You know what I’d like to see?
Red Flag laws for Congress.
Any Congresscritter says or does, something unConstitutional, anyone should be able to file a Red Flag violation and have that politician’s powers to write bills, attend sessions of Congress, vote, draw a taxpayer-funded paycheque, live in a mansion in Washington DC, or anything else tied to the job of being a Congresscritter immediately suspended.
There would be a hearing within fourteen days before a judge in their home district, where the Representative or Senator would be given the opportunity to show where in the Constitution what they said, or the law they proposed, or the action they did, was explicitly authorised, and if they can show that, their rights to all the goodies of being an elected representative of the People would be restored.
If they can’t, then they can sit at home for a year and twiddle their thumbs. Not allowed into the Capitol, no drawing a paycheque, no voting, no proposing bills, nothing added to their pension funds, zip, zero, NADA to do with being an elected official.
And their party doesn’t get to fill that slot. Their party doesn’t get to vote on their behalf. Their party doesn’t get to help them with re-election.
No, that Congresscritter, and the seat they occupy, goes into the penalty box for a year.
After a year, if their term in office hasn’t expired, they can take up their duties again.
Unless, and until, they mention violating the Constitution again, and someone files another Red Flag complaint.
Lawdog, “Sauce for the goose…”, The Lawdog Files, 2019-08-06.
September 20, 2019
QotD: Red Flag laws for politicians
September 19, 2019
“[T]he Indian Act is a benign form of apartheid”
In the National Post, Barbara Kay discusses a recent book on the key legislation that regulates relations between the Canadian federal government and the various First Nations groups:
Few and far between are disinterested scholars of Canada’s Aboriginal history who have the tough hide and principled will to publicly depart from the approved Indigenous “nation-to-nation” narrative that keeps the guilt and money flowing, but perpetuates a dysfunctional status quo on many reserves. Most of the dissenters are university academics. But Best is simply an intelligent man with a passion for his subject, a deep impatience with political correctness, and unremitting determination to weather whatever storms afflict him as he shepherds his views to a public market.
I’ve written before in the National Post and elsewhere about Best’s lonely battles with our society’s forces of repression. There Is No Difference began its public life as a post on a dedicated online site in 2014, copied to his legal firm’s. Shortly afterward, complaints were filed against him with the Law Society of Upper Canada (now the Law Society of Ontario), asking that Best be “disbarred or suspended” and that he be forced to apologize for using his law practice “to disseminate racist materials.”
After two years of stressful limbo, the Law Society graciously allowed that the excerpts submitted by the (unnamed) complainant were “not enough to merit a finding of any form of professional misconduct on their face.” (The last three words telegraph the ardent wish that they had been; apart from a dissenting group of new benchers, the Law Society’s board has increasingly demonstrated worrying Thought Police tendencies.)
Best believes the Indian Act is a benign form of apartheid, and advocates for the integration model of equal citizenship for all, a model promoted, for example, by Pierre Elliott Trudeau (who called the system “apartheid”), and the late Aboriginal lawyer William Wuttunee, author of Ruffled Feathers, who was marginalized and discredited as an “apple,” red on the outside, white on the inside.
Best believes the federal government must be the ultimate master in its own house for Canada to function as a healthy nation. He is fiercely critical of the Supreme Court’s 2004 emphasis on the “honour of the Crown” concept in its Haida Nation vs. British Columbia ruling, with key words “to consult and where appropriate, accommodate the Aboriginal interest” virtually decreeing a devolution of Crown sovereignty to Aboriginals, and effectively turning Indigenous bands into a third order of government with the power arbitrarily to advance or restrict Canada’s economic fortunes.
It’s easy for Indigenous activists to bash a white historian, or even an Aboriginal dissident without special standing like Wuttunee. But it will be more difficult to dismiss the opinion of a former Supreme Court justice. Best just came in for an unexpected stroke of luck. Former Supreme Court justice Jack Major (1992-2005) has given the book his endorsement in a letter discussed in an article by the Frontier Centre for Public Policy (FCPP).
September 18, 2019
The Canadian Charter of Rights and Freedoms* (*not all sections apply in Quebec)
Andrew Coyne on the disgraceful habit of the federal government (and nine provincial governments) to look the other way when Quebec decides that some of the guarantees in the Charter don’t apply in La Belle Province:
For many observant persons, particularly Muslims, Sikhs and orthodox Jews, this amounts to a religious hiring bar: the wearing of the hijab, the turban and the kippa are key requirements of their faith, and as such core elements of their identity. To demand that they work uncovered is, in effect, to post a sign saying Muslims, Sikhs and Jews need not apply.
We should be clear on this. It’s not just a dress code, or an infringement of religious freedom, or religious discrimination, or those other abstract phrases you hear tossed about. We are talking about a law barring employment in much of the public sector — not just police and judges, but government lawyers and teachers — to certain religious minorities.
