The Post-Modernist and the Dinosaur

In response to the my defence of post-modernism, "Antirealist" asks two different questions:

Are you saying that prior to the time when people grasped the concept 'living thing', there were no living things, or no facts about whether, say, algae is alive?

The answer to the first is "no" and the second is "yes". On the plausible assumption that bacteria have no concept of life and death, there were innumerable (if yucky) living things before there was a concept of "living thing." However, there were no facts about living things, at least not if facts are true propositions. You can't have propositions without concepts, so you clearly can't have true propositions without them.

It may be that there is now a fact about whether there were bacteria 4 billion years ago. But there wasn't back then.

Update: "realist" says, I'm assuming you'd agree that the truth of straight empirical propositions like this one depends on goings on in the world

Here is where we might locate the difference. I would more or less endorse Foucault's views on this issue. Empirical propositions do not really stand on their own. They are situated either in a science (or other specialized discipline like engineering, accounting or law) or as part of common sense. In other words, without all the background that makes up the science or or other technical discipline or common sense (collectively, "discourses"), the proposition wouldn't be meaningful, and therefore wouldn't be capable of being true or false.

"Discourse" may be a misleading term because Foucault confirms that the discourse embodies both linguistic and non-linguistic elements. By definition, *empirical* discourses use some physical interaction with the extra-linguistic world as part of their way of determining whether propositions are true or false. A proposition in chemistry has to lead you to some lab experiment that verifies or falsifies the proposition (or, at very minimum, raises or lowers your Bayesian prior about that proposition).

So, yes, the truth of a proposition in an empirical discourse depends on extra-linguistic goings on in the world. But what goings on it depends on is part of what makes it the discourse it is. Which external events trigger truth/falsity depends on the discourse, not the external world. And until the discourse comes into being, nothing "out there" in the world has any effect on the truth or falsity of any propositions.

What's interesting about all this is that the production of new concepts is a historical event. It occurs because someone sees the new concept as useful and others agree. Figuring out why they see the new concept as useful depends on figuring out what problems they think the new concept helps them solve. And figuring out why other people oppose the new concept depends on figuring out what new problems it creates for those people. In other words, the rise or decline of a concept is a political event.

Some common-sense concepts (like the distinction between living and non-living things) are so basic to the human condition that it is hard to see them as politcal. But they aren't political in the same sense that a completely settled issue of public policy (like whether the Stuart line will be restored to the throne or who will get Alsace Lorraine) isn't political. No one has an interest in fighting about it. And the concepts of a technical discourse usually aren't contested except by the participants in the technical discourse, who only contest the ones on the margin.

But then there are concepts like "racism", which are contested, and for which understanding the contest requires suspension of worrying about whether it is true or false that A is a racist.

We Have Nothing to Fear But FIRA Itself (2): The Tory Edition

Sigh. Just what we need in a global economic crisis. Stupid protectionism. This would never happen if Stephen Harper were Prime Minister.

Bastarache Resigns

Mr. Justice Bastarache has decided to call it quits. This gives the Tories the chance to fill the Atlantic seat on the Supreme Court.

The only reasonable candidate that the general public is likely to have heard of is Clyde Wells, and he seems like a highly contrarian choice for a Conservative government seeking to make inroads in Quebec. So I guess we will just have to see.

My "Racism" Problem and Ours

Post-modernism comes in for its share of ridicule on the Internet. And some of it is deserved: one should only read Jacques Lacan, for example, firmly understanding that most of the time he is pulling your leg. And while I am second to no one in demanding that the world recognize Mao as morally equivalent to Stalin and Hitler, when undergraduates respond to every normative or positive statement with "That's just their culture, man", I sympathize with the idea of having them spend some time doing farm labour.

But there was an important point underlying all of the bafflegab and French pseudo-profundity. While there is nothing inherently difficult about distinguishing a true proposition from a false one, propositions are made from concepts. And concepts are neither true nor false. As the pragmatists know, they are either useful or not useful. And as the pragmatists tended not to emphasize, something isn't just useful in general, it is useful for somebody who wants to do something. In other words, the process by which concepts arise and die is a political process. You don't refute a concept - you persuade people to abandon it.

