If you want to hear from someone who unmistakably understands the profound impact of America’s founding and believes there is still time for its citizens to take hold of its bureaucratic laden government and return it back to the will of it’s founding, then you must hear this speech from Daniel Hannan. You’ll appreciate America all the more afterwards, I assure you.
H/T to John Ward for the link.
George Jonas explains why Canadians were more free before their rights and freedoms were codified in the Charter:
The Canada in which I landed in 1956 may not have had a Charter of Rights and Freedoms, but it had rights and freedoms galore, making it the envy of the world. The Canada in which I make my home today has a Charter, but Canadians who say they had more rights and freedoms 50 years ago aren’t paranoid: They did.
There seems to be an inverse relationship between written instruments of freedom, such as a Charter, and freedom itself. It’s as if freedom were too fragile to be put into words: If you write down your rights and freedoms, you lose them. Minimally, governments will try to take away every freedom you haven’t remembered to include.
“Where does it say you have a right to breathe, sir? Surely it’s not a fundamental right. If it were, it would be in the Charter.”
The 19th century British constitutional scholar, A.V. Dicey, foresaw this. He cautioned against written constitutions for this very reason, among others.
Part of the reason for the inverse relationship between written rights and actual freedom is the court system:
When I came to Canada, a court of law was often a place where individuals went for protection against the state. These days, they’d be taking a chance. Courts are often the state’s battering rams, used for breaking down individual rights and freedoms. Climate trumps the law, obviously, considering the law isn’t the law until a judge says it is. There is global warming, as the world is warming to tyranny. A judicial climate change has turned Canada’s courts from frequent champions of individual liberty to near-permanent defenders of social policy.
A judicial expression used to call policy “an unruly horse.” If you’ve time for only one book to see how events unfold when policy starts driving the law, pick up Christie Blatchford’s account of the native land-claim standoff at Caledonia, Ont., called Helpless. It shows what happens when the justice system becomes a branch of social engineering.
Posted at the Gary Johnson campaign website:
Speaking Sunday night to a national ACLU conference, former New Mexico Governor Gary Johnson called for repealing the Patriot Act in its entirety. The two-term governor and presidential candidate’s remarks were delivered in Orlando, FL, at the ACLU’s annual National Staff Conference.
Johnson said, “Ten years ago, we learned that the fastest way to pass a bad law is to call it the ‘Patriot Act’ and force Congress to vote on it in the immediate wake of a horrible attack on the United States. The irony is that there is really very little about the Patriot Act that is patriotic. Instead, it has turned out to be yet another tool the government is using to erode privacy, individual freedom and the Constitution itself.
“Benjamin Franklin had it right. ‘Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety’.
“Absolutely, protecting the American people from those who would do us harm is the federal government’s most basic duty. Everyone gets that. But when harm is done, as on 9-11, it is the nature of government to ask for more power and more authority in order to protect us. That’s how we get laws like the Patriot Act.
Writing in the National Post, Conrad Black discusses Pierre Trudeau’s time in office:
Nor is there truth to the theory that Trudeau possessed any original political ideas. He was a run-of-the-mill 1960s social democrat who wanted big government, the nanny-, know-it-all-state, high taxes, and the confiscation of income from those who had earned it for redistribution to those who had not in exchange for their votes (far beyond what could be justified by the acquisition of votes for federalism in Quebec, where the money transfer was also largely from the non-French to the French).
It was hard to square Trudeau’s professed enthusiasm for civil rights with his friendship with Fidel Castro and other dictators who ruined their countries, such as Julius Nyerere of Tanzania, and his cold-shouldering of Soviet dissidents and other international civil rights advocates, and even the Canadian victims of the Korean airliner the Russians shot down. This was of a piece with his fawning deference to the Soviet leadership and his antagonism to Ronald Reagan, Margaret Thatcher and even Richard Nixon, who all regarded him as little better than a communist fellow traveller (and told me so).