Existing workers may have been grandfathered, but only so long as they remain in their current jobs. Should they ever move, or seek a promotion, they will face the same restrictions. The signal to the province’s religious and, let’s say it, racial minorities, vulnerable as they will be feeling already after the mounting public vitriol to which they have been exposed in the name of the endless “reasonable accommodation” debate, is unmistakable: you are not wanted here. Not surprisingly, many are getting out — out of the public service, out of Quebec.
That this is actually happening, in 2019, in a province of Canada — members of religious minorities being driven from their jobs, and for no reason other than their religion — is sickening, and shameful. That shame is not reserved to Premier Francois Legault or his CAQ government, the people responsible for designing and implementing this disgraceful exercise in segregation, this manifestly cruel attempt to cleanse the province’s schools and courts of religious minorities. It is no less shaming to the rest of us, everywhere across Canada, so long as we permit it to continue.
That is, so far as we are capable of feeling it. But experience has taught us to look the other way when it comes to Quebec, to tell ourselves that it is none of our affair, that we must not raise a fuss when the province explicitly elevates the interests of its ethnic and linguistic majority over those of its minorities, or threatens the country’s life for long years at a time — the beloved “knife at the throat” strategy — to back its escalating fiscal and constitutional demands. We dare not. We cannot. For then Quebec would leave.
September 8, 2019
Boris may have a viable escape hatch after all
It could not only untangle the current mess in Parliament but have the almost equally attractive feature of sending his opponents into paroxysms of rage:
“Palace of Westminster”by michaelhenley is licensed under CC BY-NC-SA 2.0
The consensus is that the Government is trapped in an iron vice that will now be tightened till it cracks. The truth, however, is that this vice is less of iron than of hot air.
The Civil Contingencies Act 2004 is a constitutional outrage. It allows a government to declare an emergency, and then to rule by decree. It should never have been made. But it was made; and it can now be used as an instrument of liberation.
The Act defines “emergency” as just about anything the authorities may dislike. One possible definition is “an event or situation which threatens serious damage to human welfare in a place in the United Kingdom.” (s.1(1)) This sounds a promising excuse. It seems to cover what the Opposition claims would be the effect of a No-Deal Brexit.
Triggering the Act requires no more than “a senior Minister of the Crown” – that is, Boris Johnson – to announce an Emergency. This done, he can make, alter or suspend almost any law he likes. (s.22) He can do this for a period of thirty days. (s.26) All he has to do is preface his decree with a statement that he “is satisfied that the regulations contain only provision which is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made.” (s.20(5)(b)(ii))
He cannot change the Act itself, or the Human Rights Act. He cannot set up concentration camps for his opponents, or put them before a firing squad. But the Fixed Term Parliament Act is fair game. He could suspend that. Then he could dissolve Parliament in the traditional way.
He must, “as soon as is reasonably practicable,” lay his decrees before Parliament. (s.27(1)(a)) No doubt, the Parliament we have would punish him with an Act of Attainder. But this Parliament would no sooner reassemble after the prorogation than it would be dissolved. The Speaker would barely have time to open his mouth. Assuming the general election went as hoped, the next Parliament would not be inclined to dispute the circumstances of its birth.
All the opposition parties would go screaming mad. But, as said, we are not talking about concentration camps and firing squads. The only use of the Emergency would be to give a voice to the people. Who could legitimately deny that? As for sharp practice in general, the opposition parties have spent this year turning the Constitution upside down. Who could complain if the Government now joined in the fun?
August 20, 2019
Jonathan Kay listened to the whole SNC-Lavalin report so you don’t have to…
Update: Apparently the Thread Reader App only picked up the first couple of entries (it worked fine when I queued it up for publication yesterday). Here’s the text version:
I just listened to the entire ethics commissioner’s report on the SNC-Lavalin scandal while driving back from Maine. I loaded up the text in my VoiceAloud app, hit play, and the audio kept me going for 3 hours, all the way into central New York State, along the I-90….
As with any narrative, you begin to identify with certain characters. In my case, it was @Puglaas. I found it especially maddening the way everyone around her kept babbling about finding a “solution,” which was their settled euphemism for bullying her into helping SNC…
The level of condescension exhibited by everyone in and around the PMO toward @Puglaas was breathtaking. These Liberal dudes always kept pretending that they just wanted to make sure she had enough “information,” as if she were a law student, not the AG of a G7 nation …
At the same time, it was breathtaking the way SNC Lavalin was essentially able to turn the entire PMO, and major ministries, into its personal lobbying operation. Texts, emails, calls, in-person visits… it was like SNC-Lavalin had Trudeau’s PMO on retainer, like a law firm ….