Now, this persuasion can be more or less rational. For example, you could try to argue that the concept is useless and dangerous (taking for granted, of course, that your interlocutor shares some sense of what consequences are good and what are bad). Or you could get your interlocutor in a small room and start a chant, "Positivist conceptions of law are vacuous! Positivist conceptions of law are vacuous!" Other than the fact that no such persuasion exercise is one of pure logic, we can't necessarily say ahead of time what will and will not work.

All of which is prologue to the task I am going to undertake. I want to persuade you that the concept of "racism" is basically useless. That is distinct from persuading you that no one (or everyone) is or is not racist. I'm just saying that this language game no longer accomplishes what it once did, and we need to have a sounder sense of how to accomplish a civilized ethnic politics.

The trouble with "racism" as a concept is that it is an obstacle to clear thought on these matters. I also suspect that, as a concept, it will primarily be employed against the uneducated in general and disadvantaged minorities in particular. Once upon a time, racism may have been the tool of the man, but today "racism" is the tool of the man, man.

1. The first move is to point that racial/ethnic differences are profoundly important, politically and socially. This may be the most obvious thing anyone ever said, but the obvious is a good starting point when you are trying to bust the paradigm. Everywhere you go, ethnic groups entere into coalitions and struggles with each other to change the rules to their benefit.

2. And everywhere you go, ethnic groups do differently in the market (or under any set of neutral rules). That's because human capital is always built ethnically. Some may say that some ethnic groups have genetic advantages or disadvantages in building particular forms of human capital. That is unproven. What is indisputable is that different ethnic groups in fact have very different levels of human capital. Expropriate the Ismailis of Eastern Africa, force them into refugee camps, let them find a place with a halfway market economy and a generation later they will be richer than the locals. Do the same (but in a much milder way) to Australian Aborigines, and you have a perpetual nightmare. These differences may be entirely cultural, but they are nonetheless enduring and resistant to straightforward policy fixes.

3. Given #2, it follows that different ethnic groups do not have the same political interests. It also follows that there are potential economic gains from trade when they interact (it's called comparative advantage, man). But however nice it is to think that people could interact economically for mutual gain, people are not going to stop using politics to promote rules that work in their favour.

4. If it were possible to have a completely ethnically homogenous polity, it might resolve the problem of ethnic politics. However, it would give rise to all sorts of other self-interested coalitions whose power would be hard to overcome, and it would be culturally sterile (here is where I lose the paleos who will start complaining about ethnic food). Those of us who do not hail from Iceland unavoidably live in a multi-ethnic polity. Human nature being what it is, that means we are going to have conflict. However, it is not beyond the realm of possibility to manage this conflict in a way that means we still gain from the possibility of ethnic competition and economic co-operation.

5. The problems faced by ethnic groups whose human capital does not get a big price on the market are not primarily caused by discrimination -- at least not in contemporary Canada and the United States. That's not to say that discrimination is non-existent or morally OK or anything. It's just to say that the big problem is the lack of human capital -- the lack of bourgeois habits, the lack of skills, etc. Since the days of the Moynihan report, it has become more or less possible to say this in the United States. Obama says it. It is still very diffilcult to say in Canada, at least if you care about your reputation.

6. But Canada has a serious problem arising in the next generation. Depending on the extent of white flight, aboriginals will be a majority or a very large minority in the Prairies very shortly. Public services for aboriginals are terrible. I live near an urban reserve. You can tell where the reserve is, because there are no sidewalks, even though the reserve borders on two arterial roads. The Building Code's writ does not run, and the addresses on the reserve's main road are not sequential. There are two schools in the area. One is diverse with kids from everywhere in the world. The other has Indian kids, and it would be considered child abuse by parents of any other ethnic group to allow your children to go there. Every day, I see sixteen year olds pushing strollers along the shoulder of the busy road, and just have to hope no one gets killed. And this is in a liberal city and undoubtedly one of the better run reserves.

7. There are no obvious answers to these problems, but if our public discourse can't get to the point the Moynihan report got to over thirty years ago, there aren't going to be any.

