We don’t have a “radical right-wing Supreme Court,” despite lots of mewing on the left to the contrary. Here are some things that would be at the top of the list for a radical right-wing Court: (1) ban abortion nationwide as a violation of the right to life protected by the due process clause; (2) rule that publicly-provided (but not funded) education is unconstitutional because it inherently involves viewpoint discrimination by the government, or at least require vouchers for those who object to the public school curriculum; (3) overrule an 1898 precedent and completely abolish birthright citizenship; (4) Use the First Amendment as a sword to require “fairness” in the left-dominated media. Not only is the Supreme Court not about to do any of things, I don’t think any of these things would even get one vote on the current Court. Moreover, merely bringing the scope of Congress’s constitutional back to where it was, say, in 1935, which was already much broader than the original meaning of the Commerce power, probably wouldn’t get more than one or two votes. What you are looking at right now is a conservative Court that will only affect society on the margins, not a “radical right-wing” Court.
David Bernstein, “WE DON’T HAVE A ‘RADICAL RIGHT-WING SUPREME COURT'”, Instapundit, 2018-10-09.
October 11, 2018
QotD: The radical, right wing US Supreme Court
October 7, 2018
A measurable positive from the USMCA process
Michael Geist points out that one of the aspects of the son-of-NAFTA deal will be to help Canadians exercise their freedom of speech online by providing a “Safe Harbour” provision similar to the one that US law provides:
Internet free speech is not typically an issue associated with trade agreements, but a somewhat overlooked provision in the newly-minted U.S.-Mexico-Canada Agreement (USMCA) promises to safeguard freedom of expression by encouraging Internet companies to resist pressure to remove content. My Policy Options op-ed notes the USMCA’s Internet safe harbour rule – modelled on U.S. law – remedies a longstanding problem in Canada that left large Internet platforms reluctant to leave third party content such as product reviews, blog posts, and social media commentary online in the face of unsubstantiated complaints.
Once implemented, Internet companies will benefit from assurances they will not face liability for failing to take down third party content or for proactively taking action against content considered harmful or objectionable. While the safe harbour provision does not apply to intellectual property, when combined with the preservation in the deal of the USMCA protects Canada’s notice-and-notice system for copyright, whereby rights holders can file complaints over alleged infringements but there is no takedown procedure for the removal of content. Taken together, the Canadian legal framework will encourage free speech, largely looking to court orders for mandated takedowns of content or good faith efforts by platforms to address harmful content.
The absence of a Canadian safe harbour rule has meant the same companies that require court orders prior to the removal of content for claims originating in the U.S., frequently take down lawful content in Canada based on mere unproven allegations due to fears of legal liability. Further, the absence of safe harbour protections creates a disincentive for both new and established services to use Canada to store data or maintain a local presence.
The Internet safe harbour approach originates from the earliest days of the commercial Internet. In 1996, the United States enacted the Communications Decency Act, legislation designed to address two emerging concerns: the online availability of obscene materials and the liability of Internet services for hosting third party content. The U.S. Supreme Court struck down the obscenity provisions on constitutional grounds, but the safe harbour remained intact and quickly emerged as a cornerstone of U.S. Internet policy.
October 2, 2018
QotD: Legal plunder
Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame and danger that their acts would otherwise involve … But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them and gives it to the other persons to whom it doesn’t belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. Then abolish that law without delay — No legal plunder; this is the principle of justice, peace, order, stability, harmony and logic.
Frédéric Bastiat, The Law, 1850.
September 29, 2018
The Ontario government’s amazingly sensible approach to legal cannabis
Chris Selley expresses what a lot of surprised people must be feeling after Premier Doug Ford’s government introduced startlingly mature and sensible rules for the distribution and sale of cannabis products in the province after the federal government’s legalization is enacted:
The Ontario government tabled its cannabis retail framework in the legislature on Thursday, and it only further repudiates the Frightened Communist model envisioned by the Liberals. The government will sell pot online, as before, and will maintain a monopoly on wholesaling. But the rest will be up to the private sector, under the control of the Alcohol and Gaming Commission. As it stands, there won’t even be a cap on the number of licences; a government official said Thursday they expect 500 to 1,000 applications right off the bat.
In response, OPSEU president Smokey Thomas beamed out a furious press release on behalf of his spurned members — er, sorry, on behalf of Ontario’s “municipalities and communities.”
“Unlimited stores and unlimited places to smoke will cause unlimited problems,” Thomas averred. “It’s outrageous. We’re going to become the wild west of cannabis and Sheriff Doug Ford is going to skip town, leaving communities and municipalities holding the dime bag.”