I hadn’t realized SNC was able to mobilize, or attempted to mobilize, not one, not two, but THREE former SC of Canada justices on its behalf. This is the sort of blurring between corporate & govt operations that u expect in banana republics (or in the Irvings’ New Brunswick)…
The fact trudeau & those around him still pretend this is about “jobs” is…I don’t even know the word for it. The ethics comm essentially called it a lie. This was about partisan politics. How can JT say he “accepts” the report without coming to terms with this core finding?
When this scandal & election is done, we need an inquiry that gets to the bottom of the larger issue here: how a single quebec corp, one heavily impugned by its own action, was able to essential create legislation to help itself, got trudeau to ram it thru on a budget omnibus…
And then spent weeks pulling every lever in ottawa to try to override our constitutional system of govt so they could get off the hook for alleged crimes, culminating in the actual reconstitution of cabinet. SNC turned our govt into a joke. And trudeau still sez it’s about “jobs”
If yr attitude is that u dont want to educate yourself about this scandal, bcuz the only thing that matters is hating @AndrewScheer (an attitude some ppl have candidly expressed) pls reconsider. Even if u vote Liberal, the scandal exposed problems in our system that need fixing
Conservative governments have no doubt been equally solicitous to big well-connected firms. Leftists *especially*, the same ones dismissing this scandal bcuz it interferes with their elxn narrative, should be horrified that corporations are treating @Bill_Morneau & PMO as puppets
The fact that all of these Libs can bleat “jobz jobz jobz” with a straight face isnt just a symptom of the amoral cynicism of politics (tho it is that). It reflect the fact that we canadians expect that big corps will get coddled like this. We need to end it
If youre @AndrewScheer or @theJagmeetSingh, it’s fine to rake the Libs over the coals for lying to us. But all politicians lie. Tell us how you’d fix the system structurally to ensure that the PMO isn’t acting as a pro bono hanger-on to a major corporation
And if you’re a progressive activist of a certain age, go back & look at all the things @NaomiAKlein @Sheila_Copps Judie Rebick etc warned us about during the free trade battles…corporations dictating terms to elected govts. Well, guess what ? That’s what’s on display here…
In fact, one of the most tragicomic subplots here is the Libs running around in full panic bcuz SNC was about to have a board meeting the next day… Yes, that’s right: Trudeau’s PMO prioritized important legal decisions on the basis of some company’s board meeting.
Because Jobz.What’s more, the full-court press on @Puglaas in the shadow of these meetings was itself based on another lie: Libs knew SNC HQ couldnt abandon quebec (till 2024) bcuz of representations made to Caisse in regard to purchase of a UK sub. Bullshit layered on bullshit
#BecauseJobzI keep coming back to @Puglaas, & how she must have felt. How many cdns have been in a job where yr boss & his minions tried to pressure u to find an unethical “solution,” to help the boss keep his own job? then when u did what was right, u get turfed 4 not being a “team player”
This isnt just about Trudeau. One galling episode described is a meeting in which @Bill_Morneau pontificates to @Puglaas about how she doesnt have enuf “information” about econ effects of possible SNC crim conviction. @Puglaas asks Morneau if he’s done a study on it. Answer: no.
We talk a lot about toxic workplaces for women. hard not to see how the dudes who Trudeau assigned to push @Puglaas around on this file aren’t guilty of this. Their strategy was to make her feel ignorant bcuz she did the right thing. The PMO gaslit their own justice minister
There are several female Liberal MPs whom I have come to know and respect, such as @juliedabrusin @cafreeland @JulieDzerowicz. It is mortifying to watch them being forced to line up in defence of this.
As for SNC itself, I don’t really blame it for doing what it did. If u were running a company and knew you could dictate terms to a govt, why not? The lesson to other CEOs would be that if youre accused of a crime, just threaten to lay ppl off and move your HQ. Problem solved.
final note…u can see y the Libs are going hard with demagoguery about @AndrewScheer being white supremacist-adjacent. A traditional leftist claim was that Tories would sell out to corporate interests. That’s a hard claim for Libs to make now. bcuz the Libs have already done it
It’s been a day since I wrote this thread, & some commenters are saying the SNC scandal shows Trudeau & the Libs are unscrupulous people. But I dont think that’s it. I have met some of these protagonists, and have found them to be *more* public-minded than the average citizen…
As noted in a response to @staceylnewman, the problem is that politics changes ppl. There’s a chilling quote in the report, from a meeting, where a Lib says to @Puglaas (paraphrasing here) “It doesn’t matter how great our policies are. We need to get re-elected to implement them”
To me, that sums everything up: The means justifies the ends, bcuz the ends (the “good” side wins power, & the “bad” side loses) are taken to have existential importance. That’s the myth that leads all politicians astray. If JT just admitted this, I bet many would forgive him
August 10, 2019
Sulla’s dictatorships
In New York magazine, Andrew Sullivan portrays the current state of the American Republic in light of the late history of the Roman Republic:
This 54 B.C. coin bears the portrait of the dictator Sulla. The moneyer was Q. Pompeius Rufus, the grandson of Sulla and his home would likely have had portraits of their famous ancestor. Thus, although posthumously struck, the portrait on these coins is probably an accurate representation.
