R.I.P., Antonin Scalia

How I will remember him

I don’t know if Justice Antonin Scalia, of the U.S. Supreme Court, read, or liked, Bulgakov’s The Master and Margarita ― it was, no doubt, much too unorthodox for him, although he would at least have agreed with its insistence that we at least believe that the devil exists. But as Bulgakov’s devil points out, “man is mortal, but that alone would only be half the trouble. What’s bad is that he sometimes is suddenly mortal, there’s the rub!” Justice Scalia himself has proved suddenly mortal, and it is quite a shock.

He was a larger-than-life figure, the sort of person who left no one indifferent, about whom everyone had an opinion ― not infrequently a very bad one. I wrote once that “Justice Scalia is often snarky, but he gets as good as he gives.” And no doubt there will be much criticism in the coming hours and days, as there will also be much praise. For my part, though I have criticized him in the past, I want now to offer praise, even if it is of an anecdotal sort.

Back in 2007, Justice Scalia came to Montreal, to debate his Canadian colleague, Justice Binnie, about the role of a judge in a democracy ― which they both took to mean constitutional interpretation. It was a remarkable debate, though sadly it seems not to be available online anymore (NB: see the update below). Bob Rae, who moderated, remembers it too, as do others who were there, and even some who were not. And, as Emmett Macfarlane has already mentioned, after the debate, Justice Scalia lingered in the room where food and drink were being served ― and spoke to students who quickly surrounded questioned him. I was there, and even got some questions in ― something about constitutional conventions. I was sure, and still am for that matter, that I was right and he was wrong, but he certainly taught me a good lesson that day about debating a judge without being in more-than-full command of all the facts. It’s not a good idea! I wasn’t the worst though. Almost all of the questions that were being asked in that scrum were quite hostile ― George W. Bush was still president, and many were determined to blame Justice Scalia personally for Bush v. Gore. And the thing is, he surely had to know that Canadian students would not take kindly to him ― yet not only did Justice Scalia not try to avoid talking to us, but he spent a good 40 minutes at it, and seemed to rather enjoy the whole business. I must confess, he won me over that evening ― as a person, if not as a jurist.

Of course, he was also often an abrasive man. He could be brutally unkind to his fellow human beings in his opinions, judicial and extra-judicial, as Eddie Clark points out. Still, the image I will retain of him is that of a man who was willing to talk to those who disagreed with him, debate them, and be generous to them. His friend and ideological opposite Justice Ruth Bader Ginsburg might agree with this. At a time when refusing to treat opponents with the least amount of class, and even to talk to them, are often seen as normal, I hope that this memory of Justice Scalia will prove more powerful than the bitterness and divisiveness for which he will also, and alas justly, be remembered.

UPDATE: Mark Mancini, who is manifestly much better than I at searching the CPAC archives, has found the video of the Binnie-Scalia debate. It is here, and you have to click on the right-most link below the box. It is, as he says, well worth watching.

FURTHER UPDATE: Many reactions to the news of Justice Scalia’s death have already been published. There is no point to cataloguing them all, but I will note those by Moin A. Yahya, Michael Dorf, Noah Feldman, and Cass Sunstein, because they all make the same point as I tried to about Antonin Scalia the human being ― that he was generous and happy to talk to people who disagreed with him, including people who were vastly junior to him in years and distinction. (Profs. Feldman and Sunstein also offer very insightful assessments of Justice Scalia the jurist.)

What the Judge Googled for Breakfast

A recent decision of an American appellate court provides a vivid illustration of the complexity of the issues surrounding the courts’ treatment of scientific information that I have been blogging about here. The case is a prisoner’s suit against the medical staff at his prison, alleging that their refusal to let him take medication against reflux oesophagitis prior to his meals ― rather than on a schedule seemingly arbitrarily determined by them, or indeed at all ― amounted to cruel and unusual treatment. In Rowe v. Gibson, a divided panel of the federal Court of Appeals for the 7th Circuit dismissed the defendants’ motion for summary judgment in their favour. The main opinion, by Judge Richard Posner, is most interesting for its liberal citation to online sources not in the record ― and for addressing directly the objection’s to this practice.

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The defendant doctor, who apparently doubled as an expert witness (despite not being specialized in the sort of medical problems the plaintiff was suffering from), claimed that it did not matter when the plaintiff took his medications. Indeed, at some point shortly after the plaintiff sued, he came to the conclusion that it did not matter whether the plaintiff took his medications at all, and so refused to prescribe them ― though he relented a month later, as a “courtesy” to the plaintiff. (A particularly gruesome detail: the prison authorities consistently stressed that the plaintiff was free to buy the medications from the commissary, if he wanted to take them on his own schedule ― but he didn’t have even a fraction of the money this would have required, and wouldn’t have been allowed to buy more than a few days’ supply per month anyway.) And since the plaintiff did not supply an expert opinion of his own, the doctor’s stood uncontradicted ― until Judge Posner took to the internet.

