In modern times, “truthiness” — a “truth” asserted “from the gut” or because “it feels right,” without regard to evidence or logic5 — is also a key part of political discourse. It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it.
After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.
Everybody knows that the economy is better off under [Republican/Democratic]6 presidents — who control it directly with big levers in the Oval Office — and that:
President Obama is a Muslim.
President Obama is a Communist.
President Obama was born in Kenya.
Nearly half of Americans pay no taxes.7
One percent of Americans control 99 percent of the world’s wealth.
Obamacare will create death panels.
Republicans oppose immigration reform because they’re racists.
The Supreme Court is a purely political body that is evangelically [liberal/conservative].8
All of the above statements could be considered “truthy,” yet all contribute to our political discourse.
5. Wikipedia.com, Truthiness, http://en.wikipedia.org/wiki/Truthiness (last visited Feb. 28, 2014) (describing the term’s coinage by Stephen Colbert during the pilot of his show in October 2005). See also Dictionary.com, Truthiness, http://dictionary.reference.com/browse/truthiness (last visited Feb. 28, 2014).
6. Circle as appropriate.
7. 47 percent to be exact, though it may be higher by now.
8. Again, pick your truth.
Ilya Shapiro and P.J. O’Rourke, BRIEF OF AMICI CURIAE CATO INSTITUTE AND P.J. O’ROURKE IN SUPPORT OF PETITIONERS, Susan B. Anthony List v. Driehaus [PDF], 2014-02-28
March 5, 2014
December 13, 2013
The Australian Capital Territory attempted to make gay marriage legal within its borders despite federal law prohibiting same-sex marriages being recognized. The Australian High Court decided yesterday that the territory cannot override federal law on this issue:
The ACT legislation had allowed gay couples to marry inside the ACT, which includes the Australian capital, Canberra — regardless of which state they live in.
Federal law, however, specified in 2004 that marriage was between a man and a woman.
Civil unions are allowed in some states in Australia.
The High Court in Canberra ruled unanimously against the ACT legislation on Thursday, saying that it could not stand alongside national-level laws.
“Whether same sex marriage should be provided for by law is a matter for the federal parliament,” it said in a statement.
“The Marriage Act does not now provide for the formation or recognition of marriage between same-sex couples. The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman,” it added.
Attorney-General George Brandis had previously warned that the local law would face a legal challenge, because it was inconsistent with the country’s Marriage Act.
September 28, 2013
Alex Tabarrok links to a Wall Street Journal article (paywalled, unfortunately) about the Indian court decision that will allow Indian voters to cast their ballots against all the candidates on offer:
Excellent news. Bear in mind:
Nearly a third of the members of the lower house of Parliament are facing criminal charges, according to the Association for Democratic Reforms, a New Delhi-based advocacy group for transparency in governance.
Even if that were not the case, however, one of the problems of democracy is that there is too little feedback and information transmission, due both to rational ignorance and the bundle nature of politics. Allowing for “none of the above” provides, not a panacea, but a little bit more feedback. Many people vote but have to hold their noses to do so. Many others don’t vote but do they not vote because they are satisfied or dissatisfied? None of the above gives the dissatisfied a chance to reveal their views and in so doing it may encourage more and better candidates.
At present, voting none of the above is just informational, i.e. none of the above is never “elected” even if it gets a majority, although the option to vote NOTA may change the outcome of the election. In the future a NOTA majority might signal a new election.
There have been a few elections here in Ontario I’d love to have had the option of voting “None of the above”.
July 13, 2013
The Supreme Court’s decisions on same sex marriage are just the beginning of a long process of determining what roles marriage will play in the legal environment of states and the country. Walter Olson and Ilya Shapiro detail some of the implications of the rulings.
July 1, 2013
Micheal Geist rounds up some good news for Canada Day:
As Canadians grapple with news of widespread secret surveillance, trade agreements that could upend intellectual property policy, and the frustrations of a failed wireless policy, there are plenty of digital policy concerns. Yet on Canada Day, my weekly technology law column argues that it is worth celebrating the many positive developments that dot the Canadian digital policy landscape. Eight of the best include:
1. The Supreme Court of Canada’s strong affirmation of user rights and technological neutrality in copyright. [. . .]
2. The Canadian Radio-television and Telecommunications Commission’s policy on network neutrality. [. . .]
3. The defeat of the government’s lawful access legislation. [. . .]
4. Canada’s promotion of user generated content. [. . .]
5. The CRTC’s pro-consumer agenda. [. . .]
6. The Privacy Commissioner of Canada’s aggressive investigations of top Internet companies. [. . .]
7. Canada’s notice-and-notice system for Internet providers. [. . .]
8. Canada’s balanced patent law standards. [. . .]
June 26, 2013
I was away from my computer for about an hour this morning and when I came back online, my Twitter feed had exploded with news and opinion links about the US Supreme Court striking down the Defence of Marriage Act. While I’m delighted with the result (check my posts tagged Same Sex Marriage if you’re curious), it’s interesting to watch the reactions on all sides of the issue.