Thomas predicted Premier Ford would hand out retail pot licences to “Conservative insiders” and “corporate donors.” (Corporate donations are illegal.) He accused Ford of funnelling what by rights should be public profits into “private pockets.”
“If Ontario’s finances are truly as bad as Ford wants us to believe, why is he giving away the millions, maybe even billions, in revenue we’d get if cannabis sales were public?” he asked.
Does the government make money on cigarettes? On alcohol sold in bars and restaurants, at privately run LCBO agency stores and, of late, in supermarkets? Of course it does. Scads of it.
So it’s all quite ridiculous, as OPSEU press releases tend to be. But Thomas is not wrong when he argues the new approach is remarkably permissive. Perhaps most notably, whereas the Liberals’ proposed rules banned using marijuana in public, the PCs’ would allow you to smoke or vape it anywhere you can tobacco (though not in cars or boats). But it’s far less permissive than one might expect in other ways as well.
September 28, 2018
Ontario government lays out the path to a fully legal cannabis market
There is going to be a gap between the federal legalization date next month and the beginning of legal sales from brick-and-mortar stores in Ontario in April:
With the legalization of recreational marijuana around the corner, the Ontario government has finally answered some of the most burning questions about where residents can officially buy and smoke pot.
A day before new pot legislation is set to be tabled, The PC government announced earlier today that starting Oct. 17, weed will be up for sale at private retail pot shops by April next year.
Doing away with the cap on the number of licensed cannabis stores in the province, the government is officially taking a free-market approach to what would previously have been an LCBO monopoly under the Liberal provincial government.
[…]
Until April, cannabis will be sold exclusively online, distributed through federal wholesalers and the government’s Ontario Cannabis Store.
The Alcohol and Gaming Commission of Ontario will be in charge of regulating the marketplace, including granting and revoking pot shop licenses.
Store owners will need to apply for a retail-operator license as well as a retail store authorization for every location they open, which will be limited to a set number, to prevent possible over-expansion, Walmart-style.
There will also be restrictions for federal cannabis growers, who will only be able to hold “a single retail license at a single production site located in Ontario,” said Ontario Attorney General Caroline Mulroney.
All currently existing pot stores who continuing to operate illegally after Oct. 17 will lose their right to ever apply for a license in the future, as will stores who have a history of dealing with organized crime and providing pot to minors.
Ontario’s new government agency, the Ontario Cannabis Retail Corp., will be in charge of handling online cannabis sales as well as wholesaling to private stores, who will potentially run the gamut from local pot shops to huge cannabis corporations.
There will be a minimum distance requirement between pot shops and schools set up in the future.
Any Ontario municipalities who don’t want pot shops on their turf — like Norfolk County in Southwestern Ontario, the first to vote no on cannabis storefronts — will have to opt out officially by Jan. 22, 2019, which they were previously barred from doing.
September 27, 2018
France moves toward the Soviet system of psychological “treatment” for dissidents
You may not agree with much that prominent French nationalist politician Marine Le Pen stands for, but the recent court order that she must undergo a psychological evaluation as part of the investigation of a “hate crime” should worry everyone. Jacob Sullum writes:
Marine Le Pen speaking in Lille during the 2017 French presidential election
Photo by Jérémy-Günther-Heinz Jähnick via Wikimedia Commons
France ranked 12 notches above the United States in this year’s World Press Freedom Index, produced by Reporters Without Borders. But such ratings can be misleading, as illustrated by the prosecution of Marine Le Pen, head of the right-wing National Rally party (formerly the National Front), for posting images of ISIS atrocities on Twitter. Last week Le Pen revealed that she had been ordered to undergo a psychiatric examination as part of the investigation into her speech crime, which added another layer of Soviet-style thought control to the story.
It is inconceivable that an American politician, no matter how extreme his views, would be prosecuted for doing what Le Pen did, because a law like the one she is charged with violating would be clearly inconsistent with the First Amendment. That law, Article 227-24 of the French Criminal Code, makes it a crime, punishable by a fine of €75,000 (about $88,000) and up to three years in prison, to distribute “a message bearing a pornographic or violent character or a character seriously violating human dignity…where the message may be seen or perceived by a minor.” Le Pen allegedly ran afoul of that prohibition in 2015 by posting three pictures of men murdered by ISIS—one beheaded, one burned alive, and one run over by a tank—in response to a Twitter user who likened her party to the terrorist organization. “Daesh [the Arabic acronym for ISIS] is this!” she tweeted.
