The Greek term for the structure of a polis government was its politeia (πολιτεία), which would could mean the government (the way we would say “the state”) or the structure of that government (its “constitution”) or the rights and conditions of the citizenry (in the sense of “citizenship”); as with the many meanings of polis, the many meanings of politeia all shade into each other and are understood as blended.
Because this week we’re interested in the politeia of a polis, that’s going to mean we’re mostly focused on the politai, the citizens, who we discussed last time as one of the key building blocks of the polis. Now, as we noted last time, it’s important to keep in mind that the politai are not all of the people in the polis or indeed even very many of them: women, children, resident foreigners, native members of non-citizen free underclasses and slaves were all set outside the politai and often had no means of gaining entrance. We’re going to talk about all of those folks in more depth in the third part, where we’ll look at the status layer-cake of polis society. But for now I just want to note that all of those people are there, even if they won’t figure very prominently in this discussion of the structures of polis government.
Now we’ll explore this question of how a polis was governed: first laying out the standard elements of a polis constitution, which as we’ll discuss were surprisingly similar from one polis to the next. Then we’ll deal with variations in how those elements are structured, which the Greeks understood to define the differences in the three kinds of constitution that a polis might normally have: oligarchy, democracy and tyranny. Then […] we’ll look at what sort of magistrates a polis might have and what their jobs might be as well as the structure of the legal system a polis might have.
THis is going to mean that we’re discussing the “constitutions” of poleis, but I want to be really clear here at the start that these are almost never written constitutions. So when I say “constitution”, understand that we mean this in the broad sense of “the actual makeup of the state’s institutions” rather than in the narrow sense of “a formal set of instructions for the running of the state”. Some poleis did actually have the latter (the oldest we have that I know of is a constitution established by Ptolemy I Soter for Kyrene in 322; the fact that this is a constitution dictated by a king to a subordinated polis should signal how odd it is), but they seem to have been very rare.
Bret Devereaux, “Collections: How to Polis, 101, Part IIa: Politeia in the Polis”, A Collection of Unmitigated Pedantry, 2023-03-17.
April 5, 2026
QotD: The structure of a typical polis government
March 25, 2026
UNDRIP’s malign power in Canada
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has been adopted into law by the provincial government in British Columbia and the federal government. In BC, voters were assured that this was a purely symbolic act to advance reconciliation with First Nations groups in the province. But that was deliberate misdirection and lies:
During the debate on DRIPA [BC’s Declaration on the Rights of Indigenous Peoples Act] in the legislature in late 2019, government ministers of the day waxed lyrical that DRIPA and UNDRIP created no new rights, had no legal force, did not apply to private land, and did not provide a veto. Those assurances were used to justify passing DRIPA, which resulted in the B.C. Opposition unanimously supporting the legislation. It turns out that the government’s assessment and promises were neither correct in substance nor valid legally.
Much has been written lately about DRIPA, some of it wrong. Prior to the B.C. Court of Appeal decision in Gitxaala, some DRIPA defenders insisted it was merely a “process” piece of legislation that bound the government to an arguably undemocratic joint government and Indigenous leadership arrangement, set out in section 3, to evaluate every B.C. statute for conformity with the 46 Articles of UNDRIP and then amend statutes as deemed necessary to create that conformity.
DRIPA itself, though arguably highly undemocratic and perhaps unconstitutional, is not the real problem in this province. The real problem is that DRIPA has been effectively employed as a “smokescreen” by the B.C. NDP and certain of its allies, while the government, secretly and with no explicit public mandate, imposes the Articles of UNDRIP throughout B.C. as a fundamental matter of policy, as though they have the force of law.
Let’s be clear, this is a devious political manoeuvre, much of which is not underpinned in law by DRIPA or, more importantly, by Supreme Court of Canada jurisprudence at all.
Notwithstanding statements made to the legislature in 2019 to get DRIPA passed, the NDP government immediately chose to implement a policy approach to UNDRIP throughout B.C. under which UNDRIP Articles would be applied by the government and the public service as though they were, in fact, the law in this province, notwithstanding the fact that they are inconsistent in many respects with Canadian constitutional law.
In the wake of recent court decisions, there is no indication that the government’s policy approach has changed or that the Premier is thinking about backing away from it, even though there is now much greater public scrutiny of what the government has really been up to since 2019.
The Eby government claims to be upset that UNDRIP is now being applied by the courts as the law in B.C., which it knows will create utter chaos. What has upset it more, however, is that the courts have usurped the NDP government’s desire to quietly and secretly implement UNDRIP everywhere in the province as a matter of policy, a policy that they would like to be viewed as law but without being legally enforceable by judges.
This amounts to a policy of subterfuge by a government that has shown an inclination towards deception on matters concerning First Nations. It appears that a law is not a law unless the B.C. government says it is a law, but some laws, like DRIPA, can be used as a false “front” to allow the covert implementation of a complex UN-based policy that is clearly unfit for the Canadian context, with no one being the wiser.
In the National Post, Warren Mirko explains the murky theory that allows “indigenous ways of knowing” to be taken more seriously than science, history, and legal procedure:
Canada is rapidly abandoning a principle that has shaped western democracies since the Enlightenment: the idea that no person or group has privileged access to sacred or divine knowledge unavailable to everyone else.
Now, this principle is being threatened by Canada’s increasing embrace of “Indigenous Knowledge” — whereby knowledge is treated as collectively owned and restricted by ancestry rather than something open to examination and shared across society.
The governments of British Columbia and Canada — both of which have formally adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — endorse “Indigenous Knowledge” as inherited, rooted in ancestral relationships to the land, and encompassing spiritual, cultural and metaphysical dimensions passed down through generations.
Remarkably, the defining quality to possess this knowledge is not study, training, time spent on the land, or lived experience by any individual alive today. Instead, it’s lineage itself.
That’s a paradigm shift. When knowledge is said to be possessed by birth rather than learned, its universality is replaced with mysticism and its value diminished.
This comes with real-world consequences: ancestry-based considerations are reshaping how public land and resources are managed on Canadians’ behalf.
In British Columbia, newly proposed changes to hunting and wildlife regulations are described as being informed by “the best available science and Indigenous Knowledge“. In practice, this means “Indigenous Knowledge” is being used to design a regulatory regime that falls almost entirely on non-Indigenous users. That’s because Indigenous harvesting rights are recognized under Section 35 of the Constitution, not bound by the same hunting seasons, bag limits, gear restrictions, or limited-entry systems that apply to the broader public.
The growing influence of this genetically transmitted, ancestry-qualified knowledge extends to matters of public safety and economic security, like nuclear regulation: “Indigenous ways of knowing and the Indigenous cultural context enhance the Canadian Nuclear Safety Commission’s understanding of the potential impacts of nuclear projects and strengthen the rigour of project reviews and regulatory oversight”, says the government of Canada website.
Governments championing the principles of UNDRIP insist that “Indigenous Knowledge” can be combined with “Western” science to produce better public policy. But this is a contradiction. Knowledge cannot at once be exclusive and universal.
March 13, 2026
Enacting the original proposed 12th Amendment
At Astral Codex Ten, guest writer David Speiser discusses the two “extra” proposed amendments that didn’t make it into the Bill of Rights, but crucially, didn’t have an expiration date. The 11th did eventually make its way into the Constitution as the 27th Amendment in 1992, leaving only the 12th original still in limbo. The proposed 12th was a doozy:
Here is the text of the Congressional Apportionment Amendment, the sole unratified amendment from the Bill of Rights:
After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
In other words, there will be one Representative per X people, depending on the size of the US. Once the US is big enough, it will top out at one Representative per 50,000 citizens.
(if you’ve noticed something off about this description, good work — we’ll cover it in the section “A Troublesome Typo”, near the end)
The US is far bigger than in the Framers’ time, so it’s the 50,000 number that would apply in the present day. This would increase the size of the House of Representatives from 435 reps to 6,6412. Wyoming would have 12 seats; California would have 791. Here’s a map:
This would give the U.S. the largest legislature in the world, topping the 2,904-member National People’s Congress of China. It would land us right about the middle of the list of citizens per representative, at #104, right between Hungary and Qatar (we currently sit at #3, right between Afghanistan and Pakistan).
Would this solve the issues that make Congress so hated? It would be a step in the right direction. Our various think tanks identified three primary reasons behind the estrangement of Congress and citizens: gerrymandering, national partisan polarization, and the influence of large donors. This fixes, or at least ameliorates, all of them.
