The Good of Religion

Yesterday I attended a discussion with Robert P. George, the Professor of Jurisprudence at Princeton (which of course does not have a law school!) and one of the leading religious conservative public intellectuals in the United States. The topic was “Religious Liberty and the Human Good.” David Blankenhorn – perhaps best known recently as a failed would-be expert in the trial on the constitutionality of Proposition 8, which attempted to change California’s constitution to prohibit same-sex marriage – was the host. He is clearly smarting from the Prop 8 experience, and took some shots at President Obama along the way, but it was quite interesting nonetheless, so here’s a recap.

According to prof. George, freedom of religion is valuable for two reasons.

The less important one is that it allows the existence of organizations that provide all sorts of important social services and are authority structures that act as a buffer between the state and the individual, so that the state does not become the only source of authority. Religious organizations help prevent tyranny, which the judiciary alone is not able to do. For my part, I do not find this persuasive. There are many alternative power centres (the press and NGOs for example) and networks (online social networks for example). Religious structures are, at most, some of many, and perhaps not the best candidates as oppression-resisters (the Catholic church, for example, has a long record of collaboration with temporal powers, as well as one of resistance to them). And of course religious structures can be oppressive in their own right – though they need not be.

The more important reason why freedom of religion is important is that it serves what prof. George called “the good of religion” – that is the human ability to ask, and answer for oneself, fundamental questions about human nature, life, mortality, free will, etc. A life spent without thinking about these questions is impoverished; and it is important to have one’s own answers to them, and to live with integrity in light of the answers one comes up with. Even if these answers are not “religious” as the term is usually understood – even if they are atheistic for instance – they are worthy of protection, because it is the questioning that constitutes “the good of religion.” That seems exactly right to me, whether or not “the good of religion” is the best name for what prof. George is getting at.

A related term (which I might be more inclined to use instead) is “conscience”. Prof. George defines it as “one’s last best judgment informed by reason, belief, or faith as to what one is required to do or not to do.” Referring to Cardinal Newman’s take on the subject, he insists that it is not “in the business of permissions.”

Mr. Blakenhorn brought up the subject of “reason” in religious belief. He is mad at Judge Vaughn Walker, who presided over the trial in the Prop. 8 case, Perry v. Schwarzenegger, for finding that religious motivation could not constitute a “rational basis” for prohibiting same-sex marriage.  Prof. George agrees that religion has an element of reason – we can understand someone acting on his answers to “ultimate questions,” for instance – and argues that Judge Walker has an impoverished, “fideistic” view of religion as consisting only of faith, without a rational element. But it seems to me that the important question here, which he did not get into at all, is whether religious reason can count as a valid one for public law purposes. Even if we agree – as I do – that a person acting on religious (or conscientious) beliefs is not acting irrationally, it is a different matter whether the state (and thus voters) are entitled to act on such reasons – and still a different matter whether they are entitled to act on such reasons only – in making public policy. This is the Rawlsian public reason conundrum, which I cannot possibly get into here (and don’t have firm views about anyway).

Finally, prof. George spoke about religious exemptions – cases where a law that is generally not meant to punish or impede religious belief or practice has that effect on some believers. He thinks that these believers should be exempted from the application of such laws, unless the state can show that not granting the exemption is the least restrictive means of furthering a compelling state objective. There is, however, an interesting question about who – courts or legislatures – should be deciding whether any given case comes satisfies these criteria. That is roughly what I argued in my LL.M. thesis, which was about religious exemptions, so I am glad to have my thoughts confirmed. Now why don’t the law reviews to which I submitted the paper seem interested to publish it?

Gun-Registry Litigation News

I know, I know, you are as I excited as I am to read about the progress of Québec’s lawsuit to get its hands on the gun-registry data the federal government wants to destroy. So here goes. (If, for reasons beyond my comprehension, you are not breathlessly excited about this, rest assured that I have even more interesting stuff in the pipeline.)

Almost two weeks ago now – I’m late, I know – Justice Blanchard of the Superior Court of Québec issued a decision rejecting a motion Québec brought for an order compelling Canada to show to the Court that it was complying with the interlocutory injunctions the issued in the case, which require the federal government to keep collecting and maintaining the gun-registry data for the province of Québec. Québec analogized the case with that of Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3,  in which the Supreme Court upheld an order granted by Nova Scotia’s Supreme (i.e. trial) Court directing the province’s authorities to report to the court about the efforts they were making to discharge their constitutional duty to provide secondary education in French. Justice Blanchard was having none of it.

