Quotulatiousness

July 7, 2010

Delineating the “bounds of the central government’s Constitutional authority”

Filed under: Books, Government, Law, Liberty, USA — Tags: , , — Nicholas @ 07:18

Art Carden reviews a new book by Thomas E. Woods:

In Nullification: How to Resist Federal Tyranny in the 21st Century, Professor Woods offers a thorough-but-compact discussion of the doctrine of nullification. As he writes, “(n)ullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all” (p. 3). It is, according to the framework established by the Founders, an essential part of the system of checks and balances that defined the federal union. Even though they established federal-level checks and balances, the founders were troubled by the notion that the Federal government should be its own judge.

Nullification was formalized in the Virginia and Kentucky Resolutions of 1798, and it essentially says that the states are not bound to enforce federal laws that step outside the bounds of the central government’s Constitutional authority. That raises two obvious questions. First, what are “the bounds of the central government’s Constitutional authority”? Second, what is the Constitutional relationship between the states and the central government? Woods discusses the three provisions that have been used to justify expansion of federal power — the “general welfare” clause, the commerce clause, and the “necessary and proper” clause — and argues convincingly that these were largely clauses of convenience that empowered the government to do the things necessary to fulfill their constitutional mandate. In Woods’s interpretation, this meant that the government had the constitutional authority to do mundane tasks in pursuit of their constitutional goals. They could buy lumber to build “needful buildings” and paper on which to print government documents without explicit permission, for example (p. 29). As Woods interprets it, the interstate commerce clause establishes the United States as a free trade zone. It does not give the government carte blanche to do as it pleases as long as it can cook up an “interstate commerce” rationale. Citing James Madison, Woods asks an important question: if the general welfare clause is sufficient to justify pretty much anything the Federal government wants to do, why bother with enumerated powers? Indeed, why even bother with a constitution?

Unfortunately, sympathy for nullification and states’ rights has been smeared by the association of these ideas with slavery. This is most unfortunate because it conflates a question of unambiguous moral evil (slavery) with a legitimate and difficult constitutional question.

June 26, 2010

G20 arrests not considered “major enough” to release details

Filed under: Cancon, Law, Media — Tags: , , , , , , , — Nicholas @ 12:25

Siri Agrell notes the inconsistency of Toronto police over the (32 at time of writing) arrests made around the G20 area:

When asked for details of the arrest of a deaf man at Friday night’s demonstration, Burrows [of the Integrated Security Unit] said he had neither a name or the charges.

“Very rarely do we ever release information unless it’s a major arrest, major charges, big investigation or something like that,” he said. “That’s our standard practice. This guy was arrested last night, there’s nothing major about it. we’d never put a release out about that.”

And yet, the police regularly release information about minor incidents, ranging from lost property to suspicious behaviour. Surely, the arrest of Toronto citizens exercising their right to protest during a major international event warrents some transparency?

Yet another example of the police taking advantage of the situation to expand their practical reach?

So teenagers sending sext messages, a lost urn and some guy trying to pick up Toronto women are worthy of police updates, but details of arrests made during the G20, when police have been given huge powers, aren’t worth releasing?

In a nutshell, yes.

What other “secret laws” did they pass?

Filed under: Cancon, Government, Law, Liberty — Tags: , , , , , , — Nicholas @ 11:37

Much noise and confusion over the discovery of a recently passed law allowing police to arrest anyone who fails to show ID within 5 metres of a “public work”. The law itself isn’t new, but the secret was the silent addition of the area of the G20 meetings as a “public work” for the definition of that law. Hijinks ensue:

Police are now able to jail anyone who refuses to furnish identification and submit to a search while within five metres of a designated security zone in downtown Toronto.

Critics reacted furiously to the new rules, which remained unpublicized until Thursday when a 32 year-old man was arrested in Toronto for refusing to show ID to police.

New Democrat MPP Peter Kormos said Friday the provincial Liberals created a “Kafka-esque” situation where people could be arrested for violating rules they didn’t know existed.

“This is very very repugnant stuff and should be troubling to everybody,” he said.

The Canadian Civil Liberties Association (CCLA) said it was “extremely concerned” that the new measures violate constitutional safeguards.

I’m not a fan of violent protests, but I don’t believe the police need this additional tool in order to arrest people who attempt to breach the barricades or attack other people: this is granting too much arbitrary power to police officers. The way the power was granted is even more disturbing . . . it shows that the government knew there’d be an outcry if they did it in the public view, so they arranged it so that nobody would know about it in time to do anything about it. Nice work, Ontario, got any other nasty legal surprises you want to spring on us?