What Judge Posner found there, crucially, is that the doctor’s assertions about the effectiveness of the medication at issue were flatly contradicted by the information provided by the drug companies manufacturing the medication, as well as other sources of medical information. The defendants’ expert suddenly looked incompetent, self-interested, or both. There was, after all, a genuine issue for trial.

But was it appropriate for Judge Posner to start looking for the medical information that the plaintiff did not provide him with? The judge makes no apologies: “When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness.” (13) This is particularly so when there is little relevant information in the record, and when it is only used to establish the existence of a genuine issue for trial, not to determine the outcome of the case.

And there is more. After a rather bizarre reference to the Magna Carta, Judge Posner asks:

Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit? (14)

And further:

[T]o credit [the doctor’s] evidence … just because [the plaintiff] didn’t present his own expert witness would make no sense—for how could [he] find such an expert and persuade him to testify? He could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed “verifying medical evidence” to support his claim. The district judge denied both requests. (15)

In short:

It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence. (16)


[H]ow could an unrepresented prisoner be expected to challenge the affidavit of a hostile medical doctor (in this case really hostile since he’s a defendant in the plaintiff’s suit) effectively? Is this adversary procedure? (17; emphasis in the original)

(Sorry for the block quotations, by the way. With Judge Posner, the temptation irresistible.)

Judge Posner adds that the trial court should consider appointing a lawyer for the plaintiff and a neutral expert when it hears this case ― though he does not order it, and acknowledges that the budgets both of the court and of the defendants (who might be made to pay for it all) are limited.

Judge Hamilton, dissenting in part, is not impressed with Judge Posner’s approach to this case. For him, it is “an unprecedented departure from the proper role of an appellate court [that] runs contrary to long-established law and raises a host of practical problems.” (29) He faults Judge Posner for “hav[ing] created an entirely new, third category of evidence, neither presented by the parties nor properly subject to judicial notice.” (37) Although Judge Hamilton acknowledges that “[w]hen a prisoner brings a pro se suit about medical care, the adversary process that is the foundation of our judicial system is at its least reliable,” (39) he thinks that Judge Posner’s remedy is worse than the disease. For one thing, it “turns the court from a neutral decision-maker into an advocate for one side.” (40) For another, it is not clear when or how the courts are supposed to supplement the parties’ research with their own. Judges, says judge Hamilton ― relying on an old, but on-point, quotation from Judge Posner himself ― lack the resources for acting as their own experts, and should not try.

There is still more to the opinions, including a brief concurrence arguing that the internet research is not as central to the majority opinion as it might seem, and an “appendix” by Judge Poser responding to Judge Hamilton’s critique. If you want more excerpts, Josh Blackman’s has got them. For my part, I close with a few comments.

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A few months ago, I blogged about a very interesting paper by Lisa Kerr about challenging the prison authorities’ assertions of expertise in order to secure prisoners’ rights. It was, I said, “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” The reason for the epithet was that Judge Posner has long been an ardent advocate for more fact-heavy litigation.

But as I also said in a (friendly) critique of prof. Kerr’s argument, one problem with such appeals for more evidence, especially expert evidence, is that it can be very hard to come by, especially in “ordinary” cases rather than those that are designed and litigated by specialized public-interest advocacy organizations. (I also took up this point here.) Rowe is the epitome of such “ordinary” cases, because it was brought not by a prisoners-rights advocate, of the sort to whom prof. Kerr’s article is first and foremost addressed, but by a self-represented prisoner who, as Judge Posner notes, is no position to take prof. Kerr’s and Judge Posner’s advice, sound though it is in theory.

Is it right, then, for courts to effectively substitute themselves for the missing experts in such cases? Or are the dangers of partiality and unreliability too high? I’m not sure that partiality is as serious an issue as Judge Hamilton makes it out to be. In this case, neither party presented anything like solid scientific evidence. Was Judge Posner taking the plaintiff’s side when he started googling for it? I’m not convinced. Besides, for better or worse, it is already the case that judges (and their clerks) might be going the extra mile, or at least putting in the extra hour, to find plausible legal arguments in the self-represented parties’ submissions. If this is a problem ― and I’m not convinced that it is, though perhaps I’m just trying to wish away the sins of my clerkship ― it is by no means unique to scientific issues.

Reliability is a bigger worry, for me anyway. Judge Posner himself has long pointed out that most judges aren’t very good at doing science, or social science. In his “Appendix” he points at errors in Judge Hamilton’s reading of the scientific evidence in Rowe. He may well be right. But if a thoughtful appellate judge can so easily err, is it a good idea to entrust judges with this responsibility? Not every judge has Posnerian talents (and his own scientific endeavours have sometimes been criticized too).

