Quotulatiousness

April 14, 2024

More evidence of Canada’s dwindling state capacity – not enough judges

Filed under: Cancon, Government, Law — Tags: , , , , , — Nicholas @ 03:00

Matt Gurney discussed this issue along with several others in this week’s Line podcast (highly recommended listening/watching, by the way):

Superior Court of Justice building on University Avenue in Toronto (formerly the York County Court House).

An evolving line of defence we see from the federal Liberals is that they’re actually doing a great job. It’s those darned provincial premiers that are screwing things up.

We touched on this in our last dispatch. And you know what? There’s some truth to it. Some, I stress. A lot of issues that are much vexing Canadians today aren’t fully or even primarily in federal jurisdiction. Health care and housing are two obvious examples. Canada is a complicated place, and the Liberals no doubt prefer to not talk about things that they’ve done that have exacerbated challenges faced by other orders of government. But the basic point is fair: Justin Trudeau ain’t to blame for all that ails you. Or at least, the blame ought to be spread around some.

This national disgrace, though, lands squarely on him.

You might have read about the shortage of judges across the country. It’s a pretty niche issue, so you might have missed it. Even if you’ve heard about it, you may not have paid much attention to it. Most Canadians won’t have much contact with the criminal justice system over their lives, let alone make their careers in it. But the crux of the issue is this: appointing judges to provincial superior courts, where many of the most serious matters are heard, is in the federal jurisdiction. Solely. Ditto appointments to the courts of appeal: totally in the federal jurisdiction. And the feds have fallen way behind on filling vacancies and aren’t appointing judges fast enough to erase the backlog. Despite a spate of recent appointments, there are dozens of vacancies across the country. These are funded positions that ought to be filled and overseeing cases. But they aren’t, entirely because the feds haven’t made the necessary appointments. That’s the issue.

A lack of judges is creating bottlenecks in the justice system. Arrests are being made and charges are being laid and cases are being prepared and then … nothing happens. Because you can’t hold a trial if there isn’t a judge available to oversee it.

The Toronto Star‘s Jacques Gallant has established something of a bleak speciality in his recent reporting. He’s written a series of articles in recent months documenting serious criminal cases that are being thrown out of court, with the accused set free, because their trial has been delayed so much that it cannot be completed before the Supreme Court-ordered limit for a “reasonable” wait for a trial runs out. That’s 18 months for more minor issues, and 30 months for serious ones.

To be clear: the decision to throw out the cases is, in a legal sense, correct. Indeed, it’s mandatory. The Supreme Court determined what a hard limit should be, and a case that exceeds that is dead. Full stop. That’s the law of the land. The judges forced to preside over these dismissals are not to blame, and are increasingly venting their frustration in their rulings. They’re mortified, and they’re criticizing the government in unusually blunt terms, to put it mildly. You don’t often read court rulings that come off more like op-eds, but we live in weird times.

But it’s a good thing that they’re saying something. Because these vacancies are having appalling real-world consequences. Gallant wrote recently about a case that I felt would mark the low point in the entire embarrassment. A woman had accused a man of raping her. She did a brave thing and reported it. The police believed her and made an arrest. The Crown reviewed the evidence and believed her, and proceeded with a trial. A jury believed her, and after considering the evidence against the accused and hearing his defence, convicted him of the crime.

And then the judge tossed the case, setting aside the verdict and letting the accused go free, innocent in the eyes of the law. Because the clock had run out.

April 11, 2024

All the ways A few of the ways Canada is broken

Filed under: Cancon, Economics, Government, History — Tags: , , , , , , , — Nicholas @ 05:00

In The Line, Andrew Potter outlines some of the major political and economic pressures that prompted the formation of the Dominion of Canada in 1867, then gets into all the ways some of the myriad ways that Canada is failing badly:

It is useful to remember all this, if only to appreciate the extent to which Canada has drifted from its founding ambitions. Today, there are significant interprovincial barriers to trade in goods and services, which add an estimated average of seven per cent to the cost of goods. Not only does Canada not have a free internal market in any meaningful sense, but the problem is getting worse, not better. This is in part thanks to the Supreme Court of Canada which continues its habit of giving preposterously narrow interpretations to the clear and unambiguous language in the constitution regarding trade so as to favour the provinces and their protectionist instincts.

On the defence and security front, what is there to say that hasn’t been said a thousand times before. From the state of the military to our commitments to NATO to the defence and protection of our coasts and the Arctic to shouldering our burden in the defence of North America, our response has been to shrug and assume that it doesn’t matter, that there’s no threat, or if there is, that someone else will take care of it for us. We live in a fireproof house, far from the flames, fa la la la la. Monday’s announcement was interesting, but even if fully enacted — a huge if — we will still be a long way from a military that can meet both domestic and international obligations, and still a long way from the two per cent target.

As for politics, only the most delusional observer would pretend that this is even remotely a properly functioning federation. Quebec has for many purposes effectively seceded, and Alberta has been patiently taking notes. Saskatchewan is openly defying the law in refusing to pay the federal carbon tax. Parliament is a dysfunctional and largely pointless clown show. No one is happy, and the federal government is in some quarters bordering on illegitimacy.

All of this is going on while the conditions that motivated Confederation in the first place are reasserting themselves. Global free trade is starting to go in reverse, as states shrink back from the openness that marked the great period of liberalization from the early 1990s to the mid 2010s. The international order is becoming less stable and more dangerous, as the norms and institutions that dominated the post-war order in the second half of the 20th century collapse into obsolescence. And it is no longer clear that we will be able to rely upon the old failsafe, the goodwill and indulgence of the United States. Donald Trump has made it clear he doesn’t have much time for Canada’s pieties on either trade or defence, and he’s going to be gunning for us when he is returned to the presidency later this year.

