Quotulatiousness

January 9, 2013

What does “status” mean in the Canadian First Nations context?

Filed under: Cancon, Government, Law — Tags: , , , , — Nicholas @ 13:23

If you’re confused by the current debate over First Nations people and their relationship with the Crown, you’ll probably want to read âpihtawikosisân‘s explanation of “status” and other terms-of-law that are used in these discussions:

It has been my experience that many Canadians do not understand the difference between Status and membership, or why so many different terms are used to refer to native peoples. The confusion is understandable; this is a complex issue and the terms used in any given context can vary greatly. Many people agree that the term ‘Indian’ is a somewhat outdated and inappropriate descriptor and have adopted the presently more common ‘First Nations’. It can seem strange then when the term ‘Indian’ continues to be used, in particular by the government, or in media publications. The fact that ‘Indian’ is a legislative term is not often explained.

As a Métis, I find myself often answering questions about whether or not I have Status, which invariably turns into an explanation about what Status means in the Canadian context. The nice thing is, as time passes, fewer people ask me this because it does seem that the information is slowly getting out there into the Canadian consciousness.

To help that process along, I figured I’d give you the quick and dirty explanation of the different categories out there. Well…quick is subjective, I am after all notoriously long-winded.

H/T to Andrew Coyne, who retweeted the link from @romeoinottawa.

Why stop at a mere trillion dollars?

Filed under: Economics, Government, USA — Tags: , , , , , — Nicholas @ 08:59

Zero Hedge on the trillion dollar platinum coin nonsense:

A year ago, out of nowhere, the grotesque suggestion to “resolve” the US debt ceiling with a platinum dollar coin came, and like a bad dream, mercifully disappeared even as the debt ceiling negotiations dragged until the last minute, without this idea being remotely considered for implementation, for one simple reason: it is sheer political, monetary and financial lunacy. And yet there are those, supposedly intelligent people, who one year later, continue dragging this ridiculous farce, as a cheap parlor trick which is nothing but a transparent attempt for media trolling and exposure, which only distracts from America’s unsustainable spending problem and does nothing to address the real crisis the US welfare state finds itself in. And while numerous respected people have taken the time to explain the stupidity of the trillion dollar coin, few have done so as an integral part of the statist mainstream for one simple reason — it might provide a loophole opportunity, however tiny, to perpetuate the broken American model even for a day or two, if “everyone is in on it.” Luckily, that is no longer the case and as even Ethan Harris from Bank of America (a firm that would be significantly impaired if America was forced to suddenly live within its means), the whole idea is nothing more than “the latest bad idea” straight “from the land of fiscal make believe.” We can only hope that this finally puts this whole farce to bed.

[. . .]

Taking these sorts of actions would almost certainly worsen, not ease, the coming battles over the spending — a second reason to be skeptical of the idea of the trillion dollar coin. As we have noted before, the debt ceiling is just one of three brinkmanship moments looming in the next few months. The across-the-board spending cuts that constitute the sequester have only been delayed for two months, and absent new legislation, will start in March. Even more troubling, on March 27 the latest continuing resolution ends and, absent new legislation, all nonessential government programs would have to shut down for lack of funding.

Third, throwing the trillion dollar coin into this mix would not only intensify these two other fights, it would likely poison the well even further in future budget negotiations. With split government, fiscal policy making requires bipartisan agreement. The cliff compromise earned support from both parties, marking a welcome — if brief — respite from partisan politics. The last thing Washington needs is a further escalation in gamesmanship.

Finally, there is a slippery slope from avoiding the debt limit to outright debt monetization. Although proponents see it as a technical fix to a problem that, in their view, never should occur, it means the Treasury would have established a precedent to thwart Congressional limitations on spending and the debt ceiling.

Outside of the legal questions, nothing precludes the Treasury from issuing a coin to pay down the full $16.4 trillion in debt in one fell swoop: true monetization. A trillion dollar coin also would subvert the whole budget process, undermining already fragile public confidence and spooking financial markets. And based on the criteria put forth by the rating agencies, it would represent a stunning failure to devise credible political processes to resolve the longer-term budget issues for the US. A downgrade would very likely follow, in our view.

December 20, 2012

Borking, in retrospect

Filed under: Government, History, Law, USA — Tags: , , , , — Nicholas @ 10:14

Walter Olson on the historically nasty confirmation battle that kept Robert Bork off the US Supreme Court:

Of course the confirmation critique that makes it into every Bork obituary isn’t Heflin’s or Johnston’s. It’s Ted Kennedy’s blowhard caricature, intended for northern liberal consumption, of “Robert Bork’s America” as “a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution,” and so on.