His campaign to reorient the Canadian economy away from exports to the United States was authoritarian rather than based on any fiscal incentivization of competition, and was a fiasco. His pursuit of arms control was chimerical; he disarmed Canada, did nothing to reduce the country’s military dependence on Washington, and produced a nonsensical plan for more conferences to agree on the unverifiable “suffocation” of defence spending.
[. . .]
His elevation to the headship of the party and government continued the grand Liberal tradition of choosing men lately drawn from outside politics (King, St. Laurent, Pearson). He took it whimsically, and much of his record was just idle dabbling, posturing, and the supreme confidence trick of saving Canada with a Charter of Rights that is revocable by each province (and has unleashed the bench on Canadian life like a swarm of hyper-active social tinkerers); and by imposing bilingual breakfast cereal boxes and television programming even in unilingual parts of the country.
It was clever enough that, as the English say, if you put a tail on it, you could call it a weasel: the rights of man and not governments, our (French-Canadian) house is all Canada, and deluges of Anglo-money in Quebec in the name of social justice, gracieusete du Canada. But it was a ruse, made more farcical by the revelation that Quebec’s supreme separatist strategist, Claude Morin, was a spy for the RCMP.
The Quebec nationalists took the bait, as well as the federal transfer payments, and today Quebec is a bovine clerisy of civil servants and consultants on life support from the rich English provinces, and separation is just a romantic delusion. I think that, at heart, Trudeau was a worldly Gallican Catholic cynic who sincerely despised separatism, was bemused to find himself a national saviour, and played the role with courage, brio and success.
Rob Long writes about Ron Paul and his constitutional fixation:
It was always fun to see Paul’s dyspeptic, curdled expression during the 16,000 Republican debates this autumn. (There were 16,000 of them, weren’t there?) It was bracing to see him shrug off appeals to weasel-word his responses — just shutter the Fed! dump NATO! — and it was especially interesting to watch the other candidates, who, philosophically, aren’t supposed to be all that different from Paul, ballet-step around him, like he was one of those loud talkers at the neighborhood bar who make a lot of sense, mostly, but then every now and then say something — Lincoln was a tyrant! — that makes everyone think, “Oh, I get it. You’re just . . . insane.”
Ron Paul isn’t insane, of course. His views on sound money and central banking, and even his narrow interpretation of the national-defense interests, are principled — and not novel — conservative positions. You and I may not agree with them — I do, mostly, up to the part about allowing Iran to bomb Israel — but on the crackpot scale of 1 to Lyndon LaRouche, they’re barely a 3. And if we’re all really honest about it, the sainted Abraham Lincoln did, in fact, violate the Constitution on several occasions. And over a few beers, say, among friends, these are interesting and diverting topics of conversation.
But like all of those kinds of conversations, they always end up the same way. The conversation winds along interesting abstractions and what-ifs, and then someone — usually the old guy at the end of the bar — says something truly out-there — “There’s no constitutional reason, for instance, why the children of illegal immigrants cannot be eaten” — and then the conversation devolves into weird irrational tributaries, and everyone moves on to something else, but you always have the feeling that one guy — usually the old guy at the end of the bar — really meant it.
Elizabeth sent me a link to this Dan Smyth post on what the US Founding Fathers understood the term “the press” to mean:
If the Founders wanted to protect in particular who today we call media, reporters, etc. with “freedom of…the press,” then surely the Founders could have written, for example, “freedom of … journalists” or “freedom of … newsmongers.”
Volokh describes how, with no significant exceptions, prominent writers the Founders often cited, including William Blackstone, Jean-Louis De Lolme, and George Tucker, connected press freedom with the right of every “freeman,” “citizen,” or “individual” to “write,” “print,” or “publish” his or her thoughts. This fact implies the Founders didn’t intend the press clause to protect the existing or future collection of “newsmongers” per se but rather to recognize the right of any person (or “freeman”) to use printing presses (Until 1694, England imposed licenses on publications, which the Founders abhorred). James Madison’s following first draft of the Bill of Rights’ speech/press clauses highlights this point: “The people [emphasis added] shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” According to Johnson’s dictionary, “people” had such definitions as “a nation,” “men, or per[s]ons in general,” and “the commonality.”