At the same time, we have to weigh the risk of unreliability against that of manifest injustice. Judge Posner has a point when he says that the adversarial process may not be functioning when the parties’ resources are as unbalanced as they are in this case. The judges who end up “helping” self-represented litigants in one way or another, are all aware of this point, as indeed is Judge Hamilton. Is the solution in some sort of reform that would explicitly set out the rules for the judges to follow? Judge Hamilton is right that Judge Posner’s approach offers no real guidance to either litigants or judges. But perhaps the trouble is that we are still very far from having figured out what these rules should look like. And perhaps, then, it is better to let the cases develop, to let the judges argue it out, before rushing to either reaffirm the traditional rules or formulate new ones.

Legal realists said, derisively, that the law depends on what the judge who declares it ate for breakfast. That would be troubling, if true. And it seems troubling, too, that the outcomes of cases should be dictated by what the judge googled (at breakfast or any other time). But if the realists were right, the solution surely was not to prevent judges from having breakfast. A hungry judge isn’t obviously better than a satiated one. Similarly a judge who meticulously follows a diet of neutral ignorance might not be better than one sated on Google.

Show ‘Em

Earlier this week, an American court issued a decision on a topic that is all but certain to come up for discussion in the weeks after October 19: the ballot selfie, and the attempts ban it. Judge Barbadoro of the U.S. District Court in New Hampshire declared unconstitutional that state’s law that made it an offence to show one’s completed ballot to another person “with the intention of letting it be known how [one] is about to vote or … has voted,” including by means of “taking a digital image or photograph of [the] marked ballot and distributing or sharing the image via social media or by any other means.” Over at the Election Law Blog, Rick Hasen comments on the decision, hoping that it will be reversed on appeal.

For my part, as usual, I express no views on the propriety of this outcome under American law. However, because the issue has already come up in Canada (though without as yet resulting in a court judgment, so far as I can tell), and is very likely to come up again, I think it worthwhile to briefly summarize the court’s reasoning, and highlight a number of very interesting questions that it gives rise to.

Judge Barbadoro’s decision begins with a review of the history of the secret ballot ― or, as he calls it, the “Australian” ballot ― in the United States. As in the United Kingdom (about which I blogged here) and in Canada, elections prior to the introduction of the secret ballot were a brutal business. Corruption and intimidation, even violence, were commonplace. The use of the secret ballot, as well as legislation targeting such manipulation of the voters more directly, helped mostly (although not entirely, the judge says) eradicate it. Indeed, there is no evidence of voters being threatened or bought in New Hampshire recently, and the supporters of the ballot selfie prohibition did not cite any such cases, beyond one dubious anecdote, in defending the law.

Applying the analytical framework developed by the U.S. Supreme Court for freedom of expression cases, Judge Barbadoro then asks whether the prohibition is a “content-based” restriction on speech and, having concluded that it is, whether it is “narrowly tailored” to serve a “compelling government interest.” The judge concludes that the law meets neither of these conditions. While preventing corruption at the ballot box is a compelling interest in theory, the government must also “demonstrate” that it is invoking it to address an actual problem. Since there is no evidence of corruption or intimidation actually going on, the government has failed to do so:

even though small cameras capable of taking photographic images of ballots have been available for decades and cell phones equipped with digital cameras have been in use for nearly 15 years, the [State] has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote buying or voter coercion. (32)

Judge Barbadoro adds that even if he had found the government’s interests compelling, he would still have held that the prohibition on ballot selfies is not “narrowly tailored.” Instead of banning people from sharing images of their ballots regardless of their motivations for doing so, it should focus on the use of such pictures to enable corruption and intimidation. In any case, “[t]he few who might be drawn into efforts to buy or coerce their votes are highly unlikely to broadcast their intentions via social media given the criminal nature of the schemes in which they have become involved.” (38)

The most important question judge Barbadoro’s conclusion elicits concerns the role of the courts in cases where they are dealing with prophylactic legislation, which aims not to address existing problems but to prevent problems from happening in the first place. By their nature, such laws are harder to justify by reference to evidence. And it stands to reason that that could open to the door to governmental abuse. Restricting constitutional rights “just in case” is a disturbing idea. Yet must the government wait for problems to arise before it can do anything about them? Especially when the problems at issue are not something inherently vague and uncertain, like the unfairness of the electoral process purportedly caused by the absence of campaign spending restrictions, but actual criminality, like bribery and intimidation. And all the more so when there is a history, albeit a somewhat remote history, of such problems actually happening.

