Something is only "secular" within a given theology

I continue not to receive unanimous support for my arguments in favour of treating all religions equally in Ontario. I imagine John Tory knows how I feel. The Left is scared of evangelicals (F.R. Scott's defence of the Jehovah's Witnesses would make him unwelcome in all the circles he helped create). The Right wets its bed at the notion of Muslims.

Not that either of them is necessarily wrong. The idea that a society can cohere with a genuine diversity of ultimate metaphysical commitments or "comprehensive conceptions of the good" is hardly justified by either logic or evidence. Few of the traditions of the world would have endorsed the idea, and none of the interesting political theorists would.

Commenter "B" wants religion out of politics altogether. I think this is closer to the French/Turkish notion of laïcité to anything I could recognize as non-establishment and free expression, let alone the Canadian tradition. Canadian politics has always been about religion, even more than language, and certainly more than ideology or class.

The difficulty is that laïcité (and, for that matter, the more civilized Protestant traditions of free exercise) are themselves theological conceptions. Indeed, you really only can have a notion of the "secular" within some theological space.

Although maybe that isn't really a difficulty. All states need a civil religion -- and laïcité could in principle provide it, as long as you could make it stick. I don't think you can make it stick in English Canada, because those who like it will never breed enough. Also, you'd need tanks, or at least guns, and again I suspect the social base for laïcité don't know how to use them.

I think it would be better to think through what our civil religion should require in a way that acknowledges that the evangelicals, the Ismailis and possibly other Muslims could be a part of it. Fund everyone willing to take the money on those terms and ruthlessly suppress the rest.

We Respond to Our Critics

I'd like to do a big post on the Ontario schools question, with citations to Rawls and Grant and so forth, but time is scarce. So I'll just reprint my response to the critics in the comment box (especially since the last response got cut off by Haloscan):

DC,

I'm not completely sure whether you are genuinely advancing an argument against public funding of education or are making a reductio to the effect that if non-breeders can't complain about their tax money going to other people's offspring, nobody can complain about any allocation of tax money at all, no matter how sectarian and discriminatory.

It doesn't matter, I suppose, since if the earnest argument doesn't work, the reductio doesn't either. If we think of the tax money as being spent on children, rather than the parents of children, there is no discrimination since everyone is a child at some point in their life-cycle. If that doesn't convince you, there is still the question of external benefits from (a) other people having children and (b) those children being educated. Finally, there are also subsidies to the childless, so maybe things work out in the end (although I wouldn't put a lot of weight on that one).

None of these things are true of funding the religious education of one confession and no others. Protestants don't become Catholics at some point in their lives. If there are external benefits to Protestants of educating Catholics, they can't really exceed those to Catholics of educating Protestants. Moreover, this is clearly a case of a subsidy that has no counter-balance anywhere else in the overall system of public expenditure.

B.

If history has a direction in a descriptive sense, it is impossible to reverse it. If you believe it has a direction in a prescriptive sense, you have a controversial (and false) theological belief. I can't see why people who disagree with this belief should have to send their children to be indoctrinated by those who think otherwise.

The distinction between a sewer system and an educational one is that it is genuinely possible to keep sewage merely technical, bracketing "comprehensive conceptions of the good." We all want our shit to flow somewhere it won't cause trouble. (Even if there are people who feel otherwise, there are non-metaphysical reasons to coerce them.)

Education is different. You can't teach kids in a purely technical way.

Andy,

Are constitutional arrangements a contract of adhesion that those coming here freely can't object to since they had notice of them? I'm probably more sympathetic to that idea than most Canadians, which doesn't make me very sympathetic.

But even on that view, I'd doubt that the original compact has really been maintained. In 1867, the regular public schools could be assumed to be generically Protestant. They'd avoid the disputes between Anglicans, Methodists and Presbyterians, but everyone would be taught the Lord's Prayer and the Whig Interpretation of History.

Neither Protestantism nor the public schools are what they used to be. A generation ago, it might have been possible to assume that they were both travelling in the same self-liquidating secularizing direction. But your future in Ontario is our present in the West: it belongs to the sects that proletyze and have kids, not the United Church. But those sects have as much right to claim descent from the Protestants of 1867 as do the lapsed secular types. So the initial deal, however fair in its time, has become unfair -- even to one of the original parties. We need to apply a cy pres solution, and Tory is approaching it.

Ontario: Fund Everybody's Schools

Those who like history to repeat itself (whether farcically or otherwise) will be happy to see the next Ontario election is going to be fought over the funding of religious schools. Somewhere the shade of George Brown is chuckling.

American readers may be a bit starteld to know that Ontario publicly funds Roman Catholic schools and those of no other religious groups. This arrangement is constitutionalized, and reflects a time when the public schools provided non-denominational Protestant instruction for the province's majority, and the only religious minority were the Papists. It is beyond dispute that them days are over: the public schools teach only the sub-Marxist mush popular in education faculties, unappealing to those who take their Protestanism seriously, and there are now other religious groups with their own insistent demands.

John Tory, of the eponymous Progressive Conservative Party, has proposed to remedy this situation by providing equival funding for evangelical, Mormon, Sikh or Muslim schools on the same basis as currently provided to those in full communion with the Bishop of Rome. The Liberal premier Dalton McGuinty decided to come out swinging this week in total opposition, referring to it as "segregation", "regressive," and contrary to multiculturalism.

In support of the "farce" idea, it turns out McGuinty is himself a product of the "regressive" and "segregated" Catholic school system, and his wife works in it. Moreover, his one plausible argument -- that a common public system is necessary to assimilate Muslims and wingnut kids. The trouble with this argument, though, is that as long as Ontario isn't going to ban home schooling and private schools, it isn't going to get at the people you most have to worry about. Those who abide by the public funding rules will necessarily be taking a move into the mainstream. Further, the public schools already teach the toxic stew of victim identity politics.

More fundamentally, it is just wrong to require parents to put their kids in schools that teach things they abhor if they want to take advantage of their own taxes. It is impossible NOT to teach some sort of religious view in schools, and the "religion of progress" is just as much a matter of faith as young earth creationism.