Ottawa’s response to all of this has been to largely pretend it isn’t happening. Instead, it insists on trying to impose itself on areas of provincial jurisdiction, resulting in a number of ineffective programs — dentistry, pharmacare, daycare, and now, apparently, school lunches — that are anything but national, and which will do little more than annoy the provinces while creating more bureaucracy. Meanwhile, the real problems in areas of clear federal jurisdiction just keep piling up, but the money’s all been spent, so, shrug emoji.

What to do? We could just keep going along like this, and follow the slow-mo train wreck that is Canada to its inevitable end. That is is the most likely scenario.

November 5, 2023

Dear Supreme Court of Canada, “ever get the feeling you’ve been cheated?”

Filed under: Cancon, Environment, Government, Law, Politics — Tags: , , , , , — Nicholas @ 03:00

Colby Cosh outlines the arguments the federal government used to persuade a majority of the sitting justices of the Supreme Court of Canada to greenlight Justin Trudeau’s carbon tax tax grab and wonders if they suspect they got fast-talked:

The decision agreeing to this was signed by six of the nine justices of the court: Richard Wagner, Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer. Today I confront these eminences with the immortal question once asked by Johnny Rotten: ever get the feeling you’ve been cheated?

Last week the Liberal government whose hirelings rhapsodized about the urgent, indivisible, inherently national nature of carbon pricing announced a “temporary” total exemption for fuel oil used for home heating. This has the effect of letting some households in the Atlantic provinces out of a tax that applies to cleaner BTUs in the rest of the country, and the targeted regional nature of this move has been emphasized rather than concealed by Liberal ministers.

Oh, to be sure, it’s temporary. The three-year duration of the exemption just happens to push its expiry past the next federal election. What happens at that point, who knows? And to be sure, the exemption applies to fuel oil for home heating everywhere in Canada where the federal carbon tax applies. It just so happens that the electorally crucial Atlantic is the only place where a significant number of households still depend on the system. The Liberals can perhaps say with a straight face that there is no conflict here with the underpinnings of the arguments that succeeded so beautifully in the Supreme Court.

But if the GGPPA References were re-litigated now, after the attempt to impose the carbon tax and the panicky local retreat, one wonders whether the “national concern” blarney would seem quite so convincing. We are not, in turns out, all in this leaky planetary lifeboat together. The urgency of carbon pricing, it turns out, is not quite paramount and transcendent. Its indivisibility and inherent nationalness are not as promised. The Liberals didn’t want to save the planet quite so much, it seems, as they just wanted to make the rules for their own electoral benefit.

At The Line, Harrison Ruess, who recently switched his home heating solution from a mixed oil and propane to just propane, wonders why his choice to go with the lower-carbon option will end up penalizing him under the latest policy change by the feds:

Indeed, in looking deeper at the regional numbers, the concern about the rising cost of living and housing affordability isn’t particularly acute in Atlantic Canada versus other parts of the country. The chart below, provided to me by David Coletto at Abacus Data, and published here at The Line first, reveals just how difficult a position the PM has now staked out for his government. While Atlantic Canadians are somewhat more concerned about housing affordability than average, they are very slightly less concerned than the average Canadian about the overall rising cost of living. In Saskatchewan and Manitoba, for example, the opposite is true: they’re less concerned than average about housing affordability, but more concerned than average about the rising cost of living.

The takeaway to me in looking at this is that all Canadians are worried about costs and affordability.

The other question that jumped to mind is: why only heating oil? Heating oil is useful in places without good access to natural gas pipelines, and that does include much of Atlantic Canada, but also to rural areas everywhere, where other fuels, such as propane or wood pellets, are also used. According to the propane association, there are about 200,000 Canadian homes using propane — of which about 30,000 are in Atlantic Canada.

I can speak to this with some personal experience. When my wife and I purchased our home in semi-rural Ottawa, it had a Frankenstein heating system that used heating oil for part of our home and propane for another. Just this summer we completed a (somewhat expensive) rationalization of our system to combine the two into one larger, though more efficient, propane system.

Having one system will hopefully save us money on maintenance and hydro costs — powering and maintaining one system should cost less than two. It will also save us a couple hundred bucks a year on our home insurance (did you know there’s an extra premium if you have a heating oil tank? Welcome to rural life, dear readers.) Ditching the oil and expanding the propane is also good environmentally, since the carbon impact of propane is considerably less.

But we didn’t get a break from the federal government. We’d only have gotten it if we’d gone the other way, and used the more polluting fuel. Why punish my family for heating our home using the cleaner fuel?

And why not provide an exemption for natural gas? It’s cleaner still. And why not people in cities? They don’t want to freeze either, and we’re all broke. The carbon tax isn’t helping, no matter which fuel you’re using or which part of the country you call home. The ultimate challenge the government will face is that they cannot talking-point their way out of a reality.

