, I think of myself as a "conservative." I think there is a human nature given by our biology, which is largely immune to social tinkering. As a result, I think incentives matter and kin matters. I think universalistic justice needs to be tempered by love of one's own, as well as the other way around. More concretely, I'm a monarchist and a firm constitutional conservative -- if there was one change I could make to our constitution, it would be to protect property rights and security of contract. I think government failure is more of a problem than market failure. I'm not against social insurance or redistribution of wealth in principle, but I think they need to take moral hazard into account. I like federations with weak central governments, and I don't see why the state needs more than 40% of the GDP. In Canadian terms, all of the above definitely puts me on the right.

I should say that I have never felt totally comfortable with the Canadian right, though, for a number of reasons. Many of them are atavistic and irrational. But one that I can't shake is a feeling that the Anglo-Canadian right is led by people suffering from oikophobia, a sense that Canada is an embarrassing provincial backwater. Of course, there is nothing more provincial than embarrassment at one's provincialness. And there is nothing less Tory than impatience at people's traditional loyalties.

I can honestly say that I never liked George W. Bush. No doubt part of it was purely discreditable prejudices inherited from my class. But not all. The Karla Faye Tucker thing convinced me he is a sadist. I was convinced by Paul Krugman that his fiscal plan was reckless. When I saw the first debate with Gore, I thought it was the most one-sided trashing (by Gore) I'd ever seen in politcs.

I may be one of the few people really shocked by Bush v. Gore, since I had a misplaced faith in Scalia and Thomas's integrity.

September 11 definitely shocked me, and the reaction of leftist and nationalist Canadians shocked me even more. I couldn't believe I had ever shared political opinions with them. I appreciated Bush's immediate response to anti-Muslim hysteria. Up to the Axis-of-Evil speech, I came to think that the Bush administration wasn't so bad after all. I didn't like the concept of a "war on terror", but I thought it was harmless hyperbole.

When war against Iraq was first mooted, I wasn't sure where I would stand. It seemed clearly irrelevant to dealing with Sunni extremism, and quite possibly counter-productive. On the other hand, I saw some point in using the opportunity to give the global non-proliferation regime some teeth.

The leadup to the war convinced me that the Bush administration wasn't genuinely interested in making non-proliferation work. The claim that Guantanomo was a space beyond any law at all went against what I thought of as core beliefs. And my knee-jerk patriotism was aroused by the attempt to slap Canada around. I've been a pretty firm unbalanced Bush hater ever since.

Readers, especially those of dextrous leanings, are invited to say when they decided Bush was "Worst.President.Ever" material. (I assume by now everyone thinks so?)

Is Race a Valid Scientific Concept?

The existence of sub-species isn't particularly controversial for non-human animals (as we say on the West Coast). But for obvious reasons it's a tricky one when it comes to a certain East African ape. Unfortunately, ignoring ethnic differences in susceptibilities to disease and (quite possibly) reactions to medicines will kill people, especially people who don't belong to the dominant ethncities in lands of advanced medicine. The New Republic has made an interesting discussion on the subject available to non-subscribers here and here.

Something more substantive on Resurfice

So far, the reviews are bad for Resurfice v. Hanke, the Supreme Court of Canada's latest on "causation." Neither Russ Brown nor our friend David Cheifetz thinks it has helped clarify when courts should use the "but for" test (is it more likely than not that the defendant's negligent act was a necessary precondition for the plaintiff's injury) or the "material contribution" test (?!?) to determine liability.

I think the "but for" test is fine and so I don't mind that the Court says it is the one we are generally supposed to use ("primary" and "basic"). I tend to agree that things get confusing after that.

But it seems to me that there is a more basic problem with the decision. At least from how the sympathetic SCC describes things, the trial judge seems to have applied the "but for" test to the plaintiff's conduct, not the defendant's (full disclosure: I haven't read the trial decision). The defendant poured water into the gas tank of his zamboni, which caused his injury. His claim was that the design made it easy to mistake the two tanks.

The Court of Appeal found, correctly, that the trial judge had applied a “but for” test in determining causation, stating, “the thrust of the reasoning is that ‘but for’ the Appellant putting or leaving the hose in the gasoline tank, the explosion would not have occurred” (Emphasis added.)

But of course Mr. Hanke wouldn't have been injured if he hadn't put water in the gas tank. That was his whole case. The causation issue --on a strict "but for" basis -- was whether he would have put water in the gas tank if the vehicle design had distinguished them more.