8. Political correctness on the subject of race is difficult to learn. You aren't going to pick it up at a reserve school where you'd be lucky to get basic arithmetic. I have no brief for David Ahenakew, but I see the Tories reaction as a harbinger of a future of right-wing political correctness (also on display in the whole Jeremiah Wright business). It will be highly insensitive and hurtful of any racial minority to advance its own interests in the political sphere. But we also won't point out how the political dynamics on the reserves are impoverishing the majority and enriching the elite.

9. It comes down to the problem with "racism" as a frame. It worked in the post-war world because it tied continuing de jure segregation to the defeated Nazis. But it ignored the reality that ethnocentrism is univeral and, in its mild forms, harmless. As long as Anglo hegemony could be taken as unthreatened, we could just say that all other groups are permitted their ethnocentrism and the burden should be given to the Anglos, since they run anything anyway. That was reasonable then, but it isn't going to continue to work.

10. To the extent the "racism" frame is taken seriously internationally, it makes sensible ethnic accommodation impossible. Malaysia worked out a decent compromise between the Malays and the Chinese by being "racist." Maybe it is time for that compromise to be rethought, but it was itself a good thing because it let a lot of people live and prosper who wouldn't otherwise have done so. The "racism" frame is completley useless in the Middle East, and has been one cause of recent Western stupidity there.

11. The better way to look at things is to accept the inevitability of ethnic politics, and then distinguish between bad negative-sum ethnic politics and good positive-sum ethnic politics.

To the extent I support Obama, it is because I think he is closer to realizing all this than most. That is the key political message of visiting Kenya in Dreams.

The Literatus Weighs In

Our old friend, the hardest working man in showbusiness and published poet, the Literatus writes in:

Oh hey [name redacted], you Obama blusher you: sure, every political person likely had unsavoury radical friends in their youth. I believe you yourself associated with the likes of Sarah Polley, Warren Kinsella and even Garth the Albino (shudder) back in the Trotskyite anti-racism day, right? OK. But you haven't exactly clasped any such nutter by the shoulder and slipped him $50 every week for the past two decades, have you...? Obama's foaming cleric is his priest, is his confessor, is his family's spiritual advisor, not some regrettable campus acquaintance from old times.

I kinda like 'em both, mind you; Wright at least is among the great roaring creatures of American religion, and Obama is undeniably a fine-tuned political receiver/and amplifier. Not that it's much of our business; not that it makes much difference.

In the event the Pithlord were to seek elective office, it would be trivially easy to put together an oppo file. That's why I've decided to confine my political activities to being a smartass on the Internet.

The Coveted Pith & Substance Non-Endorsement

In addition to asking some interesting questions in my comment box, Steve Sailer also gave me a link and called me "Obama's most sophisticated defender."

I appreciate it, but I'm not sure I can quite accept. As one of Her Majesty's loyal subjects, it really is no business of mine who the Great Republic chooses as their chief executive. Whether it is McCain or Obama, I'm sure we will continue to do fine. Like most of my countrypersons, I react negatively to the younger Mr. Bush, and will be happy to see him go no matter what, but it really isn't any of my concern what health plan the US federal government enacts or what flavour of Supreme Court justice is appointed.

I do think that the Iraq and Afghanistan wars raise issues of larger significance. And here I think the way Obama thinks will be more helpful than the way McCain thinks. Not because I hope that the Muslim world will react with such gratitude to a President whose middle name is "Hussein" that they will drop all their sectarian and tribalist craziness and become Belgians with loose clothing made of natural fibres. But because Iraq is precisely the sort of problem where victory/defeat is a useless frame and how-do-we-minimize-our-losses-while-letting-everyone-save-face is the way to go.

Perhaps I could also note that we in the Commonwealth are aware that even the blandest of centre-left politicians (and not infrequently the sternest of conservative ones) typically have some radical friends from their twenties. To explain what Gordon Brown and David Miliband were up to when they were young and foolish would require an extremely boring dissertation in micro-left groups with three-letter acronyms. This is not to say that genuinely right-wing people should vote for them, but it is no big deal either.

Unified Field Theory of Obama: Response to the Critics

In this thread, Steve Sailer asks two good questions. First, what the hell does "incompletely theorized common ground across more comprehensive narratives" mean? And, second, where do Barack Hussein Obama's loyalties lie?