Gerrymandering: Gerrymandering many small districts is a harder problem than gerrymandering a few big ones. Durable gerrymandering requires drawing districts with the exact right combination of cities and rural areas, but there are only a limited number of each per state. With too many districts, achievable margins decrease and the gerrymander is more likely to fail.
We can see this with state legislatures vs. congressional delegations. A dominant party has equal incentive to gerrymander each, but most states have more legislature seats than Congressional ones, and so the legislatures end up less gerrymandered. Here are some real numbers from last election cycle1:
So for example, in Republican-dominated North Carolina, 50.9% of people voted Trump, 60% of state senate seats are held by Republicans, and 71.4% of their House seats belong to Republicans. The state senate (50 seats) is only half as gerrymandered as the House delegation (14 seats).
In many states, the new CAA-compliant delegation would be about the same size as the state legislature, and so could also be expected to halve gerrymandering.
As a bonus, the Electoral College bias towards small states would be essentially solved. Currently, a Wyomingite’s presidential vote controls three times as many electoral votes as a Californian’s. Under the CAA, both states would be about equal.
Money: This one is intuitive. If you can effectively buy 1/435 elections, you’ve bought 0.23% of Congress. If the same money only buys you 0.02% of Congress, you’re less incentivized to try to buy House elections and more incentivized to try to buy Senate seats or just to gain influence within a given political party. Money in politics is still a thing, but it becomes much harder to coordinate among people. This makes it easier for somebody to run for Congress without having to fundraise millions of dollars. Because it’s less worth it to spend so much money on any one seat, elections to the House become cheaper2.
Polarization: Some of the think tanks that want to increase the size of Congress by a few hundred members rather than a few thousand claim that this increase will fix political polarization by making representatives more answerable to their constituents who tend to care more about local issues than national ones.
I’m more skeptical of this claim, mainly because it seems that all politics is national politics now. There’s one newspaper and three websites and all they care about is national politics. My Congressional representative ran for office touting her background in energy conservation and water management, arguing that in a drying state and a warming climate we really need somebody in Congress who knows water problems inside and out. Now that she’s actually in Congress, it seems that her main job is calling Donald Trump a pedophile3. The incentives here are to get noticed by the press and to go viral talking about how evil the other side is, so that people who are angry at the evil other side will give you money and you can win your next election.
But maybe Big Congress can solve that. Maybe in a district of less than 50,000 there will be less incentive to go viral and more incentive to connect with your constituents. At the very least, it seems that people trust their state representatives more. And when my state representative and my state Senator tell me about the good work that they’ve done and ask for me to vote for them again, they point to legislation that they’ve passed, not clips of them calling their opponents pedophiles.
- In case this smacks of cherry-picking, here is a breakdown of the “error” in every state’s Congressional delegation, state house delegation, and state senate delegation. “Error” here is defined as the difference between the representation of each state’s delegation and the percentage of that state that voted for Trump over Harris (or vice versa). In only two states, Florida and Virginia, is the error greatest in the largest body, and both of those states would have Congressional delegations larger than that largest body. In the case of Florida, their delegation would be nearly quadruple the size of their state house.
- There could also be an effect from the structure of the TV market. Stations sell ads by region, and each existing media region is larger than the new Congressional districts. So absent a change in market structure, a candidate who wanted to purchase TV advertising couldn’t target their own district easily; they would have to overpay to target a much larger region.
- And just to harp on this more, we just blew by the Colorado River Compact agreement deadline and now the federal government is going to start mandating cuts; everybody’s going to sue everybody else. Lake Powell is quite possibly going to dead pool this year, and as far as I can find the congressperson who ran on water issues is saying nothing about it.
March 11, 2026
The Supreme Court of Canada in Santa Claus mode (even if they no longer use those robes)
In a pretty conclusive 8-1 decision, the Supreme Court of Canada seems to have overturned not only the Quebec childcare entitlement at issue in this case, but the notion of citizenship in a much wider sense:
The SCC recently abandoned their traditional red robes for black robes more similar to those of the US Supreme Court. This is a case where the older robes would be more appropriate for other reasons.
On Friday, the Supreme Court of Canada delivered its latest stupefying ruling. According to an 8–1 majority in the case of Quebec (Attorney General) v. Kanyinda, the Charter requires the Quebec government to extend subsidized daycare benefits to refugee claimants — asylum seekers who have not yet proven the legitimacy of their claim to refugee status. Founded on a prevalent but contentious reading of constitutional equality rights, the court’s reasoning has far-reaching potential to destabilize parts of the nation’s immigration and social welfare systems.
Until last week, Quebec law granted daycare subsidies to certain categories of parents, including Canadian citizens, permanent residents, and those with approved refugee status. When Bijou Cibuabua Kanyinda, the plaintiff in this case, arrived in the province and sought asylum in 2018, she fell into none of those categories. Aided by cause lawyers, and a coterie of social justice interveners (third party interest groups who submit arguments to the court), Kanyinda argued that the exclusion of refugee claimants from this welfare scheme amounted to unconstitutional discrimination.
Remarkably, the majority of the Supreme Court not only agreed with Kanyinda that the Quebec daycare scheme violated Section 15(1) of the Charter — which provides for “the right to the equal protection and benefit of the law without discrimination” — but bypassed the Quebec legislature by “reading in” a remedy directly into the law. In other words, the court rewrote the statute to immediately grant subsidies to “all parents residing in Quebec who are refugee claimants”.
More troubling than the outcome itself, however, will be the judicial reasoning that rationalized it. Writing for the majority, Justice Andromache Karakatsanis held that the Quebec scheme created a distinction “on the basis of sex”, a proscribed ground of discrimination under Section 15. But rather than fostering a distinction between men and women, Justice Karakatsanis asserted that the scheme discriminated between “men and women refugee claimants” — even though neither group was eligible for benefits at all. Because Quebec’s exclusion of refugee claimants worsened the economic disadvantage of the female claimants, she concluded, it constituted discrimination that violated Section 15.
The court’s reasoning is convoluted, to be sure. Readers may be forgiven for struggling to understand how a ruling that extends benefits to “refugee claimants” can follow from a supposed distinction on the basis of “sex”. In fact, the judgment exposes the incoherence into which the Supreme Court’s equality rights jurisprudence has fallen.
March 6, 2026
Congress shrugs responsibility for declarations of war, as Trump expected
As many have noted, the President of the United States does not have the constitutional power to declare war, as that is explicitly assigned to the rights of Congress. But in this, as in many other areas, Congress is unlikely to interfere once a President has set the military machine in motion. It is convenient for both the sitting President and for the individual members of Congress, who can posture and speechify against or in favour, but won’t actually be held responsible by the voters regardless of the war’s outcome. President Trump’s use of trade war tactics against allies and enemies alike is also an area where Congress is apparently willing to turn a blind eye:
US military bases in Spain (Map from sutori.com)
No Spain, no gain? It was probably inevitable that President Donald Trump’s trade war would eventually get mixed up in his actual war.
Earlier this week, Spanish officials said they would prohibit American forces from using joint bases for war operations, unless those activities were covered by the United Nations Charter. Spanish Prime Minister Pedro Sánchez said his country would not “be complicit in something that is bad for the world”, the Associated Press reports.
On Tuesday, Trump declared that he intended to “cut off all trade with Spain”.
You might wonder: What legal authority does Trump have to unilaterally impose these sorts of revenge tariffs? After all, the Supreme Court ruled not that long ago that the authority Trump had been using to unilaterally impose tariffs based on his whims was unconstitutional. You might as well ask: On what legal authority did Trump launch a war against Iran? In theory, under the Constitution, Congress is supposed to authorize both tariffs and wars. In practice, they, uh, don’t.
Trump just does things, and the annoying constitutional worrywarts can figure it out later. (I say this as an annoying constitutional worrywart.)
In any case, yesterday, the Trump administration announced that Spain had changed its tune. “The U.S. military is coordinating with their counterparts in Spain”, White House Press press secretary Karoline Leavitt said. The implication was that the tariff threats had worked.
Spain, however, said otherwise. “I can refute (the White House spokesperson)”, Spanish Foreign Minister José Manuel Albares said. “The position of the Spanish government regarding the war in the Middle East, the bombing of Iran and the use of our bases has not changed one iota.” Maybe those tariff threats aren’t as effective as Trump thinks?