Update, 29 June: According to a report in the National Post, the Ontario government denies that there was any such regulatory change and that no arrests were made using the authority of this act.

June 25, 2010

Ghost town T.O.

Scott Stinson finds that the constant warnings about disruptions, delays, closures, and protests has had a positive effect: anyone who can avoid downtown Toronto is avoiding the place.

We were to be besieged by The Man, and those who would shake their fists at The Man.

So it was more than a little surprising to find the commute on Thursday morning not one of snarled traffic and honking horns, but one of fast-moving, wide-open freeways. Given the number of vehicles on Toronto’s normally packed roads, you’d think the area had been hit a day earlier not by a mild earthquake, but by a nuclear bomb. From northeast of the city to the western waterfront in 40 minutes? If this is nuclear winter, then sign me up for Armageddon!

I’ve certainly been avoiding going into downtown since the barricades started to go up. I’m apparently one of the majority following the same basic script.

And why wouldn’t residents have made alternate plans? Consider this traffic advisory, issued on Tuesday: “Expect closures and restrictions in and around Toronto resulting in significant delays on major highways such as the 427, 401, Queen Elizabeth Way, Gardiner Expressway, the Don Valley Parkway and connecting roads.”

If you are unfamiliar with Toronto’s highways, a little background about those mentioned in that advisory: That’s pretty much all of them. Other than one highly expensive toll road across the north of the city, there’s no way to cover much ground in this place without traversing those highways that officialdom warns will have “significant delays.” Due to the prevailing security-first practice of releasing as little information as possible — which is to say, nothing — that road closure advisory doesn’t say which highways will be closed when, either. If we knew that, at least we could plan around the delays. Instead we get travel warnings that boil down to this: Seriously, stay away.

Update: Don Martin thinks it’s like a scene from a post-apocalyptic movie:

This is what a billion-dollar security net buys you. Canada’s largest city as a post-apocalyptic movie set. Massive worker inconvenience. Horrific productivity losses. Legions of bored cops on overtime. And a tourist scare-off that makes SARS look like a Halloween prank.

Everywhere in a city core swept clean of garbage collection bins and newspaper boxes, a fence runs through it.

The notorious barricade has gaps too small even for a child’s fingers to grasp and that makes it impossible to scale although, protesters take note, at three metres high it’s only half the world pole vault record so there’s at least one way to leap over it into the waiting hands of riot police.

Speaking of police, they already gather in jawdropping numbers as omnipresent clusters at every intersection or wander aimlessly as enforcement groups around buildings and down streets, wearing bulletproof vests with helmets dangling from their belts and earpieces connected to voices of undetermined origin.

At least there’s the scene set for some great TV and photography moments later in the weekend, when the massed forces of global anarchism (plus every other disgruntled group with both an axe to grind and physically active membership) look for their golden opportunities to induce police over-reaction. The only tourists in town aren’t interested in the sights or the shopping: they’re here for media appearances, protest marching, and (hopefully a tiny minority) a taste of violence.

Update, the second: Kelly McParland points out that the massive security precautions have actually made the protesters redundant:

[. . .] The [Toronto] Star edited out Dave and dwelt instead on the new law, which wasn’t debated in the legislature and resulted from an ‘extraordinary request’ by Toronto Police Chief Bill Blair, who wanted additional policing powers shortly after learning the G20 was coming to Toronto.” Evidently it didn’t occur to Premier Dalton McGuinty that he could say no. And why should he? It’s pretty clear that no one in any government — municipal, provincial or federal — has said no to anything dreamed up by any level of the national security apparatus since the day Stephen Harper told them he’d agreed to hold two summits at once. A billion dollar budget? You got it. New sound blasters for Toronto cops? You got it. An asinine fence snaking through the centre of the city? Done. The country’s financial centre brought to a screeching halt . . . all the major tourist spots closed . . . restaurants emptied . . . hotels commandeered . . . the waterfront shut down on a hot summer weekend . . . a million or so people kept from earning a living? Done, done and done.

This is what happens when you give security people a blank cheque and let them impose whatever paranoid restrictions they can dream up at their most fevered moments. Hey, let’s rip the saplings out of the ground! Let’s get a fork lift and move that three-ton elephant sculpture someplace where less ‘dangerous’! What’s dangerous about a three-ton elephant sculpture? Who knows, but we can do whatever we want! It’s about security!