Photo by CNG via Wikimedia Commons.
… zoom out a little more and one obvious and arguably apposite parallel exists: the Roman Republic, whose fate the Founding Fathers were extremely conscious of when they designed the U.S. Constitution. That tremendously successful republic began, like ours, by throwing off monarchy, and went on to last for the better part of 500 years. It practiced slavery as an integral and fast-growing part of its economy. It became embroiled in bitter and bloody civil wars, even as its territory kept expanding and its population took off. It won its own hot-and-cold war with its original nemesis, Carthage, bringing it into unexpected dominance over the entire Mediterranean as well as the whole Italian peninsula and Spain.
And the unprecedented wealth it acquired by essentially looting or taxing every city and territory it won and occupied soon created not just the first superpower but a superwealthy micro-elite — a one percent of its day — that used its money to control the political process and, over time, more to advance its own interests than the public good. As the republic grew and grew in size and population and wealth, these elites generated intense and increasing resentment and hatred from the lower orders, and two deeply hostile factions eventually emerged, largely on class lines, to be exploited by canny and charismatic opportunists. Well, you get the point.
After the overthrow of the monarchy, the new Republic went from strength to strength, struggling against and generally beating and absorbing other city states in the Italian peninsula, eventually rising to face the challenge of Carthage, the dominant power in the western Mediterranean. The eventual Roman victory over Carthage left Rome the superpower of its age, able to dominate and control even the remaining “great” powers of the eastern Mediterranean world. One of the costs of military dominance was an over-reliance on its citizen armies, which eventually changed the entire economy of the Republic, switching from largely small-holding farmers (who were subject to legionary service) to larger slave-worked farms that displaced the families of free citizens from their lands. The result was a constant inflow of impoverished rural citizens to the urban centres, especially Rome itself.
The newly enlarged urban poor found champions to push for reforms to aid them in their plight, the first of whom was Tiberius Gracchus (Extra Credits did a short video series on the Brothers Gracchi: Part I, Part II, Part III, Part IV, Part V, and an extra commentary video). The defeat and death of the Gracchi brothers by agents of the Patrician order led, as you might expect, to yet more polarization and further violent political struggle. This process was hastened by the conflict between Marius and his former protégé Sulla:
As the turn of the first century BCE approached and wars proliferated, with Roman control expanding west and east and south across the Mediterranean, the elites became ever wealthier and the cycle deepened. Precedents fell: A brilliant military leader, Marius, emerged from outside the elite as consul, and his war victories and populist appeal were potent enough for him to hold an unprecedented seven consulships in a row, earning him the title “the third founder of Rome.” Like the Gracchi, his personal brand grew even as republican norms of self-effacement and public service attenuated. In a telling portent of the celebrity politics ahead, for the first time, a Roman coin carried the portrait of a living politician and commander-in-chief: Marius and his son in a chariot.
A dashing military protégé (and rival) of Marius, Sulla, was the next logical step in weakening the system — a popular and highly successful commander whose personal hold on his soldiers appeared unbreakable. Tasked with bringing the lucrative East back under Rome’s control, he did so with gusto, prompting a somewhat nervous Senate to withdraw his command and give it to his aging (and jealous) mentor Marius. But Sulla, appalled by the snub, simply refused to follow his civilian orders, gathered his men, and called on them to march back to Rome to reverse the decision. His officers, shocked by the insubordination, deserted him. His troops didn’t, soon storming Rome, restoring Sulla’s highly profitable command, and forcing his enemies into exile. Sulla then presided over new elections of friendly consuls and went back into the field. But his absence from Rome — he needed to keep fighting to reward his men to keep them loyal — enabled a comeback of his enemies, including Marius, who retook the city in his absence and revoked Sulla’s revocations of command. Roman politics had suddenly become a deadly game of tit for tat.
When Sulla entered Rome a second time, he rounded up 6,000 of his enemies, slaughtered them en masse within earshot of the Senate itself, launched a reign of terror, and assumed the old emergency office of dictator, but with one critical difference: He removed the six-month expiration date — turning himself into an absolute ruler with no time limit. Stocking and massively expanding the Senate with his allies, he neutered the tribunes and reempowered the consuls. He was trying to use dictatorial power to reestablish the old order. And after three years, he retired, leaving what he thought was a republic restored.