In a speech, Sánchez warned that the war could spin out of control. “Nobody knows for sure what will happen now”, he said. “Even the objectives of those who launched the first attack are unclear. But we must be prepared, as the proponents say, for the possibility that this will be a long war, with numerous casualties and, therefore, with serious economic consequences on a global scale.”
Sánchez also implicitly admonished Trump for escalating the war: “You can’t respond to one illegality with another because that’s how humanity’s great disasters begin”.
I will just note that in the Star Wars prequels, the fall of the Republic, and the descent into darkness and imperial rule, began with a planetary blockade and a trade war. At the time, people said it was wonky and boring. But here we are.
Where is Congress? The Constitution was built around the idea that each branch would fight to preserve its own powers, and this would create a system of checks and balances. But in Trump’s second term, Republicans in the legislature have been actively fighting to not preserve their power.
Yesterday, in a 47–53 vote, Senate Republicans voted against a resolution that would have required Trump to ask Congress to sign off on any further military aggression in Iran. Sen. Rand Paul (R–Ky.) voted with Democrats in favor of the measure; Sen. John Fetterman (D–Pa.) joined Republicans to vote against it.
The measure was mostly symbolic. Even a successful vote would have been subject to a House vote and a presidential veto. And the position of both the White House and the GOP Speaker of the House is that this whole situation in which America is spending billions of dollars dropping thousands and thousands of bombs on military and political targets in a foreign country is not, in fact, a war. Nothing to see here. Everyone in Congress can go home and crack open a beer.
March 5, 2026
“[I]nternational law is not law; it is a set of rules and claims that pretends to be law”
Lorenzo Warby discusses the charming illusion that “international law” is a real thing and must be treated as a real thing:
In domestic (“municipal”) law, questions of illegality arise. They arise because states have laws. They have laws because their laws come with remedies — consequences for breaking the law.
So, it is a genuine question whether President Trump is exceeding his constitutional authority in his attack on Iran. But that is a genuine question because the US has a Constitution that matters. The US is a rule-of-law state, no matter how much other common law jurisdictions may point and laugh at how politicised US law is.
Nimitz-class aircraft carrier USS Abraham Lincoln (CVN 72), Arleigh Burke-class guided-missile destroyers USS Michael Murphy (DDG 112) and USS Frank E. Petersen Jr. (DDG 121), Henry J. Kaiser-class fleet replenishment oiler USNS Henry J. Kaiser (T-AO-187), Lewis and Clark-class dry cargo ship USNS Carl Brashear (T-AKE 7) and U.S. Coast Guard Sentinel-class fast-response cutters USCG Robert Goldman (WPC-1142) and USCGC Clarence Sutphin. Jr. (WPC-1147) sail in formation in the Arabian Sea, Feb. 6, 2026. The Abraham Lincoln Carrier Strike Group is deployed to the U.S. 5th Fleet area of operations to support maritime security and stability in the Middle East.
U.S. Navy photo by Mass Communication Specialist 1st Class Jesse Monford via Wikimedia Commons.In terms of the international order, however, there is no such thing as an illegal war, because (public) international law is not law. It is a set of rules and claims that pretends to be law. It only pretends to be law as it has no remedies — apart from declarative statements, which are not enough to make it law. (Private international law does have enforceable and enforced remedies, so is law.)
One of the consequences of this is that (public) international law, as an academic discipline, has no substantive reality-tests. There are no decisions by judges that are enforceable and enforced. This has led to academic international law being the vector by which the toxic ideas of the Critical Theory magisterium, that increasingly dominates Anglo-American universities, have infected Law Schools.
(Public) International law should not be taught at Law Schools, because it is not law. It should be taught in International Relations or Political Science Departments. A PhD in International Law should not qualify you to teach in Law Schools. Indeed, if you cannot tell the difference between actual law — with genuine remedies — and a simulacrum of law, you should not be teaching students at all.
Rules-based international order
When folk refer to the rules-based international order, they are not referring to nothing. There are various rules and conventions it is convenient for states, and other agents, to follow.
There is also a difference between the mercantile maritime order and continental anarchy. It is not an accident that the original international conventions pertained to sea travel and trade.
Within continental anarchy, it is relative power that matters. A war that depletes your resources and capacities, but depletes those of your neighbours more, is a winning proposition, within the state-geopolitics of continental anarchy. The geopolitics of continental anarchy leads states to seek weak or subordinate neighbours. The mercantile maritime order, on the other hand, is all about creating win-win interactions.
Russia, India and China are all continental Powers that live, at least to some extent, in a situation of continental anarchy. But they are also trading States that benefit from the mercantile maritime order maintained by the US-and-allies maritime hegemony. The tension between China as a trading nation becoming the biggest single beneficiary of the mercantile maritime order maintained by the US-and-allies maritime hegemony, and the interests of the CCP (the Chinese Communist Party), is the central strategic difficulty that CCP China faces.
Israel faces the strategic dilemma of operating in a region of continental anarchy but seeking support from states deeply embedded in the mercantile maritime order. Whether the Middle East has to be a region of continental anarchy, or can it become far more embedded in the mercantile maritime order, is precisely what is at stake in the latest conflict.
Any social order has to be enforced. This is even more true of international orders. As there is no such thing as international (public) law, enforcing an international order is not a matter of rules, it is a matter of those who actively support and enforce that order and those who seek to subvert it.
A vivid example of how central enforceability is to any international order is given by comparing the treatment of Germany after the two World Wars. Germany was treated far more harshly after the Second World War than after the First World War. The crucial difference was that the Versailles order was not enforceable by the victors and the Potsdam order was.
Update, 6 March: Welcome, Instapundit readers! Have a look around at some of my other posts you may find of interest. I send out a daily summary of posts here through my Substack – https://substack.com/@nicholasrusson that you can subscribe to if you’d like to be informed of new posts in the future.
March 3, 2026
Iran in the news
I haven’t bothered trying to keep up with the firehose of “news” about the combined US/Israeli operations against the Islamic State, as much of what is initially reported will be re-stated, retracted, refuted, and other words starting with “R” until something vaguely resembling objective analysis can be done. There are uncounted mainstream, specialist, and advocacy sites and there’s no point trying to keep up with them (for me, anyway). Here are a few bits of internet flotsam on issues arising from Operation Brass Balls (or whatever name they chose for it):
First up, J.D. Tuccille on the legality around President Trump’s decision to strike Iran:
The BBC has a long history of … careful wording in describing events in Iran since 1979. I don’t think this cartoon is unfair in portraying that.
The world is undoubtedly a better place after the killing of Iran’s supreme leader Ayatollah Ali Khamenei and roughly 40 of his murderous colleagues by joint Israeli and American military strikes. Iran’s Islamist regime has slaughtered its own people while encouraging terrorism around the world for decades. But those strikes carry serious risks and costs. Are they worth the tradeoffs? The Trump administration should have made its case to Congress and the already skeptical public and satisfied the Constitution’s requirements by doing so.
War Without Debate
On Saturday, the U.S. and Israel launched much-anticipated strikes after claiming negotiations with the Iranian regime over the status of its nuclear weapons program had stalled.
“A short time ago, the United States military began major combat operations in Iran,” President Donald Trump announced. “Our objective is to defend the American people by eliminating imminent threats from the Iranian regime — a vicious group of very hard, terrible people. Its menacing activities directly endanger the United States, our troops, our bases overseas, and our allies throughout the world. For 47 years the Iranian regime has chanted ‘death to America’ and waged an unending campaign of bloodshed and mass murder, targeting the United States, our troops, and the innocent people in many, many countries.”
True enough. The president recited a litany of crimes in which the Islamist regime has been implicated, including the 1983 bombing of the U.S. Marine barracks in Beirut by Iranian proxy Hezbollah, and the October 7, 2023, Hamas attack on Israel, which Iranian forces helped plan. To this list we can add the attempted assassinations of Iranian dissident Masih Alinejad in Brooklyn and of then-presidential candidate Trump himself. Trump also called out Iran’s efforts to acquire nuclear weapons. And he urged the suffering Iranian people, who have weathered brutal attempts to suppress protests, to take advantage of the military strikes to overthrow the regime.