I am a little reluctant to get into a discussion of Rawls in light of the fact that I know one of my occasional readers is a genuine expert on the subject. I just read Political Liberalism once, and tried to make it through A Theory of Justice. Rawls actually refers to "comprehensive conceptions of the good" and I foisted the po-mo "narratives" on him. But basically, the idea is that the liberal state brackets the more fundamental questions of meaning and morality, and instead tries to find essentially procedural rules that allows everyone to more-or-less do their own thing without stepping on anyone else's toes too much. In contrast to the ancient ideal, the modern liberal state relegates the pursuit of virtue or perfection to civil society and excludes it from politics. It accepts that its citizens will tell themselves different stories about who they are and what is important in life, and just makes sure that they all drive on the same side of the road and don't make left turns without signalling.

But for Rawls (or for Trudeau), this compromise has to be a principled one. Anyone who comes to the modern state with a story about how his ancestors were treated gets told that we can only be just in our time. Deal. The state can't recognize your identity - that's civil society's job.

Like Mulroney, Obama thinks this isn't going to work. Just because everyone would be better off just letting the past go doesn't mean that it can happen. On the other hand, Obama, like Mulroney, has considerable confidence in his own ability to recognize the source of each side's cussedness look enough for everyone to realize the mutual gains from resolving their non-zero-sum conflict. So the basis for the compromise comes from somehow framing each side's version as part of a single story, and the compromise itself turns out not to be principled liberalism, but something genuinely contingent.

Obama's not a "technocrat" at all, except maybe by comparison with recent Republican nominees for President, because he tends to think the finding the mutual gains is the easy part.

Now we Canadians know that Mulroney's confidence didn't quite pan out. He was indeed a talented man, and IMHO, a great prime minister, but he couldn't quite figure out how to compromise issues of identity. (Compromising issues of interest is relatively easy.) Hence, the Meech Lake fiasco. In the end, the Anglos -- and even more, the relocated market-dominant minorities that make up the leadership of the New Canadians -- were too invested in the liberal, procedural compromise to accept that the "distinct society" clause was a pretty minor concession in the scheme of things.

As for Obama's loyalties, I have no doubt he considers himself attached to the black population of the South Side of Chicago, albeit by adoption, not birth. That's only a problem if you think that blacks and whites have opposing interests in the US, and I'm pretty sure he doesn't. Of course, all politicians -- especially "transformative" ones -- must first be loyal to their own star, and I have no doubt that Obama is no exception to that principle.

How Can Regulation Be Outdated? Let me count the ways...

Peter Suderman wants to trademark the notion that regulations can become outdated for economic libertarians:

I continue to be bothered by the fact that despite [Obama's] recognition that the current financial regulation system is outdated, designed for another era, and his equal recognition that we've dealt "with threats to the financial system that weren't anticipated by regulators," the solution is, well, more regulators! It's as if he sees the consistent inability of bureaucracy and regulation to keep pace with market innovation and then says, "But if we just made it a little faster, maybe this time…"

But surely the issue isn't just "more" or "less" regulation. If you have regulation in place for a reason, and there are powerful incentives to get around it, you need to update your regulator strategies to address the regulatory arbitrage.

If the taxpayers are going to be insurers of last resort of certain financial transactions (and perhaps they should be), then like any other insurers, they need to control the insured's behaviour for excessive risk-taking. But when they do that, the insured has an incentive to find a way to keep the coverage and engage in the risk-taking. Sophisticated financial instruments make this easy, unless regulators are also sophisticated.

So a regulatory system can be "outdated" not only because it imposes unnecessary costs on those it regulates, but also because it no longer protects against the risk it is trying to mitigate.

McCain

It has sometimes been noted that John McCain isn't much of a details man. He speaks of al Qaeda and Iran as one, despite the Shi'ite/Sunni divide. (In fact, this is a complex area and there have been attempts at Islamist action across said divide, but that doesn't justify not knowing about it.) He also doesn't seem to care deeply about economics. He seems more or less willing to go along with fusionist orthodoxy ("conservatism") on most things, but he isn't deeply invested in it.