He observed that this is not – unlike Doucet-Boudreau – a Charter case, so that the broad grant of remedial powers in subs. 24(1) of the Charter does not apply. Nor was it a case, like Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, in which the party against whom the order was sought had a demonstrated history of bad faith. In the circumstances, “the Court’s role of constitutional umpire must not make it into an active participant in the litigation, unless, in exceptional circumstances, the very integrity of the Court or of the administration of justice, generically understood, is called into question” (par. 18). If Québec thinks that Canada is up to no good, it has both the means and the responsibility to find out and tell the court. The Court’s power to order a party to report on its compliance with its decisions must remain exceptional.

Sounds right to me.

The Pursuit of Difference

I promised my post earlier today, to say more about the belief that the alleged national slogans of Canada and the United States – respectively “peace, order, and good government,” and “life, liberty and the pursuit of happiness” – tell us something about the two countries generally and their constitutions specifically. Here goes.

Those who hold this belief conveniently forget that the words “life, liberty and the pursuit of happiness” are found not in the U.S. Constitution, but in the Declaration of Independence, which has no legal effect, and does  not define the goals of American government. The Declaration was adopted to justify a revolution, and was animated by  a very different spirit than the Constitution, which was intended to establish an effective government. In his Lectures on the French Revolution (which I heartily recommend, both for the depth of the ideas and for the brilliance of the language), Lord Acton described the Declaration as the Americans’ “cutting,” and the Constitution as their “sewing.”

The Constitution Act, 1867 is the Canadian “sewing,” and it is, accordingly, not appropriate to compare it to the Declaration of Independence. The appropriate comparison is rather with the U.S. Constitution. The preamble of the latter describes its aims as “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Well, common defence, domestic tranquility, and general welfare sound an awful lot like peace, order, and good government.

As is usually the case, we are just much less different from the United States than our romantic nationalists like to think. The pursuit of difference is an unprofitable, albeit occasionally entertaining, pastime. We would do well, methinks, not to try to be different from someone else, but to be more ourselves.

It’s Not a POGGrom!

Canada’s “newspaper of record” has published an ignorant rant by Neil Reynolds, savaging alleged abuses, rhetorical, legislative, and jurisprudential, of  the “Peace, Order, and Good government” (a.k.a. POGG) clause of s. 91 of the Constitution Act, 1867, which sets out the powers of the federal Parliament. While the words “peace, order, and good good government” are indeed sometimes used to draw, or rather to provide rhetorical cover for, expansive and unwarranted conclusions about Canada and its constitution, most of Mr. Reynolds’ claims about the clause’s use by Parliament and courts are flat out wrong.

Mr. Reynolds’ first target is a “Canadian myth[] [that] holds that our constitutional mandate for peace, order and good government has made Canada a kinder, gentler place than the United States – debauched by its licentious pursuit of life, liberty and the pursuit of happiness.”  I’ve heard that line before, and I agree that it is silly. Mr. Reynolds is right that “POGG … was imperial boilerplate,” a perfunctory introduction to a clause vesting the legislative power in Parliament. It certainly does not give courts the right he strike down laws on the basis that they are not conducive to peace, order, and good government. (We might not have much of a statute book if it did.) It does not tell us much of anything about the sort of country we are. (I will have more to say about this in another post shortly.) [UPDATE: that post is here.]

Beyond that, however, Mr. Reynolds’ argument does not disclose much of an understanding of Canadian constitutional law. He claims that “POGG has been used from the very beginning to override” the division of powers between Parliament and provincial legislatures. Apart from bald assertions, his evidence for this claim consists of the Supreme Court’s decision to uphold the constitutionality of the Anti-Inflation Act, Pierre Trudeau’s application of the War Measures Act during the October Crisis, Parliament’s creation of Employment Insurance, and its use of the spending power to  “fund everything (or almost everything) and disperse it directly and indirectly, hither and yon, as they deem fit.” This is almost entirely wrong. Continue reading “It’s Not a POGGrom!”

A Pull Towards Goodness?

WARNING: This post is an adapted version of a passage in my “candidacy paper,” which is meant eventually to be part of the first chapter of my dissertation. Caveat lector.

***

Explaining their decisions is an important part of the judges’ work. It is valuable for all sorts of reasons. It forces judges to be honest – not just with the parties and their colleagues, but also, and perhaps most importantly, with themselves – about the issues at stake and the reasons that lead them to resolve the issues this way or that. It reassures the parties that the court has listened to their arguments and given them some thought, even if it ultimately rejected them. It makes judicial decisions more public, more transparent, and more amenable to criticism (and eventually reform). In these different ways it also disciplines the judges – it forces them to produce decisions that are more legally sound, because they address the relevant legal issues and materials. But could it do even more?