Unfortunately, this was the first time many Americans — members of the public and lawmakers alike — heard the Trump administration make a somewhat coherent argument for taking on Iran’s government. It came as strikes were already underway despite the Constitution reserving to Congress the responsibility to “provide for the common Defence”, “to declare War”, “to raise and support Armies”, and “to provide and maintain a Navy”. Lawmakers were informed of the attack on Iran, but only after the country was committed to hostilities and their related dangers and expense.
Congress and the People Were Never Consulted
“I am opposed to this War,” Rep. Thomas Massie (R–Ky.) objected. “This is not ‘America First’. When Congress reconvenes, I will work with @RepRoKhanna to force a Congressional vote on war with Iran. The Constitution requires a vote, and your Representative needs to be on record as opposing or supporting this war.”
Rep. Ro Khanna (D–Calif.) shares Massie’s skepticism towards military action. He and Massie might have voted against authorizing war with Iran even if they’d heard the administration’s arguments. Or perhaps they and other lawmakers would have been persuaded. We don’t know, because the president didn’t make a case until bombs and missiles had already been launched.
Andrew Doyle on the need for regime change:
The end point of armed conflict is impossible to predict. In her book On Violence (1970), the philosopher Hannah Arendt argued that when it comes to political violence, “the means used to achieve political goals are more often than not of greater relevance to the future world than the intended goals”. However well planned and executed, wars have a tendency to spiral out of control in ways never envisaged.
Whether Donald Trump’s decision to attack Iran will pay off depends upon the fates as much as anything else. The goal is regime change, which – given the appalling tyranny under which the Iranian people have suffered for five decades – is admirable and just. Yet the numerous unknown variables make this war the biggest risk that Trump has yet taken as president.
This war has the potential to escalate and engulf the entire region. Iran is already striking neighbouring Arab states allied with the US in a scattershot and desperate manner. With the death of the Ayatollah, it may be that the regime will be forced into a ceasefire while it seeks to re-establish its power. Yet the scenes of wild celebration on the streets of Iran would suggest that domestic revolution is its greatest threat. If the Islamic Revolutionary Guard Corps (not the country’s national army, but a kind of Praetorian guard for the mullahs) can be turned, the regime will fall.
Perhaps the worst case scenario is a widespread power struggle between competing militias and separatist groups. The IRGC itself could fragment, and we may see the kind of chaos that ensued after the Iraq war of 2003. The Trump administration has the advantage of the latest military technology and will insist that this enterprise will never require “boots on the ground”. It may be right, but who knows what factions will emerge with no centralised authority?
Those of us without a crystal ball should get used to the phrase: “we don’t know”. Various social media pundits are asserting with absolute certainty where all of this will lead. They would be wise to exercise greater caution. After the Twelve-Day War last June in which Israel and the US destroyed much of Iran’s nuclear infrastructure and air defence capabilities, many on the “America First” right were quick to prophesy the advent of World War III. Their claims to clairvoyance were unfounded.
CDR Salamander argues in favour of the punitive expedition as a legitimate tool in the nation’s war locker:
I support the strikes on Iran because it firmly fits into a view I have held on the use of national military power for decades, based on thousands of years of military practice. If you are not up to speed with the thousands of Americans dead and maimed by the Islamic Republic and its proxies over the last 47 years, then I have nothing more to discuss with you.
While I understand the academic argument of many that before any action takes place, there is a whole series of hoops, barriers, and puzzles of our own creation that we need to go through — I firmly believe that not only are those Constitutionally unnecessary for punitive expeditions in 2026, if done, needed and deserved strikes like we have seen in Iran could not take place without
Fortunes were made, institutions funded, and employment justified for legions under the old and failed post-WWII process swamp and GWOT nomenklatura that gave us unending and stillborn conflicts. To go that route again wouldn’t just be folly, it would be a self-destructive folly to refuse to change in the face of evidence.
I’ve seen older versions of OPLANS for Iran. Huge, bloody, and frankly undoable. They were only that way because they met the requirements of an old system that everyone nodded their heads to because all the smart people from Johns Hopkins, Harvard, Princeton and all the usual places said we had to do it this way.
Enough. Bollocks to all that. They have been measured the last quarter century and have been found wanting.
A series of events since October 7, 2023, including the 2024 election, has opened a window to do what we have not been able to do for a whole host of reasons — and there is a debt waiting to be paid.
We’ve been here before with Iran. In the modern context, we sank two warships and three speedboats of the Islamic Republic of Iran Navy in 1988 during Operation Praying Mantis as punishment for damaging USS Samuel B. Roberts (FFG 58) and Iran’s mining international waters in the Persian Gulf. We’ve played slap-n-tickle with them here and there while they have brutalized us at every turn when they are not brutalizing their own people.
Yes, it’s personal — but part of the reason we have been hesitant is that our national security intellectuals have been stuck in a world view that prevented action, by design.
Though not exclusive, the Powell Doctrine’s “Pottery Barn Rule” (that it appears he got from one of Thomas Frack’n Friedman’s columns), made it appear that we could only take action if we took the entire country and then remade it in our image.
We know how that operationalized over the last couple of decades.
We’ve done plenty of punitive expeditions in our nation’s history — but in the last few decades as a certain pedigree of policy maker held sway over our national security doctrine, it fell out of favor.
They failed the nation. Their institutions failed the nation. Their worldview was little more than a self-licking ice cream cone of self-regard.
There are also those who can find the funny aspects of any serious situation:
March 1, 2026
The American Revolutionaries – when you don’t want a king, but you do want someone king-ish
On Substack Notes, John Carter shared this post by Theophilus Chilton, saying:
Fascinating. The American founders were explicitly trying to revive a stronger form of monarchical executive authority with the presidency, as a deliberate corrective to the relatively powerless Crown of the British Constitution, which had been effectively neutered by the doctrine of parliamentary supremacy.
Along similar lines, the American Bill of Rights was in most ways simply a restatement of the ancient rights of Englishmen.
So, of course, I had to go read the post:
Too “kingly” but also not “kingly” enough for America’s Founding Fathers.
King George III in his Coronation robes.
Oil painting by Allan Ramsay (1713-1784) circa 1761-1762. From the Royal Collection (RCIN 405307) via Wikimedia Commons.
Recently, I’ve been reading an interesting book about 18th century political philosophy entitled The Royalist Revolution: Monarchy and the American Founding. In this work the author, Eric Nelson, guides the reader through the various aspects of the great inter-whiggish debates that roiled the American colonies prior to independence, and which then continued afterwards. One of the main premises is that a major faction within this debate — and indeed the one which ended up prevailing in the end — understood the relationship between colonies and mother country to be founded upon the king of Britain’s personal proprietorship over the colonies. This Patriot position was opposed by the Loyalist position which saw the colonies as existing under the laws and rule of Parliament.
Now this might seem strange to generations of Americans who grew up learning in school that the American revolutionaries fought against the great tyrant King George III who was set upon grinding the American colonies under his bootheel of oppression. That view would be quite surprising to many of the participants on the Patriot side, many of whom actually appealed to King George, both publicly and in private correspondence, to exercise kingly prerogative and overturn the various duties, laws, and taxes which Parliament had laid upon the colonies. This, indeed, was the crux of the Patriot argument, which is that because the colonies were originally founded under the personal demesne of the British King, they remained so even despite the temporary abolishment of the monarchy after the execution of Charles I in 1649. In the interregnum between that and the Glorious Revolution and restoration of a stable monarchy that was accepted by all classes as legitimate in 1688, Parliament had illegitimately usurped authority over the colonies. Because it was Parliament which was laying the Intolerable Acts and all the other complaints which the Americans had, it was Parliament against whom they wished to be protected.
But these Patriots were pining after a situation which no longer existed. In point of fact, the British kings since the Glorious Revolution had left whatever prerogative powers they might still have had unused. So it was with George III, who rejected the American colonists’ calls for him to intervene, knowing that doing so would have provoked a constitutional crisis in Britain which he would not have won. As a result, the American colonists chose to make their final break with the British monarchy and throw in their lot for independence, buttressed by Thomas Paine’s fleetingly persuasive but ultimately ineffectual pamphlet Common Sense.
However, after independence, the colonists were faced with providing their own governance. Initially, this was attempted under the Articles of Confederation, as well as their state constitutions, all of which were very whiggish in principle. They were also inadequate to the task. As every student who took high school civics knows, the solution to this was the Constitution of 1789.
