Constitutional Structure and Economic Outcomes

A few days ago, F.H. Buckley, a professor at the George Mason School of Law (and McGill law graduate and former professor) published in the National Post an op-ed arguing that the Canadian constitutional system, and in particular its lack of separation of powers, serves us rather well by helping maintain a free economy and a fiscally prudent government, especially compared to “America’s second-rate constitutional system.” His colleague, Ilya Somin, has a reply at The Volokh Conspiracy, arguing that those economic outcomes would, on average, be more secure in a “separation of powers system” like that of the United States. I am skeptical of both claims. Continue reading “Constitutional Structure and Economic Outcomes”

In Defence of Offensive Government

The Volokh Conspiracy’s Randy Barnett points to an essay by Matt Welch arguing that the more government expends, the more  it gives offence to this or that person or group, because its intervention conflicts with someone’s moral views. It’s not just penal laws and regulatory mandates (which prohibit people doing something they find morally required or require something they find morally offensive); so are various tax breaks and incentives, because “built into each tax or subsidy goodie for Hollywood (or Detroit, or the Farm Belt) is an explicit value judgment: This industry is inherently more valuable, more worthy of support, than” some other one. And that judgment is also bound to be offensive to some. Libertarians come out the worst, it seems: they “have their values stomped on by governments every day.” (Right- or left-wingers, I guess, only every other day, or election cycle.) Mr. Welch argues that we need to realize that “[a]ny power that government has to do something you like will invariably be used for something you abhor.” The way out of this conundrum is to “[r]educe the scope of government,” which limits its ability to give offence and helps “promot[e] true tolerance of diverging viewpoints.”

I have some instinctive sympathy for this argument, but it cannot take us very far. One obvious weakness in it is that government inaction is itself often offensive to lots of people. Government inaction on abortion is offensive to the pro-life crowd; government inaction on inequality is offensive to the “Occupy” crowd (and many others besides). Perhaps less obviously, but not less pervasively, there is widespread (and morally charged) disagreement over how to do even things which (almost) everyone agrees the government needs to be doing, whether its policing, raising money to pay for common defence, or ensuring that every child can and does get some decent schooling.

I don’t think that there is much to be gained by trying to get the government to give less offence. One thing we might do instead is get a little less offended. Perhaps not every disagreement over public policy is, or should be regarded as, morally charged and thus grounds for the losing side being offended. Disagreements over policy are often reasonable; and even when the other side is dumb, it is not necessarily wicked, so that its winning is cause for regret, but not offence. But I doubt that this argument can be taken very far either. Many policy questions do involve moral judgment, and many policies will not unreasonably be seen as offensive by those who disagree with them. For the most part, the only thing we can do is to grow a somewhat thicker skin. Let’s get offended if we like, but let’s try not to get so exercised about it. And let’s try to be polite with each other, no matter how offended we feel.

Life is Wasted Without Freedom

A high school student, William Swinimer, is now suspended from his school in Nova Scotia for wearing a t-shirt with the words ‘Life is wasted without Jesus’, the CBC reports. Some people apparently find that offensive. The CBC quotes the school board’s superintendent as saying that  “[w]hen one is able or others are able to interpret it as, ‘If you don’t share my belief then your life is wasted,’ that can be interpreted by some as being inappropriate.” The authorities are now apparently trying to find a “compromise” of some sort. In the meantime, the politicians have jumped in, with the education Minister supporting the school board, and the opposition critical.

Well, at the risk of offending the bleeding hearts of Nova Scotia’s education establishment, I want to say that life is wasted without freedom. And if you can’t stand the sight of an idea that you find offensive, kindly go on and bleed. It is remarkable that in 2012 it is still necessary to insist on and to fight for the recognition of the principle that freedom of expression cannot be conditional on the failure of those who see or hear a statement to take offence. If that were the condition, no statement would be protected from censorship. I, for instance, take offence at politicians and bureaucrats denying my and my fellow-citizens’ rights. (I mean it. I do find it offensive.) What then? All I can do is try to persuade people, as I am trying to persuade you, that they are wrong. What is it that could give me the right to force them to shut up?

But, they will say, their case is different because they are public officials. They have a job to do. They must preserve a nice cozy learning environment in schools, or something like that. There a couple of things to say to that.