Never in memory had a judicial nomination been fought in such language. Why?

As a constitutional law scholar, Bork had distinguished himself even among conservatives for his scathing critique of the Warren Court, which he accused essentially of having made up constitutional law as it went along.

To organized liberal groups, on whose behalf Kennedy was acting, this was the next thing to a declaration of war. Yet they couldn’t exactly come out and defend making up constitutional law as you went along as their own vision for the high court.

Instead, they served up a steady diet of vitriol and wild oversimplification, especially in TV ads and other messages delivered outside the confirmation hearings.

The Washington Post itself opposed Bork’s confirmation, yet nonetheless editorialized against the “intellectual vulgarization and personal savagery” to which some of his opponents had descended, “profoundly distorting the record and the nature of the man.”

December 19, 2012

Clever wording can’t take away an enumerated constitutional right

Filed under: Law, Liberty, Politics, USA — Tags: , , , , — Nicholas @ 13:54

Megan McArdle on the pious hopes of those who hope to bring in draconian gun control regulation by abstruse and intricate verbal gymnastics:

Others are suggesting a de-facto ban, accomplished either through a huge tax, or a ban on ammunition. Oh, I’ve also seen calls to limit the amount of ammunition people can buy, but I don’t think those people have thought this through. For starters, the number of bullets used by a typical rampage shooter is about what a target shooter or hunter might go through in an afternoon or two of range practice. And most gun homicides are not rampage shootings; they have one or two victims, and a correspondingly small number of cartridges expended. Moreover, even a very strict per-purchase limit would permit people to accumulate ammunition over time.

No, the people who want to tax guns at 17,000%, or ban ammunition, or make cartridges cost $2,000 apiece, are the only ones hinting at something that might make a real dent in America’s unusually high rate of gun homicide. Except for one thing: you can’t do an end-run around an enumerated right with some sort of semantic game. Chief Justice John Roberts is not Rumplestiltskin; he is not bound by the universe to disappear if you can only find the correct secret word.

You cannot accomplish back-door censorship by taxing at 100% all profits of any news corporation named after a “carnivorous mammal of the dog family with a pointed muzzle and bushy tail, proverbial for its cunning.” You cannot curtail the right to protest by requiring instant background checks and a 90-day waiting period on anyone who wants to assemble with 500 of their friends in a public area. Nor can you restrict the supply of ink used to print Korans. If you pass a law like that, the Supreme Court will say “nice try, guys” and void all the painstakingly constructed verbal origami that was supposed to make civil liberties infringement look like an innocent exercise of the taxing power.

December 1, 2012

The ACLU and the introduction of sex as a civil right

Filed under: Books, Law, Liberty, Media, USA — Tags: , , , — Nicholas @ 11:33

For Reason, Debbie Nathan reviews a new book by Leigh Ann Wheeler:

When it comes to Americans’ understanding of sexual privacy and public sexual expression, most of us are effectively members of the American Civil Liberties Union. This is so even for people who carry no card, pay no dues, and — if such a thing were possible — have never even heard of the organization.

That’s the takeaway from How Sex Became a Civil Liberty, Leigh Ann Wheeler’s dense but fascinating account of the ACLU’s wildly successful efforts, since its founding almost 100 years ago, to bring sex under the purview of the Bill of Rights. Wheeler, a Binghamton University historian, could have stuck with a wonky narrative about a long march of law and jurisprudence. Instead, she’s taken what she calls an “empathic” approach. She has combed vast archives, including personal correspondence of the ACLU’s founders and decades of files from the national office and local affiliates.

From these papers she has assembled a story about men and women working through their own sexual passions and contradictions as they shaped a legal and political practice for the entire country. She reveals how activists pushed, slouched, and pushed some more to arm their fellow citizens with sexual rights, even as those rights provoked further conflicts, including among ACLUers themselves.

November 7, 2012

No matter who you vote for, the government always gets in

Filed under: Liberty, Media, Politics, USA — Tags: , , , , , , — Nicholas @ 09:07

L. Neil Smith explains one of the most significant reasons that the most recent US election didn’t seem to offer much in the way of choice between the two major party candidates:

No matter how hard Productive Class folks may work at trying to put good people into office, people who respect the Bill of Rights, as well as our dignity as individuals, every single time, we end up with a non-choice between two sets of rapacious gangsters, government parasites and their corporate lookalikes who, differing only in the excuses they use to justify it, see us only as cattle, to be herded, branded, milked, and slaughtered. On the rare occasion that someone decent pokes his head up — Barry Goldwater, Ron Paul — it’s cut off by the socialist mass media, pack animals who give prostitution a bad name.