Typically, students are taught that the new Constitution was designed to strengthen the ability of the federal government to handle the various issues that applied to the confederation of states as a whole. What we don’t generally hear, however, is that much of this included strengthening the roles and powers of the president to include several areas of prerogative powers which exceeded even the powers then available to the kings of Britain. The stock view of the Constitution is that it “was created to prevent anyone from getting too much power!” The actuality is that the Constitution was crafted, in part, to expand presidential power and create what was viewed at the time as a literally monarchical chief executive. Opponents of this described the proposed executive as “the foetus of monarchy”. Supporters often defended it on the basis that parliaments and congresses, if left unchecked by a strong executive whose interest was drawn from the body of the whole people, would themselves become the greatest threats to the liberties of the people.
The Founders who proposed this enhancement of the executive didn’t do this in a vacuum. Indeed, they had a century and a half of history about this very subject to draw from first-hand. Fresh in the collective mind of every Englishmen, both in the home country and in the colonies, were the English Civil Wars of the previous century. Beginning with the revolt of the parliamentarian army in 1642 through the regicide of Charles I in 1649, the protectorate of Oliver Cromwell, the attempted restoration of the House of Stuart under James II, until the final deposition of James and his replacement with William, Prince of Orange in the Glorious Revolution of 1688, Englishmen had a long series of examples from which to draw various conclusions.
So yes, they could see the parliamentarian excesses that took place during the Protectorate. Current in the collective national mind were the overreaches (whether real or imagined) of Parliament both during the interregnum and in the century since the acquisition of the throne by the House of Hanover. As noted above, among these overreaches, at least as viewed by many in the American colonies, was parliamentary interference in the affairs of the colonies, viewed as transgressions into the rightful domain of the king’s purview. Hence, by a strange twist, the Loyalists who opposed American independence before and during the Revolution were generally the more whiggish of the two sides, throwing in their lot with the parliamentary oligarchies. The Patriots, on the other hand, were desperately trying to get the king to reassert his royal prerogatives and intervene by reasserting his perceived rights to directly rule the colonies, something of a modified “high/low vs. the middle” type of scenario.
February 6, 2026
QotD: FEMA
FEMA, in fact, is an illegal organization. It’s mentioned nowhere in the Constitution (which lists the lawful powers of the government in Article I, Section 8), nor did anybody ever vote about it, neither you nor I, nor even the Congress. It was created out of thin air by Presidential fiat, and given unprecedented power to override, at gunpoint, the Constitution, the Bill of Rights, and the rule of law in general.
Since the San Francisco earthquake, I have been paying attention. In all that time, I have never heard anybody, civilian or local official, who had anything to say about FEMA that didn’t make it seem like a combination of the Nazi Gestapo and the Black Death. Apparently there is no situation so tragic and overwhelming that they can’t make it even worse. FEMA has an unanswerable power of life and death over entire communities and there is nothing to protect those communities — or anything else that is uniquely American — from its foul dictatorial grasp.
L. Neil Smith, “Good Mornin’ America, How Are Ya?”, The Libertarian Enterprise, 2005-09-04.
January 14, 2026
Property rights and firearms in Canada
On the social media site formerly known as Twitter, Gun Owners of Canada posted on the property rights deficiency in the Canadian constitution and specifically how it impacts Canadian gun owners:
🇨🇦 Without Property Rights, Canada Has No Protection Against an Ideological Government 🇨🇦
Canada’s firearm confiscation program exposes a constitutional weakness that has existed for decades but is now impossible to ignore. Unlike most Western democracies, Canada does not explicitly protect private property as a constitutional right. The consequences of that omission are no longer theoretical — they are being imposed on lawful citizens in real time.
For years, Canadians were assured that firearm ownership was secure so long as they complied with the law. Licensing, background checks, registration, storage requirements, and regular vetting were framed as the conditions under which ownership would be respected.
That assurance was never grounded in constitutional reality.
Because, in Canada, property exists not as a right, but as a revocable permission.
🇨🇦 Firearms Reveal the Constitutional Gap 🇨🇦
The federal government maintains that its confiscation program is about public safety. But the structure of the program and the results of its own pilot project reveal something else entirely: the exercise of power in the absence of constitutional constraint.
In the Cape Breton pilot program, the federal government projected the collection and destruction of 200 firearms. After planning and public expenditure, the outcome was 25 firearms surrendered by just 16 individuals.
More importantly, the government has declined to disclose the makes or models of those firearms. Without that information, Canadians cannot assess whether the program targeted anything relevant to criminal misuse.
Transparency is a constitutional principle. Withholding basic facts is not an accident. It is a shield against accountability.
Despite failing its own benchmarks, the program was not reconsidered. It was expanded, notably with Quebec agreeing to assist to the tune of $12.4 million of taxpayer money.
That response is not evidence-based governance. It is the predictable outcome of a system in which the state faces no constitutional barrier to taking property it has decided is politically undesirable.
🇨🇦 In Canada, “Lawful” Ownership Has No Legal Weight 🇨🇦
In countries with constitutional property rights, governments must clear an extremely high bar before seizing private property. There must be demonstrable necessity, due process, and just compensation. Courts are empowered to strike down overreach.
Canada provides none of these protections.
Parliament can prohibit previously lawful property by statute alone, retroactively invalidate ownership, and compel surrender, even where no criminal conduct exists. Licences confer no legal security. Compliance does not create vested rights. Good faith reliance on the law offers no protection.
This is not an accident. It is the direct result of leaving property rights outside the Constitution.
When property is not a right, it becomes an instrument of political control.
🇨🇦 Why This Extends Far Beyond Firearms 🇨🇦
Firearms are simply the clearest example because they are heavily regulated, highly visible, and politically convenient to target. But, constitutional gaps do not remain confined to a single issue.
Any property can be reframed as a social harm, an environmental risk, or a moral concern once the legal groundwork is in place.
Vehicles. Land. Energy infrastructure. Agricultural equipment.
Without constitutional limits, the scope of state power expands according to ideology, not necessity.
Property rights exist to prevent this exact outcome. They force governments to justify their actions under objective legal standards rather than political narratives. They ensure that citizens do not lose fundamental protections simply because a majority finds them unpopular.
🇨🇦 Constitutional Rights Are Meant to Restrain Government — Not Empower It 🇨🇦
Canada’s Charter of Rights and Freedoms is often described as a living document, but its purpose is fixed: to restrain government power and protect individuals from arbitrary state action.
The absence of property rights from that framework has created a structural imbalance. Governments may regulate, prohibit, and confiscate without confronting a constitutional wall and citizens have no clear legal recourse when that power is abused.
The firearm confiscation program demonstrates the danger of that imbalance. Law-abiding citizens are being compelled to surrender lawfully acquired property, not because of evidence, not because of necessity, but because Parliament has decided it may.
That is not the rule of law. That is legislative supremacy without restraint.
🇨🇦 A Country Without Property Rights Is a Country Without Security 🇨🇦
Rights exist to protect minorities from political tides. They are designed to outlast governments, survive elections, and constrain ideology.
Canada’s failure to constitutionally protect private property means that no ownership is secure. It’s only tolerated.
If Canadians want protection from future governments that may be more extreme, more punitive, or more ideologically driven, property rights must be explicitly recognized and enforced.
Not as a policy preference. Not as a statutory convenience.
But as a constitutional right.
Because when the state can lawfully take what you own without justification or consequence, citizenship itself becomes conditional.
No free society can survive under those terms.
At Without Diminishment, Joshua Hart discusses the role civilian firearm ownership has played in modern times, despite the federal Liberals’ open contempt for responsible gun owners (and their matching soft-on-crime preferences for criminal gun-use):
Image from Without Diminishment
As of December 2023, more than 2.35 million Canadians held a firearms licence (PAL), a number that has almost certainly grown since then. This represents roughly 5.9 per cent of the population, yet this group has been thoroughly demonised by our Liberal government.
In a country built on restraint and self-reliance, that smear corrodes civic trust. It has not always been this way, but things will get worse before they get better for lawful Canadian gun owners unless the public narrative is confronted head-on.
First, it is important to note that Canada has a deep tradition of firearms ownership that successive governments have worked hard to downplay or erase. Contrary to the popular myth, especially in a country that prides itself on “peace, order, and good government”, that only Mounties carried guns on the frontier, the reality was the opposite.