Leaving aside the causation issue, the Court of Appeal seems to be right that the trial judge effectively repealed Ontario's Alberta's apportionment statutes, returning to the common law rule where contributory negligence defeated liability.

Or am I missing something?

NEVER discuss religion or politics or women with Moslems.

And some more good advice from the World War II-era War Department.

Via Rob Farley.

Post-Metaphysical Culture? Anti-foundationalism? Übermesch or Last Man? Whateverrr...

Reformed theocon Damon Linker and liberal wunderkind Matt Yglesias trade views on whether Richard Rorty was a properly Rawlsian liberal (latest, with the prior links here). Basically, Linker says Rorty's apparent agreement with Late "Political Liberalism" Rawls was superficial, since Rorty was really all about a comprehensive "anti-foundationalism" that would exclude believers in God or natural rights from politics. Yglesias concedes that Rorty's was a "comprehensive" view in Rawls's sense, but says Rawls was cool with that as long as the comprehensive was kept out of the political.

It's an interesting dispute because it gets at what struck me as a basic ambiguity in Rorty. Rorty says he agrees with both the continental and analytic critics of metaphysics -- he synthesizes Nietzsche and Quine. But the "continentals" all seem to think that the death of metaphysics (and with it God, History and Reason) is a big deal. The analyticals generally think that we are dealing with a conceptual mistake that will have no major bearing on the culture -- it's technical and not something the ordinary believer in Christianity or Democracy should worry about. So the critique might seem similar, but the stakes are very different.

I haven't had the time to collect the evidence, and I may never, so I'll just state my opinion: Rorty doesn't so much synthesize these two views as flip between them.

University of Alberta Law has a blog

Here. We can only hope it won't be as bad as the godawful U of T one.

Russell Brown reflections on the SCC's record in private law is mordantly amusing, and reminds me of an undergraduate paper I did on the liar's paradox. What is the law when the highest court says P, ~P and "P is consistent with ~P"?

Is Stare Decisis fo suckas?

A right-wing American lawyer who went by the name of "Feddie" and use to comment at publius's old site always said so. Was he right? How should a final court regard its past decisions in constitutional law?

There have already been two constitutional decisions this year which rather dramatically (and, to be fair, quite forthrightly) demolished important twenty-year-old precedents. It used to be that governments were not required to repay unconstitutionally-collected taxes because such a requirement would cause "fiscal chaos". No longer. And once upon a time "freedom of association" could not disturb the basic contours of statutory labour law. Them days is definitely over.

I give the Court credit for being honest that it was overruling the past decisions. At the same time, this is a bit troubling. Conventionally, a court decision counts as an authority for the future -- not just for lower courts, but for coordinate courts. This is the doctrine of horizontal stare decisis, well-defended by Larry Solum here. What is remarkable is that there is no real attempt by the Court to grapple with this issue. They just give reasons for their decision as if the previous decision had never occurred, or they were dissenting from it for the first time. No consideration was given to the Court's statements about when it will reform the common law, such as this passage from Final Note:

A change in the common law must be necessary to keep the common law in step with the evolution of society (see, e.g., Salituro, at p. 670; Bow Valley, at para. 93), to clarify a legal principle (see Vetrovec, at p. 819), or to resolve an inconsistency (see Jobidon, at p. 733). In addition, the change should be incremental, and its consequences must be capable of assessment.

In the recent case of Robinson, Lamer C.J., for a majority of the Court, relied on five factors to justify the reversal of an earlier decision of the Court in MacAskill v. The King, [1931] S.C.R. 330. These factors were the existence of previous dissenting opinions in this Court, a trend in the provincial appellate courts to depart from the principles adopted in the original decision, criticism of the case or the adoption of a contrary rule in other jurisdictions, doctrinal criticism of the case and its foundations, and inconsistency of the case with other decisions. While they are not prerequisites for a change in the common law, these factors help to identify compelling reasons for reform. On the other hand, courts will not intervene where the proposed change will have complex and far-reaching effects, setting the law on an unknown course whose ramifications cannot be accurately measured

In both cases, there were dissents and lots of critical commentary, and England declined to follow the earlier Supreme Court of Canada ruling on the recovery of unconstitutional taxes. But none of the other factors suggest grounds for change. Both of this year's constitutional reversals are likely to have "complex and far-reaching effects" and the consequences are not in any obvious way capable of assessment. It's hard to see what evolution society has undergone since the late eighties that is relevant to either of them. Nor was there a trend away from the earlier rules in any of the provincial courts. The Health Unions case is going to be immediately disruptive, since it puts in question half a decade of healthcare restructuring in BC.