Some theorists, notably Lon Fuller, have argued reason-giving can make judicial decisions not merely legally sounder, but also better on some substantive criterion. As Fuller wrote in the context of his famous debate with H.L.A. Hart, “when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness.”  (Lon L. Fuller, “Positivism and Fidelity to Law-A Reply to Professor Hart”, (1958) 71 Harv. L. Rev. 630, 636 .) In a similar vein, in an interesting (and/but incredibly romantic) essay on the role of the judge in relation to the corpus juris, especially in a common law system, Sarah M.R. Cravens contends that, as part of “virtuous judging,” reason-giving can help “take decision-making beyond simply the legally correct” and “is a component of a larger cycle that defines, develops, and achieves justice.” (1643)

Is that right? I am very skeptical, despite my sympathy for the view of law, and especially the common law, as inherently valuable and good. Fuller might just be right that reason-giving cannot lead “toward a more perfect realization of iniquity,” (636) because iniquity dares not speak its name, although we know that it does sometimes, as for example in Justice Holmes’ opinion in Buck v. Bell, which I described as “angry [and] heartless” here. But there is a great deal of disagreement about what iniquity is, and even more about what goodness or justice are, making it impossible to say whether reason-giving, or any other practice, actually helps realizing them. One way around this problem is to say, as Prof. Cravens seems to, that goodness or justice are to be found within the four corners of the legal system itself, so that reason-giving helps achieve them merely by situating judicial decisions within the system, but surely many will dispute that the our legal system, as it currently exists, is substantively good or just.

The most that can be said is that the existence of a legal system, or more specifically of a body of law comprising and connecting individual judicial decisions, is itself valuable and good, as for example Jeremy Waldron argues in his essay on “The Concept and the Rule of Law.” Fuller (and probably prof. Cravens) would agree with that claim, but his (and her) view goes rather beyond it and, much as I admire him, I cannot follow him there.

More about Election Law

There are two things to mention today, both related to election law, and more specifically to restrictions on “third-party” speech in the pre-electoral context.

First, Radio-Canada reports that Québec’s Chief Electoral Officer has been in touch with the leaders of the student organizations who are protesting the tuition fee hikes announced by the provincial government. The protesters are angry at Premier Jean Charest and the Québec Liberal Party and have made no secret of their desire to help defeat them when the next election is called – there was speculation that it might happen this spring, but the fall now seems more likely. Well, as I have argued in an op-ed that Cyberpresse published in mid-April, the expenses the protesters will incur during an eventual election campaign will be covered – and severely limited, indeed almost to the point of being prohibited – by the draconian third-party spending provisions of Québec’s Election Act. Radio-Canada quotes the Chief Electoral Officer’s spokesperson as saying that the “objective was not to prevent [the protesters] from expressing themselves. The goal was to make sure that they comply with the law.” The trouble is, the effect of the law will be to prevent the protesters from expressing their views. As I said here already, Québec’s law was intended to prevent the rich from capturing the democratic process, but operates to silence not only the rich, but also those who are not well-off, while shielding the incumbent politicians from criticism by political outsiders.

And second, NYU’s Richard A. Epstein has an interesting (albeit asininely entitled) essay responding to Jeffrey Toobin’s story of the U.S. Supreme Court’s Citizens United decision. As before,  I will avoid discussing the merits of the Citizens United decision itself (though I find prof. Epstein’s essay well-argued, as I did a lecture he gave at NYU in September 2010; at least, a good criticism of Citizens United would need to address the points prof. Epstein makes). I want to mention, however, that prof. Epstein is skeptical of the distinction that Mr. Toobin sought to make between “electioneering” by means of TV advertisements and books. He writes that

Toobin … fights against modern technology when he seeks to draw a hard and fast line between “the pervasive influence of television advertising on electoral politics” and books that operate “in a completely different way,” given that individuals have to make an “affirmative choice to acquire and read a book.”

Oh? Thanks to the internet, books can be excerpted and transmitted in a thousand different ways online to consumers who need only a single click to ignore messages they don’t like. Given the vast reduction in cost in the production of information, it seems positively odd to ban, or even regulate, one form of dissemination while allowing other forms to survive unregulated.