What the protesters have missed is that they weren’t needed. The government’s done a fine job of making itself look foolish without any help from them. They could have stayed home for the weekend and watched the Michael Jackson testimonials. They sure wouldn’t have missed anything important.

June 24, 2010

The unhinged are now running Spanish “green” tech companies

Filed under: Environment, Europe, Politics, Technology — Tags: , , , — Nicholas @ 18:12

As I read this, I kept hoping that it’d be fake:

Spain’s Dr. Gabriel Calzada — the author of a damning study concluding that Spain’s “green jobs” energy program has been a catastrophic economic failure — was mailed a dismantled bomb on Tuesday by solar energy company Thermotechnic.

Says Calzada:

Before opening it, I called [Thermotechnic] to know what was inside … they answered, it was their answer to my energy pieces.

Dr. Calzada contacted a terrorism expert to handle the package. The expert first performed a scan of the package, then opened it in front of a journalist, Dr. Calzada, and a private security expert.

The terrorism consultant said he had seen this before:

This time you receive unconnected pieces. Next time it can explode in your hands.

Dr. Calzada added:

[The terrorism expert] told me that this was a warning.

I have no idea what Spanish law says about this kind of blatant intimidation, but I hope there are charges laid and convictions resulting from those charges.

Spain, of course, recently announced that they were having to cut back on their plans to become the greenest country in Europe, as they couldn’t afford the additional costs, both up-front and in lost opportunities in other industries.

H/T to Ace for the link.

Update, 25 June: In the comments, Ed Darrell says I’ve been taken in and has a long post up with translations of the original article used by Ace and PajamasMedia: here. If Ed is right and I’ve been taken in, I’ll post a retraction. I’m sure he’ll do the same if it turns out to be true.

Update, 28 June: A clarification posted at Ace of Spades HQ makes it seem a bit less like a mock-bomb threat.

The Green company sending the package apparently had its actual package — a report — swapped with car parts at some point in the mailing. [. . .]

It didn’t look like, or feel like, a letter or report, so at that point Calzada got a security guard to scan it — and what was inside was a cylindrical object with wires attached. At that point, the security guard got an expert to examine it, with others in attendance. The contents were a container for diesel of some sort, and some other parts. The expert saw this as a bomb threat, based on a pattern used by, eg., ETA: “This one is a hoax bomb. The next one might not be.”

June 22, 2010

Sparkly legal shenanigans

Filed under: Bureaucracy, Humour, Law — Tags: , , — Nicholas @ 09:26

As I indicated in a Twitter update yesterday, the nice folks at ThinkGeek received their best-ever cease and desist letter:

Recently we got the best-ever cease and desist letter. We’re no stranger to the genre, so what could possibly make this one stand out from the rest?

First, it’s 12 pages long and very well-researched (except on one point); it even includes screengrabs of the offending item from our site. And we know they’re not messing around because they invested in the best and brightest legal minds.

But what makes this cease and desist so very, very special is that it’s for a fake product we launched for April Fool’s day.

June 16, 2010

Policing for Profit

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 09:54

June 8, 2010

Attention drivers: Ohio police can now just “estimate” your speed

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 07:33

. . . and then write you a ticket based on their estimate, no further proof needed:

Police don’t need radar to cite you for speeding.

The Ohio Supreme Court ruled this morning that an officer trained to estimate speed by sight doesn’t need an electronic gauge to catch speeders.

The 5-1 ruling was a defeat for 27-year-old Akron-area motorist Mark W. Jenney and speeders across the state. Jenney had challenged a visual speed estimate by a Copley police officer, but a trial court and the 9th District Court of Appeals upheld his conviction.

So, Ohio drivers, expect to see your state assess a lot more speeding tickets (a nice form of revenue for the depleted state coffers), now that the police have been given carte blanche. There’s little reason for them not to treat this as a newly imposed tax on drivers: no evidence is required, other than the officer’s estimate, and the court clearly isn’t too worried about the legal implications of this.

As Eric Moretti says:

Hey “Supreme Court Justices” why don’t you guys get this part of what laws are supposed to do through your thick skulls. It’s safe to say that officers might be trained to identify speeds, and they might even be great at it — but it blasts the notion of burden of proof being on the state out of the water. You didn’t just blast it out, you nuked that fish to dry land. There is no factual evidence when officers have the ability to do this, “I think you were going 120 mph.”

Where is the public recourse for police officers who abuse their abilities? We have to take an officer’s (the state) word that we committed a crime? Did you guys even go to law school?