The interpretation of this history is another big issue raised by Judge Barbadoro’s decision. What are we to make of the decline and virtual disappearance of voter bribery and intimidation in the wake of the adoption of the secret ballot and the enactment of the laws against such practices? How do we disentangle the effects of these laws from those of the secret ballot itself? Is the very success of these techniques a reason for letting ballot secrecy fall by the technological wayside? And then, there are questions about much more recent history ― specifically that of the ballot selfie and the innovations that enable it. Judge Barbadoro asserts that cellphone cameras have been around for 15 years, but how widespread were they then? The Oxford English Dictionary’s lexicographers have tracked down an example of the word “selfie” being used back in 2002, but the explosive spread of the phenomenon is surely more recent, and the idea of the “ballot selfie” might be more recent still. Is it, then, really the case that any problems that this phenomenon might generate ought to have become manifest, as Judge Barbadoro suggests? (Incidentally, while his opinion provides a wealth of citations to materials on the history of the ballot, this technological history is merely asserted.)

Finally, I think it is worth asking whether outright corruption or threats are the only reasons to worry about ballot selfies. In fairness to Judge Barbadoro, they were the only reasons asserted by the New Hampshire prohibition’s defenders. And the judge is probably right that people involved in corruption or subject to intimidation are unlikely to post their ballot selfies on social media. They’ll just show them to the persons paying or threatening them, and go undetected. But should we not also be concerned about the more diffused social pressure that can be brought to bear on people who let ― or those who fail to let ― others know how they voted? Should we not worry about people being pressured to vote, or to vote in a particular way, and to prove that they have done so, not by a specific manipulator, but by their online peers? People involved in “shaming” a person who didn’t vote to their satisfaction might not be committing an offence, and the line between legitimate and immoral behaviour in this realm is probably too blurry to lend itself to legal implementation. In this respect, the prophylactic prohibition on ballot selfies might actually be necessary.

As I said that in the post linked to above, I believe that the secret ballot “was one of the greatest inventions of a century that did not lack for them, and there is no reason to give it up.” And I am inclined to further believe that even coercive enforcement of ballot secrecy is justified. My hunch is that Canadian courts would agree, though I haven’t thought the matter through in detail. (I’ll try to do that before October 19.) In the state whose motto is “live free or die,” however, you’re now entitled not just to tell people how you voted, but to show them, too.

UPDATE: Prof. Hasen now has an op-ed for Reuters, further explaining his views. His most compelling argument, in my view, is the following:

the effectiveness of the selfie ban and the continued occasional prosecutions for vote buying, especially for absentee ballots, show that where there can be verification of how someone voted, this is a real — not theoretical — problem.

Entrenching and Expanding Rights

In an interesting post over at Concurring Opinions, Renee Lerner discusses the history of the constitutional protection for trial by jury, including in civil cases, in the United States, and suggests that this history holds a cautionary lesson. Prof. Lerner highlights the importance which the common law heritage and the purported “immemorial” “rights of Englishmen” associated with it had for the Americans of the Revolutionary period. These rights were thought to have been codified in the Magna Carta ― and “[t]he right Americans most often invoked in connection with the Great Charter was the right to trial by jury.” This, as prof. Lerner explains, was in no small part a myth: “The barons at Runnymede,” when they forced the Magna Carta on King John,

certainly did not intend to enshrine common-law trial by jury, which did not exist for criminal cases in 1215 and hardly for civil cases. In the language of Chapter 39 concerning “judgment of his peers,” the barons were trying to ensure that they would be tried by other barons, not by royal judges or ordinary juries.

But no matter. In the 17th century, Lord Coke and others fabricated the “myth” of an ancient right to trial by jury, and their ideas were immensely influential in America. Partly for this reason, and because “Americans of the colonial and revolutionary era also exalted the jury, as a means of furthering self-governance and nullifying despised British laws,” they entrenched it in many State constitutions and, eventually, in the Federal one.

For prof. Lerner, this was a very unfortunate mistake, for “the self-governing and law-nullifying functions of the jury came to seem unnecessary at best and often harmful.” Trial by jury, she writes, “chang[ed] from a prized right of the people to a nuisance.” And in her view, this history demonstrates the superiority of the flexible British constitution, which lacks entrenched rights. When a right becomes a nuisance, it can simply be got rid of.

Now to me this seems, to be sure, to point to a cost of rights-entrenchment ― but this cost is very much a feature, not a bug. Indeed, it might be the most important feature of them all. A major part of why Americans and, increasingly, other nations (including, of course, Canada) chose to entrench rights is precisely so that they cannot be discarded whenever a majority thinks that they have become a nuisance. (I don’t know whether most Americans actually think that jury trials are a nuisance. But let’s assume that they are.) It’s not just trial by jury ― the same goes for every right entrenched in every constitution in the world. We should be aware of the perils of inflexibility, but I don’t think that they are enough to make the case against entrenching rights. And it is worth noting that they can be addressed by somewhat more flexible constitutional amendment procedures than that of Article V of the U.S. Constitution or Part V of the Constitution Act, 1982 (though its inflexibility is as much a product of politics as of the rules it contains), without abandoning entrenchment altogether.