— Boing Boing (@BoingBoing) June 26, 2013
— Corie Whalen (@CorieWhalen) June 26, 2013
90 minutes into the post-DOMA era: MY HETEROSEXUAL MARRIAGE STILL STRONG. Will wait another 30 minutes to see if it sticks.
— John Scalzi (@scalzi) June 26, 2013
— Cato Institute (@CatoInstitute) June 26, 2013
Gay men and women, today is for celebrating. Tomorrow is for the awkward conversation, followed by the acrimonious breakup.
— Craig Mazin (@clmazin) June 26, 2013
Remember when you were against it? Fun times. MT @BarackObama Today's Supreme Court rulings mark a major milestone on the road to equality.
— Jim Treacher (@jtLOL) June 26, 2013
Who DOESN'T cry at weddings!? RT @GovMikeHuckabee My thoughts on the SCOTUS ruling that determined same sex marriage is okay: "Jesus wept."
— Rachel B (@rachelbensen) June 26, 2013
June 20, 2013
The Toronto Star must be feeling devastated by this:
The Supreme Court of Canada says it will not hear an appeal in a conflict-of-interest case against Toronto Mayor Rob Ford.
The court dismissed it with costs, but did not give reasons for the ruling.
Lawyer Clayton Ruby was trying to restore a lower court decision from November 2012, in which Superior Court Justice Charles Hackland ruled Ford be removed from office.
However, as part of Ford’s appeal, the decision was overturned by an Ontario Divisional Court panel in January 2013.
Deputy mayor Doug Holyday said this was all about antagonizing the mayor.
“There was no reason to take this to the Supreme Court; there was very little likelihood of it every getting put before the Supreme Court,” Holyday said.
Update: The CBC reports that Ford feels vindicated by the decision:
Toronto Mayor Rob Ford expressed relief Thursday that a conflict challenge that previously threatened to oust him from office won’t be revived in the country’s top court.
“I’m so happy this is finally over. I’ve been vindicated and we can move on,” Ford told reporters in Toronto, about two hours after the Supreme Court of Canada rejected an application to hear a final appeal in the much-publicized conflict case that began last year.
As is customary, the Supreme Court gave no reasons for dismissing the appeal, but legal experts — including the lawyer who filed the application himself — had acknowledged the odds of reviving the conflict of interest case were a long shot.
The court only accepted 12 per cent of appeal requests made last year.
Toronto resident Paul Magder filed an application in an Ontario court last year, alleging that Ford had violated conflict of interest legislation when he participated in a council vote that absolved his need to pay back funds donated to his private football foundation.
June 18, 2013
In Reason, Jonathan Hafetz reviews a new book by Anthony Gregory called The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror:
This tension between the ideal and the reality of habeas corpus is central to Anthony Gregory’s excellent new book, The Power of Habeas Corpus in America. Gregory, a research fellow at the Independent Institute, provides a valuable contribution to the literature on habeas corpus, one with broader implications for civil liberties, state power, and justice in a liberal democracy. The book does not attempt to capture all of the complex doctrinal shifts in habeas over the centuries. Instead, it synthesizes these developments to underscore a paradox: the way habeas serves as “both as an engine and a curb on state power.” In the process, Gregory charts how power dynamics have historically shaped struggles over habeas and its role in American society.
Gregory situates this paradox early in habeas‘ history. During the 15th and 16th centuries, habeas served mainly as a mechanism for England’s central courts to assert control over ecclesiastical courts and other rival tribunals. By demanding that reason be given why any of the king’s subjects was imprisoned, habeas helped increase the crown’s authority and legitimacy.