Beyond the palest shadow of a doubt, the game is rigged, with people who actually work for a living assigned the role of perpetual losers, expected to bow down to Authority no matter how ludicrous its demands, required to observe the letter and the spirit of the law no matter how often, or how outrageously it’s flouted by the insatiably power-hungry. Those who object — especially if they get together to air their grievances — are labeled rednecks, racists, or terrorists by the socialist mass media, depending on what’s in fashion at the time. The truth has no place in this process, only the virtual reality created by the socialist mass media at the behest of their thuggish clientele.

To make things even worse, members of the Productive Class find themselves in the role of shuttlecock in a game of political badminton that has been going on for two centuries. Fed up with the failures and excesses of, say, the Republicans, voters will replace them with Democrats, only to be reminded, in short order, that Democrats suffer failures and commit excesses of their own. Four years after that, experiencing political amnesia again, they put Republicans back in power, when what they ought to do is dump “both” major parties (which are really only one entity, the party of endless lies and coercion) altogether.

October 30, 2012

Pushing for “medical marijuana” makes full legalization less likely

Filed under: Health, Law, Liberty, USA — Tags: , , , , , , , — Nicholas @ 09:05

L. Neil Smith makes the point that supporters of medical marijuana may be missing:

What I do mind — and perhaps I am alone in this, who knows? — is weak and disingenuous politics with regard to drugs. It was the issue of “medical marijuana” that first got my goat this way. I don’t doubt for a microsecond that the weed makes life easier and longer for those suffering certain diseases, and I believe that those who would deny them that relief are little better than scavengers on the misery of others.

But observation — and my knowledge of history and human nature — suggests that the majority of those who advocate the legalization of pot “purely for medicinal purposes” do not require it for that reason. They simply want to slip the nose of their personal camel under the edge of the tent, and I find that approach sneaky, dishonest, and cowardly.

I believe that if they had spent the past fifty years pushing the Ninth Amendment right to roll up and smoke whatever frigging vegetable you wish, marijuana would be legal now, and there would not have been a “War On Drugs” handy for the psychopathetic enemies of liberty to transform into a War on Everything, including the American Productive Class.

I think we’ve seen the high point for medical marijuana. The proof of that lies in a current initiative to “Regulate Marijuana Like Alcohol”, on the ballot in my home state of Colorado this year. The title says it all, although the details could be gruesome, ending in a mess found in some states and all military bases, where the government runs the liquor stores (about as well as they run everything else). In the Air Force, when I was growing up, some officious snoops regularly examined the records of the store and your commanding officer would get a tattletale letter if they thought that you were buying too much booze.

Whatever that amounts to.

This is not a kind of progress any that real libertarian would recognize. The fact that advocates of the measure make a major selling point of taxing the stuff only makes it worse, both in principle and practice. First, by what right does anybody steal money from me when I choose to spend it on some things and not on others. Furthermore, when I was just entering college, a smoker could buy a pack of Marlboros out of a machine for 35 cents. Today, the price per pack is nudging five dollars, and only a small fraction of that is attributable to inflation.

Exactly the same thing will happen with marijuana.

October 10, 2012

Defending the rights of the accused (even when the accused are “clearly guilty”)

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 10:41

Ken White doesn’t like the way the criminal justice system is criticized on the basis of “feelings”, rather than the facts. In a recent case that the media has reported on as a travesty of justice, he defends the process by which the decision was reached.

Blogger “Gideon” writes at A Public Defender and is, in fact, a public defender. That is to say, Gideon works every day under lousy conditions, inadequate funding, and impossible odds to provide a vigorous defense to people accused of crimes who can’t afford a lawyer — people who, absent vigorous representation, will be ground up by the system, guilty or innocent. God bless Gideon for that. Gideon has been waging a lonely battle to explain what Fourtin v. Connecticut actually means.

As Gideon explains at length […], prosecutors made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is “physically helpless.” What the Supreme Court of Connecticut found was not that “if a severely handicapped person could resist but doesn’t, its not rape.” What the Court found was that this victim — who, though severely handicapped, could move and resist — was not “physically helpless” within the meaning of the statute, which is narrowly confined to people who are “unconscious or for some other reason physically unable to communicate lack of consent.” The Court found that the evidence showed that the victim could communicate lack of consent, and thus wasn’t “physically helpless” under the statute. The Court also repeatedly criticized the prosecutor’s decision to charge the case under this particular statute (rather than, for instance, under another subsection that could have applied because the victim was so mentally impaired that she was “unable to consent to such sexual intercourse”), and failure to offer evidence of state’s latecoming theories under this statute.