I suspect McGuinty's position will hurt the Liberals electorally -- if not right away, then over the next generation. He is taking on the most demographically dynamic groups on an issue they are likely to care much more about than anyone else. And the hypocrisy of his position in favour of his own religion can't be dodged.

If the Catholic hierarchy is serious about religious freedom, it should distance itself from McGuinty.

Hot "Duty of Care" Action

There's an interesting discussion of "proximity," when you've got it, and when you don't at the University of Alberta Law Blog.

Update: Continuing here, with intervention from Lewis Klar.

The Lame Duck and the Northwest Passage

Bush is maintaining the US's traditional position that the Northwest passage -- should it open up as a result of all those Middle American SUVs -- is an international passageway, and therefore not under Canada's sovereignty. The Financial Times notes that former ambassador Paul Celluci is advocating a change in the American position.

You have to wonder what we get out of taking a disproportionate share of the allied burden in Afghanistan. We pay in blood and money, and in increased risk of attack at home. We get passports at the border, the softwood lumber "deal", and an unwillingness to back us on the Arctic.

It is in everyone's interest when a responsible country takes jurisdiction over a waterway. If the Northwest Passage is ours, then our laws apply. We can do something about polluters and terrorists.* Bush is weakening Harper at a time when the Afghan mission is in real doubt.


*Come on, commenters. The jokes write themselves.

For Those About To Do Pointless Social Science Research

A University of Calgary economist uses the tools of his profession to try to show that Brian Johnson is a better lead singer for AC/DC than Bon Scott. The notion is, of course, absurd.

Subjects listeining to the Johnson-era "Shoot to Thrill" (from the Back in Black album) came to better bargaining outcomes than those listening to Bon Scott's "It's a Long Way to the Top (If You Want to Rock and Roll".

The experiment was clearly flawed by the choice of tunes. "It's a Long Way to the Top," while great, might sap anyone's confidence and trust with its talk of being "beat up, broken boned, getting had, getting took." On the other hand, the chorus and title of "Dirty Deeds (Done Dirt Cheap)" is easily the greatest marketing slogan in the history of guitar rock. If university students given a dose of that can't make deals effectively, I cry for our future.

(Via Yglesias.)

Is There A Tory Theory of Justice?

I'm not sure. It might be that certain transformations of the social order are unjust becauce they would destroy people's justly acquired entitlements, even though the end state wouldn't be unjust in itself and reversing the process might be unjust as well.

I posted this comment at Akrasia's place. He has recently authored a review arguing that libertarian/classical liberal political theories come aground on the realization that rules of property acquisition, use and disposition are necessarily constructed by some system of positive law. The comment is based on my thinking about Epstein's Takings, although I'm sure he wouldn't endorse it. I attributed the theory to a "modest libertarian", but it might more properly be a conservative theory:

There's a more modest libertarian argument that survives recognition that property rights are necessarily defined by some system of positive law.

Let's suppose a state has set out a just regime of property entitlements at T1. No one can complain about taxes and regulations and transfer payments at T1 since they (along with the civil code) are just constitutive of how property rights are acquired in the society. These policies may or may not be wise, but by hypothesis there is nothing unjust about them.

But then suppose that at T2 the rules are changed. If everyone who loses under the rule change can be and is compensated then things are still just. But if someone has an uncompensated loss of an entitlement at T2, the (modest) libertarian would claim there is a wrong. After all, the person's entitlement was justly obtained at T1. None of the individuals who made up the political coalition that gained as a result of the rule change would have had the right to take the entitlement, so how can they all have that right now?

So the only changes that are permissible are ones which generate a social surplus out of which the losers are compensated.

If at T1 you have a nineteenth century liberal society, you have an argument for continuing classical liberalism. If at T2 you have a social democratic system, the situation is more complex, but its arguable that some shrinkings of the state would be just, while expanding it wouldn't be. In any event. some massive Rawlsian-inspired redistribution would be forbidden, although a safety net might not be. In fact, it might be required to compensate for loss of entitlements due to liberalization.

North Polarization

Eric Posner has a brief primer on the Law of the Sea issues relating to ownership of the North Pole. It seems the North Pole lies above the underwater Lomonosov Ridge, which extends from the north of Russia to Greenland and Canada. On one interpretation, this amounts to a continental shelf for all 3 countries, and the Law of the Sea provides no rule for shared continental shelves.

Posner makes the plausible assertion that the Russian position will prevail by force of arms unless the NATO countries can get their act together.

Epstein's Takings (3)

Epstein's foray into political theory at the beginning of his book ends badly. There is nothing appealing about the principle "From each according to his ability to each according to how well he would do in the general prison population." So why did his book cause such a stir? What is there in it that those outside the libertarian ghetto are required to take seriously?

Epstein's great achievement arises out of his ability to use the master's tools to dismantle the master's house (or at least pay the previous owner for it). Epstein takes the intellectual basis for the decline in constitutional respect for property rights in the Progressive Era and the New Deal -- what we could call the "modernist" view of property -- and turns it into a sweeping takings doctrine far more extensive than a conservative, formalist nineteenth century judge would have imagined.

Naively, we tend to think of property as things or land. We may know that there is a species of "intellectual property", but it doesn't quite seem real, which may be why there are far fewer social sanctions for ignoring it. Locke and Blackstone had a more sophisticated view, but they emphasized the naturalness and unity of property. The acquisition, use and disposition of property is pre-political and distinct from coercion. The question of what rights property gives is logically prior to the remedies that the legal system might provide when those rights are violated. Locke and Blackston'es view is a natural fit both with the naive views of non-lawyers and with classical liberalism/libertarianism.

The modernist "bundle-of-sticks" view, on the other hand, was developed by people who thought nineteenth century liberalism was holding back progress. Painting with a broad brush, it holds:

*Remedies define entitlements. In other words, having a property right just is being able to go to court and get an injunction or damages in certain circumstances. As a result, property rights cannot be contrasted with state coercion -- they just are (regularized) state coercion. The distinction between private law and public law breaks down.