In the face of real injustice -- as with Brown v. Board of Education -- I think it is legitimate that stare decisis should give way. And no court should feel bound by overbroad obiter statements. But in the end, I think it is stability that we want most from our legal system. Politics and markets are good at change, but they do so best when the legal structure is as solid as it can be.

In Which We Declare War on Kirk Makin, the Globe's Law Reporter

I've long thought the guy is a bozo, as well as a sock puppet for the legal establishment. In today's Globe, we get:

The court's astonishing about-face [from the 1987 Labour Trilogy] ranks with its 2004 [sic.] Chaouilli [sic.] ruling in terms of unexpectedness, coming from a bench that has carved out a reputation as conservative, pragmatic and uneasy about using the Charter of Rights to disturb the status quo. [....]

Rather than being perceived as a startling reversal, however, the majority said that yesterday's decision "may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining."

The first paragraph is a classic example of journalistic unwillingness to revise a narrative in light of counter-evidence. A court that takes major social programs and labour law into the scope of the Charter -- moves the Dickson and Lamer courts did not -- cannot be considered judicially conservative.

The McLachlin Court is not genuinely deferential. It combines an aggressiveness about judicial power with substantively moderate decisions. There are no genuine left-liberals like Wilson or Dickson, but there is an ever-increasing comfort with overturning legislation that they disagree with. They just don't disagree with as much as a Bertha Wilson would.

Let us imagine a court that would hold unconstitutional all and only those statutes it disagreed with. Let's further imagine that the court generally sees things in a similar way to politicians. We'd get a lot of language about deference. No judge upholding a law ever says the challenged law was a good one. For one thing, it's human nature not to take more responsibility for a negative decision than is necessary. Beverly McLachlin was happy to rewrite the law of spanking. She just doesn't think spanking should be criminal (which shows she is a sensible person, by my lights). One would expect a reporter to try to see past spin, but that rarely happens on the court beat.

The second paragraph is even more embarrassing. It claims that there won't be a perception of "startling reversal" because the Court says what it is doing is consistent with history. Similarly, if Stephen Harper says changing the tax treatment of income trusts is completely consistent with his election platform, then there will be no perception of a reversal either. Jeez.

Utopian? For now, maybe.

Pith & Substance wants to be the first Canadian weblog to endorse Brad DeLong's health plan.

It's pretty simple. Health expenses up to 20% of taxable income in any given year would be up to individuals to meet, either through fee-for-service or private insurance.[1] Everything after that would be met by the state. He adds massive public health spending paid for by sin taxes.

DeLong thinks it politically impossible in the US. It doesn't take a genius to see it isn't going to sell in Canada either -- now. But the first post-war baby turns 65 in just over three years.

When the Union's Inspiration Through Their Lordships and Ladyships Blood Shall Run-- Health Services Bargaining Association

As commenter Radish notes, yesterday the Charter's guarantee of freedom of association didn't prevent governments from legislating labour relations as they chose. Today labour law just is constitutional law.

I've just skimmed the headnote, but a couple comments:

*This is this year's Chaoulli. In other words, it is an extraordinary intervention in an area in which the judiciary has no business. Of course, the people who will love and damn it will be precisely reversed.

*Somewhere, David Beatty's phone is ringing off the hook.

Update as I work through the case: BKN makes a good point in the comments: we now have official endorsement of Chaoulli's constitutionalization of health care delivery by 7 judges. So we have one case saying governments must reform healthcare and another saying they can't, at least not without giving the unions the right to sue on the grounds they didn't consult enough.

The nicest thing I can say about this is that the combination of cost inflation, demographics and stubborn unions probably meant that the system was going to collapse anyway, so what's the harm in a few lawyers making a living bringing that day a bit closer?

Further update: It's true that Dunmore meant that government action that made collective bargaining more or less impossible was contrary to freedom of association. But it was still possible to read that obligation as operative only where the interference was extreme, like barring a whole category of sympathetic workers from the protection of labour statutes altogether.

But this case extends the constitutional reach to the normal complaints of labour law. See paragraph 92:

Acts of bad faith, or unilateral nullification of negotiated terms, without any process of meaningful discussion and consultation may also significantly undermine the process of collective bargaining.