I’m outraged that the prosecution made a lousy and seemingly inexplicable call. I’m outraged that someone who sexually assaulted a profoundly handicapped woman goes free because of incompetence. But I’m not outraged that the state has to prove that you’re guilty of the specific crime you’re charged with to put you in prison. That’s fundamental to due process. “Well, hell, he didn’t do what he’s charged with, but he did something else awful” is tyrannical. I’m more afraid of the state’s ability to make it up as they go along in a criminal case than I am of criminals going free. As a criminal defense attorney, I know that it would be impossible to defend clients if the government could throw on their case and then ask the judge to find a statute that fits, instead of charging defendants with a specific crime and then proving that crime. As Gideon points out, the Sixth Amendment gives you the right “to be informed of the nature and cause of the accusation” against you. “You’re a criminal, we’ll figure out what statute you violated after we see how the evidence turns out at trial” is not due process.

October 3, 2012

Sullum: Slandering Muhammad Is Not a Crime

Filed under: Liberty, Media, Religion, USA — Tags: , , , , , — Nicholas @ 09:15

At Reason, Jacob Sullum highlights the good and not-so-good about President Obama’s defence of free speech:

Addressing the U.N. General Assembly last week, President Obama tried to explain this strange attachment that Americans have to freedom of speech. He was handicapped by his attraction to a moral principle whose dangers the journalist Jonathan Rauch presciently highlighted in his 1993 book Kindly Inquisitors: “Thou shalt not hurt others with words.”

During the last few weeks, the widespread, often violent, and sometimes deadly protests against The Innocence of Muslims, a laughably amateurish trailer for a seemingly nonexistent film mocking the prophet Muhammad, have demonstrated the alarming extent to which citizens of Muslim countries, including peaceful moderates as well as violent extremists, embrace this injunction against offending people. “We don’t think that depictions of the prophets are freedom of expression,” a Muslim scholar explained to The New York Times. “We think it is an offense against our rights.”

This notion of rights cannot be reconciled with the classical liberal tradition of free inquiry and free expression. But instead of saying that plainly, Obama delivered a muddled message, mixing a defense of free speech with an implicit endorsement of expectations that threaten to destroy it.

Update: The UN thinks free speech is something that was created by the UN in 1948:

Free speech is a “gift given to us by the [Universal] Declaration of Human Rights,” said Deputy Secretary General of the United Nations Jan Eliasson during a press conference on October 2nd at UN headquarters in New York. It is “a privilege,” Eliasson said, “that we have, which in my view involves also the need for respect, the need to avoid provocations.”

October 1, 2012

Michigan’s unions battle for a veto right over state law

Filed under: Government, Law, USA — Tags: , , , — Nicholas @ 10:10

In the Wall Street Journal, Shikha Dalmia looks at a proposed constitutional amendment in Michigan which would give unions a huge veto power over state law:

The Michigan Supreme Court recently approved the placement of a proposed constitutional amendment on the November ballot. If passed by voters, the so-called Protect Our Jobs amendment would give public-employee unions a potent new tool to challenge any laws — past, present or future — that limit their benefits or collective-bargaining powers. It would also bar Michigan from becoming a right-to-work state in which mandatory union dues are not a condition of employment. The budget implications are dire.

[. . .]

The amendment says that no “existing or future laws shall abridge, impair or limit” the collective-bargaining rights of Michigan workers. That may sound innocuous, but according to Patrick Wright of the Mackinac Center for Public Policy, the amendment would hand a broad mandate to unions to challenge virtually any law they don’t like.

[. . .]

The ballot initiative states that it would “override state laws that regulate hours and conditions of employment to the extent that those laws conflict with collective bargaining agreements.” In other words, collective-bargaining agreements negotiated behind closed doors would trump the legislature — a breathtaking power grab that would turn unions into a super legislature.

Perhaps the biggest upside for unions is that the proposal would prohibit Michigan from becoming a right-to-work state. Regaining its competitive position with respect to the 23 right-to-work states that have become attractive to manufacturers, even auto makers, would be unlikely. Rather, labor would get a field-tested strategy for scrapping those states’ right-to-work laws with ballot referendums.