His conclusion, of course, is not that we should censor books, but that we should not restrict other forms of “electioneering” either. That’s pretty much what I argued in my previous post on this topic. The distinction between books and TV ads is not obvious, and indeed probably not tenable. Canadian election legislation makes it, exempting (some) books from its application, but it is not a principled distinction. The principle underlying our law would in fact allow censorship of books (indeed it already allows censorship of some books, as I explained), and that suggests that this principle is misguided.

UPDATE: The Globe also has a story about the Chief Electoral Officer’s warning to student organizations. It emphasizes limits on individual contributions to electoral campaigns, but I think this emphasis is misplaced. The real problem is not with contribution limits, but with those on third-party spending.

Is There Voice after Exit?

First of all, an apology for the overextended silence. I couldn’t find anything interesting to blog on, I’m afraid. Fortunately the CBC has rescued me by reporting on a challenge to the provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA) which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (Indeed the disenfranchisement potentially extends even to those Canadians who have been abroad for less than five years but do not intend to return to Canada as residents, or even those who are unable to provide the Chief Electoral Officer with “the date on which [they] intend[] to resume residence in Canada,” pursuant to par. 223(1)(f) of the CEA. It is not quite clear whether the challenge extends to the requirement of an intent to return (on a certain date). While the intent requirement  is in the same provision (par. 11(d) of the CEA) as the five-year limit, it might be easily severable; certainly the individuals bringing the challenge emphasize their desire to return to Canada.

The CBC writes that

[t]he rule denying the vote to Canadians outside the country for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and how well informed they are about the domestic political situation. However, it was only in 2007 that Elections Canada began to enforce the rule to “more clearly reflect the intention of Parliament,” said spokesman John Enright. Until then, the five-year clock would reset for expats who returned even for short visits. Now, they have to “resume residency” before leaving again to regain their right to vote abroad.

It adds that

[a]ccording to economist Don DeVoretz, professor emeritus of Simon Fraser University, close to 10 per cent of all Canadians live abroad – a larger population than all but four of the provinces. About one-third of them live in the United States.

The leading case on the disenfranchisement of a class of citizens is Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, which the Supreme Court held ― by a 5-4 majority ― that denying the right to vote to prison inmates serving sentences of two years or more was a violation of s. 3 of the Canadian Charter of Rights and Freedoms, which provides (in part) that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons,” and that this violation was not justified by s. 1 of the Charter. The government had conceded the s. 3 violation, which I assume will also happen in this case. The real debate in Sauvé was, and will be here, on the s. 1 justification.

Chief Justice McLachlin, writing for the majority in Sauvé, warned that “[l]imits on [the right to vote] require not deference, but careful examination” (par. 9). While “logic and common sense” could serve as justifications in the absence of hard scientific evidence, “one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s.1” (par. 18). The prohibition on prisoner voting utterly failed the s. 1 test. For one thing, prisoner voting gave raise to no specific concern which Parliament sought to address by prohibiting it. Parliament’s stated objectives of promoting respect for the law and enhancing the purposes of criminal punishment were vague and symbolic, so much so that their “rhetorical nature … render[ed] them suspect” (par. 24); they were not pressing and substantial, as required by s. 1. For another, even if Parliament’s objectives were satisfactory, deprivation of the right to vote was not rationally connected to them. “[A] decision that some people, whatever their abilities, are not morally worthy to vote — that they do not  ‘deserve’ to be considered members of the community and hence may be deprived of the most basic of their constitutional rights” (par. 37) runs against the direction of historical progress towards universality of the franchise and “is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter” (par. 44).

How will these comments apply to the denial of the franchise to Canadians living abroad? It seems to me that the government is again going to have a hard time articulating the objective of this measure, “the harm that the government hopes to remedy” (par. 23). My best guess is it will be something like “preventing voting by people who are uninformed or do not care about Canadian politics, or who have abandoned their membership in the Canadian community.” The applicants who launched this challenge, as the CBC story describes them, certainly give lie to any such claims. Especially now, thanks to the Internet, it is in fact as easy to keep abreast of Canadian news while living in New York as in North York, in Melbourne as in Montreal, in Kolkata as in Calgary. And of course it is now easy to maintain one’s ties to one’s family and friends in Canada, and to remain part of the broader community (as indeed I am trying to do with this blog for example). Add to this the fact that those Canadians living in Canada need not show that they are in any way informed about politics or current events, or that they have any sort of community ties, in order to be able to vote, and the denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners, it is a judgment that they are not morally worthy to vote ― and such judgments are not open to Parliament, according to Sauvé.

I wish the challengers, and their lawyers, the best of luck.