What I think is a more interesting aspect in prof. Lerner’s story is one that she does not dwell on ― the expansion of the right to a trial by one’s peers from the nobility to the entire citizenry. In a way, this story is unremarkable. As Jeremy Waldron persuasively argues, it is the story of the idea of dignity ― an exalted status once reserved to kings and noblemen, but now attributed to all human beings. It is also the story of the right to religious liberty, which was at first only afforded to Protestants in England, and then expanded to embrace other familiar religious groups (such as Catholics and Jews), and later still the less familiar ones (such as Jehovah’s Witnesses) and the unbelievers. It is the story of the franchise, first the preserve of propertied men, and then expanded to the middle and working classes, to women and, in Canada at least, to prisoners and other groups that it traditionally excluded. We usually see these and other expansions of rights as unequivocally good. They have obvious upsides for the people who benefit from them and arguably for society as a whole, and ― so our conventional thinking goes ― no obvious downsides. Some people would beg to differ, but we tend to regard them as retrograde and bigoted. It is here that the story of the right to a jury trial might serve as an interesting cautionary tale.

If jury trials involved, both as parties and as jurors, only a narrow class of wealthy and, for the most part, not very busy people, they would not be the “nuisance” prof. Lerner describes. For one thing, the barons who demanded and obtained the right to be tried by their peers knew enough about each other’s affairs (if not specifically, then at least about the sort of life people of their social class led) to serve as reasonably effective triers of facts. They did not have, over the course of a trial, to understand the complexities of a line of business (or even, for that matter, of the functioning of a criminal gang,) For another, underpaying them for their work, or indeed not paying them at all, wasn’t the problem it is for jurors today (not only in the United States, of course). As much as the advent of the “representative republics” and the “commercial society,”  the expansion of the right to a jury trial, and the concomitant right and duty to serve on juries, to all citizens is the reason this right might be problematic today. (Incidentally, I should make clear that I do not express a definitive opinion on whether it is; at least in criminal matters, I’m tentatively inclined to think it is a useful safeguard.)

The story of the right to a jury trial might thus show that expanding a right from some citizens to all can cause significant problems in at least some cases. Of course, even if we agree with this interpretation of the story prof. Lerner tells, we need not come to the same conclusion regarding any other right. Each case must be assessed on its own merits. But we probably should at least acknowledge the possibility.

What Does This Mean?

Those of you who have been following this blog for a while will recall that I take a lot of interest in oaths; especially, but not exclusively, citizenship oaths. A paper of mine arguing that the Canadian citizenship oath is unconstitutional as an unjustified infringement of the freedom of conscience came out in the last issue of the National Journal of Constitutional Law. The key move in my argument is to say that, since oaths generally implicate the conscience of the persons who take them, their subjective interpretations of the obligations oaths impose on them are determinative, in the same way as religious believers’ interpretations of the requirements of their faith are, and courts are not entitled to tell them that they simply mistaken about the duties they subscribe by swearing the oath. You will also recall that Canadian courts have not seen it fit to embrace that viewpoint. Both Ontario’s Superior Court and its Court of Appeal (as well as, once upon a time, the then-Appellate Division of the Federal Court) have found that the citizenship oath is constitutional, holding that the anti-monarchists who objected to taking it were wrong to understand it as preventing them from holding their beliefs or engaging in pro-republican activities.

So of course I found Orin Kerr’s recent post over at the Volokh Conspiracy about the meaning of an oath, required of U.S. federal employees, to “defend the Constitution of the United States against all enemies … and … bear true faith and allegiance” to it very interesting. Interesting, but also, to me, unsatisfying.

Prof. Kerr notes that

[o]n its face, it’s not totally clear what it means to “defend the Constitution” and “bear true faith” to it. For example, some people support a constitutional amendment to repeal Citizens United, which would cut back on First Amendment protections. If you took the oath, are you obligated to oppose that amendment in order to faithfully defend the Constitution? Or imagine you work in a federal building and there’s a Christmas display that you think violates the Establishment Clause. Does your oath obligate you to take steps to stop the violation, and if so, what steps?

The first of these questions, especially, mirrors the dilemma faced by republicans asked to swear allegiance to the “Queen of Canada,” who must ask themselves whether this allegiance prevents them from holding on to and working to promote their reformist views.

But prof. Kerr accepts, unquestioningly so far as I can tell, that there is a truth of the matter about these questions; and, further, that this truth can be established by reference to history. Now this history is very interesting. The current wording of the oath, prof. Kerr explains, goes back to the aftermath of the Civil War, when the oath in that form was only required of former Confederate soldiers. Others could swear a more general ― though no less vague ― oath to “support” the Constitution. This seems to provide evidence for Liav Orgad’s claim, made in his excellent paper on loyalty oaths, that “the history of the oath is a history of fear,” specifically a fear of disloyalty ― a claim that I endorse and develop in my article. Only later was the obligation to take the oath to defend the Constitution extended to other federal employees, though prof. Kerr does not explain why.