May 28, 2010

The copyright issue in Canadian law

Filed under: Cancon, Law, Technology — Tags: , , , — Nicholas @ 12:05

I’ve always understood that under Canadian copyright law, as long as you bought the original CD, you were allowed to rip the tracks to play on iPods and other MP3 players. I was wrong — that sort of thing breaks Canadian copyright law:

Industry Minister Tony Clement has an admission to make: He built his impressive music library on his iPod in part by breaking Canada’s copyright law.

Mr. Clement, stickhandling the copyright file for the Conservative government along with Heritage Minister James Moore, is poised to introduce new copyright legislation within days. But until the law is updated to permit Canadians to transfer music onto MP3 players from CDs they have purchased, Mr. Clement stands on the wrong side of Canada’s copyright law.

“Well you see, you know I think I have to admit it probably runs afoul of the current law because the current law does not allow you to shift formats. So the fact of the matter is I have compact discs that I’ve transferred, I have compact discs from my children or my wife that I’ve transferred onto my iPod. None of that is allowable under the current regime,” Mr. Clement, a music buff who also legally purchases songs from iTunes to build a digital database that now stands at 10,452 songs.

If the guy in charge of the relevant ministry admits that he’s breaking the law, are the media providers going to slap him with a lawsuit, claiming their traditional multi-millions per track in damages? If not, why not?

Update: Amusingly, the first piece of spam that someone attempted to post on this article said “The compilation of all content on this site is the exclusive property of WaySpa and protected by Canadian and international copyright laws.” So I guess now we know who to blame . . .

May 26, 2010

More on the Michael Bryant case

Filed under: Cancon, Law, Media — Tags: , , , — Nicholas @ 07:17

It’s rather surprising how strongly this Globe and Mail editorial expresses the paper’s approval of the decision not to press charges against former Ontario attorney-general Michael Bryant:

Everyone deserves justice, even a former Ontario attorney-general driving an expensive car who finds himself in an altercation with a cyclist in which the cyclist is killed. Irrespective of whatever wealth, power or connections Michael Bryant may have, he was an Everyman. Anyone might find himself in his place one day, reacting in fear and panic to a wild, unexpected aggressor, and subject afterward to police charges and condemnation by the community. When criminal charges were dropped against him yesterday, it was a good day for justice.

Much of what was publicly believed about Michael Bryant’s fatal encounter on Aug. 31, 2009, with Darcy Sheppard turns out to have been false. He did not swerve across a street and ram Mr. Sheppard into a light post or tree or mailbox. He was not speeding along at 60 to 100 kilometres an hour.

Nor were any of the terrible events that night emblematic of the problems that car drivers and cyclists have sharing the road. Mr. Sheppard was simply a man out of control. Given that he paid for his actions with his life, it may seem an unnecessary further blow that he now be publicly judged. But it is necessary, because another man, Michael Bryant, was facing up to life in prison if convicted of criminal negligence causing death. He, not Mr. Sheppard, had the power of the state lined up against him. And everything that happened proceeded inexorably as a result of Mr. Sheppard’s own actions.

Other than the initial flurry of interest in the case immediately following the incident, I didn’t follow the details. This is an excellent example of media coverage severely biased against the defendant: what little I thought I knew about the case made it seem to be an open-and-shut case of vehicular manslaughter. As the Globe editorial points out, very little of what I “knew” about the case (from the media) turns out to have been true.

May 25, 2010

Charges against Michael Bryant unexpectedly dropped

Filed under: Cancon, Law — Tags: , , , — Nicholas @ 10:53

Just in from National Post:

All criminal charges have been withdrawn against former Ontario Attorney General Michael Bryant.

Special prosecutor Richard Peck made the surprise announcement in a Toronto courtroom Tuesday morning.

Mr. Bryant was charged after an altercation with a cyclist in downtown Toronto last summer; the cyclist, Darcy Allan Sheppard, died in hospital afterwards.

If the speculation went wild after a former backbench federal Conservative MP got off with a (relative) slap on the wrist, it’ll pale in comparison to the outrage this development is likely to provoke.

Initial discussion of the incident here and here.