October 22, 2023

A lawyer in “deep blue” Pennsylvania discovers that elected bodies don’t have to listen to the voters

Filed under: Bureaucracy, Education, Government, Health, Law, Politics, USA — Tags: , , , , — Nicholas @ 03:00

Chris Bray on the details of a case from Pennsylvania where an active and involved parent tried to get answers from the elected school board on how they justified imposing masking requirements without a shred of legal power to do so:

In December of 2021, the Pennsylvania Supreme Court ruled that officials in that state had implemented mask mandates that they had no legal authority to impose. The decision in Corman v. Beam is not written in stirring language, and makes no bold declarations about truth, freedom, and the American way; it’s a workmanlike examination of statutory language, quite dull to read. Test me on that characterization, if you want. But the court concluded, importantly, that the mandate had been invalid ab initio — not from the moment the court struck it down, but rather from the moment it was issued. Mask mandates had never been enforceable in Pennsylvania.

In an affluent, deep blue community in the Philadelphia suburbs, a lawyer and parent named Chad Williams took the ruling as vindication. With four children in the local schools, he’d been telling school officials — clearly and often — that they had no legal authority to require masks on campus. To say that they hadn’t listened would be an understatement.

In August of 2020, during a Zoom meeting to decide on in-person school for the soon-to-begin school year, the nine-member Unionville-Chadds Ford school board muted Williams when he asked about the legal basis for the choice.

Repeating the performance, school board members cut the microphones and walked out of one of their own subsequent meetings, in August of 2021, to avoid listening to Williams when he didn’t stop speaking at the three-minute mark during their public comment session. Other parents concerned about forced masking for children received a similarly warm reception. The school board voted unanimously that same night to again impose a mask mandate on their campuses for the new school year.

For Williams, the repeated experience was a shock. He was an experienced lawyer, a parent, an established member of the community, and a volunteer coach at the high school — and he couldn’t get anyone to listen to a reasonable question. He asked his school board to explain the legal basis for a new policy, and “the school board president just cut me off.” Officials were acting in lockstep, without apparent authority, and refusing to explain their choices. “They just wouldn’t answer,” Williams says. Many of us have had this experience.

The school district finally dropped its mask mandate in March of 2022, after the decision from the state Supreme Court. And that was the end — except for one thing. A formal policy of the Unionville-Chadds Ford School District, Policy 906, establishes “a fair and impartial method” for the examination of parent complaints. You can find that policy here, in the section labeled “Community”. The policy is detailed and unambiguous, and starts requiring written reports after the failure of early and informal stages of resolution:

    Third Level – If a satisfactory solution is not achieved by discussion with the building principal or immediate supervisor, a conference shall be scheduled with the Superintendent or designee. The principal or supervisor shall provide to the Superintendent or designee a report that includes the specific nature of the complaint, brief statement of relevant facts, how the complainant has been affected adversely, the action requested, and the reasons why such action should be taken or not taken.

    Fourth Level – Should the matter not be resolved by the Superintendent or designee or is beyond his/her authority and requires Board action, the Superintendent or designee shall provide the Board with a complete report.

    Final Level – After reviewing all information relative to the complaint, the Board shall provide the complainant with its written decision and may grant a hearing before the Board or a committee of the Board.

Williams used Policy 906 to ask the school board to think about what it had done, conducting an independent review of its policy decisions during the pandemic. Why had school officials implemented policies they had no legal authority to impose? Why had they refused to discuss or address parent questions? Why had they stonewalled requests for documents and information — not only from parents, but from a state senator who took an interest in the matter? Williams asked for an apology and “changes in oversight” to prevent a recurrence of unlawful and unexplained policy decisions, using formal school district policy that requires the district to act on complaints.

They haven’t bothered. The Unionville-Chadds Ford School District continues to ignore Williams, not responding to his complaints or opening the inquiry their own policy requires them to pursue. He’s had one sort-of response: In an exchange over the handling of the complaint, the district’s lawyers, at a private law firm, threatened him with legal action — a threat they so far haven’t made good. But from school district officials, the only response to three years of questions is unbroken silence.

October 19, 2023

The evisceration of Bill C-69 (aka the Impact Assessment Act)

Filed under: Bureaucracy, Cancon, Environment, Government, Law — Tags: , , , — Nicholas @ 03:00

The decision of the Supreme Court of Canada to strike down large parts of the federal Impact Assessment Act caught a lot of people by surprise. The court hasn’t made much of a habit of rejecting the federal government’s ever-increasing encroachments on provincial jurisdiction, so this ruling is a bit of a black swan. It’d be nice if the Supremes were going to be more vigilant in future, but that’s unlikely. Colby Cosh explains why this is a “remarkable political moment”:

Environment Minister Steven Guilbeault, 3 February 2020.
Screen capture from CPAC video.

To hear the Liberals talk now, you would think that the Supreme Court’s 7–2 rebuke of C-69 was a mere bump in the road. Steven Guilbeault, the federal environment minister, appeared on CTV’s Question Period to reassure the public that the law can be “redefined” to accomplish its grandiose intentions; it’s just a matter of “course-correct(ing)” the text a smidgen in order to “comply with the spirit” of the ruling.

Here’s an idea for the minister: maybe just go ahead and comply with the ruling, period?

Comply with the spirit, he says. Having taken the trouble to decrypt the ruling, which is not exactly a masterpiece of lucid clarity, I wonder at the environment minister’s priorities. Rather than appearing on television with a bunch of happy talk, he ought to have been mopping up the seas of blood left by the court’s evisceration of his Impact Assessment Act.

In essence, the Liberals created an apparatus whereby a federal panel would perform environmental and social assessments of major infrastructure projects based on the possibility that they might “cause adverse effects within federal jurisdiction”.

The underlying pretext is that the federal government’s powers are sometimes engaged by the creation of mines, wells, roads and other such projects — even when they are confined within one province’s borders — because they can conceivably affect federal matters such as fisheries, migratory birds, Aboriginal welfare, treaty obligations and other “national concerns”.