Volokh provides much more evidence for the press clause’s “the press” being the printing press, particularly his evaluations of U.S. court cases from the Founding to 2011 that demonstrate judges have consistently interpreted the press clause as protecting any individuals who use the printing press, including newspaper advertisers and authors of letters to the editor, pamphlets, and books. Volokh describes how it was only the 1970s when some lower courts began interpreting the press clause’s “the press” to be a collection of journalists and not the printing press as a technology.
Jacob Sullum on a recent New York Times article that tried to define the typical Ron Paul supporter (and whether Ron Paul is responsible for their views):
Why does the Times think it is relevant to note that libertarians who focus on economic freedom are “backed to some degree by wealthy interests”? Isn’t that true of pretty much every political movement and organization, including Marxism and the Democratic Party? The implication seems to be that defenders of economic freedom are carrying water for special interests, who are in it only for the money.
Weirdly, the Times locates the scary militants in the part of the libertarian movement that focuses on “personal liberty,” which includes not only the rights explicitly protected by the Constitution (such as freedom of speech, freedom of religion, due process, and freedom from unreasonable searches and seizures) but also such unspecified rights as freedom to engage in consensual sexual relationships, to marry people of either sex, to bet on games of chance, and to ingest psychoactive substances (or even raw milk). So according to the Times, the right-wing extremists attracted to Paul are a tolerant, cosmopolitan group that nevertheless harbors odious views about blacks, Jews, and gay people. Also note that the Times, perhaps unintentionally, says the Constitution “at its extreme has helped fuel militant antigovernment sentiment.” All the more reason to be wary of defending this radical document.
In short, the libertarian movement consists of two parts: 1) self-interested tycoons seeking low taxes and minimal regulation in the name of economic freedom and 2) crazy right-wingers who take the Constitution too seriously and worry about personal freedom. I always thought the distinguishing feature of libertarianism was defending both economic and personal liberty, based on the insight that they are two manifestations of the same thing. But what do I know? I did not realize that the rule of law was a concept invented by F.A. Hayek until the Times explained it to me.
Jonathan Turley has the details:
We have been discussing the disconnect between citizens who have repeatedly opposed continued rollbacks of civil liberties and the Democratic and Republican leadership pushing for such rollbacks, including the recent provision allowing indefinite detention of citizens under the National Defense Authorization Act of 2011 (NDAA). Now Montana citizens have decided to try another approach given the non-responsive attitude of our leaders — they are moving to remove their two Senators from office over their votes in favor of indefinite detention powers.
Montana is one of nine states with recall laws. The other states are Arizona, Colorado, Louisiana, Michigan, Nevada, North Dakota, Oregon, and Wisconsin. Eighteen states have recall laws, but most do not apply to federal officers.
H/T to Radley Balko for the link.
On the evening of January 12, 1981, justice minister Jean Chrétien sat in front of the special parliamentary committee on the Constitution. “I am proposing that Section 1 read as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” he said.
“This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.” Translation: “This will ensure that even though we pretend the public has rights that are fundamental to any free and democratic society, we can take them away at will, so long as we can convince a judge that such measures are justified.”
The language used by Mr. Chrétien would eventually become Section 1 of the Charter, which gives government the constitutional cover to infringe the supposedly “fundamental freedoms” that follow it. In order to figure out when such infringements are in fact justified, the Supreme Court came up with the Oakes test.
Using this two-step process, laws that violate our Charter rights must have a “pressing and substantial” objective, and the means of effecting the limit must be reasonable and proportional. The infringement has to be connected to the law’s objective; it has to be as minimal as possible; and it must balance the consequences of such a limitation, with the objective that is being sought.