May 17, 2010

QotD: Standing up for freedom

Filed under: Cancon, Liberty, Quotations, USA — Tags: , , , , — Nicholas @ 17:19

The Drug Wars in general, and the case of Marc Emery in particular, are a litmus test for those who say they believe in freedom. Everyone is for freedom, their own. It’s everyone else’s that makes them uncomfortable. It is easy to be for low taxes and light government regulation, when you run a business. It is easy to be for freedom of speech, when your livelihood depends on your keypad and fingers. It is easy enough to feel sympathetic for those whose freedom is taken away, when they are like you, when you can see yourself in their position. There, but by grace, go I. But this is not advocacy of freedom. It is nothing more than special pleading. The businessman who demands low taxes, and government subsidies, is not for freedom. The journalist who cries out when some powerful politician tries to silence him, then turns around and supports the Human Rights Tribunals, is not for freedom. The ordinary citizen, who is also the member of a minority ethnic group, who becomes indignant when the rights of his group are threatened, but shrugs his shoulders when those of other groups are trampled upon, he is not for freedom.

Publius, “Martyr to Freedom”, Gods of the Copybook Headings, 2010-05-17

May 13, 2010

To the drug warriors, this isn’t a bug: it’s a feature

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 12:32

Jacob Sullum urges against the adoption of DUID (driving under the influence of drugs) laws:

Under these laws, a driver who has marijuana metabolites in his urine is automatically considered impaired, even though he probably isn’t. Because marijuana metabolites can be detected in urine long after the drug’s effects have worn off (up to two weeks for occasional users, months for frequent users), a “zero tolerance” DUID standard punishes pot smokers who have not harmed or endangered anyone. It is a way of imposing an extra punishment for marijuana use under the guise of traffic safety, sending unimpaired drivers to jail as public menaces because they smoked pot days or weeks before getting behind the wheel. It’s like arresting someone for drunk driving on a Wednesday because he drank a few beers the previous Saturday. And it is completely unnecessary, since a standard based on THC in the blood (analogous to the standard for DUI) would be a much better indicator of impairment.

All this is sensible, logical, and totally irrelevant to the mentality of most “drug warriors”: they love the idea of being able to punish drug users out of proportion to any harm they cause (or, in the vast majority of THC-intoxicated users, total lack of harm to the public).

April 23, 2010

QotD: Seeing the justice system through different eyes

Filed under: Cancon, Law, Quotations — Tags: , , , , — Nicholas @ 12:59

By revealing how a city employee seemed to spend virtually all his time following her in a city truck, she has directed much-needed attention to city’s supervisory practices.

That’s in addition to highlighting, by explaining what it is like to be stalked, the nature of — and remedy for — a crime that can be devastating in its psychological effects, even if nothing worse happens.

De Blois, 40, who works at Youth Court, told The Gazette’s Katherine Wilton that at first she thought she could handle the situation herself. But in the months before the stalker, 49-year-old André Martel, was arrested, De Blois said she felt terrorized. She lost 23 pounds and had trouble sleeping.

Even after Martel pleaded guilty to criminal harassment and was conditionally released on bail, he continued to follow De Blois, she says. The lawyer suddenly saw the justice system through different eyes. “I can’t imagine what it must be like for a regular person who is not a lawyer, who doesn’t have contacts with a police officer or a crown prosecutor,” she said.

“Why were taxpayers subsidizing a stalker?”, Montreal Gazette, 2010-04-23

Senator McCain’s latest assault on “due process”

Filed under: Law, Liberty, USA — Tags: , , , , , — Nicholas @ 10:02

Whenever I think badly of President Obama (which is a pretty regular event), I have to remind myself that his main opponent in the 2008 US presidential campaign would have been even worse on civil liberties:

Senator John McCain (R-Ariz.) has introduced a bill that would allow the President to imprison an unlimited number of American citizens (as well as foreigners) indefinitely without trial. Known as The Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010, or S. 3081, the bill authorizes the President to deny a detainee a trial by jury simply by designating that person an “enemy belligerent.”

Even better, should someone manage to be released, the notion of “return to the battlefield” apparently includes exercising your freedom of speech:

[T]he U.S. military has officially classified many former Guantanamo detainees, such as England’s Tipton Three, as having “returned to the battlefield” for merely granting an interview for the movie The Road to Guantanamo. Another five innocent Uighur (Ethnic Turkish Muslims from China) detainees had been listed as having “returned to the battlefield” after their release because their lawyer had written an op-ed protesting their prolonged detention without trial after they had been mistakenly picked up by a greedy bounty hunter. Writing an opinion or speaking an opinion against the party in power in Washington can — and already has — made some people “enemy belligerents.”

So, thank goodness Senator McCain didn’t become president, even if it means putting up with Barack Obama for at least four years . . .

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