By the late 17th century, on the other hand, habeas had become a means of challenging royal authority itself, eventually taking on its modern incarnation as the Great Writ of Liberty. Yet even here, the story is more complex. Building on the pioneering work of historian Paul Halliday, Gregory points out that, contrary to popular interpretations, habeas‘ potential as a judicial constraint on state power was threatened by legislation. Gregory notes, for instance, how the famous Habeas Corpus Act of 1679, labeled by William Blackstone as a “second Magna Carta and stable bulwark of our liberties,” ultimately diluted the writ’s potency and flexibility by tying it down to statute. Increasingly, habeas‘ efficacy would be seen to depend on legislative action — an understanding perhaps best illustrated by U.S. Supreme Court Chief Justice John Marshall’s statement that a federal court’s power to award the writ “must be given by written law.”
[. . .]
The contradictions within habeas were manifested during antebellum America, where the writ was used both to bolster slavery and to undermine it. Slave owners employed habeas to apprehend runaways — for example, by petitioning state courts in the North to assist in apprehending their “property.” Other state courts in the North, by contrast, sometimes used habeas to free slaves or block their return to the South. Ultimately, the ability of state courts to wield habeas in defense of individual liberty was limited by Supreme Court rulings barring state interference with the enforcement of federal fugitive slave laws and, eventually, with federal detentions generally — an example of what Gregory describes as the dangers of centralization.
A significant counter to Gregory’s thesis is the role federal habeas corpus played during the 20th century in helping enforce civil rights in the South and in advancing the criminal procedure revolution undertaken by the Supreme Court to protect the rights of defendants. Gregory’s account here runs against the traditional narrative in which habeas‘ centralization was critical to its continuing role in protecting liberty. In response, Gregory cites the declining utility of federal habeas corpus following several decades of Supreme Court decisions and congressional restrictions that have made it more difficult for prisoners not merely to obtain relief but even to have their claims heard by a judge. Federal habeas, Gregory writes, has become a “shell of what it promised to be.”
May 30, 2013
Colby Cosh suspects we may be on the receiving end of a massive distraction attempt:
I’m starting to half-believe the theory that the Senate expense scandal was cooked up to cover other problems for the Conservative Party of Canada. The broad main effect of the Senate fracas so far has been to exasperate the hell out of everybody. Mike Duffy’s bad behaviour presents the public with the frustrating conundrum that only the Senate can make rules for or punish errant senators, and that the major features of the Constitution (including that one) are probably immune from formal amendment for the next hundred years or so. Stephen Harper’s statutory end-run proposals for permitting Senate elections and tightening term limits are currently awaiting scrutiny by the Supreme Court; if the court rejects his measures, he can argue that they represented at least a fillip of attainable accountability, which they do, and that it is not his fault they were bounced.
In modern history, providing convenient excuses for inaction by elected politicians is about 45 per cent of the court’s function. And, at that, maybe it is okay to notice that the court, now crowded with Harper appointees, is as much an audience for Duffy’s antics as the rest of us. On top of all this, the whole mess invited Justin Trudeau, following cues like a good drama teacher, to plunge headlong into the trap of not only defending the Senate, but defending it on the specific grounds that Quebec is beneficially overrepresented therein.
If people are pulling faces at the Senate, that’s a win for the Conservative party. But perhaps more importantly, it’s a boost for the New Democrats, who have a clear “dynamite it” position on the Senate that they have advocated pretty consistently for half a century. Keeping the seat counts of the NDP and the Liberals roughly level with each other is the paramount strategic axiom for the Tories from now until (at least) 2015.
Most Canadians over the age of 40 would rather do almost anything other than watch another attempt at constitutional wrangling … we saw what happened the last couple of times the feds and the provinces tried re-rigging things to their preference.
May 10, 2013
Despite the federal government’s efforts to keep this debate from happening, we apparently are going to be having a big national debate about abortion. (For those following from outside the borders of Former Soviet Canuckistan, Canada doesn’t actually have any abortion law on the books at the moment, and Stephen Harper’s government of “bitter-clinging, right-wing, Bible-thumping, fundamentalist Christian” Conservatives is desperate not to have to bring one in.) Colby Cosh explains why the efforts by some back-bench MPs to use “gendercide” as a way to force the government’s hand won’t work:
Here, then, is my contribution to the big conversation.
(1) “Gendercide” is incoherent religious militancy in cheap drag. (Editors certainly shouldn’t be taking sides by putting it in headlines as if it were an actual thing.)