McCain can most sympathetically be understood using Jane Jacobs' distinction between the "guardian syndrome" and the "commercial syndrome" of morality. Outside the US, the right is almost entirely identified with the latter -- the idea of finding value, of innovation and entrepeneurship, of being self-interested but respectful of the rights of others, and not too concerned with how well they do so long as profitable interaction is possible. In the US too, people like Gingrich and Romney seem to perfectly embody the commercial syndrom of morality, as of course do the doctrinaire libertarians.

The anxiety that McCain speaks to arises from the suspicion that too much commercial success undermines the military virtues that the barbarians outside the commercial gates retain. From this perspective, the problem is not the intelligence of our strategy, but the maintenance of those virtues. Understanding our enemies too much or thinking about the ways we might work with semi-adversaries to isolate them is risky, because guardian virtues are undermined when they are understood. If you analyze honour, loyalty or courage, you lose them.

The position McCain represents is just as dialectical as Obama's. After all, it is the achievements of commercial, scientific and liberal civilization that makes America better than those it is fighting, but it is just those achievements that undermine the pre-commercial, pre-scientific and pre-liberal virtues necessary to fight. McCain has had the imagination to see in some strands of environmentalism and goo-goo political reform seeds of a post-modern guardian morality. Although McCainism tends to declaim against "relativism", it's real target is an excessive attachment to objectivity. Ideally, a soldier fights for what is his because it is his, and cheerfully acknowledges the right of his enemy to fight for what is the enemy's.

Obama's Grand Unified Theory

So what does the "race speech" tell us about how Obama thinks? How does it fit in with the unity-mongering and meeting-with-foreign-dictators stuff?

At bottom, I think Obama's basic theoretical framework is in dispute resolution. The worldview is sometimes attributed to his experience as an organizer, but it could also be that of a corporate litigator. He thinks of the world as filled with non-zero-sum games, in which the win-win alternative of making a deal and dividing the surplus isn't taken because each side is gripped with a narrative that makes rationally self-interested compromise difficult or impossible. The intellectual problem is to look at the interests coolly and dispassionately and see where the surplus-maximizing position lies. But the harder problem is to be sensitive enough to how the identity-constituting stories keep both sides from doing that. It's Harvard Negotiation project stuff, but it also works with who he thinks he is.

Obama doesn't particularly claim to come from nowhere or have no loyalties. He is instinctively cosmopolitan, on-the-left and tied to his adopted black American Protestant identity. But I think he recognizes that to advance the interests he is loyal to requires figuring out what other people's loyalties are, "recognize" them and then figure out how to get to the best possible resolution of the bargaining problem they represent.

Obama loves to put things dialectically. In this, the successful politician he most resembles is Tony Blair. His central rhetorical trick is restating positions he is arguing attractively and strongly, but in such a way that they obviously have limitations he hints at transcending. Dreams From My Father is hardly a black nationalist book -- but it engages very sympathetically with black nationalism, not unlike the way in which Audacity of Hope engages sympathetically but critically with fusionist conservatism. In Dreams, black nationalism is twinned not with white racism, but with the white romantic liberalism of the family he grew up with. The good thing about that liberalism is that it tries to transcend tribalism -- the bad part is that tribalism is too central to the human condition to be transcended. In fact, much of what is most admirable about liberalism comes from the folkways of Northern European Protestants -- not that there's anything wrong with that.

Obama thinks he solves the dilemma by making the same move Rawls made in Political Liberalism towards incompletely theorized common ground across more comprehensive narratives. The master discourse though is narrative negotiation, not procedural justice.

Interestingly, I think McCain also represents a reaction to the dilemma of a universalist liberalism rooted in particularist traditions it is unable to defend. But he responds differently.

Pithier Version for Canadians: Obama isn't Trudeau. He's Mulroney.

That's One Big Tent

Charles Murray, of all people, thinks Obama's speech on race was the best of any American politician ever.

The Pithlord agrees.

Sympathy for the Devil, Part II: The Case for the Reverend Jeremiah Wright

The only way to make this case is in the geekiest possible manner.

Let A represent the existence of the Reverend.
Let p represent the probability of serious bodily harm to a white person walking in the streets of South Chicago for one hour.
(p,A)<(p,~A)

If we look at matters purely from the point-of-view of white America, the basic problem black America presents is not politicization. It's lumpenization. If Reverend Wright takes a gangbanger and makes him a church-going married guy who thinks the US government planned AIDS, white America is better off. (Black America is too, of course, but I'm trying to be hard headed here.)