*Relatedly, tort and criminal law don't protect things because they are property -- they are property because tort and criminal law protect them. It isn't a trespass because it is an invasion or a nuisance because it is an interference: it's an invasion because it's a trespass and an interference because it's a nuisance.

*While it is perfectly possible for rights of possesion, use and disposition (the ability to sell or give) to belong to a single person, there is no necessity that this be so. Use and disposition rights can be limited and/or divided.

*Contrary to Locke, there is no natural mode of property acquisition. If property is transferred, then it must be in accordance with the rights of disposition that the transferor held (which have already been said to be conventional and mutable). And if property is originally acquired, it must be in accordance with some pre-existing rule. First possession isn't the only such rule.

In general, this modernist conception was used to break down classical liberal ideas and institutions. If both public law and private law are coercive, then the only issue seems to be what will provide the best result for the public as a whole.

Epstein takes ahold of this modernist conception and uses it to reestablish a strict classical liberalism. If property is a bundle, then the removal of any stick becomes a taking. There is no principled difference betwen a tax, a zoning by-law, a change in tort law rules and the occupation of a lot for a post office. If the legislature says that farmland can no longer be developed as anything else, the state now has a restrictive covenant that a neighbour would have to pay for. The value of mere regulation may be less, but it may not.

Moreover, Epstein justifies this rule in consequentialist terms. As David Suzuki will tell you, the way to get firms to respect the environment is to make them pay for environmental harm. If they do that, they will have to internalize the otherwise external environmental costs in their own decision making. Epstein's point is that the same goes for governments. If they don't have to (somehow) compensate those affected by their decisions, their incentives will be all screwed up. Something with overall negative consequences will make sense to the government so long as the losers have less political clout than the winners.

Epstein has no trouble showing the coherence of his approach and the intrinsic difficulties of traditional attempts to make distinctions between "mere" regulation and true takings. The problem is that his approach seems to go too far, and potentially make even positive-sum governmental activity impossible. My next post will try to evaluate how he addresses this.

"Preferences" and Constitutional Theories: Is "Adler's Axiom" Axiomatic?

Jonathan Adler makes what sounds like a motherhood point about constitutional law:

I would suggest that a reasonable threshold test of the seriousness of a given individual's avowed theory of constitutional interpretation is whether the theory produces any results to which the individual finds highly objectionable. If not, there may be reason to suspect that the theory is just a dressed up iteration of the individual's policy preferences.

In other words, your constitutional theory has to produce results you don't like: laws you hate being upheld, and laws you like being struck down.

That certainly sounds right. We don't want judges just striking down laws they disagree with, and upholding those they like. We might suspect that that is what is going on, but we don't like it. Indeed, the whole impetus for a constitutional theory is to somehow constrain judicial subjectivity, to allow constitutional law to escape the taint that it is just politics done by people in Santa Claus suits.

It isn't hard, in fact, to find constitutional positions which differ from the policy position the judge or the professor would prefer, but only with a naive view of what the policy issue is. Once we define the issue in the way a constitutional lawyer is likely to, then the gaps become trivial (and rightly so). Franck's examples of positions he is reluctantly forced to take by the constitution are actually bogus: given a wide enough view of the facts, he wouldn't really prefer those results after all.

Let me illustrate by way of anecdote. I recall a Question-and-Answer session with Justice Scalia of the US Supreme Court at law school a decade ago. He was arguing that his "faint hearted originalism" avoided judicial subjectivity. Someone asked him the obvious question of which decisions he had made that went against his view of how things should be. As a response, he gave the flag burning case, in which he had joined the decision that statutes banning desecration of US flags were unconstitutional. As a patriotic sort, Scalia said, he hated flag burning, but as a strict constitutionalist, he had to invalidate the law.

Everyone in the generally-unsympathetic-but-polite crowd gave him a pass on that one. Generation X Torontonians love their flag, but have no desire to jail the grumpy vets who might want to desecrate the Pearson Pennant, so there was broad approval of Scalia's stand here. But, as so often happens in real litigation, I got to thinking of a response after the event. Scalia hadn't necessarily given an example of a policy result of which he disapproved. No doubt he dislikes flag burning, but even on a policy level that would hardly be enough. The policy question is whether he thinks banning flags would do more harm than good, given America's commitment to free speech. And he undoubtedly would answer that question with a "yes". He'd still ban some speech, after all: I imagine laws against hiring contract killers would still be OK in Scalia's America.

Scalia would uphold an increase in the federal minimum wage, even though he disagreed with it. But that's not because the constitution made him do it: on the contrary, there is a perfectly sound argument that such a thing would extend beyond the boundaries of the Commerce Clause and offend the Fifth Amendment. He'd do so because he thinks the courts would do more harm than good if they got involved in economic matters -- a policy question, albeit one at a higher level of abstraction.

And the policy questions are at a higher level of abstraction on the other side too. David Souter voted as he did in upholding the expropriation of Mrs. Kelo's property not because he was profoundly supportive of New London's redevelopment scheme, but because he doesn't want the courts determining what "public use" is. That's a perfectly defensible institutional point: the courts are likely to be a lot worse and less legitimate when doing that than they would be in figuring out what "just compensation" amounts to. But greater deference to government on one phrase than another in the same clause in the constitution is surely justified -- if at all -- by the likely effects.

In Canadian jurisprudence -- especially before the Charter -- it was often said that the courts were uninterested in the wisdom of the legislation in determining whether it was rightly enacted by the federal or provincial legislature. Rightly so, but they should not have been (and weren't) uninterested in the wisdom of who to leave the issue with. It's easy to look at the words of the constitution and figure out that lighthouses are federal, but on more important issues, the question comes down to institutional policy.