In our historically lawful society, ordinary Canadians were trusted to possess and carry firearms for protection, hunting, sport, and other legitimate needs in a vast and often harsh land.
In the 158 years since Confederation, Canada has transformed from a sparsely populated, pioneering dominion into one of the world’s most urbanised nations.
Most people in this country today find guns a strange and exotic topic, primarily associated with war films and history books. That does not mean urban Canadians are excluded from our heritage of firearms ownership. On the contrary, many Canadian cities boast thriving indoor shooting ranges with strong memberships, and despite, or perhaps because of, recent government overreach, enrolment in firearms licensing courses has risen sharply since the pandemic.
Clearly, more Canadians than ever are interested in joining the long tradition of responsible firearms ownership. With this growing interest in firearms, why is the government more apprehensive than ever?
My answer is the political economy of gun control in Canada. What we have witnessed over the past decade is a straightforward political calculation by the Liberals.
If the average suburban voter, after watching their nightly dose of American crime news, believes that most guns are inherently evil, dangerous, and unfit for civilian hands, then any non-Conservative political party has a powerful incentive to pursue gun-control measures, regardless of whether those measures actually help police or reduce firearm-related crime.
On the whole, Prime Minister Carney would gain no political advantage by dropping the gun-control agenda. Progressive voters are hungry for gun control, and neglecting the issue may cost Carney a significant number of seats in battleground ridings. In other words, compliant Canadians are being scapegoated in the headlines while violent offenders are ignored.
November 17, 2025
The US Supreme Court considers whether Trump’s tariffs are legal
Thanks to the staggering incompetence (and/or deliberate provocation for domestic political advantage) of the Carney government’s dealings with President Donald Trump, the current case before the Supreme Court is of significant interest to those of us on the north side of the US-Canadian border. On his Substack, David Friedman discusses the issues before the court:
There are three things wrong with Trump’s tariffs. The first is that they cannot be expected to provide the benefits claimed, can be expected to make both the US and its trading partners poorer; the arguments offered for them depend on not understanding the economics of trade. For an explanation of why that is true, see an earlier post.
The fact that the tariffs make us poorer may be the most important thing wrong with them but it is irrelevant to the Supreme Court; nothing in the Constitution requires the president to do his job well. The questions relevant to the Court are whether what Trump is doing was authorized by past Congressional legislation and whether it was constitutional for Congress to authorize it.
What Counts As An Emergency?
Tariffs are under the authority of Congress, not the president.1 Trump’s justification for setting them himself is congressional legislation, the International Emergency Economic Powers Act.
(a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.
(b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. (IEEPA, 50 U.S. Code § 1701, emphasis mine)
Trump declared that his Worldwide Reciprocal Tariffs were intended to deal with the US trade deficit.2 Whether the deficit is a threat and whether tariffs are a good way to deal with it are questions for economists3 but whether it is unusual is relevant to judges, since if it is not the IEEPA does not apply.
[…]
The Court on Trial
Delegating to the president the power to impose tariffs, a power explicitly given to Congress in the Constitution, is a major question. Under doctrine proclaimed by this court that means that the legislation claimed to delegate that power must be read narrowly. On a narrow reading, on anything but a very broad reading, the legislation fails to apply to President Trump’s tariffs for two independent reasons:
It only grants power in an emergency, which under the language of the Act neither the trade deficit nor the illegal drug problem is; the deficit has existed since 1970, the War on Drugs was proclaimed in 1971.
The powers granted to the president in the Act do not include the power to impose tariffs.
If the six conservative justices believe in the principles they claim, the administration will lose the case 9-0.
- The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises … To regulate Commerce with foreign Nations … (U.S Constitution, Article I, Section 8).
- “I found that conditions reflected in large and persistent annual U.S. goods trade deficits constitute an unusual and extraordinary threat to the national security and economy of the United States that has its source in whole or substantial part outside the United States. I declared a national emergency with respect to that threat, and to deal with that threat, I imposed additional ad valorem duties that I deemed necessary and appropriate.” (Executive Order July 31, 2025).
- The answers are no and no.
October 9, 2025
Britain is only a few steps further than Canada in the war on free speech
In The Line, Peter Menzies looks at the worsening situation for freedom of speech and freedom of expression in Britain, noting that what’s happening over in Blighty is our immediate future with current Liberal bills before Parliament to give government bureaucrats more power to silence us:
Everyone may know, for instance, that Kimmel got suspended by ABC for a week following statements made in the wake of the assassination of Charlie Kirk. But not a lot of people consuming Canadian media know that in the U.K., comedians weren’t just getting one-week suspensions. Nope. Last month they were getting arrested.
Right-wing icon Katie Hopkins, best known for her Batshit Bonkers Britain clips and Silly Cow tour, hadn’t been charged at the time of writing, but was arrested and, as they say in Blighty, “interviewed under caution”. Previously, Graham Linehan was arrested upon his return from the United States by five armed police officers at Heathrow Airport. At issue were posts he had made on X in April.
“If a trans-identified male is in a female-only space,” one Linehan post declared, “he is committing a violent, abusive act. Make a scene, call the cops and if all else fails, punch him in the balls.”
Currently on bail, Linehan returns to court on Oct. 29. The charges are harassment, criminal damage and suspicion of inciting hatred.
The merits of the cases can be debated, but my point today is that when it comes to digital policy and policing you, and the internet, Canadians and their media should be paying a lot more attention to the U.K.
Because it is there that the true illiberalism of modern Western so-called liberalism is most menacingly embraced. Even prior to the U.K.’s Online Safety Act coming into effect, pre-existing British legislation had been used to, for instance, convict six retired police officers for making comments “deemed to be offensive” within their private WhatsApp chat group. Following the Southport mass stabbing murders of little girls, at least two women with no prior history with police were given prison sentences — one for 15 months for a Facebook post calling for a mosque to be blown up, another 31 months for a tweet calling for hotels full of migrants to be burned. While their comments were certainly worthy of vigorous condemnation, the intervention of the state into private, closed conversations and the involvement of police, courts and the penal system has taken matters in the U.K. to a level inconsistent with liberal traditions.
Now that the Online Safety Act has supplemented those laws, hundreds of people have been arrested and dozens so far convicted for social media posts. The government calls the act a “new set of laws that protect children and adults online” in much the same way Justin Trudeau explained Canada’s own Online Harms Act. It’s all about “safety”.
Online Harms may have died when Parliament was prorogued last winter, but a successor is anticipated and, given Prime Minister Mark Carney’s obvious Anglophilia, it’s easy to speculate — fear is a better word — that he is taking inspiration from the Brits. After all, up until a few months ago, he was one of them.
Fighting back in the U.K. is, among others, Lord Toby Young, the Conservative peer, associate editor of The Spectator and founder of the Free Speech Union, which now has a Canadian branch featuring, among others, journalist Jonathan Kay. Young has protested that criminalizing disinformation hands governments the power to determine truth. Nevertheless, while Prime Minister Sir Keir Starmer has muttered that maybe the police have more important things to do, he shows — despite the meteoric rise in the polls of Nigel Farage’s Reform Party — no inclination to order a digital retreat.
In fact, Starmer just doubled down with the introduction of legislation imposing mandatory digital IDs. A petition opposing it and the potential to enable mass surveillance and state control has already gathered close to three million signatures.
There’s a good chance the Canadian Free Speech Union will be similarly engaged in the years ahead. The Trudeau government’s instincts when it came to digital legislation were not as extreme as Britain’s. And there are very real differences in the legal structure of free-speech rights in Canada and the U.K. — we have the Charter, and the British don’t. So our laws would be enacted and enforced differently here than they can be the the U.K.
October 1, 2025
“Sean Fraser, the current minister of justice and attorney general, has made two major mistakes of late”
If you’re at all interested in Canadian affairs, you should subscribe to The Line … even a free subscription will definitely provide you with some excellent non-propagandistic coverage of what is happening in the dysfunctional dominion. For instance, last weekend’s weekly post from the editors included this segment about Sean Fraser, who is perhaps the worst of Mark Carney’s cabinet (and that takes some doing):
Sean Fraser, as Minister of Immigration, Refugees & Citizenship, during day one of Collision 2023 at Enercare Centre in Toronto, Canada.
Photo by Vaughn Ridley via Wikimedia Commons
We at The Line contend that Sean Fraser, the current minister of justice and attorney general, has made two major mistakes of late.