Within a decade, though, the underlying patterns deepened, and nearly all of Sulla’s reforms collapsed. What lasted instead was his model of indefinite dictatorship, with the power to make or repeal any law. He had established a precedent that would soon swallow Rome whole.
August 9, 2019
What’s happening in Jammu and Kashmir?
Pieter J. Friedrich reports on recent events concerning the unique constitutional status of Jammu and Kashmir within the Republic of India:
CIA map of the Kashmir Region in 2004.
Via Wikimedia Commons. Click image to see full-sized map.
Terror grips the most militarized zone in the world after India’s Central Government terminated Jammu and Kashmir’s 70-year-old “special status” as the first step towards stripping the disputed region of statehood entirely.
Internationally infamous as the world’s hottest potential nuclear flashpoint, J&K originally acceded to India in 1947 only on the condition that the newly-formed country be restricted from interfering in the domestic affairs of the mountainous northern region. The agreement was sealed between the last king of J&K, Maharaja Hari Singh Dogra, and the representative of the British crown, Governor-General Lord Mountbatten. In 1949, when passage of the constitution formed the Republic of India, the Maharaja’s conditions for accession were enshrined in Article 370.
The crux of the article – in combination with Article 35A of 1954 – was that, while J&K accepted India’s handling of issues like defense and foreign policy, the state otherwise reserved the right to autonomy in handling its domestic affairs. Kashmiris, thus, lived under their own distinct laws. Notably, citizens of other parts of India were prohibited from settling permanently or owning property in Kashmir. In the eyes of many Kashmiris, this prevented settler colonialism. On August 5, 2019, the President of India abolished this “special status” by decree.
Simultaneously, Home Minister Amit Shah – charged with India’s internal security – introduced a bill in the upper house of parliament to strip J&K of statehood, downgrade it to a “Union Territory,” and partition the region.
As Shah did this, the Central Government shut down Kashmir. It imposed a virtual curfew, banning movement of the public, shuttering educational institutions, and barring all public assemblies or meetings. It severed communications, cutting off phone and internet access. And it conducted arrests of mainstream Kashmiri political leaders – such as former chief ministers Mehbooba Mufti and Omar Abdullah – on unknown charges.
India’s ruling Bharatiya Janata Party, which was just re-elected in May, campaigned on promises to scrap J&K’s “special status.” The BJP’s manifesto alleged that it was “an obstacle in the development of the state,” while Shah insisted it stood in the way of of Kashmir becoming an “integral party of India permanently” and was necessary for “national security.” Indeed, the tumultuous region has suffered a significant influx in violence in recent years.
Since 2014, when Prime Minister Modi’s regime first came to power, terrorist incidents in J&K have nearly tripled and security forces deaths have nearly doubled. According to a July 2019 UN report, independent bodies documented 159 security forces deaths in 2018 – a figure comparable to US troop fatalities in Iraq in 2009. The latest round of escalating tensions traces back to at least 2010, when mass protests erupted over an “encounter killing” of three civilians by Indian Army troops. Protests again erupted in 2016. During suppression efforts, security forces killed hundreds of protesters.
The Central Government has responded by flooding J&K with more and more soldiers. The small region – slightly smaller than the United Kingdom – is already occupied by a bare minimum of 500,000 troops. Since late July 2019, India has deployed nearly another 50,000.
Delhi has additionally responded by repeatedly dissolving J&K’s elected state government, imposing direct rule three times since 2015. The last time was in June 2018, after India’s ruling BJP withdrew from a coalition with then J&K Chief Minister Mufti – apparently because she advocated “reconciliation” instead of a “muscular security policy” as the most effective solution to the Kashmir conflict. Elections have not been allowed since 2014.
The ongoing occupation as well as the long-term use of direct rule – imposed for approximately ten of the past 42 years – contribute to the perception of Kashmiris that they are nothing more than vassals within the Republic of India.
July 11, 2019
The genesis of the administrative state during the Great Depression
Leonid Sirota provides some interesting background on the rise of the administrative state during the 1930s:
Top left: The Tennessee Valley Authority, part of the New Deal, being signed into law in 1933.
Top right: FDR (President Franklin Delano Roosevelt) was responsible for the New Deal.
Bottom: A public mural from one of the artists employed by the New Deal’s WPA program.
Wikimedia Commons.
To a degree that is, I think, unusual among other areas of the law, administrative law in the United States and, to a lesser extent, in Canada is riven by a conflict about its underlying institution. To be sure there, there are some constitutional lawyers who speak of getting rid of judicial review of legislation and so transferring the constitution to the realm of politics, rather than law, but that’s very much a minority view. Labour unions have their critics, but not so much among labour lawyers. But the administrative state is under attack from within the field of administrative law. It has, of course, its resolute defenders too, some of them going so far as to argue that the administrative state has somehow become a constitutional requirement.