First, if school is going to be more than a rote-learning factory, and serve to prepare people for the outside world, it is silly to want to it to be free from any controversial ideas, including claims that some ways of living are better than others. This is especially so in high school, where the students can be expected to have the maturity to deal with unpleasant and critical ideas. If it is ok to suppress such ideas in school, is it also ok in university? Why not? There’s a learning environment to foster there, and lots of bleeding hearts who might get offended. Should we summarily fire all the ethicists and political philosophers, most law professors, and countless others who are in the business of telling people that some ways of living are better than others? Or is it enough to just prohibit normative scholarship in curricula?

And second, schools are not, in fact, free from controversial ideas and value judgments. They teach – well I hope they still do – literature for example, which is full of ideas on how one ought, and how one ought not, to live. If in a discussion of Hamlet, a student expresses the view that hesitation, reflection, and soliloquies are for weaklings, should he be suspended because the less resolute, or more prudent, of his classmates find that kind of claim offensive? Or should Hamlet just not be taught, lest it give some “insensitive” kids the occasion for offending their classmates?

Censoring offence out of existence is never going to work. But attempts to do so will stand in the way of talking about not only religion, but philosophy, politics, and art. It will make the world a very boring place indeed. Life is wasted without freedom.

Judicial Review and Co-operative Federalism

I would like to return to Justice Blanchard’s reasons for judgment granting the injunction preventing destruction of Québec-related gun-registry data pending judgment on the merits in this case, about which I posted here a couple of days ago.

The case, says Justice Blanchard, is “exceptional,” “a first in Canadian judicial history” (par. 21). The reason it is exceptional is the opposition between the “diametrically opposed views of what is usually called the common good.” I think this is wrong. While the conflict between the federal and a provincial governments’ views of the common good might be especially clear in the gun-registry data litigation, there is nothing exceptional about it. Most federalism cases, certainly all cases that pit a province against the federal government, involve a similar conflict between views of the common good. For example, the federal government thinks that the common good requires a national securities regulator; Québec and Alberta think that it is best served by provincial regulators. The result is a court case. When the two levels of governments agree on a vision of the common good, the co-operate and don’t go to court, the constitution be damned. Healthcare is the prime example: neither s. 91 nor any other provision of the Constitution Act, 1867 give Parliament any role regulating and paying for healthcare, but it does both, because (and perhaps only so long as) the provinces share its view of the public good in this area, and have no inclination to challenge it in court.

What is in fact (almost) unique in the gun-registry litigation is that, as I argued in my first comments on the topic, it actually stems from a co-operative relationship – but one that has broken down. “Normal” federalism cases involve conflicts over who has the power to decide whether and how to regulate certain areas of human activity. Who, of Parliament and provincial legislatures, for example, has the power to decide (whether and) how the securities industry should go about its business. (Not, by the way, who should have this power, as a matter of economic policy; but who actually has it under the specific constitutional arrangements we have in place.) In these cases, courts are called upon to regulate the competitive aspects of federal-provincial relations. The gun-registry litigation is different because what it really is about is not competition for the power to regulate (indeed it is acknowledged that, on the one hand, Parliament has the power not to regulate gun registration if it does not want to, and provincial legislatures have the power to regulate gun registration if they feel like it); it is about “fair terms of co-operation” between the two levels of government, to borrow a phrase from John Rawls (who of course uses it in a different context).

Courts are not often called upon to police the fairness of the terms of co-operation between the federation and its constituent units, and it seems not to be sufficiently theorized. For example, critics of federalism-based judicial review (who are many in the United States, including for example Larry D. Kramer in this article) do not pay any attention to it; Jeremy Waldron’s criticism of judicial review, which is primarily (but not exclusively) directed to rights-based judicial review, is similarly incapable of addressing it. (Some judicial and academic attention in the United States has been directed at one specific problem which arises from co-operative federalism: the tendency of the federal government to attach stringent conditions to grants of funds to sub-federal units, which the Supreme Court of the U.S. addressed in South Dakota v. Dole and will address again in ruling on the constitutionality of “Obamacare.”) Yet judicial review of the fair terms of federal co-operation deserves attention as a distinct constitutional phenomenon. To give but one example, and return, in conclusion, to the gun-registry litigation, Justice Blanchard’s incredulity at the idea of an award of damages as a remedy in a federalism dispute would probably be appropriate if the dispute were, as usual, about competitive federalism; but it might be unfounded in a dispute about the fair terms of federal co-operation.