Prof. Kerr concludes that this “historical context suggests” that the oath does not require federal employees

to oppose constitutional amendments or to take down questionable Christmas displays … [It] is probably best understood in its historical context as a promise to oppose political reforms outside the Constitution. You have to stay loyal to the government that is based on the Constitution, and you can’t support a rebellion or overthrow of that government.

This is more or less what the Canadian courts have concluded regarding the meaning of our citizenship oath. But, as I explain in greater detail in my other posts, and in my paper, this approach ignores the distinctive character of an oath. An oath is not a statutory command (though it is of course prescribed by statute). It is an imposition of vague obligations, whose precise significance the oath-taker has to work out for him- or herself, as a matter of conscience. Statutes can and must be authoritatively interpreted by courts, possibly with reference to the historical context in which they were enacted. But no court, in a free society, can tell a person what his or her conscientious duty is, for conscience is an internal tribunal, not answerable to any external one. If a person wants to look to history, or to law, or to anything else, in working out the meaning, to him or her of the oath ― that is to say, his or her conscientious duties ― good and well. But that’s his or her choice, and not, in Lord Acton’s words, the “sublime prerogative assigned to states, or nations, or majorities” ― or to judges.

Quand on se compare

Les traditions tant française qu’américaine de laïcité sont moins monolithiques qu’on ne l’a parfois prétendu. Reste qu’imposer la « neutralité » aux individus est injustifié.

Dans le débat entourant la Charte de la honte que le Parti Québécois proposait il y a un an, on a beaucoup invoqué les traditions française et américaine de la laïcité. La première, a-t-on prétendu, surtout chez les partisans de la Charte de la honte, justifierait l’exclusion des symboles religieux de la sphère gouvernementale, voire de la sphère publique, au nom de la neutralité religieuse. La religion, disait-on, est une affaire privée. Et tant chez les partisans que chez les détracteurs de la Charte de la honte on a contrasté cette vision de la laïcité avec la tradition américaine, ouverte à l’expression religieuse, du moment que l’État lui-même (et non simplement un de ses représentants plus ou moins directs) ne prenait pas position en matière religieuse. (La fameuse lettre de Bernard Drainville et Jean-François Lisée au New York Times, tentant de récupérer l’héritage de Thomas Jefferson pour défendre la Charte avait été largement ridiculisée.) Or, ces deux traditions, ces deux visions de la laïcité, sont moins monolithiques qu’on ne le pense, comme deux récents textes permettent de constater.

Le premier est une entrevue accordée à Sonya Faure de Libération par Stéphanie Hennette-Vauchez et Vincent Valentin, qui soutiennent que les mesures d’exclusion de la religion de l’espace public adoptées par la France ces dix dernières années sont une perversion plutôt que la continuation de la tradition française de laïcité. Les profs. Hennette-Vauchez et Valentin dénoncent une ambiance sociale où « la présence de la religion est désormais jugée insupportable, indépendamment de tout trouble à l’ordre public ou atteinte à la liberté d’autrui » et une « vision de la laïcité [qui] tend à imposer l’obligation de neutralité aux personnes privées » plutôt qu’à l’État. Cette « nouvelle laïcité », expliquent-ils, s’inscrit

dans une logique de contrôle. Elle veut neutraliser tout ce qui, dans le religieux, différencie, singularise. On mobilise la laïcité pour aseptiser le religieux, perçu comme un microbe qui corrompt le vivre-ensemble. Les citoyens devraient renoncer à la part d’eux qui n’est pas commune, dès lors qu’ils entrent dans l’espace public.

Or, selon les profs. Hennette-Vauchez et Valentin, vouloir confiner les manifestations religieuses à la « sphère privée», les éliminer de l’espace public, « n’est pas du tout l’esprit de la loi de 1905 » qui a laïcisé l’État. C’est en fait vouloir effacer la distinction entre l’État et la société, imposant à celle-ci les obligations qui n’incombaient, jusque là, qu’à celui-là. De plus, plutôt que défendre la

liberté […] de croire ou de ne pas croire[,] les partisans de la nouvelle laïcité veulent imposer des restrictions. Ils défendent non pas un droit mais une culture, une certaine manière d’être. On touche déjà à la manière de s’habiller, pourquoi pas bientôt à la manière de manger, ou autre ?

On assiste, en somme, à l’émergence d’ « [u]ne sorte de catéchisme républicain. Derrière la défense de la laïcité, c’est un moralisme national, républicain, politique qui se dessine ». Les restrictions aux libertés individuelles sont justifiées non seulement par la protection des droits d’autrui, mais aussi par « un ordre public immatériel, symbolique [consistant de] valeurs abstraites qui justifient, elles aussi, une restriction de la liberté ». Certes, les considérations morales ont toujours eu un certain rôle à jouer en droit, mais la tendance était à la restriction, sinon à l’élimination de ce rôle. Or, cette tendance s’est désormais inversée.