I get off the "conservative" bus whenever I hear complaints about identity politics. There just isn't any other kind of politics. If an issue of public policy does not seriously intersect with identity, then it isn't a political issue. If there is any merit to democracy at all, it is that it provides a framework in which identity groups can be mobilized and then compromise.

(It isn't directly relevant to this post, but where I get off the "progressive" bus is when I hear complaints about how heinous it is that groups they are opposed to engage in identity politics. Dude, if the Cree can do it, then the white Baptists can do it.)

Identity politics can either be responsible or irresponsible. There is always a bit of a dilemma here, of course. If an identity politician is too responsible, then he or she may no longer be able to represent and mobilize the base. If an identity politician isn't responsible enough, then he or she won't be able to get concessions for said base.

What is the art of statecraft? Finding ways to make the incentives to be responsible better than the incentives to be irresponsible.

Ding! Dong! The Pragmatic-and-Functional (sic.) Approach is Dead

Future generations of lawyers will never know how to distinguish the merely unreasonable statutory decision from the patently unreasonable one, since the Supreme Court just abolished the distinction. Thank God.

The Court also made it a little easier to fire non-unionized public sector employees. Some of the stupidity of the Lamer era is finally being dismantled.

Sympathy for the Devil: The Case for Hillary

Like most of my gender and class, I don't care for Hillary Rodham Clinton. I consider myself immune to his rhetorical charms, but Obama can write, and even after 8 years will be quite young, so I can imagine reading his memoirs a decade from now will wile away a lot of time. More importantly, since we cannot really know how politicians will behave in office, elections are most useful to shape their incentives. If Obama wins, it will suggest that supporting imperial adventures is not always good for your career, and that will mean fewer such adventures in the future (whether or not Obama himself will be inclined towards them). Plus, the Clintons are evil.

I hope and trust that the Superdelegates* will be impressed by the above logic, and do the right thing. But I have to admit that financial portfolio theory counts against me. BHO's sigmas are higher. He could do way better than HRC could, but he could also do worse. If a portfolio manager is given the choice between two assets with the same expected value, but with differing variance, and chooses the one with the greater variance, he/she/it is guilty of breach of fiduciary duty. So the Superdelegates should, if the polls continue to show what they do today, pick the castrating she-devel over the Muslim nationalist Manchurian candidates.

Admittedly, if they do, and she wins the general election, I will have to suffer at least twelve years of being profoundly irritated by the American head of state, causing me to avoid television and spend more time with my family. So give generously.

*I am a bit baffled by the word "superdelegates." This is the USA. Surely, all delegates are super!

Eliminate the RRSP contribution limit

Kokkarinen makes the case. I'm not a big fan of those who think we are on the wrong side of the Laffer curve in general. Lower taxes will usually mean lower revenues. But sooner or later, everyone wants to consume their income, so the additional deficits we might have now if we changed from a system with capped RRSPs to a system without them will have no real effect on the government's financial position. Eventually, the money shielded from taxes plus its returns will be taxed. And since the money will probably get a better interest rate than the government pays on bonds, the fisc will be better off, as will everyone else.

620 Connaught Ltd. -- Good Result, Bad Reasoning

It is often said that the Canadian Constitution has nothing in it to protect property rights. But it is not quite so. There are constitutional restrictions on the ability of both levels of government to impose taxes, and these prohibitions indirectly protect property rights.

The provinces can only impose taxes if they are "direct" and "in the province." The federal government can employ "any mode or method of taxation"; however, the constitution still requires that taxes be set out in a money bill that originates in the House of Commons. Imposing a tax can't be a delegated power to be administered by some government official -- it must be done by Parliament itself. The Victorians who set up this thing thought these restrictions a big deal, since they go back to the English Bill of Rights and the final routing of the papists. "No taxation without representation" resounded in every Anglo place. And even if the restrictions on taking property through taxes are essentially procedural, they still do create a certain requirement of transparency.