In other words, a breach of the (normally statutory) duty to bargain in good faith is now a constitutional violation.

There's a fundamental challenge to legislative authority here. Statutes are being judged on the basis of the process by which they were enacted, rather than their content. It seems that if the BC government had engaged in more meaningful chat with the unions prior to the statute's enactment, the result might have been different. This ignores the legislature's theoretical independence from the executive, and, more troublingly, dictates to the legislature what interest groups it must listen to. The whole nastiness with the Stuarts revolved around whether anyone could tell Parliament how to transact its business.

Another update: On a more positive note, the court leaves some things to the political process (at para. 96):

the design of uniform [sic.], the lay out and organization of cafeterias, or the location or availability of parking lots

Let it not be said that democracy is dead in this country. Although this does sound suspiciously like a list of powers of a high school student council.

Yet another update: Paragraph 113 is critical. The legislation contravenes s. 2(d) for two reasons. First, it invalidates past collective agreements and therefore undermines "the past bargaining processes that formed the basis for these agreements" (the retrospective branch of the right). Second, it limits what terms can be in subsequent agreements and "future restrictions on the content of collective agreements constitute an interference with collective bargaining because there can be no real dialogue over terms and conditions that can never be enacted as part of the collective agreement" (the prospective branch of the right).

While I don't think the retrospective branch raises constitutional issues, its violation does rub me the wrong way. I'm not a big fan of legislation that overturns existing contracts of any kind, including public sector collective agreements. I am enough of an originalist to respect the fact that the Charter was not intended to protect property rights or contractual security, but I would support a constitution that did, especially if it had the equivalents of section 1 (reasonable limits) and section 33 (legislative override). [Brief digression: the argument is certainly available that "freedom of association" includes ordinary contractual association and therefore security and freedom of contract. Why would it be any more acceptable for the government to extinguish non-parking-related terms of a non-unionized employee's contract?]

The prospective branch, though, scares me. Legislation can't limit what public sector employers can agree to with their unions in the future, cafeteria design excepted? Public sector employers are bureaucratic entities not directly accountable to the public. Their budgets come from tax money. The legislature needs to be able to limit what they can agree to. Even the firmest believer in contractual freedom (which is really what the second branch amounts to) would accept that a principal can limit what its agent is allowed to negotiate.

Summing up: It's hard to understate the significance of this case. Both security of contract (for past agreements) and freedom of contract (for future agreements) are now constitutionally protected. Legislation that changes past terms or limits the possiblities for future ones can only be upheld if there is adequate "consulation" (shades of aboriginal law). It is hard to imagine any unsuccesful public sector bargaining process not going to court now. And the court doesn't consider what that means for the prospect of there being successful bargaining processes, but it isn't good.

Case Comment of Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27

Law of Demand Watch

*In his political opinions, the Literatus is atypical of his caste. To put it less delicately, he's a right-wing bastard sickened unto death with the leftist pieties usual among Canadian writer types. But he does share a support for across-the-board drug legalization. And in a recent missive to the Pithlord, he claimed that legalization would do wonders for the social problems of the Downtown Eastside.

I don't know whether the literatus believes that drug legalization would reduce addiction, but I have heard it said -- sometimes by libertarians one would otherwise suspect had a knowledge of economics. Whatever the merits of legalization, this seems unlikely, and it does the legalization cause no good to pretend otherwise.

The basic principle of economics is the law of demand. It holds that with few exceptions, the number of willing purchasers of any good or service will increase as the price decreases. Price should include not only the money given to the seller but all the other costs that the purchaser has to undergo to make the deal. Indeed, costs other than the receipts to the seller will be the only kind of costs that unambiguously reduce the number of sales, since an increase in the amount of money changing hands, while reducing quantities demanded, will also increase quantities supplied.

It follows that a tax on a transaction will almost always reduce the incidence of that transaction. Legalization people sometimes point to this fact and say that taxes on drugs will bring about reductions in drug use, just as they have for smoking. Except that the effect of a tax diminishes as the tax increases because above a certain point they just create a demand for black markets. That's what happened with respect to cigarette taxes in the early 90s, helping to set up the Russian mob in this country (thanks Bob Rae!). A legal ban is just the equivalent of an infinite tax, and lower taxes will at best leave the number of transactions unchanged. So legalization is not going to reduce the use of drugs, and will in all probability increase it.

That doesn't mean that criminalization is the best policy. It could be that the costs of enforcing criminalization exceed the benefits of reduced use. But legalization advocates rarely seem to argue this way.