In an interesting article on “The Depravity of the 1930s and the Modern Administrative State” [PDF] recently published in the Notre Dame Law Review, Steven G. Calabresi and Gary Lawson challenge the defenders of the administrative state by pointing out its intellectual origins in what they persuasively argue was
a time, worldwide and in the United States, of truly awful ideas about government, about humanity, and about the fundamental unit of moral worth—ideas which, even in relatively benign forms, have institutional consequences that … should be fiercely resisted.
That time was the 1930s.
Professors Calabresi and Lawson point out that the creation of the administrative state was spearheaded by thinkers ― first the original “progressives” and then New Dealers ― who “fundamentally did not believe that all men are created equal and should democratically govern themselves through representative institutions”. At an extreme, this rejection of the belief in equality led them to embrace eugenics, whose popularity in the United States peaked in the 1930s. But the faith in expertise and “the modern descendants of Platonic philosopher kings, distinguished by their academic pedigrees rather than the metals in their souls” is a less radical manifestation of the same tendency.
The experts, real or supposed ― some of whom “might well be bona fide experts [while] [o]thers might be partisan hacks, incompetent, entirely lacking in judgment beyond their narrow sphere of learning, or some combination thereof” ― would not “serve as wise counselors to autonomous individuals and elected representatives [but] as guardians for servile wards”. According to the “advanced” thinkers of the 1930s, “[o]rdinary people simply could not handle the complexities of modern life, so they needed to be managed by their betters. All for the greater good, of course.” Individual agency was, in any case, discounted: “the basic unit of value was a collective: the nation, the race, or the tribe. Individuals were simply cells in an organic whole rather than ends in themselves.”
H/T to Colby Cosh for the link.
April 30, 2019
Japan’s monarchy
Colby Cosh looks at the astonishingly successful Japanese monarchy over the last few centuries of change:
Emperor Akihito and Empress Michiko at the Tokyo Imperial Palace in Chiyoda Ward, Tōkyō Metropolis on April 24, 2014.
US State Department photo by William Ng, via Wikimedia Commons.
Most everybody knows how the office of the Japanese Emperor became “ceremonial” for the better part of 700 years, and how the archipelago was governed in isolation by what we call the shogunate. The first Westerners who established diplomatic relations with Japan in the 19th century did not think of the Emperor as analogous to Queen Victoria at all. For years they thought of the Mikado as primarily a religious functionary, a sort of pope performing funny, tedious rites in seclusion. (As anyone who has been watching Japanese news in the run-up to Golden Week knows, there is some truth to this.)
Even as reality dawned on those foreign barbarians, their presence in Japan led to social breakdown, civil war, and a sharp, sudden revival of the power of their monarchy — the Meiji Restoration. This is still an awe-inspiring event. Japan was confronted by a little-known and hated outer realm, and was able to adapt with inexplicable confidence. It did not descend into psychic and economic malaise, but almost immediately began to compete with obtrusive Western “powers.” After centuries in abeyance, their constitution somehow allowed them to conjure a enlightened despot of enormous ability, the Meiji Emperor, at the precise moment one was required.
This led in time to the war in the Pacific — and to a second miracle of the same kind. If matters had been left up to American public opinion in 1945, or to the allies of the United States, or even to the American executive branch, the Japanese monarchy would have been abolished and the Emperor given a humiliating trial and death. Such a procedure could have easily been justified then, and can be justified in retrospect now. U.S. foreign policy almost always, in practice, seems to follow the country’s republican instincts.
But while Japan was defeated, it had not been invaded. So Gen. Douglas MacArthur and a few foreign-policy brainiacs reached a magnificent, cynical modus vivendi: they would exploit and reshape the Japanese monarchy rather than smashing it. As a soldier, MacArthur, made Supreme Commander of occupied Japan, would have shot the Emperor with his own sidearm and never lost a minute’s sleep. But he and others somehow managed to overcome racial and political prejudices, and perform an act of American “nation-building” that was not a cruel joke.
February 22, 2019
The odd dual role of the Minister of Justice and Attorney General of Canada
Colby Cosh provides an interesting tidbit of Canadian constitutional detail in the SNC-Lavalin affair:
As a minister she can be expected, and will have expected, to sometimes be given advice and orders from the PM. It would not be an unusual feature of her job to have one of the PM’s close advisers visit her with delegated instructions. Maybe sometimes those instructions would be delivered somewhat abruptly. It happens.