So "Adler's axiom" only applies to those aspects of the constitution set out in specific detail: everyone has to agree that the US Constitution requires the President to be 35 and the Canadian constitution requires that PEI get four senators, regardless of whether either rule is a good idea. The provisions that generate litigation are the ones (almost) everyone agrees with because they are so vague ("equal protection", due process, principles of fundamental justice, free speech, yada, yada). Everyone likes them because for everyone they apply as the applier thinks a constitution should apply. If you are pro-life and don't think the democracy should override your principles, then "life, liberty and security of the person" means the fetus's life. If you are pro-choice and think likewise about majoritarianism, it means a woman's liberty to terminate a pregnancy and her security from an unwanted one. If you think Parliament should decide, then its decision is consistent with fundamental justice. No matter what, the constitution says what you prefer, because that was what it was designed to do.

"Allah" is just Arabic for "God"

Having praised Stephen Bainbridge on occasion, I have to react to the stupidity of one of his most recent posts. Bainbridge denounces Dutch bishops for suggesting that "Allah" be used to denote God in Catholic services. He suggests this proposal is heretical.

"Allah" is, in fact, just the Arabic word for God. It has been used by Arab Christians and Jews since before Islam existed. A couple of Bainbridge's commenters note this fact. Naturally, the rest ignore them, preferring their own identity politics.

It is also Catholic doctrine that Muslims worship the same God as Christians: see Lumen Gentium, para. 16.

Update: In the comments, Fred S. raises Benedict's Regensburg's Address, claiming that it represents a repudiation of the position in Lumen Gentium. I don't think so. The paragraph in Lumen Gentium is cited in the Catechism Ratzinger was instrumental in putting together.

Clearly, at Regensburg, Benedict disagrees with what he takes to be the Muslim conception of God. But he also links that conception with the medieval nominalist and Protestant one. He is not saying that the God that the conceptions point to are different.

David Cheifetz raises the difficult question of how it is consistent to make claims about the nature of God while acknowledging that He/She/It infinitely transcends possible human understanding. I imagine Benedict would have an answer. Any Catholics wishing to make a go of it in the comments box are invited to do so.

Further Update: Daniel Larison, having recently completed an intensive course in Arabic, confirms that the Dutch churches are making a purely linguistic concession. However, he further notes that this is one of those wet gestures right-thinking people of all confessions should despise. The Pithlord is partial to such an ecumenism of crankiness.

What Should Our War Aims in Afghanistan Be?

The cabinet shuffle gives as good an occasion as any to have this discussion. Dave at Intimations says universal liberal democracy is excessively grandiose, and an editorialist for the National Post shows up in his comments box to concede (at least some of) the point.

How about, "We're there to keep the Taliban/al Qaeda on the defensive?" That seems doable and connected to our national interest.

We Can Only Be Just in Someone Else's Time -- Gastronomic Edition

It's easy to imagine that politicians "apologizing" to ethnic activists for things done generations ago is a Canadian or at least Western phenomenon.

But Papua New Guinea has held a ceremony to say sorry because nineteenth century Papuans ate some Fijian missionaries. The Fijian High Commissioner was "deeply touched."

It's Time to Curb the Federal Spending Power

Things have gotten a bit soft. Pith & Substance needs a cause, nay a crusade, to renew its vigor. Fortunately, the lazy centralist wetness of the Globe is always good for stiffening up the sinews and summonig up the blood.

From today's editorial condeming the attempts of the Charest and Harper governments to come to an agreement limiting the use of the federal spending power in areas of provincial jurisdiction, comes this teleological tale:

In 1867, Ottawa and the provinces tidily divided their 19th-century duties into distinct spheres that have long since overlapped as technology changed and the economy developed. In the mid-20th century, Ottawa began funding today's social programs, such as old-age pensions, even though it was spending in areas of provincial jurisdiction[...]

Now Quebec wants to draw Ottawa into a formal pact that would curb Ottawa's ability to spend in any area of provincial jurisdiction. The wonderful elasticity of the Constitution, which has accommodated 140 years of federal-provincial jostling, would be frozen in time while the demands on government evolved.

Every part of this is wrong. No one in 1867 thought the heads of power were "tidily divided." On the contrary, they were left vague so that the supporters of a legislative union and a more classic federal system could both see their reflections in the Confederation deal. It was over the subsequent decades that the Privy Council and the provinces tried to create a classic federation out of the original constitution. After World War II, this became unpopular in English Canada and the spending power (among other things) was used to confuse jurisdiction again.

The idea that "technology" and the development of the economy drove these developments is nonsense. In the nineteenth century, as in the mid-twentieth and today, there were differences of political opinion. If anything, the more the state does, the more necessary federalism is, and the more important it is that the functions of different levels of government be kept separate. In 1867, most of English Canada wanted a "legislative union" (i.e., all constitutional authority in the hands of the central government): now, even Ontarians know better. And the costlier government is, the worse it is when it overlaps.

It is also nonsense to distinguish the spending power from the power to legislate. In the British constitutional tradition, all spending must be authorized by statute -- the only difference is that a money bill must originate in the lower house, while a bill prohibiting or permitting something can come from either house. The Privy Council held that it was unconstitutional to spend money in areas outside legislative jurisdiction for this reason.

Moreover, this makes policy sense. Tax-and-spend and ban-or-require are substitutes: you can accomplish any policy goal either way, albeit not always with the same efficiency. If one level of government can accomplish political objectives using only one measure, then the disadvantages of concurrent jurisdiction are simply compounded by the disadvantages of picking a less efficient policy tool.

I Have Powers You Know Not Of...

For an obscure (and boring) sect in political theory/philosophy, the Straussians have never been bigger. My local MP just sent me a letter claiming:

Prime Minister Harper is a follower of a mid-twentieth century American political philosopher called Leo Strauss. Professor Strauss believed that the best form of government is one where a small number of people, who are pre-destined to lead, tell everybody else what to do. He did not believe in the power of citizens exercising their wishes through their elected officials.

I took some political theory courses at U. of T. when it was a hotbed of Straussianism. As someone whose philosophical sensibilities were analytic and whose political sensibilities were leftist, I didn't take to them. As I recall it, they exhibited an excessively pious attitude to the texts, and seemed impervious to what I though of as rational argument.

What they did not strike me as was effective conspirators for power. But I guess genuinely effective conspirators wouldn't look it. Maybe if this stuff really percolates down to the water cooler, I can use the fact I took courses from genuine students of Leo Strauss himself to enhance my reputation for sinister power at work -- might be helpful if a better office comes up.