This case vividly illustrates why Article 227-24 would never pass constitutional muster in the United States. Le Pen’s tweet is indisputably political speech, sitting at the core of the expression protected by the First Amendment. The terms of Article 227-24 (especially the phrase “seriously violating human dignity”) are broad and vague, encouraging self-censorship and inviting politically motivated prosecution of people who irk the powers that be. Le Pen, who unsuccessfully ran against Emmanuel Macron in a presidential runoff last year, was stripped of her parliamentary immunity six months later, leaving her open to prosecution.
September 26, 2018
QotD: Offensive and defensive use of the law
As long as it is admitted that the law may be diverted from its true purpose — that it may violate property instead of protecting it — then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder.
Frédéric Bastiat, The Law, 1850.
September 20, 2018
Mind Your Business Ep. 3: Public Safety from Private Security
Foundation for Economic Education
Published on 18 Sep 2018In Detroit, dependence on law enforcement has proved insufficient to keep people safe. Enter Dale Brown, a threat management professional who specializes in stopping violence and empowering individuals to protect themselves and their loved ones.
September 13, 2018
The lasting impact of Haida Nation vs. British Columbia
I was not aware that a single case had such a major influence on relations between the federal and provincial governments on the one hand and First Nations groups on the other. Barbara Kay explains just how we got to the point of overturning decades of settled legal practice in the wake of the Haida Nation decision:
In his newly published book, There is no Difference: An Argument for the Abolition of the Indian Reserve System, lawyer Peter Best devotes a chapter to unpacking the consequences of Haida Nation. It makes for fascinating reading.
Before this decision, Best says, it was understood “that aboriginal claims and rights over the land were more than ‘reconciled.’ In fact, Canadians, Indians and non-Indians alike, thought they were, especially in treaty areas, extinguished, plain and simple,” apart from the right to hunt, fish and trap on unoccupied wilderness Crown land, and even then with Crown sovereignty. Haida Nation – and cases decided since then – reversed the meaning of the treaties.
The SCC read in an intent “merely to ‘reconcile’ Indians’ prior sovereign occupancy of the land with the new sovereignty of the Crown.” That is, they were “instruments of power and land-sharing, not instruments of rights extinguishment.”
So it seems we are now in a never-ending power-sharing arrangement, “requiring the constant, expensive, uncertain fine-tuning and adjustment from time to never-ending time of the granted Crown rights with the retained sovereign Indian rights.” This new jurisprudence, Best says, decrees a devolution of Crown sovereignty to Indians – a handing back of previously surrendered power, effectively turning Indian bands into a third order of government.
The key words, “to consult and where appropriate, accommodate the Aboriginal interests…” give Indian bands across the country power over all kinds of economic development – mines, forestry, wind power installations, roads, and of course pipelines.
Following Haida Nation, any band that asserts a proposed off-reserve project affects an Indian interest, actual or projected, the “consultation and accommodation if necessary” process is automatically launched. No evidence has to be produced, no threshold of importance to be met. (“Sacred ground” is always effective – and what ground is not sacred to aboriginals who live on it?).
In most negotiations with conflicting interests, each party has a motive to see the deal done. But “consultation” is not negotiation, and aboriginals often have no particular reason to settle. Best notes that during consultations, there’s a great deal of travel, expense account living, important meetings and pleasant busywork, with most politicians lacking the courage to utter the words “not appropriate” with regard to further “consultation.”
There is also no incentive for aboriginals to settle for anything less than exactly what they want. The Lax Kw’alaams of B.C. turned down a billion dollars in exchange for their support of an industrial project. There was no downside for them. They had the power and knew it. No matter how long they held out, their transfer payments flowed in as usual, and they took no economic risks if the project failed. If one side has nothing to lose and the other side has everything to lose, Best says, “you don’t have negotiations – you have a shakedown.”
September 10, 2018
QotD: Perversion of the law
The law perverted! The law — and, in its wake, all the collective forces of the nation — the law, I say, not only diverted from its proper direction, but made to pursue one entirely contrary! The law become the tool of every kind of avarice, instead of being its check! The law guilty of that very iniquity which it was its mission to punish! Truly, this is a serious fact, if it exists, and one to which I feel bound to call the attention of my fellow citizens.
Frédéric Bastiat, The Law, 1850.