However, these restrictions only work if the courts police the boundary of the concept of "taxation". There are no similar procedural restrictions on governments imposing fines or fees or user charges or pricing government property and services or taking property. So if these other ways of getting assets from private hands to the public treasury are not restricted in some way, the requirements for taxation cease to have meaning.

In principle, the courts recognize that non-taxation revenue measures have to be constitutionally scrutinized. Unfortunately, in its latest foray, the SCC gives way too much leeway to the man.

The case involved liquor licensing fees in Jasper National Park. If you want to sell booze in the Park, you have to get a licence, and pay $75 per year plus 3% of the value of sales from spirits and wines and 2% of the value of sales from beer. (The Pithlord complains parenthetically about the populist favouritism to beer drinkers.) Rothstein J. says that this is all OK, and not a tax, so long as the costs of operating the park far exceed the revenues generated.

That seems like the wrong test to me. If this were really about regulatory fees, the issue shouldn't be the cost of the parks as a whole, but the incremental costs of serving alcohol in them. The Feds don't seem to have had any evidence of these, so we get a lot of handwaving about "leeway", which is a bad way of enforcing the constitution.

There might have been a better way to look at this case. All the talk about "regulatory schemes" is a bit off topic, since the Feds' role here is not as regulator but landlord. It owns the park, and is really charging commercial rent. In the absence of monopoly power, the government can't get more out of its contracts than a private owner would anyway. In a sense, any captive audience is subject to monopoly power to some extent (which is why beer costs so much in airports), but since the returns to that monopoly situation will inevitably be extracted by someone (either the licensee or the government), there isn't any reason for the courts to get involved.

If the issue is recast as one of the Feds use of its property, though, it would provide some protection to licensees from regulatory increases in fees if those fees are inconsistent with the original license agreement. The State-as-sovereign can, of course, extract money from people in excess of what it can bargain for, but when it does it starts to look like a tax. So a narrower basis for decision would have been better.

The more significant problem with the decision is that, as written, it applies even to those fees that government charges for actual regulation, which is inevitably monopolistic. The lack of any need for a real link between the fees and the costs created by the party they are imposed is disturbing.

Is John McCain a "Natural Born Citizen" of the United States?

The Republican nominee was born to American parents in the Panama Canal zone. Does that make him a "natural born citizen" of the United States, as their constitution requires the President to be. (In Canada, of course, we have never had a Canadian-born head of state. The first Canadian-born PM was over almost thirty years after Confederation, and the first Canadian-born Governor General nearly a century after.)

Anyone thinking of doing a comprehensive analysis of the point is going to have trouble competing with Larry Solum's here.

One reason NAFTA isn't going to have real environmental or labour standards

CTV says the Obama campaign has contacted the Canadian embassy to tell them not to worry about their protectionist rhetoric for the Ohio primary. Obama and the Canadian government both deny it, although apparently there was some sort of chat.

The Pithlord is not in a position to shed light on such backroom dealings. However, I do know that serious environmental and labour standards in NAFTA are not going to fly. Among the reasons is that most environmental and labour law in Canada is within provincial jurisdiction and, unlike in the US, there is no way for the Feds to require provinces to meet international commitments. This is the result of a Privy Council decision that made all my profs at U of T gnash their teeth, but nonetheless remains the law.

SCC on International Law: Is there anything new here?

Two posts down, I highlight the Supreme Court of Canada's statement that "the Charter should be presumed to provide at least as great a level of protection [of a right] as is found in the international human rights documents Canada has ratified."

One possible response is that there is nothing new here. Canadian courts have never had a problem with citing those of other countries (or international tribunals) as persuasive authority. In fact, it wasn't that long ago when a lawyer would be a bit apologetic about using a Canadian case at law, possibly explaining that the "English courts do not seem to have considered this question, my lord." Even American cases are allowed, if possibly seen as a sign of desperation.

Still, I am not aware of any other example of holding that international or comparative law is presumptively binding. And yet I don't know how else to interpret what they said in the Bill 29 case. Indeed, the ILO seems more authoritative than past decisions of the Supreme Court itself.

Against National Self-Determination

In the wake of Kosovo's unilateral declaration of indepence, I get into an argument with libertarian Brian Moore about the merits of a "right of national self-determination."