Law Geek Heaven

Jack Balkin and Eugene Volokh engage in one of those diavlog thingies about the First and Second Amendments.

US = UK?

I've calmed down a bit, and would like to address the substance of Matthew Franck's post. Franck says:

the Kelo ruling on eminent domain was rightly decided;
the Supreme Court has no rightful authority to gainsay campaign finance laws;
to the extent they are based on the Constitution, the Court's rulings upholding affirmative action are unobjectionable;
I have yet to encounter a federal regulation of commerce that I thought the Court could properly overturn on nothing other than an interpretation of the commerce power;
the Court was wrong to invalidate President Truman's seizure of the steel mills in 1952.

All my "gee, I'm stuck with that one" conclusions involve criticisms on my part of the Court improperly using its power to void the acts of other authorities. It's hard for me to think of instances of the improper disuse of the Court's power.

What Franck describes is pretty much the constitution of the United Kingdom. Courts will try to interpret laws of Parliament as consistent with traditional common law and consitutional rights, but if the statute is clear, the court must give effect to it. This has not changed even with the Human Rights Act 1998. Courts can now give "declarations of incompatibility" if they conclude that statutes are inconsistent with the European Convention on Human Rights, but such a declaration has no real legal effect unless Parliament decides to act on it. Anyway, Parliament could always repeal the Human Rights Act, so it is more like our Bill of Rights than our Charter.

Further, there are no constitutionally mandated restrictions on the extent to which the UK Parliament can interfere with the elected bodies of the UK's sub-components. The Scottish Assembly's jurisdiction exists only to the extent the UK Parliament is pleased to grant it.

Franck's vision of the US Constitution is basically identical. I presume that state legislation is still vulnerable to the supremacy clause, but Congressional legislation is immune from judicial review -- either on the basis that it exceeds the enumerated powers of the federal government or for interfering with guaranteed rights.

That might be a desirable constitution, but it just isn't consistent with the text or history of the US document. If any claim to "originalism" is laughable, it is that one.

"National Security" is not itself a grounds for secrecy

I think that's the take home point from the discussion on this post. Obviously, national-security related information in the government's hands should sometimes be non-disclosable: identification of agents and sources, commitments to foreign governments, preserving the fairness of future prosecutions would all be good reasons. But the mere fact that it relates to national security isn't a good reason to keep the information from the public: after all, it's our security that's at issue.

Tell Us What We Know About Al Qaeda

In the wake of the declassification of the remaining Ahrar documents, it is interesting to consider the argument of Tom Quiggin's new blog. Quiggin is a counter-terrorism expert, who is arguing that civil society needs access to the information the security bureaucracies have on terrorists. Information identifying agents or informers, or that is part of an ongoing investigation, or that was provided by foreign governments on conditions of secrecy needs to be protected. But according to Quiggin (and I have no reason to disbelieve him) vast amounts of information that would not violate any of these interests is kept in secret hands.

For all its faults, the decentralized web is probably ultimately smarter than the smartest bureaucrats. Dump, and people will comb through the stuff to win stupid arguments. That will make it more intelligently searchable, and we'll be better placed to get the bad guys.

National Review embarrasses itself

Or would do if it were capable of embarrassment.

Their "legal expert" Matthew Franck has got himself into an argument with liberal legal scholar Jack Balkin and shows he does not understand extremely basic concepts in constitutional theory.

In American legal circles, "originalism" certainly started as a conservative slogan. (This is much less the case in Canada, where it began with people like Frank Scott and Bora Laskin demanding that the courts return to John A. Macdonald's highly centralized conception of federation, as opposed to the more provincialist jurisprudence of the Privy Council.) The idea was that the Warren Court had stretched constitutional rights far beyond the "intent" of the framers.

However, over time, it has become clear that private intent at least must be irrelevant to the interpretation of a public document. All that can matter is the "original public meaning" of the phrases used. Moreover, since the important phrases describe very abstract concepts ("due process", "equal protection", "the freedom of speech", "interstate commerce"), then meaning is a very small part of constitutional adjudication. What matters more is the application of these concepts to the impugned government act. This in turn is going to involve questions of social fact and institutional competence that "non-orginalists" worry about. At the limit, the distinction between originalism and the "living constitution" starts to break down. (Although not necessarily totally breaking down: first, we may give some weight to the original generation's "expected application" and, second, some disputes may actually turn on semantic issues.)

Franck barges into this complex conceptual field in the most arrogant possible fashion, declaring liberal originalists to constitute "faking it," to be a "hoot" and to demonstrate "cynicism." Balkin responds with an unreasonable degree of civility here and here.

But in his reply, Franck demonstrates a very basic confusion between judical restraint and originalism. To read him, one would think that Felix Frankfurter wrote the Federalist Papers. Remarkably, he seems to think that the post-New Deal understanding of the "interstate commerce" power as plenary was part of the original understanding, a position I can't imagine any historian agreeing with.

Some of his conclusions are reasonable ones, but assuming that the judicial power implied any power of constitutional review at all, then it must follow that some laws should be invalidated. And if Franck is claiming that the US Constitution did not imply a power of constitutional review, he needs to take the matter up with Alexander Hamilton:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Brad DeLong has observed that there is no shortage of talented right-wing economists who would like to write for National Review, making its reliance on ignorant hacks somewhat inexplicable. The same is certainly true for lawyers. It's a bit of a mystery.

Update: Matthew Festa has studied citations to the Federalist Papers (the "originalist" source par excellence) in the Rehnquist Court, and has shown that liberals and conservatives cite to them at the same rate. Someone should do the same for Blackstone and Reconstruction-related material. I suspect you'd get the same result.

Update 2: I am not saying "judicial restraint" is a bad principle. Any and every theory of constitutional law invokes it some of the time. Total legislative supremacy is perfectly respectable in my book, although I think it is an eccentric view of what the US Constitution requires.