La logique de contrôle et d’élimination de la différence, faut-il le rappeler, a été bien en évidence dans l’argumentaire déployé au soutien de la Charte de la honte. Force est de constater que ― les profs. Hennette-Vauchez et Valentin ne le disent pas explicitement, mais à mon sens ils le suggèrent fortement ― ce « projet politique » frise le totalitarisme, dont les différentes formes ― fasciste, communiste, religieuse ― ont justement pour parmi les principales caractéristiques communes la fusion entre l’État et la société, ainsi que le moralisme omniprésent et liberticide. Or, les profs. Hennette-Vauchez et Valentin nous permettent de comprendre que, contrairement à ce que les zélotes de la laïcité voudraient nous faire croire, ce n’est ni une conséquence nécessaire de la tradition française de la laïcité ni une lecture universellement partagée de celle-ci.

Le second texte que je voulais aborder dans ce billet présente quant à lui un aspect moins connu de la tradition américaine de laïcité. Il s’agit d’un billet de Eugene Volokh, qui discute une plainte visant un professeur d’une école publique de la Pennsylvanie qui porte un collier avec une étoile de David. Comme l’explique le prof. Volokh, une loi de la Pennsylvanie interdit effectivement le port de « tout vêtement, signe, emblème ou insigne indiquant que ledit enseignant est un membre ou adhérant d’un quelconque ordre, secte ou dénomination religieux » (je traduis, ici et plus bas). Au moins un autre État, l’Oregon, a déjà eu une loi semblable, bien qu’il l’ait abrogée en 2010. Qui plus est, ces lois ont été jugées constitutionnelles par des Circuit courts (mais non, quant au fond, par la Cour supême). Pas Thomas Jefferson, donc, mais il y a bien aux États-Unis un courant de pensée ― si minoritaire soit-il ― voulant que le port de symboles religieux par les professeurs des écoles publiques pourrait être perçu comme un positionnement de l’État en faveur de la religion.

Cependant, comme l’explique le prof. Volokh, la loi de la Pennsylvanie est probablement inconstitutionnelle, et la décision contraire du 3e Circuit, erronée, l’interdiction du port de symboles religieux par des employés individuels n’étant pas nécessaire pour dissiper une telle perception. (D’ailleurs, s’appuyant sur une jurisprudence qui la remet en question, l’école a refusé de donner suite à la plainte contre le professeur au collier à l’étoile de David.) Comme le dit le prof. Volokh, un enfant qui comprend qu’un vêtement ou un bijou reflète une affiliation religieuse doit aussi pouvoir comprendre que des personnes de religions différentes travaillent au sein d’un même établissement, et que cela ne signifie pas que l’établissement est affilié avec toutes ces religions:

De façon générale, les vêtements et les bijoux ne sont pas perçus par ceux qui les voient, même par de jeunes personnes, comme des tentatives [de la part de ceux qui les portent] de persuader les autres de la vérité de leur religion. En fait, tous les États sauf la Pennsylvanie permettent aux enseignants de porter des bijoux ou des couvre-chefs religieux et des objets semblables, et je ne connais aucune preuve de ce que les élèves dans ces États perçoivent ça comme un positionnement en faveur de la religion de la part de l’école.

Et même si cela n’était pas vrai pour de très jeunes étudiants, il faudrait restreindre l’interdiction à ceux qui leur enseignent. Un adolescent, dit le prof. Volokh, peut assurément comprendre

que l’école peut employer des professeurs ouvertement catholiques, des professeurs ouvertement juifs et des professeurs ouvertement musulmans, sans endosser l’une ou l’autre religion.

(Et dire que le PQ voulait imposer les même interdictions dans les universités!) Du reste, souligne le prof. Volokh, dans la mesure ou de jeunes élèves pourraient ne pas le comprendre, l’école devrait tout simplement expliquer que les enseignants sont libres de s’identifier à une religion de leur choix, sans que l’école ne les encourage ni ne les condamne:

Même pour de jeunes élèves, ce n’est pas une leçon difficile, et elle vaut probablement la peine d’être enseignée. Et on peut l’enseigner sans discriminer contre des pratiques religieuses et sans exclure, dans les faits, des enseignants qui se sentent motivés ou obligés de porter des vêtements ou des bijoux religieux.

