Category Archives: Constitution

Free today: Magna Carta book (Kindle edition)

We are pleased to offer our Magna Carta book (Kindle edition only) for free today. This offer is valid on May 2 only. Simply follow this link to Amazon to take advantage of it.

Those of you who prefer the old-fashioned paper version, you can find it here at the regular price. (Canadian orders only. U.S. and international shoppers should head over to Amazon.com.)

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Judges please be nice

An odd piece in today’s National Post by former federal justice minister and attorney-general Peter Mackay laments that “Over the last decade, the Supreme Court has often seemed at odds with elected governments over legislation designed to emphasize enforcement of the rule of law and reflect the public demand for greater accountability.” The complaint is not odd given how often the Court was at odds with the ministry in which he served or given how often Courts do now make law. What is odd is that he offers no remedy.

In the piece, which I’m not linking to because I can’t find an online version, he complains that judge-made law seems not to meet the needs of the situation: “Lost in the activist celebration in some circles are the basic facts. Recidivism rates in some areas of our justice system are on the rise and public confidence in our system is waning and turning victims in particular away from reporting.” And he notes that judges increasingly go beyond their mandate to strike down blatantly unconstitutional law to override decisions made by legislators elected in campaigns in which those issues were thoroughly debated. But his argument seems to be mostly against the substance of what judges are doing, not the process.

To be sure, his concluding paragraph says “Today one branch encroaches on another over mandatory minimums or truth in sentencing. Let the next activist victory not be at the expense of society’s most vulnerable.” And the first part seems to point to rebalancing our constitution. But the second seems to me to be a plea to judges not to misuse their mighty new powers.

I say “activist” victories should not be at the expense of society’s elected representatives, and of the right of the rest of us to control government and set the terms under which it operates. All three branches of government, that is. Which is why, again, we launched our “True Strong and Free” project to fix the constitution, including restoring balance with respect to the judiciary rather than just begging judges to be nice to us.

 

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Johnson v Obama on Brexit

A nice piece in today’s Daily Telegraph advocating Brexit and criticizing Barack Obama’s intervention in the debate (on which I commented recently), by London mayor and long-time columnist Boris Johnson. He says that “to stay in the EU” is to consent “to the slow and insidious erosion of democracy in this country”. He’s exactly right. And if the pro-EU campaigners aren’t exactly aware of it, they certainly hold a worldview that categorizes genuine self-government as an irritating obstacle to progress rather than vital to preserving a decent society.

There is no European Magna Carta and it matters. And if we want to maintain the foundations of individual dignity and enterprise that have made Canada what it is, we need to recapture our own sense of the enduring importance of self government and an awareness that, to the extent that “progress” and liberty are antithetical, we should choose liberty.

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So close, and yet so far

A curious intervention by Barack Obama in Britain’s debate over leaving the EU. It’s not odd that he supports them staying in. He would. But it’s odd that for once he got the premise so right though as usual he got the conclusion so wrong.

After a ritual nod to Britons’ right to decide their destiny for themselves, the American president launched into a rightly derided and probably counterproductive attempt to cajole and bully them into submerging their sovereignty in the European Union, including threatening their access to American markets with a claim that a genuinely independent Britain would go to “the back of the queue” for a trade deal, well behind the EU. So much for the special relationship, I guess.

I find Obama’s performance more than usually curious because his effort to flatter the British drew on the shared values that underlie that special relationship: “As citizens of the United Kingdom take stock of their relationship with the EU, you should be proud that the EU has helped spread British values and practices – democracy, the rule of law, open markets – across the continent and to its periphery.”

He’s quite right about the first part. Those are British and subsequently American, Canadian, Australian and New Zealand values. Government in the Anglosphere, as we argued in our Magna Carta documentary and will in the “True North and Free” project currently under way, is dramatically different even from government in the more politically pleasant parts of Europe, let alone the rest of the world. And Obama isn’t normally sensitive to such matters, to put it mildly. But he went on to say “The European Union doesn’t moderate British influence – it magnifies it.” And that’s completely wrong.

The EU isn’t democratic. It’s not tyrannical. But it is bureaucratic, centralized and unaccountable. It stands more for rule by law than of law, in the vital sense of fair, stable rules that arise from the people and protect their right to make their own choices. And it stands for government meddling not open markets. I do think the British example has made Europe better over time; even France, let alone Germany, has to some extent been embarrassed into creating more responsive and less repressive governments. But both also made impressive efforts to crush British liberty by force. And neither have embraced the common law system under which governments emanate from the people organically rather than standing majestically, or stodgily, above them.

Obama then claimed that “A strong Europe is not a threat to Britain’s global leadership; it enhances Britain’s global leadership. The United States sees how your powerful voice in Europe ensures that Europe takes a strong stance in the world, and keeps the EU open, outward looking, and closely linked to its allies on the other side of the Atlantic. So the US and the world need your outsized influence to continue – including within Europe.” Which is utter bosh.

Britain’s influence in the world has dwindled dramatically since it joined the European Economic Community, forerunner to the EU, back in 1973. Not only because it joined. But it was part and parcel of turning away from the glorious heritage of liberty that had made this damp, chilly foggy group of islands a hyperpower economically, culturally and militarily and also the “Mother of the Free” described in Land of Hope and Glory. Worse, Britain’s influence in Britain has dwindled, as law, regulation, and even jurisprudence come increasingly from the alien continental system.

For over a thousand years Britons decided their destiny for themselves, via a Parliament that controlled the executive in a way not even Europeans managed and nobody else really even tried. That is the system that spread to the United States as well as Australia, New Zealand and Canada. And precisely because democracy in the desirable sense, rule of law in the desirable sense and open markets in the genuine sense are British values, they should leave the EU.