This is true as far as it goes, but the court majority’s finding was that this constitutional pretext for creating a federal assessment scheme isn’t actually reflected in the scheme itself. The Liberals, asserting a right to investigate hypothetical infringements on the federal sphere of power, created a law that essentially allows them to veto anything that a province might want to permit.

As the law is written, the initial assessment-agency decision to “designate” a project for assessment can be based on just about anything, including “any comments received … from the public” and “any other factor the Agency considers relevant”. In the final decision-making phase, which is to be based on the “public interest”, specific federal heads of power are also cast aside: whoever makes the final call at the cabinet level is to evaluate a project for “sustainability”, for example.

September 13, 2023

Michael Geist on the “relentless misinformation campaign that ignores the foundational principles of copyright law”

Filed under: Books, Cancon, Education, Law — Tags: , , , — Nicholas @ 05:00

Michael Geist discusses a recent public statement from the Canadian Federation of Library Associations on how changes to copyright rules in Canada may seriously impact the public:

Assignments of copyrights photostat copies by mollyali (CC BY-NC 2.0) https://flic.kr/p/5JbsPE

Last month, the Canadian Federation of Library Associations released a much-needed statement that sought to counter the ongoing misinformation campaign from copyright lobby groups regarding the state of Canadian copyright and the extensive licensing by libraries and educational institutions. I had no involvement whatsoever with the statement, but was happy to tweet it out and was grateful for the effort to set the record straight on what has been a relentless misinformation campaign that ignores the foundational principles of copyright law. Lobby groups have for years tried to convince the government that 2012 copyright reforms are to blame for the diminished value of the Access Copyright licence that led Canadian educational institutions to seek other alternatives, most notably better licensing options that offer greater flexibility, access to materials, and usage rights. This is false, and when the CFLA dared to call it out, those same groups then expressed their “profound disappointment” in the library association.

Yet what has been disappointing is that despite repeated Supreme Court of Canada decisions that have eviscerated the foundation of those groups’ claims, they insist on running back the same failed strategy again and again. The reality of Canadian copyright isn’t complicated: libraries and the education community spend more than ever before on licences that provide the right to access and use materials for teaching, course materials, text and data mining, and a myriad of other purposes. When combined with the gradual disappearance of course packs, the emergence of open access materials, and a reasonable interpretation of fair dealing consistent with Canadian jurisprudence, education and libraries are fulfilling their mandate by responsibly using public dollars to maximize public access, enable student learning, and ensuring fair compensation for authors.

The lobbying efforts to convince government to restrict fair dealing by requiring unnecessary licences would increase student costs, make education less affordable, and render Canada less competitive. Further, it would mean less access to materials for Canadian students. Universities spend hundreds of millions of dollars on licences that grant both access to materials (purchasing physical books has declined dramatically) and the ability to use them. The outdated Access Copyright licences only grant rights to use already acquired works for a limited series of purposes. Reverting back to the unnecessary Access Copyright licence would mean access to fewer works and reduced investment by the education sector and libraries in new works.

I wrote a six-part series on these issues earlier the year including posts on setting the record straight, the shift to electronic licensing, transactional licences, the disappearance of course packs, the emergence of open text books, and a fair reading of fair dealing. Once you get past the rhetoric, the data leaves little doubt that education and libraries are still actively paying for copyright materials through licensing and the claims of mass illegal copying in education in 2023 is a fabrication unsupported by the evidence.

June 12, 2023

It’s an insult to Chuck Barris and The Gong Show to compare it to the Justin Trudeau Show

Filed under: Cancon, China, Government, Media, Politics — Tags: , , , , , , — Nicholas @ 05:00

In the weekly dispatch from The Line, the editors defend the honour of the original Gong Show and say that it’s not fair or right to compare that relatively staid and dignified TV show to the Canadian government’s performance art on the foreign interference file:

When the news broke late Friday afternoon that David Johnston was resigning from his position as special rapporteur on Chinese interference, the general reaction across the chattering class was a variable admixture of amusement and scorn. There’s probably a German word for it, but the security and intelligence expert Wesley Wark captured the tone of it with the headline on his Substack post, which said, simply: “Gong Show“.

We’re somewhat inclined to concur with Wark, except the three-ring train wreck that has marked Johnston’s time as Justin Trudeau’s moral merkin has been so disastrous that we think apologies are due to Chuck Barris, in light of the relative sobriety of his famous game show.

Reporters at the Globe and Mail and Global News started breaking stories about Chinese interference in Canadian elections a few months back, based largely on leaks from inside the Canadian intelligence apparatus. Almost immediately it was clear that the Liberals had a major problem on their hands, one that was going to require levels of transparency, good judgment and political even-handedness that this government has manifestly failed to achieve during its almost eight years in power.

Yet when Trudeau announced that he was going to appoint an “eminent Canadian” as “special rapporteur” to do an investigation and report back to the government with recommendations for how it should tackle the issue, we gave a collective groan here at The Line. Given the endless similar tasking of retired Supremes passim, it was clear that the pool from which Trudeau was going to fish his eminent personage was very shallow, and pretty well-drained. Indeed, at least one of us here was willing to bet large sums that it would be David Johnston.