Cette leçon, les apôtres de la Charte de la honte et les tenants de la « nouvelle laïcité » plus généralement feraient bien de l’apprendre une fois pour toutes. En fait, on se rend bien compte, en lisant le billet du prof. Volokh, que la thèse que ces derniers défendent, la thèse voulant qu’il est nécessaire, pour préserver la neutralité religieuse de l’État, d’exclure la religion des institutions gouvernementales, voire de l’espace public, est non seulement liberticide et discriminatoire, mais aussi carrément infantilisante. Prétendre que les citoyens ne sont pas capables de distinguer une croyance individuelle d’une prise de position officielle, c’est les mépriser.

Quand on compare le débat québécois sur la laïcité à la situation en France et aux États-Unis, on peut se consoler. Non pas parce que les choses sont pires ailleurs (elles le sont, me semble-t-il, en France, mais ce n’est pas une consolation), mais bien parce qu’on constate que, si les idées liberticides qu’on observe chez nous sont , hélas, universelles, la résistance à ces idées l’est tout autant. Et si l’exemple français nous montre combien cette résistance peut être difficile, l’exemple américain suggère qu’elle peut, et doit, triompher.

NB: Je remercie Jean-François Gaudreault-DesBiens pour le lien vers l’article de Libération

Courts, Government, and Originalism

Despite its popularity south of the border, originalism hasn’t had much of a purchase in Canadian constitutional thinking. One reason, no doubt, is the power of what we think is the example of the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, generally taken to be a decisive rejection of originalist constitutional interpretation. It wasn’t exactly that, as I have argued here, but Canadian constitutional theory lives in the shade of its “living tree” all the same. But there might be other factors contributing to our rejection of originalism. A passage from Judge Jeffrey Sutton’s majority opinion for the U.S. Court of Appeals for the 6th Circuit* upholding bans on same-sex marriage, which Josh Blackman describes as “a pithy but deep understanding of originalism,” brings one of these other factors to mind.

Judge Sutton writes that the original meaning of a constitutional provision, the way “it was understood by the people who ratified it,” (17) is the first consideration in constitutional interpretation. He explains that

[i]f we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm … —that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. … Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it. (17-18)

Now we may be inclined to dismiss the analogy between a constitution, meant to apply to people not even born at the time of its ratification, over decades and even centuries, and a contract of sale executed months after its conclusion and subject to a statute of limitations. But whether or not there is, nonetheless, some truth to it, or a constitution is more properly analogized to a “higher law” that binds the “governors” is not important for my purposes now. What I want to do instead is consider an premise that underlies Judge Sutton’s argument, but which is unstated because it would, I think, be universally accepted in the United States ― and which we in Canada tend not to share.

This premise is that judges are among the “governors” with whom the people “contract” or whom they bind by ratifying a constitution. If they are, then obviously letting them re-interpret the constitution, under whatever pretext, means letting one party to the agreement modify its terms unilaterally, or allowing the “governors” to be a law unto themselves. That we be unfair and, considering the power of the “governors” over the governed, outright dangerous. It is important to hold the “governors” to the original bargain struck with them, or bound by the law imposed on them. Originalism is intended to do that.

Yet Canadian constitutional thinking, I believe, does not see courts that way. Of course, we know that courts are a part of government ― indeed, that judges were, at first, servants of the Crown rather than a separate “branch” of government. But generally speaking, that’s not how we think of them today. We tend to regard them outside arbiters that stand between the government (i.e. the legislatures and the executives) and the citizens. Indeed, we might even tend think of them as our agents vis-à-vis what the Americans call the “political branches” ― that’s why many Canadians (and indeed at least some of our “governors”!) ― think of the Canadian Charter of Rights and Freedoms as having transferred power to the people, and not just the courts. But, of course, if the judges are not among the “governors” whom we fear and with whom we make a deal or whom we try to constrain, there is little reason for us to wish to limit their power to reinterpret the constitution. If, a fortiori, they are our agents vis-à-vis the “governors”, we probably want them to reinterpret the constitution, and it is the “governors” who ought to be originalists.

As for the question of who has it right, I’m not sure that it can really be answered. Indeed I’m not even sure it must be the same in different constitutional systems. But even if it is, it’s worth noting that both views of courts have something going for them. Courts are a part of government in the sense that they wield ― at least so long as the executive is inclined to enforce their decisions ― a coercive power over citizens, whether considered individually or, if judicial review of legislation is possible, collectively. At the same time, I think it’s fair to say that, so long as they remain independent from the popular will, courts are not a part of government like the others. So long as it is easier for individual citizens to make their voice heard through the courts than through the legislatures, the view that courts are our agents vis-à-vis the (other) “governors” rather than our opponents and that we want to empower them more than constrain them is at least plausible. So, pick your own view. Just know that it’s not the only possible, or even plausible one.

*As usual, I express no views on the correctness of an American decision as a matter of American law. All I can say is that if this decision is indeed correct ― something that Ilya Somin and Michael Dorf, not to mention Judge Richard Posner and many others, would dispute ― then I’m happy that Canadian law is different.

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.