September 8, 2018
A key statistic in the debate over gun violence in Toronto … turns out to be an invention
Matt Gurney on an important claim in the controversy about guns and crime in Toronto — that will probably not get anything like as much coverage because it doesn’t support the prohibitionists’ narrative:
Earlier this summer — a summer that has seen Toronto wracked by gun violence — a report came out that suggested lawful Canadian gun owners were to blame for at least some of the violence. The article was originally published by the Canadian Press, and was widely republished elsewhere, including at the CBC, the National Post, a dozen local newspapers, CTV News, and, yes, here at Global News. Since then, it has been widely cited in other news stories covering the issue, including in The Toronto Star and The Globe and Mail. The report was everywhere.
Here’s the problem. Newly released stats show clearly that it was wrong.
The article was based around an interview with a Toronto Police Services detective, Rob Di Danieli. Det. Di Danieli told the Canadian Press that Canadians who were lawfully licensed to purchase and possess firearms were increasingly a public safety issue. “They go get their licence for the purpose of becoming a firearms trafficker,” Di Danieli told the CP. “A lot of people are so ready to blame the big bad Americans, but we had our own little problem here.”
The CP article hangs on this revelation from the detective. It notes, in various places, “The number of guns obtained legally in Canada but are then sold to people who use them for criminal purposes has surged dramatically in recent years compared to firearms smuggled from the United States, Toronto police say,” and, “In recent years [investigators say they] have noticed a stark shift in where guns used to commit crimes are coming from,” and, “Legal Canadian gun owners are selling their weapons illegally, Di Danieli said, noting that police have seen more than 40 such cases in recent years.”
[…]
At the time the CP story first ran, there were no publicly available stats to support (or contradict) what di Danieli had told them. But now, those numbers are publicly available, thanks to Dennis R. Young, an Alberta-based researcher who filed a Freedom of Information request with the Toronto police and published their reply on his website. And these stats tell a very different story.
September 4, 2018
QotD: Law and morality
In the first place, it would efface from everybody’s conscience the distinction between justice and injustice. No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law — two evils of equal magnitude, between which it would be difficult to choose.
Frédéric Bastiat, The Law, 1850.
September 2, 2018
Amtrak service and the “takings” clause
Back in August, Fred Frailey reluctantly came to the conclusion that at some point American freight railways are going to have to challenge in court Amtrak’s legislated ability to pre-empt freight traffic on their networks:
Amtrak’s
Eastbound Empire Builder crossing Two Medicine Trestle at East Glacier MT on 20 July 2011.
Photo by Steve Wilson via Wikimedia Commons.
We all know about “taking the Fifth.” It’s our right under the Fifth Amendment to the U.S. Constitution not to be compelled to testify against ourselves. In other words, a court cannot force us to admit to driving 60 mph in a 45-mph zone (or something worse). That amendment has another, less-well-known clause, which says government cannot take away our property without just compensation. Lawyers know this as the “Takings Clause.” The Fifth came to mind the other day as I rode Amtrak’s Empire Builder from Seattle to Chicago. I’ll get to my point, but first the experience.
[…]
All of this did terrible things to our schedule-keeping. By the third morning, as the train approached Devils Lake, N.D., we were more than eight hours late (the next day’s eastbound Builder was even later). But imagine what the Empire Builder does to BNSF’s freights every day. The Amtrak Improvement Act of 1973 reads: “Except in an emergency, intercity passenger trains operated by or on behalf of [Amtrak] shall be accorded preference over freight trains in the use of any given line of track, junction, or crossing.”
BNSF appears totally committed to obedience of this law but doing so devours the capacity of this route. It’s not just that freights give way; whizzing along at a 79 mph versus 55 or 60 for the freights, the Empire Builder eats capacity as if it were two or three freights, Six high-priority Z trains prowl the northern Transcon every day, and I don’t think a single one of them that I observed was moving as we went by. One Z train was sandwiched between two stopped manifest trains, all making way for our Builder.
Obviously, Amtrak pays BNSF for the right to run trains over the freight railroad. But whatever it pays is but a fraction of the cost in delays to its own trains incurred by BNSF. Were the northern Transcon double-tracked all the way, these delays would obviously be minimized. But at $3 million or more a mile, double tracking consumes capital like a dry sponge, and it’s not Amtrak’s capital, either.
So now to my point: Isn’t it fair to say that Amtrak, which the U.S. Supreme Court in 2015 decreed to be an arm of government, is confiscating the property (track capacity) of host railroads? And if it is, shouldn’t the freight railroads be fairly compensated for the delays to their freights caused by the loss of this capacity? Try as I might to say otherwise, I am forced to answer “yes” to both questions.