Rugged Capitalism Watch

Mickey Kaus gets this one right. No one demands socialism more vociferously than a capitalist who has lost a bunch of money.

We at Pith & Substance are investing our AdSense revenues (now almost at $12 Canadian -- although the taxman gets half of that) in index funds on a buy-and-hold basis. The correct policy response, of course, is to do nothing.

Managing Ethnic Cleansing

Pith & Substance endorses Fred Kaplan's plan for Iraq. The most useful thing the US military could do while it is waiting for the inevitable order to withdraw would be to help Sunnis in Shi'ite-majority areas move to Sunni-majority areas. And vice versa and mutatis mutandis. If it cares either about morality or its future influence, America ought also to do something about the security of those stupid enough to cooperate with it: Kurdistan gets its borders guaranteed and all the translators and so on currently hiding out in Jordan or Syria get green cards.

Not going to happen so long as the Republicans control the White House. The only hope for relatively humane ethnic cleansing lies in the party of Jefferson and Jackson.

And Now For Something Completely Ad Hominem

Via Crooked Timber:

The staff of BBC2’s late Late Show used to have a little joke about one of its presenters, Michael Ignatieff. Everyone knows what an idiot savant is: someone who appears to be an idiot but in fact is a wise man. Well, Ignatieff was a savant idiot.

Update: Some guy named David Rees points out that Ignatieff -- having by his own account failed in academe and politics -- has a great future as a Rush lyricist.

The Workers Control the Means of Procrastination!

Blogging may or may not be capable of overturning the dictatorship of capital, but it is pretty darn good at making fun of dumb ideas like a bloggers' union.

(Via Fourth Checkraise)

More on the Confederation Debates

Actually, there's lots of great stuff in my Confederation Debates in the Province of Canada (put out in the sixties by McLelland and Stewart as part of the Carleton Library, which oldtimers will remember because all its titles had the same lamo-psychedelic cover design. You have to be careful not to confuse your Dominion Lands Policy from your Adventures and Sufferings of John R. Jewitt, Captive Among the Nootka) For instance, pretty much everyone now agrees with the opposition's substantive criticisms, although the government manages to get most of the yuks.

Those sensitive souls who dislike the compromises of principle in our recent minority Parliaments would have been struck dead with indignation if they had been around in the 1860s. The people's choice in Canada West was George Brown's Reform. Their dearest principle was "rep-by-pop": so long as English speaking Protestants received fewer seats per person than French Catholics, they were suffering under dire papist oppression, in constant danger of having their children forced to eat snails and figure out where "le stylo de ma tante" was located. Cartier's bleus, on the other hand, had swept Canada East warning that rep-by-pop was a plot by Anglos to destroy the canadien language, faith and legal system. Macdonald's Conservatives viewed Brown's Reformers as dangerous pro-Yankee radicals; the Reformers considered the Tories dissolute and corrupt. But in 1864, Brown, Cartier and Macdonald formed a coalition government together, leaving only the relatively moderate Quebec rouges on the outside.

So when the Coalition negotiated Confederation with the Maritimers, it was the rouge Antoine-Aimé Dorion and the maverick Tory Christopher Dunkin.

Dorion's criticised "the scheme" for being an ill-thought out railway subsidy plan and for not creating a real federation. He attacked the limited jurisdiction of the provincial governments and the federal power to disallow provincial legislation. Subsequently, the Privy Council answered the first criticism through its generous reading of the "property and civil rights" power. In an admission of the validity of Dorion's criticism, the disallowance power fell into disuse a few decades after Confederation, leaving Canada today closer to what Dorion would have wanted than what Macdonald and Brown thought they were creating.

Dunkin's criticisms have not been met yet. He pointed out that the Senate would provide no represenation for the provinces, and would instead be a patronage vehicle for the federal government:

The despotism of the Grand Turk has been said to have its constitutional check in a salutary fear of the bow-string: and there may prove to be something of the same sort here. But I confess I do not like the quasi-despotism of the Legislative Council [Senate] even though so temered. Representing no public opinion or real power of any kind, it may hurt the less; but it can never tend to good, and it can never last.

Pretty good, except for the last clause.

Dunkin's point about the difficulties of affirmative-action cabinet making still rings true:

I take it that no section of the Confederatin can well have less than one representative in the Cabinet. Prince Edward Island will wnat one; Newfoundland, one. On just the same principle upon which Lower Canada wants, for Federal ends, to have a proper representation in the Executive Council, on that same principle the minority populations in Lower Canada will want, and reasonably want, the same thing. We have three populations in Lower Canada -- the French Canadians, the Irish Catholics, and the British Protestants.[...] Well, if in a government of this Federal kind the different populations of Lower Canada are to feel that justice is done then, none of them are to be there ignored.[,,,] There has never been a time, I think, when there was not an Irish Catholic in the Cabinet. There have been times when the number of French Canadians has been less than four, and there was then much complaint. Six members -- four, one and one -- are just what you must give to please each section of Lower Canada. Well, sir, if there are to be six for Lower Canada, there must be six or seven for Upper Canada, and you cannot very well leave less than three each for Nova Scotia and New Brunswick...

But the main flaw in Confederation that Dunkin spots, and remains with us to this day, is the mixing up of federal and provincial finances, "Of course, in the mere view of making the scheme palatable, it was clever to make the Federal treasury pay for provincial expenditure; but the system that had need be established should bear testimony, not to cleverness, but to wisdom..."

Oh well, things could have been worse.


*The volume is apparently now back in print, but without the funky cover.

A More Appealing Multiculturalism

Multiculturalism can mean many things. It is unappealing to think that a country must have its institutions purged of their cultural inheritance to make newcomers feel more welcome. It is pointless to hope that all subcultures will have equal status and authority.

But the idea of a political nationality distinct from an ethnic or cultural nationality is a different proposition. It is true that such a thing will inevitably involve a lot of unedifying ethnic brokerage. Communication and trust will be more difficult than in more homogenous societies -- there is a reason that efficient welfare states are ethnically homgenous And there always lurks the nightmare of violent breakdown -- one has to trust pretty firmly in habits of civilization to make it work.