(2) However you feel about personal eugenics, which is an accurate name for “mothers choosing babies that are likely to be better in some respect they deem relevant”, the Era Of It is arriving now and will not be wished away.
(3) Sex-selective abortion perpetrated for reasons of religious superstition is, upon all evidence, a marginal phenomenon in this country, probably a fading one, and quite likely to be an inherently self-correcting one. It makes a shabby excuse for blowing up the political truce our country clings to when it comes to the topic of abortion. (It seems remotely possible that Stephen Harper has perceived this and concurs with it.)
(4) In particular, no statute is likely to be effective against sex selection by mothers. We had one, you know, and it actually made a hypothetical exception for parents at risk of X-linked gene disease. A Liberal government devoted to “reproductive choice” criminalized sex-selective embryo implantation by means of the Assisted Human Reproduction Act; a Supreme Court found that law offensive to the Constitution; and a Conservative government closed the agency that was supposed to enforce it because it had accomplished the sum total of jack squat ever.
(5) People who wish to police sex-selective abortion had better figure out what exactly kinds they don’t like. And why. And what other reasons for a woman to have an abortion don’t cut their brand of mustard. And whether they really want their wives, girlfriends, daughters or nieces to end up as a future Case 6 running afoul of the law.
(6) Fellow-travellers of Mark Warawa who think he makes an awesome test case for parliamentary purity should consider looking for one that, pardon the metaphor, doesn’t have quite so many oopsies in its DNA.
March 26, 2013
At this point, it’s just a matter of time. In some sense, the sexual revolution is over … and the forces of bourgeois repression have won.
That’s right, I said it: this is a landmark victory for the forces of staid, bourgeois sexual morality. Once gays can marry, they’ll be expected to marry. And to buy sensible, boring cars that are good for car seats. I believe we’re witnessing the high water mark for “People should be able to do whatever they want, and it’s none of my business.” You thought the fifties were conformist? Wait until all those fabulous “confirmed bachelors” and maiden schoolteachers are expected to ditch their cute little one-bedrooms and join the rest of America in whining about crab grass, HOA restrictions, and the outrageous fees that schools want to charge for overnight soccer trips.
I know, it feels like we’re riding an exciting wave away from the moral dark ages and into the bright, judgement free future. But moral history is not a long road down which we’re all marching; it’s more like a track. Maybe you change lanes a bit, but you generally end up back where you started. Sometimes you’re on the licentious, “anything goes” portion near the bleachers, and sometimes you’re on the straight-and-narrow prudish bit in front of the press box. Most of the time you’re in between. But you’re still going in circles. Victorian morality was an overreaction to the rather freewheeling period which proceeded it, which was itself an overreaction to Oliver Cromwell’s puritanism.
Megan McArdle, “Why Gay Marriage Will Win, and Sexual Freedom Will Lose”, The Daily Beast, 2013-03-26
March 7, 2013
Michael Geist explains:
… if someone wants to post a quote from Selley or anything else written by the National Post, they are now presented with pop-up box seeking a licence that starts at $150 for the Internet posting of 100 words with an extra fee of 50 cents for each additional word (the price is cut in half for non-profits).
[. . .]
None of this requires a licence or payment. In fact, the amount of copying is often so insubstantial that a fair dealing analysis is not even needed. Last year, the Federal Court of Canada ruled that several paragraphs from a National Post column by Jonathan Kay posted to an Internet chat site did not constitute copying a substantial part of the work. If there was a fair dealing analysis, there is no doubt that copying a hundred words out of an article would easily meet the fair dealing standard. In fact, the Supreme Court of Canada has indicated that copying full articles in some circumstances may be permitted.
I make no money from my blogging … in fact I pay money to maintain the web site. The idea of spending $150 per quotation from any source is pretty much a guarantee that I won’t be linking to that source very much at all. At about the same time the National Post brought in their pay-to-quote policy, they also launched a reader rewards program. The idea seemed to be that you log in to their site, it tracks everything you read and then you get a pony at the end of the day, or week, or month, or Baktun, or something. Or maybe not … I really didn’t pay too much attention.