*On the other side of the political spectrum (although once again enabled by libertarians) are those who say that increased gas prices will never lead to reductions in the use of cars or the choice of more fuel efficient ones. I recall hearing Margaret Wente play this tune on CBC AM recently in her role as eternal right-wing contrarian. Zero reduction is only possible if demand is completely inelastic. Gas purchases probably are highly inelastic in the short run, because it is difficult to change cars or driving patterns. But in the medium run, people do reduce their use. Quick Googling shows that the demand elasticity for gasoline is -0.26 in the short run (under a year) and -0.64 in the longer term.

Lazy Linking Again

A friend of this site has a post up at The Court on the exciting subject of the constitutional principles governing territoriality of provincial tax regimes. There is also the beginnings of a debate about last week's interjurisdictional immunity cases we recently had a go at.

Cultural Anthropology Monday

When did middle class Canadian parents decide to call all their male children under 10 "buddy"? When I was a lad, it was just bus drivers who did that. Now it's soccer mums/moms.[1]

[1] As a child, I was told Canadians spelled "mum" the English way, but I can't say I see any evidence of this in the current culture. Did this change too?

Federalism Cases

I've just had a chance to scan the headnotes, but it looks like the federalism decisions released yesterday in Canadian Western Bank and Lafarge will have major implications for federalism doctrine, if not for the actual distribution of power between the two levels of government. My early impressions are positive. I'll try to say more when I've read them.

Update: I've had a bit of a look at the majority decision in Canadian Western Bank.The upshot of Canadian Western Bank is sensible: if the feds want to immunize banks selling insurance from provincial insurance regulation, then they can, but if they don't turn their mind to the issue, the local law applies. The scope of "interjurisdictional immunity") is going to be very limited. That's a good thing for those of us worried that provincial autonomy is being crushed by the federal leviathan.

I find the rhetoric celebrating overlap of federal and provincial jurisdiction familiar-but-unsettling. The Constitution is clear that the federal and provincial spheres are exclusive (with the exception of Agriculture and Immigration). In general, federal systems are more accountable and efficient to the extent that jurisdiction is distinct. Totally separate watertight compartments may be an unrealizable ideal, but it ought to be the part of the judiciary to police the lines as best it can. Sadly, since 1949, we have delegated this taks to an institution that is appointed in the sole discretion of the federal Prime Minister and located in Ottawa, and therefore unsuited to the task. So we get statements like this from Justice Dickson, cited by the Court last week:

The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like interjurisdictional and Crown immunity and concepts like “watertight compartments” qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines; rather they have been an undertow against the strong pull of pith and substance, the aspect doctrine and, in recent years, a very restrained approach to concurrency and paramountcy issues.

I prefer the view of a certain notorious decentralist small government extremist, who managed to discuss these issues clearly and without resort to tree or tide metaphors:

A fundamental condition of representative democracy is a clear allocation of responsibilities: a citizen who disapproves of a policy, a law, a municipal by-law, or an educational system must know precisely whose work it is so that he can hold someone responsible for it at the next election.

[...]

In a federal state such as Canada, [t]he exercise of sovereignty is divided between a central government and ten regional governments which, taken together, constitute the Canadian state, and each of which must ensure a certain part of the general welfare. Since the same citizens vote in both federal and provincial elections, they must be able to determine readily which government is responsible for what; otherwise the democratic control of power becomes impossible.... [T]he corollary is that no government has the right to interfere with the administration of other governments in those areas not within its own jurisdiction. -- Trudeau, Pierre E. 1957. Federal Grants to Universities. In Trudeau, P.E. Federalism and the French Canadians. Toronto: MacMillan of Canada 1968. pp. 79-80.

But leaving aside the presence of the familiar "co-operative" rhetoric, the result is a good one for those of us concerned with provincial autonomy from an overweening federal leviathan. The reality is that "interjurisdictional immunity" in the technical sense used in Canadian federalism law has always been used to boost federal power at the expense of the provinces, and usually in ways that create injustices neither level of government really intended. Whatever the merits of consolidating insurance regulation across the country, there is no good reason to give the banks special privileges.

A provincial autonomist can be heartened by the references to subsidiarity at para. 45. Notwithstanding Dickson's comment, "pith and substance" means allowing "incidental" intrusions into the other government's sphere, and there is room for a latter-day autonomist to interpret "incidental" more narrowly.