September 10, 2012

Extending the state’s say in private decision-making

Filed under: Britain, Law, Liberty — Tags: , , , , , — Nicholas @ 09:55

Barbara Hewson on recent legal developments in Britain which extend the state’s ability to interfere in the private lives of adults:

For centuries, the High Court has claimed an ‘inherent jurisdiction’ to take care of the persons and property of those who could not look after themselves. This power covers minors and wards of court, as well as adults who lack mental capacity. It originates in an ancient Crown Prerogative, going back to feudal times (1). But in a little-noticed legal development, some judges of the Family Division have started to claim an ‘inherent jurisdiction’ over the lives of adults in full possession of their faculties.

This is a disturbing trend. These rulings are given at private hearings. Parliament, the public, and indeed the Ministry of Justice, are none the wiser. The problem, at base, is a constitutional one. Our judges are unelected, and are not supposed to make laws. That is parliament’s function.

Parliament has said that people become adults at age 18 (2). Most people think that the point of reaching adulthood is that you get to decide where you live, and who your friends are. If you make unwise decisions, that is unfortunate, but it is not a basis for the authorities to intervene. However, last March, in a case called ‘DL’, the Court of Appeal said that the High Court is entitled to disregard adult decision-making (3).

[. . .]

Judges of the Family Division of the High Court have been seduced by what Frank Furedi has called ‘the fatalistic sociology of the precautionary principle’. This views all human beings as innately powerless, vulnerable and at risk (7). And if to be at risk is a condition of life, then everyone becomes a legitimate target of judicial intervention and protection. This refusal by the courts to acknowledge adults as self-determining agents has ominous implications for liberty and the law.

September 4, 2012

Paul Wells writes a political obituary for Jean Charest

Filed under: Cancon, Politics — Tags: , , — Nicholas @ 10:25

If Jean Charest somehow overcomes the odds (and the most recent polls), we can just file this column away for the next time:

He’s mostly been a lousy premier. His dreams of “re-engineering” Quebec soon went by the wayside. He spent most of his first mandate struggling to show he even understood Quebec. He stalled on important reforms—he left university tuitions, for instance, frozen until 2008. He did not move to clean up party financing, and when the allegations against his own government mounted, he seemed honestly to believe it was the accusers who were the problem. He stalled until he was weak instead of moving to reform when he was strong.

But he hung on, for as long as any modern Quebec premier has hung on. While he was hanging on, the constitutional debates that made Canadian public life so joyless and distracted from 1976 to, say, 2000 did not reconvene. Charest had no interest in making the argument his predecessors Robert Bourassa and Claude Ryan favoured: that Canada did not deserve to survive if its Constitution could not be amended to suit the whims of Outremont intellectuals. Montreal’s economy recovered, and today the city’s downtown looks better than it has in 40 years, if you survive the drive in without having half of an overpass fall on you. Nothing’s perfect.

On his way to defeat, he implemented important reforms in the way most reforms actually happen in the real world: under fire and in a desperate attempt to avoid further humiliation. The Charbonneau commission of inquiry into corruption in the construction agency, the belated reforms to university financing, the woefully delayed attempts to pay what it takes to have public infrastructure that doesn’t crumble overhead: none of these was his bright idea, but they are in place, almost despite him, and his successors will benefit. He is Quebec’s Gorbachev, a reformer despite himself, swallowed up by forces he hoped only to contain. Like Gorbachev, he will look better in hindsight than he feels while it’s happening.

Enoch Powell said all political lives end in failure. What matters is the word “end.” Public life in a democracy is so cruel that taking a long time to fail is its own kind of success.

Is Charest’s political life really ending? He’s only 54. He once had a future in Ottawa. I cannot imagine he still does. But in his ungainly fashion he has defied imagination before. All I know is that he has been good for more surprises than almost any politician I’ve covered.

September 2, 2012

The importance of encryption for private citizens

Filed under: History, Liberty, Technology — Tags: , , , , — Nicholas @ 11:26

Wendy McElroy relates one of the earliest examples of private encryption in the young American republic:

In America, the tug of war between privacy and forced access to encrypted data is as old as the nation’s formation. As always, forced access was executed by authorities against individuals.

In 1785, a resolution authorized the secretary of the Department of Foreign Affairs to open and inspect any mail that related to the safety and interests of the United States. The ensuing inspections caused prominent men, like George Washington, to complain of mail tampering. According to various historians, it also led James Madison, Thomas Jefferson and James Monroe to correspond in code. That is, they encrypted their letters to preserve the privacy of their political discussions.