What do we make of all this? Here’s the situation as we see it, in bullet form for brevity’s sake:

  • Johnston should never have been offered the position of special rapporteur
  • Having been offered the job of special rapporteur, Johnston should never have accepted it

And that is basically it. But given that Trudeau had the poor judgment to ask him, and Johnston had the poor judgment to accept, we think everything that has happened since was pretty much inevitable. We couldn’t have guessed at all the details of how this would have played out, especially the delicious elements beginning with the decision to hire Navigator to provide strategic advice (to manage what, exactly?), the revelation that Navigator had also provided strategic advice to Han Dong (who, recall, Johnston more or less exonerated), the firing of Navigator and the involvement of Don Guy and Brian Topp … this is really just gongs piled upon gongs piled upon gongs.

But the overall trajectory of Johnston’s time as special rapporteur? If you had told us ahead of time that this was more or less how things would go, we wouldn’t have been much surprised. Why? Because we live in Canada. And this is how Canada’s governing class behaves. It is a small, incestuous, highly conflicted and enormously self-satisfied group of people that is so isolated from the rest of the country they don’t even realize how isolated they are.

Honestly. What in heaven’s name gave Trudeau the idea that it would be smart to ask a former governor general to help launder his government’s reputation? And why on Earth did Johnston think it was a good idea to accept? Forget the Navigator stuff, this turkey was never going to fly. Johnston’s report was not accepted as the wise counsel of a wise man; instead it was seen as a partisan favour by a conflicted confidant. Sure, Johnston was subject to some pretty unfair attacks from the opposition, but what did he think was going to happen? Has he paid any attention over the last decade? But pride is a form of stubborness, and even after parliament voted for him to go, Johnston insisted he would stay on to finish his work. Until, on Friday afternoon, he decided he would not.

We’re not going to speculate about why Johnston finally pulled the chute. We’d like to think that the former GG in him thought it best to obey the will of the House of Commons. We rather hope it had nothing to do with some pointed (and unanswered) questions put to Johnston’s office by the Globe and Mail, asking whether Navigator had been given a heads-up on Johnston’s conclusions on the Dong file.

Maybe it doesn’t matter. As Paul Wells put it in a recent column, Trudeau sought to “outsource his credibility by subcontracting his judgment,” where credibility was supposed to flow from Johnston to Trudeau. Instead, and we would say, inevitably, the flow went in the opposite direction. If the prime minister had any credibility to lead the country on this issue, he wouldn’t need a special rapporteur in the first place. The fact that Trudeau felt the need to appoint one is a tacit admission that he knows he doesn’t have the trust of the people.

And that is the real problem here. The Johnston saga has ended where it was always going to, with a once-honorable man’s reputation in tatters and the problem he was brought in to address still unresolved. David Johnston has resigned, as he must have. In our view, that’s one resignation too few.

November 1, 2022

If it wasn’t for double standards, the legacy media wouldn’t have any standards at all

Filed under: Media, Politics, USA — Tags: , , , , , — Nicholas @ 03:00

At Spiked, Brendan O’Neill calls out the US mainstream media for their blatant double standards on political violence after the as-yet still mystery-shrouded attack on the husband of the Speaker of the House of Representatives over the weekend:

Paul and Nancy Pelosi, 16 February, 2022.
Detail of a photo by Amos Ben Gershom via Wikimedia Commons.

It was the mention of zip ties that got me thinking. Apparently the man who allegedly broke into the San Francisco home of Nancy and Paul Pelosi on Friday was carrying zip ties. A possibly crazed individual approaching the home of a powerful politician with plastic fasteners that can be used to bind a person’s hands – it was both a nightmarish prospect and a familiar one, too. Wasn’t another public figure in the US recently targeted by someone who had zip ties? And a gun, a knife, pepper spray and a crowbar? Yes. It was Brett Kavanaugh. But many don’t remember that. Because thanks to the media, certain acts of political hate get less traction than others.

People are rightly horrified by what happened to Paul Pelosi on Friday. David DePape allegedly broke into the Pelosi home and yelled “Where is Nancy?”. She wasn’t there. DePape then allegedly attacked Mr Pelosi, who is 82, with a hammer. Pelosi suffered a skull fracture and is still in hospital, though he is expected to make a full recovery. This was a horrific assault on an elderly person, as well as seeming to have been motivated by a deep political animus. Sadly, it was not a one-off. There was a creepily similar incident at the home of Supreme Court justice Brett Kavanaugh in Maryland in June.

A 26-year-old man from California travelled to Maryland allegedly with the intention of murdering Kavanaugh. That’s what he is charged with – attempted murder. He was armed with a tactical knife, a Glock 17 pistol, zip ties and other murderous paraphernalia. The difference between Kavanaugh’s alleged tormentor and the man who allegedly broke into the Pelosi home is that the former failed to gain entry. He spied two US marshals close to Kavanaugh’s home and called off his deadly mission. Kavanaugh was luckier than Paul Pelosi.

It is unquestionable that the assault on the Pelosi home has caused more waves and fury among the media elites than the mercifully thwarted attempted assassination of Kavanaugh did. The Kavanaugh incident swiftly faded from public consciousness. One observer wrote of the media’s “eerie silence” on Kavanaugh. It was pointed out that the “attempted assassination of Brett Kavanaugh” was being downplayed by the New York Times the very day after it happened. On the NYT‘s homepage, the Kavanaugh story was 16th in order of importance, behind stories about the new Jurassic Park movie and Kelly Clarkson’s singing skills. In that day’s paper, it was on page 20. Nate Silver said it was “crazy” that the targeting of Kavanaugh was not “treated as a bigger story”. “There’s often more bias in which stories are deemed to be salient than how they’re written about it”, he said.