But. The minister of justice also bears an associated title: she is also the attorney general of Canada. You may have gotten the idea that this is just a matter of tradition, a romantic holdover from olden times. It is in fact a matter of explicit statute, the Department of Justice Act, as well as an important constitutional concept. The minister of justice is a politician who writes legislation and oversees the operation of law and courts. The attorney general, although always and necessarily the same human as the minister of justice, is a distinct person charged with the royal authority to commence, manage and cancel criminal prosecutions. When someone sues the Crown it is normally the attorney general who answers, and when the Crown sues it is done through her.
What does this mean? It means that if you are the prime minister’s trusted old chum who does his dirty work, it is all right for you to visit a mere minister of justice, operating in that capacity, and to tell her what the boss wants done for crude partisan reasons. But it is quite strictly forbidden to do that to an attorney general.
In matters of hiring or statute-writing, you can go ahead, kick down her door, and tell her “Orillia needs more red-headed Hungarian judges!” or “There really oughta be a law against candy.” When it comes to prosecutions — when madame has her attorney general hat on — it is very different. You, as a sunny-ways enforcer, are not even supposed to provide unsolicited advice or hints from the prime minister. The PM may be the minister of justice’s boss, but he is not in the chain of command between the attorney general and the sovereign at all.
An attorney general is supposed to make prosecution decisions with the good of the country in mind, and she can ask ministers for their opinions about what would be good, just as she could consult any other schmuck. But for a PM or his dogsbody to venture such an opinion spontaneously, whatever the motive, is not cool. If someone tried to give an attorney general such advice, and she told that person to shove off back to Cape Breton in a leaky dory, and she woke up one morning not long after and turned on the radio and heard that she was no longer attorney general, that would certainly be a mighty big deal.
February 21, 2019
“Excessive fines can be used … to retaliate against or chill the speech of political enemies”
The US Supreme Court delivered a unanimous body blow to excessive use of asset forfeiture by state and local police:
Timbs challenged that seizure, arguing that taking his vehicle amounted to an additional fine on top of the sentence he had already received. The Indiana Supreme Court rejected that argument, solely because the U.S. Supreme Court had never explicitly stated that the Eighth Amendment applied to the states.
On Wednesday, the high court did exactly that.
“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history,” wrote Justice Ruth Bader Ginsburg in the opinion. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies,” she wrote, or can become sources of revenue disconnected from the criminal justice system.
Indeed, some local governments do use fines and fees as a means to raise revenue, and that has created a perverse incentive to target residents. After the 2014 shooting of Michael Brown in Ferguson, Missouri, a federal investigation into the city government found that 20 percent of its general fund came from criminal fines. And Ferguson is not alone in relying heavily on revenue from fines. Making clear that the Eighth Amendment applies to the states will make it far easier to challenge unreasonable fines and fees — including not just asset forfeiture cases, but also situations where local governments hit homeowners with massive civil penalties for offenses such as unapproved paint jobs or Halloween decorations.
Some of those cases are already getting teed up. As C.J. Ciaramella wrote in this month’s issue of Reason, a federal class action civil rights lawsuit challenging the aggressive asset forfeiture program in Wayne County, Michigan, that was filed in December argues that the county’s seizure of a 2015 Kia Soul after the owner was caught with $10 of marijuana should be deemed an excessive fine.
February 12, 2019
History Summarized: Iroquois Native Americans
Overly Sarcastic Productions
Published on 7 Aug 2017There’s a fascinating history from just northwest of American history that is too often ignored. But that’s a damn shame, because it’s a damn cool history, and I’m going to talk about it dammit!
No, I didn’t accidentally misspell the title of this video when I sleepily uploaded this after I woke up. That’s absurd.
EXTRA CREDITS: HIAWATHA: https://youtu.be/79RApCgwZFw
This video was produced with assistance from the Boston University Undergraduate Research Opportunities Program.
PATREON: http://www.patreon.com/OSP
January 2, 2019
QotD: The early United States
I’ve been reading Gordon Wood’s Empire of Liberty (2009), the best one-volume history of the very early American republic in the years between the enactment of the Constitution and the end of the War of 1812. In many ways, I notice, this story has the structure of an enormous joke. The American revolution was wrought by wealthy landowners, many of whom hoped to reproduce the hierarchical, agrarian lifestyle of the English countryside in the New World. These people became the early Federalists: they largely wanted to mimic the world of old Europe, only with themselves on top as rentiers, eschewing labour and trade alike.
But they had sown the wind. The commercial and intellectual forces they set in motion created a new, chaotic, competitive, egalitarian kind of society. And one way this manifested itself was as a media crisis. The Revolution overthrew all established authority, or tended to, and created the conditions for an unfamiliar kind of unregulated, rampant press — an ecosystem full of lies, partisanship, personal abuse, and scurrility.
Even those who made sneaky use of this new system, like Thomas Jefferson, left testimonies to their overall exhaustion and confusion as literate, curious people. You get the impression that being a reader in that time and place, with rumours of wars and tales of corruption zinging around, was hard work.