Jesse Kline, “Freedom shouldn’t come with caveats, but it does”, National Post, 2011-11-22
The US government is actively undermining California law when it comes to medical marijuana:
When you get a new car, you start noticing the same model all over the highway. It’s the same way when you figure out what California’s marijuana dispensaries look like — green crosses and signage about “medicine” and “420” start popping up all over the City of Angels: On your commute to work, in your neighborhood, around the corner from your favorite restaurant. To put it bluntly, it’s not hard to find weed in California.
But that all might be about to change. The state’s four U.S. Attorneys are gamely trying to alter the broadly popular status quo with arrests and threats of prosecution and property seizure for landlords who rent to dispensaries, a campaign announced in a rare joint press conference in October. Medical marijuana advocates call it an “intense crackdown” and have launched a lawsuit claiming the federal attorneys’ tactics violate California’s tenth amendment rights (Rick Perry, call your office).
State and local officials, meanwhile, are divided in their reactions to the influx of dispensaries in California, but many say that overly eager federal intervention is undermining the state-regulated medical marijuana system that they have taken pains to set up. In other words, as long as the federal crackdown contained itself to targeting egregious offenders of state law, it was hard for anyone to object; many applauded. But by raising the prospect of a federal assault on city mayors and town councils, Obama’s Department of Justice could be making more enemies than friends in California.
The Electronic Frontiers Foundation marks the tenth anniversary of the awful Patriot Act:
Ten years ago today, in the name of protecting national security and guarding against terrorism, President George W. Bush signed into law some of the most sweeping changes to search and surveillance law in modern American history. Unfortunately known as the USA PATRIOT Act, many of its provisions incorporate decidedly unpatriotic principles barred by the First and Fourth Amendments of the Constitution. Provisions of the PATRIOT Act have been used to target innocent Americans and are widely used in investigations that have nothing to do with national security.
Much of the PATRIOT Act was a wish list of changes to surveillance law that Congress had previously rejected because of civil liberties concerns. When reintroduced as the PATRIOT Act after September 11th, those changes — and others — passed with only limited congressional debate.
Just what sort of powers does the PATRIOT Act grant law enforcement when it comes to surveillance and sidestepping due process? Here are three provisions of the PATRIOT Act that were sold to the American public as necessary anti-terrorism measures, but are now used in ways that infringe on ordinary citizens’ rights
Karen Selick reports on a recent court decision that shows just how far Canadians’ liberties are constrained by the judiciary:
Dairy farmer Michael Schmidt has been campaigning to legalize the sale of raw (unpasteurized) milk for 17 years. In 2010, he was acquitted on 19 charges by a justice of the peace who ruled that “cow sharing” was a legitimate way to provide raw milk to informed consumers who don’t live on farms.
On Sept. 28, a judge reversed portions of that decision and found Schmidt guilty on 13 charges.
But the judge ventured beyond the subject of raw milk, saying: “The entitlement to consume milk, raw or otherwise, is not a Charter-protected right.”
The implications are far reaching. If the judge is right about this, future courts could similarly declare that you have no right to eat meat, poultry, seafood, fruit, vegetables or grains, even if government approved. In short, you may have no right to eat anything at all.
[. . .]
In one very technical sense, the courts’ statements are accurate: There is no specific reference to milk, or indeed, any food in the Canadian Charter of Rights and Freedoms or the U.S. Bill of Rights. But both documents are equally silent about any right to get out of bed in the morning, to stretch, to brush your teeth, to use the bathroom, to put on clothes. If constitutions had to enumerate every single thing that North Americans normally consider themselves free to do, they would be a zillion pages long.
Instead, the people who drafted these constitutional documents used a simple shortcut to eliminate the zillion pages. They said that people had the right to liberty.
The Charter was, after all, designed to rein in government, not to rein in individuals. It did not purport to grant us our rights or freedoms; rather, it recognized that those freedoms already existed. It guarantees in its very first section that the state may not infringe on our freedoms except by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
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