That is well said. Media bias is apparent not only in the information and takes that the media publish but also in what the media decree to be important in the first place. And it would appear that the targeting of a right-wing, pro-life justice is less important – a lot less important – than the targeting of the home of a Democratic, pro-choice politician. Politics is clearly at play here. Kavanaugh’s moral outlook runs counter to that of the liberal media and coastal elites, and thus he makes for an unsympathetic character. Nancy Pelosi, on the other hand – she’s the crusading Democrat the chattering classes love. An assault on her home moves the liberal elites profoundly.

On the rapidly changing reported details of the attack on Paul Pelosi, Jim Treacher has some salient questions:

First things first: Paul Pelosi is currently in the hospital recovering from his attack, and here’s wishing him a speedy recovery. It sounds horrible and I wouldn’t wish it on anybody. Crime in America is spiraling out of control.

Now …

The Pelosis are worth somewhere north of $100 million. Nancy Pelosi is the speaker of the United States House of Representatives, and second in the line of presidential succession. You’re telling me her husband Paul was alone in a house with no security or surveillance cameras? This lunatic David DePape just walked right up to the house and broke in?

I’ve got other questions. The initial report was that DePape was in his underwear when the police caught him beating Pelosi with a hammer. Now we’re told that’s not true.

Wait, what? How do you get that detail wrong? Did it come from the police? I can understand misremembering the color of his pants. But the cops couldn’t tell whether he was wearing any?

And then there’s this:

Okay, I’m just trying to picture the scene that the two responding officers saw: They entered the Pelosi home, found DePape attacking Pelosi, and stopped him.

How did they get into the house? Did they break down the door? Was it unlocked, or already open? Did DePape or Pelosi open it?

The story is that the police encountered DePape in the middle of beating Pelosi. So if DePape opened the door for them … why? Or if Pelosi opened the door for them … how?

I see a lot of people speculating that this was some sort of lovers’ quarrel, or a Grindr date gone wrong, or something along those lines. Doesn’t seem likely to me, but is it really outside the realm of possibility? Are you a homophobe? I thought we were supposed to accept all genders and preferences and whatnot. It’s 2022.

October 12, 2022

Medically assisted suicide in Canada

Filed under: Cancon, Health, Law — Tags: , , — Nicholas @ 05:00

In Common Sense, Rupa Subramanya discusses how quickly MAID (Medical Assistance in Death) became a commonality in Canada:

Toronto General Hospital in 2005.
Photo via Wikimedia Commons.

When we think of assisted suicide or euthanasia, we imagine a limited number of elderly people with late-stage cancer or advanced ALS in severe pain. The argument for helping them die is clear: Death is imminent. Why should they be forced to suffer?

In 2015, Canada’s Supreme Court ruled that assisted suicide was constitutional. In June 2016, Parliament passed Bill C-14, otherwise known as the Medical Assistance in Dying Act. MAiD was now the law of the land. Anyone who could show that their death was “reasonably foreseeable” was eligible. In this respect, Canada was hardly alone: The Netherlands, Switzerland, Belgium, Spain, Australia, and New Zealand, among others, allow assisted suicide. So do ten states in the U.S.

In 2017, the first full year in which MAiD, which is administered by provincial governments, was in operation, 2,838 people opted for assisted suicide, according to a government report. By 2021, that figure had jumped to 10,064 — accounting for more than 3 percent of all deaths in Canada that year.

There have been a total of 31,664 MAiD deaths and the large majority of those people were 65 to 80 when they died. In 2017, only 34 MAiD deaths were in the 18- to 45-year-old category. In 2018, that figure rose to at least 49. In 2019, it was 103; in 2020, 118; and in 2021, 139.

Today, thousands of people who could live for many years are applying — successfully — to kill themselves.

Indeed, in some Canadian provinces nearly 5 percent of deaths are MAiD deaths. In 2021, the province of Quebec reported that 4.7 percent of deaths in the province were due to MAiD; in British Columbia, the number was 4.8 percent. Progressive Vancouver Island is unofficially known as the “assisted-death capital of the world”, doctors told me.

Why the dramatic increase? Over the past few years, doctors have taken an increasingly liberal view when it comes to defining “reasonably foreseeable” death. Then, last year, the government amended the original legislation, stating that one could apply for MAiD even if one’s death were not reasonably foreseeable. This second track of applicants simply had to show that they had a condition that was “intolerable to them” and could not “be relieved under conditions that they consider acceptable”. This included applicants like Margaret Marsilla’s son, Kiano.

In 2023, those numbers are almost certain to rise.

Next March, the government is scheduled to expand the pool of eligible suicide-seekers to include the mentally ill and “mature minors”. According to Canada’s Department of Justice, parents are generally “entitled to make treatment decisions on their children’s behalf. The mature minor doctrine, however, allows children deemed sufficiently mature to make their own treatment decisions.” (The federal government does not define “mature”, nor does it specify who determines whether one is mature. On top of that, the doctrine varies from one province to another.)

Dr. Dawn Davies, a palliative care physician who supported MAiD when it was first conceived, said she had “tons of worries” about where this might lead. She could imagine kids with personality disorders or other mental health issues saying they wanted to die. “Some of them will mean it, some of them won’t,” she said. “And we won’t necessarily be able to discern who is who.”

Hugh Scher, an attorney advising Margaret Marsilla, told me: “While other countries have explored extending assisted suicide to minors, those governments have insisted on substantial safeguards, including parental notification and consent. Canada is poised to become the most permissive euthanasia regime in the world, including for minors and people with only psychiatric illness, having already removed the foreseeability of death or terminal illness as an essential condition to access euthanasia or assisted suicide.”