Dreaming Double

As promised, some thoughts on Jeremy Waldron’s new paper on bicameralism, which I summarized last week.

First, Waldron’s take on bicameralism reflects his usual fondness of and optimism about legislatures. Legislatures can really be great at making policy, resolving disagreements, and protecting rights, he is convinced, if only they function well. “Legislative due process” is an important concern of his; he is sharply critical of legislatures that do not properly scrutinize and debate the bills they enact into law, for example.

He presents bicameralism as a means to enhance “legislative due process” by introducing a second locus of debate about bills and also possibly by adding different points of view to the mix by virtue of making the two chambers of the legislature representative in different ways. In theory, this sounds great. In practice, I wonder whether bicameralism can live up to its promise. Bicameralism will not serve to increase the amount of debate unless both chambers are in fact committed to fully debating the bills before them. But – to take up the mischievous-or-superfluous argument that Waldron criticizes – if there is commitment on the part of one chamber to debate bills in full, how much is there to be gained by then adding a second full debate? Different modes of representation need not produce different perspectives (as the increasing similarity of the Senate and the House of Representatives in the U.S. shows), especially if the process of representation, however it is organized, is dominated by political parties. Representatives’ views are likely to be function of their partisan commitments much more than of the way they are elected.

Waldron is aware of this danger. Although he accepts that party politics are here to stay, he worries about the executive dominating the legislature, and thinks that an executive-dominated second chamber would be worse than useless. He has two (closely related) solutions for this problem. First, prevent members of the second chamber from serving in the Cabinet. Second, make the second chamber not about government, but about oversight, and hope that voters notice the difference (and vote accordingly). But here again, I have strong doubts about the effectiveness of his proposals. The Canadian Senate shows that even people without any prospect of serving in the Cabinet can be quite partisan. In the U.S. too, many Senators probably lack executive-branch ambitions, yet are fiercely partisan (as are, of course, members of the House of Representatives, for the vast majority of whom the Senate is the height of their ambitions). And I wonder about the possibility of a second chamber exercising good -faith scrutiny – not tainted beyond redemption by partisan affinity or hostility – over the work of a first.

So, Waldron’s arguments in favour of bicameralism seem more hypothetical than real; and there are other problems with bicameralism that he does not fully address. The main one is that of conflict between the two chambers, for which the responsible-government constitutional system is simply not equipped. The lack of any provisions to address this issue, by the way, is a disastrous flaw in the current Senate reform proposal in Canada. Of course, any such provisions would profoundly affect the working of Parliament and require constitutional amendment (even if, and it’s a big if, the current proposal does not).

The problem is this. If the second chamber does exercise its scrutiny role properly (even more if it is motivated by partisan opposition to the government), it will sometimes reject important government bills. What then? If the bill is a matter of confidence (as are all money bills, and possibly some others), its defeat by convention triggers the government’s resignation or dissolution of Parliament, usually the latter. But is it a good idea to hand to a second chamber with a “will of its own” (as Waldron wants it) the power to threaten and eventually to force dissolution at any disagreement? If this power can be exercised for partisan purposes, as it seems bound to be, this is a recipe for disaster, with elections coming as often as the second-chamber majority thinks it can install its allies in power. On the other hand, so long as the government thinks it has more to gain from an election than the second-chamber majority, it will be able to ride roughshod over the second chamber’s scrutiny by making any bill a matter of confidence and thus threatening dissolution if it is rejected.

Now we might specify that defeat of a bill in the second chamber never constitutes a loss of confidence in the government, so that it does not trigger resignation or dissolution. But then, we need a mechanism other than an election for getting over the conflict between the two chambers, at least for those bills that need to be passed, such as budgets.  How this is to be done is not obvious (though not impossible), but whatever mechanism is, its existence dilutes the power of the second chamber to reject the government’s proposals and thus diminishes the benefits Waldron hopes for it.