The first was in deciding not to rescind his decision to spend more time with his friends and family when it became clear that Justin Trudeau was no longer an anchor on his electoral chances. After failing to fix Canada’s housing problem and proving himself integral to blowing apart a pan-partisan consensus on immigration that was once the envy of the world, the man had a real opportunity to leave office on a high note. But, no.
Instead, after hitching his bloated baggage to Mark Carney’s trunk, Fraser decided that Canada needed more of him.
And so, as justice minister, instead of addressing petty stuff like, oh, bail reform, or fixing prisons, or getting crime under control, he turned his attention to … Section 33 of the Charter of Rights and Freedoms. The notwithstanding clause.
You may recall that Quebec’s contentious Bill 21 — which prohibits public-service employees in positions of authority, and teachers, from wearing religious symbols while on the job — is currently before the Supreme Court of Canada. Despite numerous mixed rulings on the law, Quebec moved forward with its stance on secularism by invoking Section 33, which allows parliaments to temporarily override judicial rulings.
Section 33 was placed in the Charter for precisely this kind of situation; one in which the courts and parliament disagree about governance. As we still live in a democracy, and are still nominally governed by representatives we elect, the clause was always a bit of a compromise gesture intended to preserve parliamentary supremacy after granting the courts broad powers to basically reinterpret law according to an expansive and ever-expanding understanding of both their jurisdiction, and of the concept of “rights” writ large.
Section 33, nonetheless, has maintained a heavy odour about it, which has generally limited its application, especially outside Quebec. Among the Sean Fraser set, and the largely Liberal collection of lawyers who will insist that the Supreme Court isn’t remotely political, and how dare we entertain the thought, Section 33 was only ever intended as a symbolic right.
But as the definitely-not-political Supreme Court has edged ever deeper into the territory of override and governance, so too have provincial parliaments responded with a very not-symbolic application of the clause.
We do think there’s some blame to be placed at everyone’s door, here. But we also never really took much issue with Section 33. That’s because, at heart, we at The Line believe in, well, democracy. We believe that the people we elect should be able to decide our laws; and we believe that while the Supreme Court of Canada serves as an important check on Parliamentary power, that power doesn’t and should never override the will of the people.
And that’s basically where we part ways with Fraser and many of his — dare we say it? — Laurentian Consensus ilk. Because the unstated critique of the use of Section 33 is basically always the same: these people dislike the application of the clause because they think politics is icky, and that politicians fundamentally cannot be trusted.
In other words, these people don’t actually want a democracy.
They want a technocracy. One in which the smartest and ablest individuals (as defined by them, of course) are the ones who actually get to set the rules and guardrails for society writ large. One in which parliament really is as theatrical, symbolic and pointless as it often regards itself.
There’s an obvious illogical inconsistency here — Fraser and his colleagues are politicians. We aren’t sure if this desire to go out and limit the ability of he and his fellow parliamentarians to do the best jobs they can for the citizens reflects mere self-loathing, or a particular brand of Liberal blindspot, one that leads them to believe that they alone among politicians are exempt from anything as crass political considerations and/or motivations. Those moral failures are apparently for the other guys. But in any case, we have an elected official making the case that unelected courts should have the ability to override legislators, and that the legislators should have no recourse. However Fraser rationalizes this to himself, it’s where we are.
We think the people who have issues with Section 33 are generally not being honest with themselves in that regard; we also think that their instinctual aversion to politics (or their exemption of themselves from it) tends to make them naive. If you vest all the real power of governance in a “non-partisan” Supreme Court, what you’ll get is not a dispassionate government, but rather a heavily politicized Supreme Court. We need only look at what has happened in the U.S. over the past 30 years to see how that pans out in the long run.
Look, we at The Line don’t like Bill 21. It’s a bad law. It needlessly tramples on minority rights. But there’s a very obvious way to get that law repealed that doesn’t involve flirting with a full-blown constitutional crisis in the midst of, you know, all of the other crises going on right now.
Elect a government that will repeal that law.
That’s what democracies do.
To me, one of the most puzzling things about the Carney government’s recent actions is the overall incoherence of them. They are going ahead with one of the worst policies inherited from the Trudeau years with the “gun buyback” program that the minister responsible has openly admitted is almost completely a sop to voters in Quebec. Okay, that makes cynical sense as the Liberal vote is about as “efficient” as it possibly can be so losing just a few seats in Quebec would make it impossible for the Liberals to get re-elected. Fine. Scummy as hell, but fine. Yet the challenge to Section 33 is guaranteed to piss off far more Quebec voters — and stir up controversy across the country to boot — and you’re going to stage a pitched battle against pretty much all the provinces before the Supreme Court? Are you sure about that?
September 20, 2025
Feds move to neuter the “notwithstanding clause” to frustrate Alberta
To be honest, I wasn’t a fan of the Charter of Rights and Freedoms when it was forced down our throats in 1982, on the basis that if Pierre Trudeau thought it was a good idea then it must be the opposite. All these years later, although I’m still not a huge fan, I support the provinces who now need to combat Mark Carney’s minority Liberal government’s attempt to use the Supreme Court to limit or eliminate the provinces’ use of the notwithstanding clause:
You might be hearing a lot about the notwithstanding clause these days and wondering what is going on. The fact is, the Carney government is trying to change the constitution via a Supreme Court case on Bill 21 – a heinous bill in my opinion – but not an excuse to scrap or weaken the notwithstanding clause.
We’ve been here before with this debate before and I’m still of the same position, leave the clause alone.
It was in 2018 that Ontario Premier Doug Ford was looking to use the notwithstanding clause to shrink the size of Toronto city council. He should never have had to do this, but a lower court ruled that Ford’s actions were unconstitutional.
Which is really weird because the constitution is clear, municipalities are creations of the province. A provincial government can merge municipal governments, they can even abolish them if they wish.
Eventually, a higher court overturned the very politically driven decision against Ford, but for a time, he seemed to need the notwithstanding clause, otherwise known as section 33 of the Charter of Rights and Freedoms.
I’ll never understand why some claim the notwithstanding clause is against the Charter when it is part of the Charter.
On the social media site formerly known as Twitter, Sean Speer notes the Liberals seem to be taken by surprise at the negative reactions to their plans:
I suspect that non-conservatives are a bit surprised by the magnitude of the reaction to the Carney government’s factum on the notwithstanding clause. That’s mainly because I think liberals and progressives don’t quite understand how much the past decade or two of judicial activism has come to animate Canadian conservatism. Even as a somewhat moderate conservatism, I admit to being radicalized on these issues.
The Carter decision on MAID was a key moment in this evolution. Not necessarily because of the issue per se — though a lot of us oppose it. But mainly because it was such a naked example of judicial lawmaking. The clearest case that it’s just power and politics all the way down.
After having ruled that there was no right to physician-assisted death in the Charter, just over twenty years later the Supreme Court unanimously decided there was indeed such a right.
There had been no constitutional amendment in the meantime. Parliament had considered the issue and carefully and consistently voted against it. And yet nine judges decided that the right should exist and so they created one.
If the judiciary isn’t merely protecting constitutionally-prescribed rights but manufacturing them based on the political preferences of judges themselves—if it’s in effect just politics from the bench — then we might as well have the politicians who we’ve duly elected to be making these decisions for us.
Before Carter I would have said that I was broadly supportive of S.33 as part of our constitutional order but today it’s much bigger part of my core political identity as the only check we have on judicial politicking.
The Carney government’s factum then isn’t just objectionable because it threatens to constrain the notwithstanding clause but precisely because it invites the Supreme Court to once again alter the constitution in its own image.
Brian Peckford, the last surviving signatory to the patriation of the Constitution in 1982:
Tragically, it is not surprising that we see this further emasculation of our 1982 Constitution.
It has been ongoing almost since its inception. Witness the 1985 Court Opinion twisting the meaning of the opening words: “the Supremacy of God”.
And the constant distortions ever since, accelerated during the false covid crisis.
This is The Tyranny of The Judiciary —The Destruction Of Parliamentary Democracy!
How important is Section 32 — the notwithstanding clause?
There would be no Constitution Act 1982 — no Charter of Rights and Freedoms without Section 32.
When PM Trudeau Sr. tried to unilaterally Patriate the Constitution and failed miserably because of the Provinces’ opposition before the Courts, he validated the suspicion most Premiers had about the Federal Government and its intentions during that time. The ability of the Provinces to continue democratically to initiate specific exemptions was crucial to solidify the federal nature of this country.