October 1, 2022

QotD: The Left does not handle political reverses gracefully

Filed under: Law, Media, Politics, Quotations, USA — Tags: , , , — Nicholas @ 01:00

While this [recent progressive losses on religious school funding, gun control, voter ID, the repeal of Roe v. Wade] all may seem like fun and games to us, keep in mind that for the Left, this is the most serious business they’ve had to face since the 1960s. Being reversed in the courts — repeatedly, openly — represents a massive monkey wrench in their “march of progress”. And as I discussed last week, the Left has been accelerating the imposition of its agenda over the past two decades to the point that it cannot slow down or back off without the risk of losing everything. It’s truly all or nothing for these folks now. And they realise this.

The Left is absolutely right to fear all of this because these things represent the furtherance of a growing trend towards decentralisation that I’ve been talking about recently. This is bad for them because the Left’s whole program — and I’m talking about going back for at least two centuries — has been based on the centralisation of power into its own hands. Everything the Left does is predicated upon the “principle” of coalescing power into its hands in government, NGOs, woke corporations, and a constellation of other institutions that all coordinate together to advance the progressive agenda. Due to our place in our current demographic-structural secular cycle, this decentralisation is nigh inevitable, but that doesn’t mean the Left won’t (literally) burn through a lot of social capital fruitlessly trying to stop it.

These recent Supreme Court rulings represent real loses for their program at the most sovereign level in our government. This, in turn, signals openly their loss of control over that institution. This is why we’re seeing increasingly desperate ideas being floated for ploys to take back the SCOTUS, from packing the Court to (somehow) convincing 2/3 of the states to gut it completely. They know they’ve lost control over it as an institution, so they’re perfectly willing to dynamite it (hopefully not meaning that literally), like an ex-girlfriend who takes a baseball bat to a guy’s X-Box rather than just giving it back to him like a sane person would do. In the space of a few short years, the SCOTUS has gone from hero to zero in the Left’s eyes, since for them everything is situational in nature. Once something, anything, outlives its usefulness to them, it goes up against the wall.

The thing to understand from this is that these losses the Court has handed to the Left are real things. They’re not just some kind of plot to “mobilise their voters” to win the midterms in November. While lefties may often be cunning, they are also arrogant and in many ways kind of dumb. These people are really not out here playing some grandmaster game of four-dimensional chess. They’re desperate, which is why they’re willing to engage in such blatant attempts at gaming the system through naked procedural manipulation. They’re the ones who are suddenly finding themselves in the place of having to operate outside of “our sacred norms” by refuting the legitimacy of institutions that go against them.

Bear in mind that the Left’s entire view of legitimacy is predicated on this “ever-forward march of progress”. To “move backwards” is to show weakness, to reveal a chink in the armour of the dialectic of inexorable progress. This sense of legitimacy, in turn, was based upon their capture of the various power-generating and power-wielding institutions, including the Supreme Court, since the “right” people now had possession of the means to remake society. What a lot of people forget is that the whole “march of progress” since the mid-1960s occurred because of this institutional takeover. Their judicially imposed agenda has never really “won the argument” on any issue. They just used social and political force to achieve their goals, followed up by media-driven social pressure and anarchotyranny to “encourage” conformity among the general population. So yeah, especially with something like the repeal of Roe v. Wade, their whole program is in jeopardy. The post-Roe stance on abortion adopted in 1973 was the truly radical stance on this issue, but they don’t want you to realise this.

Theophilus Chilton, “The Left Is in a Precarious Place”, The Neo-Ciceronian Times, 2022-06-29.

August 18, 2022

MAID in Canada

Filed under: Cancon, Health, Law — Tags: , , , — Nicholas @ 05:00

In The Critic, Ben Woodfinden discusses the maple-flavoured slippery slope we’re gaining speed on: what’s known as “Medical Assistance In Dying (MAID)”:

Toronto General Hospital in 2005.
Photo via Wikimedia Commons.

Canada is widely seen as one of the world’s most progressive nations in the world, “leading the way” (depending on where you stand) on a variety of social issues. But in recent months, Canada has been garnering some less than savoury international attention because of the dark side of one of its recent progressive accomplishments, namely the assisted suicide regime that has been created since the Supreme Court struck down prohibitions on assisted suicide in 2015. The tragic situation that has developed in Canada offers a warning to Britain and other countries considering going down a similar path, both to be cautious about opening the assisted suicide floodgates and about empowering judges to decide whether such things should be allowed.

When Canada’s enlightened judicial philsopher kings and queens overturned criminal prohibitions on assisted suicide in Carter v. Canada, they overturned their own precedent. In 1993 a majority of the Supreme Court found that the criminal code provisions that prohibited assisted suicide did not ultimately violate the Canadian Charter. In 2015 the Court changed its mind. The law didn’t change, of course, but the court decided that “the matrix of legislative and social facts” surrounding the case had changed. Thus the interpretation of constitutional rights must change with them.

Plenty of the same people who were outraged that the United States Supreme Court would overturn precedent on seminal abortion decisions, seemingly had no problem with the overturning of precedent in this Canadian case. This is because implicit in the view of rights and judicial review that many progressives hold, is that it is perfectly acceptable to overturn precedent in the name of expanding or establishing some newly discovered right — but once this is done, the debate is settled and there can be no reasonable dissent or change of heart. History, it seems, only marches in one direction.