On the other hand, the very fact that ethnic nationalities are different creates a potential for gains from trade, and for breaking up the kinds of political cartels Mancur Olson went on about. The very fact that one's loyalty to the state cuts against one's pre-political ethnic affinities may make it harder to romanticize it, reducing the risk of tyranny.

This kind of liberal multiculturalism isn't just a wet late twentieth century invention. Here is Cartier's speech on February 7, 1865 to the Legislative Assembly of the Province of Canada:

Now, when we were united together, if union were attained, we would form a political nationality with which neither national origin, nor the religion of any individual, would interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races was utopian -- it was impossible. Distinctions of this kind would always exist. Dissimilarity, in fact, appeared to be the order of the physical world and of the moral world, as well as the political world. But with regard to the objection based on this fact, to the effect that a great nation could not be formed because Lower Canada was in great part French and Catholic, and Upper Canada was British and Protestant, and the Lower Provinces were mixed, it was futile and worthless in the extreme. Look, for instance, at the United Kingdom, inhabited as it was by three great races. (Hear, hear.) Had the diversity of race impeded the glory, the progress, the wealth of England? Had they not rather each contributed their share to the greatness of the Empire? Of the glories of the senate, the field, and the ocean, of the successes of trade and commerce, how much was contributed by the combined talents, energy and courage of the three races together? (Cheers.) In our own Federation we should have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success would increase the prosperity and glory of the new Confederacy. (Hear, hear) [I view] the diversity of races in British North America in this way: we were of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare. (Cheers) We could not do away with the distinctions of race. We could not legislate for the disappearance of the French Canadians from American soil, but British and French Canadians alike could appreciate and understand their position relative to each other.

Image of George-Étienne Cartier property of the Manitoba Archives

Iggy Says "Sorry About the War"

Michael Ignatieff's mea culpa on his support for the Iraq war can be found here

Ignatieff's line is that as an academic he was too interested in ideas, and didn't have the horse sense he's subsequently developed in the political trenches. I think that's disingenous. Ignatieff was never really a theorist: he was an academic politician, and from the very beginning his cause was humanitarian war.

When he's prepared to consider the problems with that construct, it will be time to listen.

Really Cold War

University of Chicago Law Prof Eric Posner says the US should reverse its position opposing Canada's claim over the Northwest Passage to establish a common front against Russia's arctic ambitions.

What's wrong with "Access to Justice"?

Mr. Justice Bouck's blog centres on his ideas for civil justice reform, a hot topic in BC these days. There is no doubt that litigation is too expensive -- moreover, the explosion of e-mail discovery is making things much worse, and the trend shows no sign of abating. So good ideas for making the resolution of civil claims cheaper are urgently needed. Of course, so much has been said ad nauseum and the problem gets worse.

One critical issue is how we frame the question. It has become a cliché to characterize the aim of civil justice reform aVia Moin Yahya, I see that Bouck J. of the B.C. Supreme Court has started a blog. This is a pretty adventurous thing to do for a Canadian judge, and we wish him a hearty welcome to the 'sphere.
s better "access to justice." For a while, I just thought of this as synonymous with resolving legal claims more cheaply and quickly. But reading some of the discussion at The Court about class actions, I realize that the phrase imports a pro-litigation and pro-plaintiff bias. "Justice" is implicitly equated with legal process: more is better and the problem is that not everyone gets enough.

The trouble with conceiving these things is two-fold. First, litigation, like every other economic good, has opportunity costs. We want those to be internalized by those who are responsible for making the litigation necessary. Canadian cost rules are better at this than those in the US. But in the name of "access to justice", we have abandoned these rules for class actions and increasingly for constitutional challenges the courts approve of. Since the resources of the system are necessarily finite, this makes it harder for other valid claims to go forward, as well as imposing costs on defendants who may have no valid claim against them.

Second, unlike most economic goods, litigation isn't consensual. The defendant is there unwillingly. If the claim isn't valid, then there is an injustice in any of the costs and delay -- even if the claim is valid, then there is an injustice when those costs and delay are greater than they should be.

The insight that exploding litigation costs are preventing people with small claims from getting justice is a good one. But we need to be clear on what we should be trying to achieve: a system that determines the validity of claims as cheaply and quickly as is consistent with reasonable accuracy and public confidence.

Plus Ca Change...

Anyone under any delusions that a Democratic return to power will mean a return of the fiscal sense exhibited in the nineties as a result of the divided government can give them up now. At the "YearlyKos" confab of Democratic activists, the biggest boo was in response to Richardson's call for a Balanced Budget Amendment.

Bushie fiscal policy will continue long after Bush...

Update: Dave Weigel uses another event at YearlyKos to cast doubt on the hope that a Democrat will be better on civil rights or executive power. We shouldn't be optimistic on matters imperial either.

The Politics of Property Rights

If Harper were to take it up, how would strengthening the Bill of Rights' property rights provisions play out?

David Cheifetz is skeptical:

The Trogs are going to have a big problem beefing up the property rights portions for the Bill of Rights for the same reasons the attempts to add those protections failed in the Charter run-up. You're also right, I think, that it would divide the Grits.

But, and here's the big big but: there's a real "be careful what you wish for" danger for the Trogs in what you're proposing. My suspicion is that the attempt might "unite the left" and the traditional centre. That's still a bigger voting group that the Tory core and the newly successful entrepeneurial immigrant core.

My sense is that the political context has changed since 1982. The economic left has been in retreat for that entire time: lots of serious people announced they wee socialists twenty five years ago. More importantly, the PCs were fighting on two fronts at the time. The cause of parliamentary supremacy being lost, property rights would no longer be divisive on the right.

Also, I don't think this would be as unifying for the centre-left as all that. There are arguments against entrenched or semi-entrenched property rights, of course, but they aren't easy ones to articulate in a politically compelling way. A parade of Lochner-style horribles can be met by incredulity that the Canadian courts would ever countenance such things. If the opponents of property rights expresses distrust in the courts, they can be met by questioning their Canadianness. The Pope is only infallible when speaking ex cathedra on matters of faith and morals: the Supreme Court is infallible on everything. If you allow the possibility that the courts might err, what would come next? You'll be denying that Tommy Douglas introduced medicare or that Justin Trudeau has a three digit IQ! If the critic persists, then "that's what the override is there for, man" should work.