March 6, 2013
Colby Cosh: “One sees what fine jokes result when the state tries to make one plus one equal fried chicken”
In Maclean’s, staff optimist and all-around-softy Colby Cosh tries to make lemonade out of the sour Whatcott ruling by the Supreme Court of Canada:
The ruling was appalling in a number of ways, most notably in its dismissal of any possibility of a truth defence against human rights commissions who hunt “hate speech.” The court specifically insists that true statements arranged in certain ways can be officially “hateful,” conceding a total lack of interest in truth and basically handing its banner over to the commissions’ targets. For liberals who share the goals of these commissions, this is a moral disaster that can only multiply Bill Whatcotts ad infinitum. People of the Whatcott type already believe themselves to be in special possession of suppressed facts, and now the court has said explicitly that spreading falsehoods is no part of their offence.
But since we columnists are in the business of telling truth, whatever a court thinks, it ought to be admitted that, dead or alive, free speech in Canada was never in such good shape. The Supreme Court’s decision is an elaborate partial rescue of standing precedent; the constitutionality of hate policing by provincial commissions was established many years ago, and the unpleasant surprise is only that it wasn’t killed on this occasion.
[. . .]
For those of us who make a living in creative or intellectual expression, it is worth something to have the laws limiting it defined as clearly as possible while being compacted into a minimum volume. The Supreme Court has made the rules clearer, and this is not to be sneered at, even if its logic sometimes is — especially since the overall authority of human rights commissions has undergone net diminution in the process. It is just possible the chief justice wasn’t entirely asleep at the switch.
March 5, 2013
Radley Balko interviewed by Vice:
How did 9/11 alter the domestic relationship between the military and police?
It really just accelerated a process that had already been in motion for 20 years. The main effect of 9/11 on domestic policing is the DHS grant program, which writes huge checks to local police departments across the country to purchase machine guns, helicopters, tanks, and armored personnel carriers. The Pentagon had already been giving away the same weapons and equipment for about a decade, but the DHS grants make that program look tiny.
But probably of more concern is the ancillary effect of those grants. DHS grants are lucrative enough that many defense contractors are now turning their attention to police agencies — and some companies have sprung up solely to sell military-grade weaponry to police agencies who get those grants. That means we’re now building a new industry whose sole function is to militarize domestic police departments. Which means it won’t be long before we see pro-militarization lobbying and pressure groups with lots of (taxpayer) money to spend to fight reform. That’s a corner it will be difficult to un-turn. We’re probably there already. Say hello to the police-industrial complex.
Is police reform a battle that will have to be won legally? From the outside looking in, much of this seems to violate The Posse Comitatus Act of 1878. Are there other ways to change these policies? Can you envision a blueprint?
It won’t be won legally. The Supreme Court has been gutting the Fourth Amendment in the name of the drug war since the early 1980s, and I don’t think there’s any reason to think the current Court will change any of that. The Posse Comitatus Act is often misunderstood. Technically, it only prohibits federal marshals (and, arguably, local sheriffs and police chiefs) from enlisting active-duty soldiers for domestic law enforcement. The president or Congress could still pass a law or executive order tomorrow ordering U.S. troops to, say, begin enforcing the drug laws, and it wouldn’t violate the Constitution or the Posse Comitatus Act. The only barrier would be selling the idea to the public.
March 2, 2013
In the Ottawa Citizen, Karen Selick explains why the Supreme Court of Canada’s unanimous decision in the Whatcott case was so surprising:
For 22 years, free-speechers have cherished the hope that another case involving censorship and human rights legislation would come back before Chief Justice McLachlin. That’s because in 1990, before becoming chief justice, she wrote dissenting judgments in two cases, Taylor and Keegstra. Her opinion then was that the censorship sections of the Canadian Human Rights Act (CHRA) and the Criminal Code violated the Charter guarantee of freedom of expression, and that the violation was not justified in our free, democratic society. She therefore voted to strike down the censorship clauses as unconstitutional.
Justice McLachlin was outvoted in both Taylor and Keegstra by the narrowest of margins: 4-3. The majority of the 1990 court found both the CHRA and the Criminal Code provisions constitutional. However, Justice McLachlin penned a long and eloquent paean to freedom of expression, recounting its historical value as “an essential precondition of the search for truth,” a promoter of the “marketplace of ideas” and “an end in itself, a value essential to the sort of society we wish to preserve.”
Free-speechers hoped that, given another opportunity to exert her influence among an entirely different panel of SCC judges (she is the only member of the 1990 court still on the bench), she would be able to sway a majority to her 1990 views.
Instead, she herself has apparently abandoned those views, voting with a unanimous court (6-0) in the Whatcott case to uphold the main censorship clause of the Saskatchewan Human Rights Code.