When Simon Met Populace – It Happened Today, January 20, 2017

An event on January 20, by contrast with much of the rubbish cluttering up the pages of history, was no mere incident. On this date Simon de Montfort, leader of a baronial revolt against the hapless profligate King Henry III of England, summoned a parliament to legitimize his claim to control England. And to strengthen his position against his fellow barons as well as that of the rebels generally, he brought in the common people as full participants.

They were not, perhaps, equals in every sense early on. But they sat alongside the nobles and clerics and took part in the debates and the votes. And what is remarkable is that over the next couple of centuries instead of being squeezed out they continued to gain power and respect, including getting their own separate house within a century with control of its own affairs and primacy on money bills. And people mock the Middle Ages.

The nobles and clerics may generally have been displeased to find knights and burgesses tramping mud into the place. But as the various parliament-like entities throughout Europe succumbed to absolutist monarchs over the next three centuries, the wiser among them must have reflected that the deep roots of the English parliament among the actual people of England were a major reason it, and it alone, survived and flourished, becoming ultimately more powerful than the monarchs as the commons chamber came to dominate the lords.

There is much more to be said about it, including the possibly happy chance that early on the English parliament divided not into three estates as in France, with separate noble and clerical houses, but into two, the mucky-mucks and the ordinary Joes and eventually Janes. And that Montfort’s own motives may have been less than entirely pure, as his conduct was (not least in his vicious anti-Semitism, at once opportunistic and apparently heartfelt). But he deserves respect for what he did.

So does the political culture of the English, and the habits and actions of countless English men and women great and small, through which liberty under law went from success to success despite its challenges. Indeed, though Montfort himself perished horribly later in 1265 at the battle of Evesham where his corpse was nastily dismembered, when his conqueror Edward succeeded his father Henry III and became Edward I, he himself summoned parliaments to which he too invited commoners and to which he reluctantly but decisively surrendered power over taxation.

The history of mankind would be enormously different had representative government not taken hold in England. It is far from established universally and faces challenges even in its Anglosphere heartland. But it is a standing example, invitation and sometimes reproach to all regimes and people everywhere that lack it. And while a great many things contributed to its remarkable history, including the countless again great and small who made Magna Carta a reality and defended it down through the years, Montfort’s innovation of including the common people as full members of Parliament was an important turning point.

Without it things would almost certainly have been different and worse, then and later, there and elsewhere including of course in Canada.

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Wish I’d said that – January 5, 2017

“There are few words which are used more loosely than the word ‘Civilization.’ What does it mean? It means a society based upon the opinion of civilians. It means that violence, the rule of warriors and despotic chiefs, the conditions of camps and warfare, of riot and tyranny, give place to parliaments where laws are made, and independent courts of justice in which over long periods those laws are maintained. That is Civilization— and in its soil grow continually freedom, comfort, and culture. When Civilization reigns, in any country, a wider and less harassed life is afforded to the masses of the people. The traditions of the past are cherished, and the inheritance bequeathed to us by former wise or valiant men becomes a rich estate to be enjoyed and used by all.”

Winston Churchill in 1938, quoted in Daniel Hannan Inventing Freedom: How the English-Speaking Peoples Made the Modern World

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Update, thanks and Merry Christmas to our documentary backers

Wrapping up 2016 and looking forward to 2017, a word of thanks to all those who made our documentary work possible in the past year.

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Wish I’d said that – December 14, 2016

“Men do not become sinless by receiving a post in a bureaucracy.”

G.K. Chesterton in “Preface to Divorce vs. Democracy” quoted in Gilbert Magazine Vol. 19 #8 (July-August 2016)

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Hail Dr. Caesar

In my latest National Post column I lament the casual way the Ontario government has breached doctor-patient confidentiality including laughing off search warrants.

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King Justin

In my latest column for the National Post I argue that Trudeau manhandling MPs was not just rudeness to colleagues. It was an assault by the executive branch on the legislature and, therefore, on Canadian citizens, who elect MPs to control the government on their behalf.

One more reason we urgently need to fix our Constitution. Please back our documentary project and help us show the way.

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Voting 101

In my latest column for the National Post I argue that we all know on fundamental things we vote by simple majority, Ayes v Nays. Including electing MPs and absolutely including changing how we vote. Otherwise our constitutional order has no legitimacy.

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I’ll drink to that

On Friday a Provincial Court judge in New Brunswick struck down a duly enacted law and I couldn’t be happier. It was a section of the provincial liquor act limiting the right to buy beer next door in Quebec and it was clearly unconstitutional.

Now it might seem that I like judicial activism when it goes my way. But it’s not that at all. It’s that properly designed constitutions are set up to keep government limited even when the ambitions of politicians or a temporary lapse in the good sense of the public push them to expand, and to guarantee that rights are respected even when expedience seems to argue for violating them. When courts strike down laws that infringe basic constitutional guarantees of liberty, it’s not activism. It’s proper checks and balances against legislative or executive activism.

There is in the end no paper defence against people genuinely heedless or contemptuous of their own liberties and those of others. But the American Constitution is famously an appeal “from the people drunk to the people sober” and so is ours even when the issue is the right to buy beer. As a Macdonald-Laurier Institute press release praising the judgement rightly notes, our Constitution deliberately forbade the provinces from engaging in petty internal protectionism.

The release links to a paper I had the privilege of coauthoring with Institute Executive Director Brian Lee Crowley and the late Robert Knox back in 2010 explaining what our Founders did and why and how, and how the federal government could and should act to make their vision a reality. It’s excellent that a court has taken the right view of this matter and I hope the ruling is not appealed or, if it is, that it is upheld.

I also hope the federal parliament will be emboldened to legislate and end to all such protectionism. It clearly has the power and not just the right but the duty.

Meanwhile our own draft constitution, part of our “True, Strong and Free” project, will not only reiterate but strengthen the constitutional provision against internal protectionism just to be safe. But here’s one case where a court has acted in the genuine spirit of the constitution and of upholding legitimate rights not inventing unworkable ones. And it deserves our applause.

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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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