Thus I think that meaningful bicameralism in Westminster-style constitutional systems is bound to remain a dream, and attempts to realize it might turn into nightmares. It would be better, I think, to try to work on the hugely important issues Waldron is concerned about – legislative due process, executive domination of the legislature – by improving existing Houses of Commons (and unicameral provincial legislatures in Canada). Because, as Waldron notes, executives don’t like sharing power, this will be difficult enough.

More on the Gun-Registry Litigation

Having sought – and obtained – cheap popularity with my potty-mouthed post yesterday, I now return to the (extra)ordinary world of constitutional law, and to my favourite topic so far: Québec’s attempt to gets its hands on the gun-registry data the federal government wants to destroy.

I just came across – a bit late – on the reasons for the decision of Justice Marc-André Blanchard, granting Québec’s motion for an interlocutory injunction to stay the application of the federal legislation requiring the destruction of the gun-registry data, about which I posted here and here.

The most important thing in the decision that I, at any rate, had missed in the media reports is that the injunction Blanchard J. granted not only prevents the destruction of existing gun-registry data but also requires that new data continue to be compiled, as if the registry were not abolished, at least until the trial. Québec is not challenging the power of Parliament to put an end to data collection in its merits claims; it only seeks the preservation of the status quo pending the outcome of this litigation and the possible establishment of Québec’s own gun-registry using the federal data. Blanchard J. agrees that, in case Québec succeeds in obtaining the federal government’s gun-registry data, it would make no sense to leave a gap in the data between the moment the federal government stops collecting data and Québec’s own registry is put in place, which cannot possibly be done right away.

I will note two other things. First, Blanchard J. insists on the fact that this case is an important ways novel and exceptional, especially because it results from conflicting interpretations of the public good advanced by two legislatures, both of them democratically legitimate. I think I hinted at this problem, though not exactly in the way Blanchard J. does, in the second of my observations on Québec’s claim.

And second, the federal government argued that the injunction should not issue because Québec’s harm was not irreparable since any expenses involved in re-collecting unconstitutionally destroyed data could be compensated by an award of damages. Blanchard J. rejected this claim on the basis that “it appears not unreasonable to assert that a monetary remedy in a constitutional controversy concerned with division of powers … seems bizarre” (par. 60; translation mine). Now I’m not at all convinced that this is right in the present case, which is, as the judge points out, highly unusual. But what I find really interesting is that it is none other than the federal government who seems to answer in the affirmative the question I raised on this blog: could a province recover damages for the federal government’s destruction of the gun-registry data, if that is found to be unconstitutional? I’m pretty proud I saw that one, although I still have doubts about the possibility of such a claim, and I suspect that if one were brought, the federal government’s lawyers would have doubts too.

What the Fuck?!

Adam Liptak has an interesting article in the New York Times today, looking at the use of  “[t]he most versatile of the classic Anglo-Saxon swear words” before and by the Supreme Court of the United States. That Court, it turns out is rather prudish: after its decision in Cohen v. California, in 1971,  holding that the slogan “fuck the draft” on a t-shirt was protected by the First Amendment, “the word,” which Mr. Liptak never names, “was used in nine Supreme Court decisions, typically in quotations of something a criminal had said. Its last appearance was in 1993.”

I was intrigued and decided to investigate how things stood in Canada. Well, our Supreme Court is less inhibited, or less tasteful, than its American counterpart. Although it did not get in the game until a year later, (quoting a poem, of dubious literary merit, in which a member of a biker gang let it be known that his and his colleagues’ occupation was to “fuck the world”) the words “fuck,” “fucking,” or “fucked” appear in 29 of its decisions, with no sign of a slowdown. However, unlike in Cohen, nothing much seems to turn on “the word” in any of these decisions; they all belong to the “quoting-shit-criminals-say” variety.

Because, unlike Mr. Liptak, I’m not getting paid for looking for dirty words in judicial decisions, I am unable, for now at least, to push my inquiry any further. But for those interested in the subject, there is an article by Christopher M. Fairman, whom Mr. Liptak describes as the “leading authority on the legal status of the word” in the United States, pithily entitled “Fuck”.

UPDATE: When I publish a post, WordPress volunteers some tags which its algorithms think might be relevant to it. The first one that came up for this post was “occupy Wall Street”. Looks like the movement has a foul-mouthed reputation.