Europe is so close to Britain. And yet it is so far away. And so is Barack Obama.

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A sour finding

If you’re looking for reasons we need to fix our Constitution, look at this story from today’s National Post about a customer awarded $12,000 for “injury to his dignity, feelings, and self-respect” after a restaurant stopped accommodating his very special need for pseudo-hyper-clean surroundings. The man apparently suffers post-traumatic syndrome and OCD and can’t cope with lemon in his water or cutlery placed directly on the table. And thus he has a human right to make other people do what he says even if it’s not reasonable.

Now I have sympathy for this person and his struggles. I don’t doubt they are real. But what about the restaurant and its employees? What would happen if everybody demanded very special service including wiping the vinyl seats and always putting him in the same booth away from other patrons? How much would costs increase? And how could you seat everyone away from all other patrons without having a restaurant the size of a stadium?

Once the rule was that if you wanted special service and a restaurant was willing to provide it, as this one was for a long time, you went there. If they refused, or changed their service, you stopped going there. Just as you don’t eat in a place where you don’t like the food, the wait staff, the décor, the ambiance or anything else. They can’t make you come in, and you can’t make them let you in.

You don’t always get what you want. And nor does anybody else. But nobody is able to make anyone else bend to their will regardless of consequences. All transactions must be mutually satisfying. And my right to swing my fist ends where your nose starts.

Not in the Brave New World of human rights tribunals. Instead you get to demand whatever you want of me, and I am in a very real way conscripted labour. You don’t actually punch me if I don’t serve the water without a straw or tell you you’re too much trouble and should leave. You call the state and they send people to do it for you. First a summons, then a fine, then jail if I don’t pay, and cops with weapons if I won’t come quietly. Behind all this lurks the policeman’s truncheon. But not the courts.

This fine came not from a judge or jury, following the due process guaranteed in Magna Carta and generally proudly upheld ever since. It came from a human rights tribunal, specifically the Ontario one. They follow very different rules, far more lenient toward the self-proclaimed aggrieved and far harsher on everybody else. And it’s not a recipe for a good society.

Allegedly in this case the restaurant manager was very rude. And I like good manners. But for heaven’s sake, you don’t have a human right not to encounter rude people. De minimis lex non curat. And restaurants with surly staff lose customers unless the food is great and worth putting up with the abuse, or it becomes a weird kind of cult attraction. (Don’t laugh; when I was in grad school there was a burger joint with an elaborate menu but only cheeseburgers actually for sale, and they ridiculed anyone who ordered anything else. It was always full. And we often asked for something else just to hear what they’d say.)

In short, we work out our own accommodations with our fellows. They can’t use force or fraud and neither can we. We can negotiate but we cannot demand or compel. Or at least, we didn’t use to be able to.

There were lamentable exceptions, of course. Governments drew invidious distinctions based on race or gender and punished people who did not obey such rules. But generally, people got to decide for themselves how to do things and with whom. And if you wanted the sympathy and respect of others, you had to show it for them and their difficulties too.

All that is changing now, into a society where everyone can coerce everyone else. But where does it all end? The Post story quoted a professor of hotel and restaurant management at Ottawa’s Algonquin College that “Responsibility (to accommodate) will never be lessened. It will only be increased with time.”

That certainly is the way things are going now. But how do we accommodate one another once everyone has special demands, and I can’t sit where I want so you can sit alone and vice versa, and the waiter is afraid of plain water, and the person at the next table but three has to bring their companion snake but someone else has a phobia about snakes? (The last is not an invented example.)

You can’t. You literally can’t build a society with stable rules, mutual respect, and restaurants that can actually operate if people don’t have to respect other people’s autonomy. Instead you get a free-for-all of uncivil demands and hurt feelings and everyone has a right to everything but there is nothing.

If that sounds bad to you, please back our “True, North and Free” project to fix Canada’s constitution so that it really respects individual rights, including the right to run a restaurant where customers can’t march in, redesign the place and call a cop if you object.

 

 

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The right to what?

A curious story in today’s National Post says PEI’s Liberal administration will start providing abortions because it doesn’t believe it can defeat a court challenge claiming abortion is secretly a Charter right.

Frankly it sounds like one more case of politicians using judges as a handy excuse to do something they want to do anyway without the hassle of defending it to voters. Time was ministries felt an obligation to defend existing law in court unless they were willing to stand up in the legislature and urge that it be changed or repealed, which arguably contributed to accountability in government. I’m not sure what was wrong with that system. But there’s a deeper question here.

Specifically, how can the Charter mandate abortion so clearly that governments fold like cheap lawn furniture before an activists’ challenge when (a) it doesn’t mention it (b) many of those who wrote the Charter opposed abortion and would be both astounded and horrified to be told that without realizing they’d secretly written it in?

Alternatively, if it’s that obvious, why didn’t the brave politicians notice and act on it before the challenge was filed?

This sort of disingenuous legislative-judicial two-step is no way to settle important and contentious questions. Instead, it’s one more reason we need a real Constitution, based on popular consent, with a real Charter of Rights that guarantees real rights in plain language even citizens can read and understand, with no invisible ink.

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College students interested in liberty can win money!

The Justice Centre for Constitutional Freedoms, our fundraising partner on the True North and Free documentary project on fixing our Constitution, has just announced the 2016 version of its Essay Contest for Canadian college and university students.

Their website gives the full terms and conditions. But basically if you were a college or university student in Canada last year or will be one this year, you’re invited to write 2,500 words or less on:

Should the government and government bodies, through law and policy, force voluntary associations (charitable, political, cultural, ethnic, religious, social, recreational, educational, etc.) to be inclusive and welcoming of everyone?

Why or why not?

There are cash prizes for 1st, 2nd and 3rd place.

 

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