The need for Founding Fathers to encrypt their correspondence is high irony. The intrusive post office against which they rebelled had been established specifically to provide a free flow of political opinion. In the 1770′s, Sam Adams urged the 13 colonies to create an independent postal system because the existing post office, established by the British, acted as a barrier to the spread of rebellious sentiment. Dorothy Ganfield Fowler in her book Unmailable: Congress and the Post Office observed, “He [Adams] claimed the colonial post office was made use of for the purpose of stopping the ‘Channels of publick Intelligence and so in Effect of aiding the measures of Tyranny.’”

Alas, the more government changes, the more oppression remains the same. Soon the Continental Congress itself wanted to declare some types of matter ‘unmailable’ because their content were deemed dangerous. Anti-Federalist letters and periodicals became one of the first types of information to become de facto unmailable. (Anti-federalists resisted centralized government and rejected a Constitution without a Bill of Rights.) During the ratification debates on the Constitution, the Anti-Federalists were unable to circulate their material through the Federalist-controlled post office.

August 23, 2012

Quebec election: why is Pauline Marois getting a free pass for xenophobia?

Filed under: Cancon, Media, Politics — Tags: , , , , , , , — Nicholas @ 09:09

Jonathan Kay wonders why the English language media in the “rest of Canada” are being so careful to avoid calling out PQ leader Pauline Marois for far greater sins than any Alberta politician committed during the recent Alberta election:

Given the close scrutiny that surrounded the recent Alberta election, it is somewhat surprising that more attention is not being paid to the genuinely alarming things coming out of the mouth of Parti Québécois leader Pauline Marois.

During the Alberta campaign, every gaffe committed by a member of the right-wing Wildrose Party became a national news item. The Toronto media, in particular, lapped it up — because it played to our outdated stereotype of Alberta as a land of rural hicks. Yet nothing that was said in the Alberta campaign can compare to the declarations of Ms. Marois, who has easily established herself as the most xenophobic major-party leader in all of Canada.

So why has there been comparatively little uproar over Ms. Marois? It is as if Canadians in the rest of the country have become so accustomed to watching Quebec nationalists bottom-feed for votes that we no longer are shocked by it. But Quebec is, after all, part of Canada. And Ms. Marois might become the province’s next premier on Sept. 4. Surely, it is worth rousing ourselves to pay attention to the fact that this woman is proposing policies that are unconstitutional and even bigoted.

August 15, 2012

Canadian liberty, 1776-2012

Filed under: Cancon, History, Liberty, USA — Tags: , , , , — Nicholas @ 09:32

F.H. Buckley has an interesting article in the National Post, comparing the American and Canadian “flavours” of liberty from the American Revolution down to today:

The Fathers of Confederation had seen the American constitution close up and didn’t want any part of it. They didn’t foresee just how we’d turn out. Overall, however, our good fortune would not have surprised them, for they knew that they were founding a free country.

On reading the Confederation debates, one is struck by how the Fathers insisted that we had real liberty in Canada, more so even than Americans. That comes as a bit of a shock, as we had thought that Americans had property rights in liberty. They owned it, and on occasion were kind enough to try to export it to lesser countries, as they did 200 years ago in the War of 1812 (where they came in a very strong second).

[. . .]

When McGee and the other Fathers looked south, they saw a country with more of Constant’s liberty of the ancients but less of the liberty of the moderns. Moreover, of the former, the right of self-government had been corrupted by political machines and trivialized by elections for dogcatchers. The high ideals of the American Founders had been forgotten, and their republican virtue was now, in the era of Boss Tweed and Jay Gould, little more than American braggadocio. As for the liberty of the moderns, there was that little matter of slavery and its aftermath. True, Americans could express themselves through lynch-parties, but that was the kind of liberty the Canadians did not want.

Many of the differences between the two countries remain, but Canadians no longer have more of the liberty of the moderns than Americans. In both countries, benign neglect has been replaced by the bureaucrat’s officious nudges, giving us ugly light bulbs, toilets that don’t flush and idiotic playground rules. Could one have predicted this 25 years ago? I think not. Back then I had legal scholar Cass Sunstein over for dinner. Until a few days ago he was Obama’s regulatory czar, and over dinner in 1987 he predicted how the regulatory state would expand, in the name of risk reduction. “Americans won’t stand for this,” my wife told him. They prize their freedom too much. “Ah, but we’ll change their preferences,” he replied. And he was right.

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