The most appealing reason to do this is that it would appeal to the key constituency Harper has been trying to attract: "market dominant minority" immigrant communities. If your experience consists in being expropriated by envious majorities, then this could be the symbolic issue to shake you from your historic attachment to the Liberals. Alternatively, enough Liberals will realize this to support the government, in which case it works for Harper as well.

Progress and "Progressives"

As long as I can remember, "progressive" has been the term of choice of people on the left. Not for me personally. When I was a Trot, we considered the word a badge of the class-collaborationist popular front. (A big part of the appeal of being a Trot is attacking progressives.) As I drifted rightwards, I preferred "social democrat." Like everyone else in the Anglophone world, I am in some sense a "liberal," although I'm beginning to like "Christian Democrat without faith in Christianity (or Democracy)." Or maybe "eclectic reactionary"? I'll have to work on it...

But enough about me. The point is that those we used to imprecisely call "liberals" now want to be called "progressives." But, in general, the progressives don't believe in progress -- or, at minimum, are less annoying on the subject than crazed Hitchensites and libertarians. True, they view traditional virtues and gender relations with disdain and are unable to be fair to any of their countrypersons of more than two generations ago. They view Canadian history -- for example -- as a long litany of horrors imposed by the establishment on ethnic groups concentrated in strategic ridings, at least until Pierre fixed everything. (Trudeau himself despised precisely this kind of history, and was a progressive of a more full-blooded sort. But so it goes...)

But it got me thinking about Progress, and who would believe in it. At first blush, you'd think that it would be today's winners who would believe most in the upward march of history. After all, here they (we?) are, winners. It's hard not to see the past as precursor to this satisfactory situation.

And so it often is, and probably always would be, were it not for the aforementioned Christianity. It taught the world that the Kingdom is at hand, and the last shall be first and the first last. To the extent Marx inverted Hegel, he just emphasized this apocalyptic version of progress over the more self-satisfied one.

Of course, the genius of the current social system is its ability to turn revolutionary elites into conservative elites. The way is smoothed by the religion of progress -- we can always invert Marx and turn him into Hegel again.

Another Thing About Woodrow Lloyd

The buzz of the American wonkosphere appears to be the relationship between Progressives and eugenics, and what (if anything) that means about the reproductive rights debate today. (I'm not going to collect all the links: here's a Ross Douthat post.)

Nothing substantive to add right now. I would be remiss, though, if I didn't point out that Saskatchewan CCF/NDP Premier and introduer-of-Medicare Woodrow Lloyd never wrote a Master's Thesis advocating sterilizing the unfit. Unlike some people.

Conrad Black: "Worst Kind of Imperial CEO"

So concludes conservative corporate law prof Stephen Bainbridge. Bainbridge isn't quite sure that this was an appropriate case for the criminal law, but he observes (a) that Deleware Vice Chancellor Leo Strine listened to his testimony in a civil trial; (b) Strine concluded he was a liar; and (c) the reputation of the Delaware courts has been proven in the marketplace.

Why Property Rights?

In response to my proposal to put strong protections for property rights and economic liberties in the Diefenbaker Bill of Rights, BKN asks a question that deserves another post:

What is the problem (beyond closing the barn door after the F*ck You Vets Act has bolted) that your proposed amendment is meant to solve?

There are two ways of interpreting "problem." The first is what problem facing Stephen Harper would merit taking on a project like this. I don't think that's what BKN means, but I hope to post on it next.

The other interpretation is what social mischief, as seen from the disinterested and Olympian perspective of the Pithlord, could be avoided? That's what I'll talk about right now.

There are two things going on in my mind. The first is a suspicion that the F*ck You Vets Act isn't totally isolated. The sovereignty of the legislature is a mighty club, and sometimes it is used to create individual injustices. So far, everyone seems to recognize the FYVA as one of these. It would be nice if there were a way that judges could do the right thing and just invalidate the sucker. The state gets its chance to make the public spirited case for what it is doing under s. 1. If it still disagrees when the SCC rules, Parliament can use the notwithstanding clause. So there's something to be said on that naive level.

But the second thought is more systemic. Security of property and freedom of contract have well-understood benefits, and make for good default rules for a liberal society. If we are going to take from somebody's private holdings and put it in to the public pool, then the cost should be borne by the whole community, not just by the private holder. Countries where this isn't the case develop parasitic states and strangle development. Ethiopia is an example I'm semi-familiar with. British Columbia in the 1990s is a less extreme example.

Governments can always compensate. Sometimes they don't want to because it would be too costly to do that. But that just means that the true social costs aren't showing up in the budget. The government uses the law-making power to do what it doesn't want to through the tax spending power not because it is more efficient, but because it is less transparent.

The risk of taking-by-regulation, like all risks, gets monetized in investment decisions. Capital requires a bigger expected profit than it otherwise would, which means that there are losses on the other side of the capital-labour transaction.

Granted that there have to be limits to a system of private property and free exchange. The institutional question is whether it is a good idea to require the state to justify those limits in court, subject to an exceptional non obstante power, or just to rely on the political process to keep the state from going too far?

As we've seen with the Charter, the non obstante doesn't answer the whole problem of judicial overreach -- at least not if it is going to remain exceptional (and if it isn't, then the whole process becomes meaningless). There are going to be costs of courts striking down beneficial legislation.

On the other hand, the existence of a property rights-guarantee will make governments think more about what they are doing and who is being affected. If they know they are going to have to justify what they are doing, they are going to have to figure out what the justifications are, and whether they could achieve their purposes less intrusively or with compensation to targeted losers.

I am sure that the judiciary would dismiss claims that represent a fullscale attack on the mixed economy or welfare state. On balance, I think that state would become smarter and less intrusive on the margins. I suppose I could be wrong, but this is a statutory instrument and there is an override.