September 1, 2018
The legal tangle around the Trans-Mountain pipeline approval process
Jay Currie suspects the process has been intentionally complicated to the point that there may not be a way out for this government:
What the Court essentially asked was, “Did the Federal Government consult enough?” and then concluded, “No, not enough.”
How much is “enough”? That is a question which this decision really does not answer. And I suspect it does not answer it because there is actually no answer which is even close to true.
In a normal process a reasonable level of public consultation would be reached when the public has been given an opportunity to comment on the matter at hand. Which is a bit vague but there is case law which fleshes out what such an opportunity might look like.
However, once environmentalists and First Nations are engaged it is not at all obvious that merely having the opportunity to comment is sufficient. Unlike a rezoning application, an application to build a pipeline (or, realistically, virtually any other large undertaking) creates the opportunity for First Nations to talk about everything from ancient hunting rights, to sacred grounds, to former village sites, to disruptions to present First Nation culture and so on. Having the environmentalists involved ensures that the relatively easy solution of simply paying the First Nations’ people for their consent, is off the table. That solution will be denounced by the enviros as cultural genocide and worse.
All of which creates, and might arguably have been intended to create, a Gordian knot when it comes to considering major projects. Consultation becomes an endless task and one which has no defined parameters. The decision today indicates that an extensive consultation process is not enough but it does not indicate what might be enough.
Delightfully, the shareholders of Kinder Morgan – which owns TransMountain – voted today to sell the project to Canada’s feckless Federal Government for several billion dollars.
I suspect the CEO danced a little jig relieved that he no longer had to guess at how far consultations have to go. But Canada is stuck with a completely dysfunctional system which is being exploited by environmentalists and First Nations to prevent infrastructure from being built. That will have to be fixed.
August 25, 2018
QotD: India’s caste system
… Gandhi, born the son of the Prime Minister of a tiny Indian principality and received as an attorney at the bar of the Middle Temple in London, [began] his climb to greatness as a member of the small Indian community in, precisely, South Africa. Natal, then a separate colony, wanted to limit Indian immigration and, as part of the government program, ordered Indians to carry identity papers (an action not without similarities to measures under consideration in the U.S. today to control illegal immigration). The film’s lengthy opening sequences are devoted to Gandhi’s leadership in the fight against Indians carrying their identity papers (burning their registration cards), with for good measure Gandhi being expelled from the first-class section of a railway train, and Gandhi being asked by whites to step off the sidewalk. This inspired young Indian leader calls, in the film, for interracial harmony, for people to “live together.”
Now the time is 1893, and Gandhi is a “caste” Hindu, and from one of the higher castes. Although, later, he was to call for improving the lot of India’s Untouchables [Dalits], he was not to have any serious misgivings about the fundamentals of the caste system for about another thirty years, and even then his doubts, to my way of thinking, were rather minor. In the India in which Gandhi grew up, and had only recently left, some castes could enter the courtyards of certain Hindu temples, while others could not. Some castes were forbidden to use the village well. Others were compelled to live outside the village, still others to leave the road at the approach of a person of higher caste and perpetually to call out, giving warning, so that no one would be polluted by their proximity. The endless intricacies of Hindu caste by-laws varied somewhat region by region, but in Madras, where most South African Indians were from, while a Nayar could pollute a man of higher caste only by touching him, Kammalans polluted at a distance of 24 feet, toddy drawers at 36 feet, Pulayans and Cherumans at 48 feet, and beef-eating Paraiyans at 64 feet. All castes and the thousands of sub-castes were forbidden, needless to say, to marry, eat, or engage in social activity with any but members of their own group. In Gandhi’s native Gujarat a caste Hindu who had been polluted by touch had to perform extensive ritual ablutions or purify himself by drinking a holy beverage composed of milk, whey, and (what else?) cow dung.
Low-caste Hindus, in short, suffered humiliations in their native India compared to which the carrying of identity cards in South Africa was almost trivial. In fact, Gandhi, to his credit, was to campaign strenuously in his later life for the reduction of caste barriers in India — a campaign almost invisible in the movie, of course, conveyed in only two glancing references, leaving the audience with the officially sponsored if historically astonishing notion that racism was introduced into India by the British. To present the Gandhi of 1893, a conventional caste Hindu, fresh from caste-ridden India where a Paraiyan could pollute at 64 feet, as the champion of interracial equalitariansim is one of the most brazen hypocrisies I have ever encountered in a serious movie.
Richard Grenier, “The Gandhi Nobody Knows”, Commentary, 1983-03-01.