Colby Cosh, “In 2017, when the shooting stops, the media warfare begins”, National Post, 2017-02-02.
December 5, 2018
QotD: Patriotism
Once upon a time, patriotism was a fairly simple thing. It was tribal identification writ large, an emotional attachment to a people and their land. In most of the world, where patriotism exists at all it’s still like this — tribal patriotism, blood-and-soil emotionalism.
A different kind of patriotism emerged from the American and French revolutions. While American patriotism sometimes taps into tribal emotion, it is not fundamentally of that kind. Far more American is the sentiment Benjamin Franklin expressed: “Where liberty dwells, there is my country”
Thus, most Americans love their country in a more conditional way — not as a thing in itself, but insofar as it embodies core ideas about liberty. It is in the same spirit that our Presidents and miltary officers and naturalizing citizens swear to defend, not the land or people of the United States but its Constitution — a political compact. This is adaptive in many ways; one of them is that tribal patriotism is difficult to nourish in a nation of immigrants.
In France, the ideology of the Revolution displaced tribal patriotism, just as it did in the U.S. But the French, roiled by political instability and war, have never settled on a political unifying idea or constitutional touchstone. Instead, French patriotism expresses a loyalty to French language and culture and history. It replaces tribalism not with idealism but with culturism.
America and France are a marked contrast with, say, Denmark. I chose Denmark at random from the class of civilized countries in which patriotism is still fundamentally tribal. You don’t become a Danish patriot by revering the constitution or culture of Denmark; you become one by being a Dane. Which partly means being a tribesman, connected to the Danish gene pool, and partly means identifying with stories of past Danish heroism.
It hasn’t been easy to find a fire-breathing Danish patriot for at least fifty years, though. One of the effects of the terrible convulsions of the 20th century has been to discredit tribal patriotism. Many people in Europe, not unreasonably, associate it with racism and Naziism and are suspicious of anything that smacks of immoderate patriotism.
Eric S. Raymond, “Patriotism And Its Pathologies”, Armed and Dangerous, 2008-07-09.
December 3, 2018
Eric Swalwell’s Kinsley gaffe
If you haven’t encountered it, a “Kinsley gaffe” is where a politician accidentally tells the truth (Wikipedia). Newly elected US member of the House of Representatives Eric Swalwell committed a classic Kinsley gaffe in an online discussion on social media, as Jeff Fullerton explains:
Democratic representative Eric Swalwell made a really provocative statement this week according to an article from Hot Air. Pretty much serving notice that: If we confiscate your guns and you fight back, we will nuke you.
Representative Swalwell sort of gives a disclaimer that he he was not actually advocating nuking Texas or some other disobedient red state or region — but merely trying to make a point in the fashion of the Borg from Star Trek; that resistance is futile and it is the lot of us all to be assimilated — against our will if necessary. The author of the article from Hot Air points out something that my friend and mentor Bruce the Historian pointed out long ago; that there are an awful lot weapons in the hands of private citizens capable of making it hell on earth for any federal troops deployed to disarm the population or engage in the collectivization of property and resources in a martial law scenario. Or forced relocation of people. That’s the real reason they want everyone disarmed. They know from experiences in Vietnam and the “Forever War” in the Middle East; that cracking down with overwhelming force has its limits and once they put off a nuke to burn a town in Texas they might have to burn every square mile of the nation to put an end to the uprising.
Talk about excessive force!
That they’d even talk at all about using a nuclear weapon to put down an internal insurrection proves beyond the shadow of doubt that power hungry politicians are a far deadlier existential threat to us all than any crazed mass shooter or terrorist could ever hope to be!
This congress creature bases his argument on a fallacy which is common assumption among the political class: that because the federal government is capable of mustering overwhelming force — the Second Amendment is obsolete anyway. He already contradicts himself for if we the people are impotent against the overwhelming fire and manpower of the Army and the bombs and missiles of the Air Force — then why are people like him so adamant about disarming the average Joe? I think I already answered that one. […]
There is also the issue of the military itself that the political class ought to take into consideration. It may be less monolithic than assumed. Many of them still believe in the validity of the Constitution and would side with the resistance while others among the loyalist factions would have problems of conscience when it comes to mass slaughter of fellow Americans. Still others might be fearful of the consequences of being held accountable for atrocities or even treason if they end up on the losing side of things. To attack and kill your own people who you swore to serve and protect is a grievous betrayal. It is treason of the highest order and the punishment for that is death. So if you choose such a course of action and loose the fight; you go down in historic infamy to be remembered like the Nazi war criminals who stood before the Nuremberg tribunals. And you will probably [be] shot or hanged in a public execution!