The Supreme Court was right in Sept 1981 in denying the Federal Government such sweeping powers.
None of the 10 First Ministers who signed the Patriation Agreement intended for this Section to be amended in any other way except by the Amending Formula that was achieved for the first time in our history in that Agreement.
The Federal Justice Minister’s action to ask the court is wrong — totally against the intent of those who authored the Patriation Agreement and defies and denigrates one of major accomplishments of 1982, The Amending Formula, a crucial part of the earlier 1981 Agreement, the foundation document, “The Patriation Agreement”.
The Canadian Press carries this:
OTTAWA — The federal government’s request to Canada’s top court for limits on the notwithstanding clause isn’t only about Quebec’s secularism law, Justice Minister Sean Fraser said on Thursday.
In a media statement, Fraser said he hopes the Supreme Court’s eventual decision “will shape how both federal and provincial governments may use the notwithstanding clause for years to come”.
Excuse me, Mr Fraser, this is the job, the solemn responsibility, for Canada’s Elected First Ministers and Their elected Parliaments not the Judiciary. Making law is the job of the elected, interpreting law the role of the Judiciary.
This brazen action of the Federal Government would enlarge the Judiciary power to make law — it deciding the powers of The Governments of this Nation.
Ironic in the extreme it is to ponder that Canada sought for decades to find an amending formula — self criticizing itself for not having a legitimate avenue for Constitutional Change.
Now that it has such an avenue instead of using it, it cowardly asks The Court?
Should not a majority of the Provinces have to agree — that’s what the Supreme Court said in 1981?
Hence, the Supreme Court, consistent with it predecessor views of 1981 should refrain from hearing the matter, and inform the Governments that it is they who have the power through the legitimate constitutional process present in the Constitution to make such significant change ie the powers of the Governments, adhering to Section 38, the Amending Formula.
September 16, 2025
QotD: The Dictatorship in the late Roman Republic
For Sulla, the purpose of using the dictatorship was to offer his reforms to the Republic some degree of legitimacy (otherwise why not just force them through purely by violence without even the fig leaf of law). Sulla was a reactionary who quite clearly believed in the Republic and seems to have been honestly and sincerely attempting to fix it; he was also a brutal, cruel and inhuman man who solved all of his problems with a mix of violence and treachery. While we can’t read Sulla’s mind on why he chose this particular form, it seems likely the aim here was to wash his reforms in the patina of something traditional-sounding in order to give them legitimacy so that they’d be longer lasting, so that Sulla’s own memory might be a bit less tarnished and to make it harder for a crisis like this to occur again.
And it failed at all three potential goals.
When it comes to the legitimacy of Sulla’s reforms and the memory that congealed around Sulla himself, it is clear that he was politically toxic even among many more conservative Romans. A younger Cicero was already using Sulla’s memory to tarnish anyone associated with him in 80, casting Chrysogonus, Sulla’s freedman, as the villain of the Pro Roscio Amerino, delivered in that year. In the sources written in the following decades at best Sulla is a touchy subject best avoided; when he is discussed, it is as a villain. Our later sources on Sulla are uniform in seeing his dictatorship as lawless. Moreover, his own reforms were picked apart by his former lieutenants, with key provisions being repealed before he was even dead (in 78 BC so that’s not a long time).
Finally, of course, far from securing the Republic, Sulla’s dictatorship provided the example and opened the door for more mayhem. Crucially, Sulla had not fixed the army problem and in fact had made it worse. You may recall one benefit of the short dictatorship is that no dictator – indeed, no consul or praetor either – would be in office long enough to secure the loyalty of his army against the state. But in the second and early first century that system had broken down. Gaius Marius had been in continuous military command from 107 to 100. Moreover, the expansion of Rome’s territory demanded more military commands than there were offices and so the Romans had begun selecting proconsuls and propraetors (along with the consuls and praetors) to fill those posts. Thus Sulla was (as a result of the Social War in Italy) a legate in 90, a propraetor in 89, and consul in 88 and so had been in command for three consecutive years (albeit the first as a legate) when he decided to turn his army – which had just, under his command, besieged the rebel stronghold of Nola – against Rome in 88, precisely because his political enemies in Rome had revoked his proconsular command for 87 (by roughing up the voters, to be clear). And then Sulla has that same army under his command as a proconsul from 87 to 83, so by the time he marches on Rome the second time with the intent to mass slaughter his enemies, his soldiers have had more than half a decade under his command to develop that ironclad loyalty (and of course a confidence that if Sulla didn’t win, their service to him might suddenly look like a crime against the Republic).
Sulla actually made this problem worse, because one of the things he legislated by fiat as dictator was that the consuls were now to always stay in Italy (in theory to guard Rome, but guard it with what, Sulla never seems to have considered). That, along with Sulla having butchered quite a lot of the actual experienced and talented military men in the Senate, left a Senate increasingly reliant on special commands doled out to a handful of commanders for long periods, leading (through Pompey‘s unusual career, holding commands in more years than not between 76 and 62) to Julius Caesar being in unbroken command of a large army in Gaul from 58 to 50, by which point that army was sufficiently loyal that it could be turned against the Republic, which of course Caesar does in 49.
For Caesar, the dictatorship seems to have been purely a tool to try to legitimate his own permanent control over the Roman state. Caesar is, from 49 to 44, only in Rome for a few months at a time and so it isn’t surprising that at first he goes to the expedient of just having his appointment renewed. But it is remarkable that his move to dictator perpetuo comes immediately after the “trial balloon” of making Caesar a Hellenistic-style king (complete with a diadem, the clear visual marker of Hellenistic-style kingship) had failed badly and publicly (Plut. Caes. 61). Perhaps recognizing that so clearly foreign an institution would be a non-starter in Rome – unpopular even among the general populace who normally loved Caesar – he instead went for a more Roman-sounding institution, something with at least a pretense of tradition to it.
And if the goal was to provide himself with some legitimacy, the effort clearly catastrophically backfired. The optics of the dictatorship were, at this point, awful; as noted, the only real example anyone had to work with was Sulla, and everyone hated Sulla. Many of Caesar’s own senatorial supporters had probably been hoping, given Caesar’s repeatedly renewed dictatorship, that he would eventually at least resign out of the office (as Sulla had done), allowing the machinery of the Republic – the elections, office holding and the direction of the Senate – to return. Declaring that he was dictator forever, rather than cementing his legitimacy clearly galvanized the conspiracy to have him assassinated, which they did in just two months.
It is striking that no one after Caesar, even in the chaotic power-struggle that ensued, no one attempted to revive the dictatorship, or use it as a model to institutionalize their power, or employ its iconography or symbolism in any way. Instead, Antony, who had himself been Caesar’s magister equitum, proposed and passed a law in 44 – right after Caesar’s death – to abolish the dictatorship, make it illegal to nominate a dictator, or for any Roman to accept the office, on pain of death (App. BCiv, 3.25, Dio 44.51.2). By all accounts, the law was broadly popular. As a legitimacy-building tool, the dictatorship had been worse than useless.
So what might we offer as a final verdict on the dictatorship? As a short-term crisis office used during the early and middle republic, a tool appropriate to a small state that had highly fragmented power in its institutions to maintain internal stability, the dictatorship was very successful, though that very success made it increasingly less necessary and important as Rome’s power grew. The customary dictatorship withered away in part because of that success: a Mediterranean-spanning empire had no need of emergency officials, when its military crises occurred at great distance and could generally be resolved by just sending a new regular commander with a larger army. By contrast, the irregular dictatorship was a complete failure, both for the men that held it and for the republic it destroyed.
The real problem wasn’t the office of dictator, but the apparatus that surrounded it: the short duration of military commands, the effectiveness and depth of the Roman aristocracy (crucially undermined by Sulla and Marius) and – less discussed here but still crucial in understanding the collapse of the Republic – the willingness of the Roman elite to compromise in order to maintain social cohesion. Without those guardrails, the dictatorship became dangerous, but without them any office becomes dangerous. Sulla and Caesar, after all, both marched on Rome not as dictators, but as consuls and proconsuls. It is the guardrails, not the office, that matter.
Bret Devereaux, “Collections: The Roman Dictatorship: How Did It Work? Did It Work?”, A Collection of Unmitigated Pedantry, 2022-03-18.