An important part of the Carter decision, where the court determined that relevant social facts had changed, was essentially a blithe dismissal of exactly what has come to pass in Canada less than a decade after the decision. The court rejected the concern that once assisted suicide was allowed in some rare cases, there would be a “slippery slope” from helping terminally ill people end their lives, to a system in which vulnerable people like the disabled were caught in a euthanising net.

Evidence presented in the case by a medical expert from Belgium that this might be possible, was dismissed by the court because “the permissive regime in Belgium is the product of a very different medico-legal culture”. Unlike those barbaric Belgians, enlightened Canada could avoid sliding down this slippery slope in which safeguards are easily gotten around. They would avoid the creeping expansion of eligibility by setting up a “carefully regulated scheme” that would keep its application narrow and exceptional.

Spoiler: No. No, we didn’t.

July 4, 2022

A first, tentative step to reining back the juggernaut that is the modern administrative state

Filed under: Bureaucracy, Government, Law, USA — Tags: , , , — Nicholas @ 05:00

Brad Polumbo has words of praise for US Supreme Court Justice Neil Gorsuch:

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., 10 October, 2011.
Photo by Joe Ravi via Wikimedia Commons.

“Vesting federal legislative power in Congress [rather than bureaucrats]”, Gorsuch writes, “is vital because the framers believed that a republic — a thing of the people — would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers’.”

But what about those, like dissenting Justice Elena Kagan, who say that federal bureaucrats need wide latitude because Congress is failing to, in their view, adequately address climate change?

“Admittedly, lawmaking under our Constitution can be difficult,” Gorsuch acknowledges. “But that is nothing particular to our time nor any accident.”

“The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty …” he said. “As a result, the framers deliberately sought to make lawmaking difficult by insisting that two houses of Congress must agree to any new law and the President must concur or a legislative supermajority must override his veto.”

With an empowered, unelected bureaucracy, “agencies could churn out new laws more or less at whim”, Gorsuch adds. “Intrusions on liberty would not be difficult and rare, but easy and profuse.”

This isn’t hypothetical speculation — it’s exactly what we’ve seen under the status quo.

For a glaring example, just consider the Centers for Disease Control’s pandemic-era “eviction moratorium”. The federal agency unilaterally declared that evictions nationwide were prohibited in many circumstances by citing an old statute that gave the CDC director the ability to order in specific places “such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

They went from that to a nationwide “eviction moratorium”. Stretch, much?

That’s right: Unelected government officials effectively commandeered the nation’s rental market, which caused tremendous dysfunction, trampled over property rights, and sabotaged the supply of rental housing. (For which prices are now surging. Shocker!) And, it was years before the courts finally stopped them and struck down the “moratorium”.

May 8, 2022

“… a majority of ‘pro-lifers’ are women, not men. So [Kamala] Harris is effectively saying: how dare women be allowed a voice in this debate?”

Filed under: Health, Law, Media, Politics, USA — Tags: , , , , — Nicholas @ 05:00

Andrew Sullivan comments on the leak of a draft US Supreme Court decision that would strike down Roe vs. Wade and the over-the-top reactions on social media from progressives:

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., 10 October, 2011.
Photo by Joe Ravi via Wikimedia Commons.

To say that a leaked draft of a Supreme Court ruling prompted an elite meltdown would be a gross understatement. This was a culture war 9/11. “I have typed and deleted a great many comments,” Roxane Gay tweeted. “What do you say when nine people can dictate what happens to your body? It’s ridiculous and hateful.” The Atlantic‘s Adam Serwer, always the subtle one, announced that the court had abolished the entire 20th century. Yep: no more suffrage for women! Jim Crow now!

Taking the arguments of abortion opponents seriously was never an option: “Stripping women of their humanity and rights isn’t a consequence of the ‘pro-life’ agenda, it’s the entire point,” declared Jessica Valenti. Rebecca Traister confessed: “My teeth have been chattering uncontrollably for an hour. Bodies/minds are so weird. Like, not euphemistically — actually chattering. Audibly. And full shaking body. Though otherwise wholly, rationally, well and truly expecting it.”

Going further, freshly-minted critical gender theorist, Jennifer Rubin, argued that any restriction on abortion rights is a violation of secularism: “The right-wing justices and their supporters appear ready to reject one of the Founders’ core principles: that religion shall not be imposed by government edict.” Kurt Andersen went old school and worried about a papist cabal: “It really is kind of remarkable that only one in five Americans call themselves Catholic, but of the Supreme Court majority apparently about to permit abortion to be outlawed, all but one are Catholic and that one was raised Catholic.” Then there’s Vox‘s Ian Millhiser: “Seriously, shout out to whoever the hero was within the Supreme Court who said ‘fuck it! Let’s burn this place down.'” Fuck it! I’ll do it live!

Kamala Harris also found her voice:

    Those Republican leaders who are trying to weaponize the use of the law against women. Well we say, “How dare they?” How dare they tell a woman what she can do and cannot do with her own body? How dare they? How dare they try to stop her from determining her own future? How dare they try to deny women their rights and their freedoms?

The premise here is that all women support abortion rights. But there is no serious gender gap on this question. In fact, a majority of “pro-lifers” are women, not men. So Harris is effectively saying: how dare women be allowed a voice in this debate?

Within minutes of the SCOTUS leak, moreover, we were told it means that before long, interracial marriages will be banned … in a country where 94 percent support them! Imagine Clarence Thomas divorcing himself by jurisprudence. Here’s Traister again: “Voting rights were gutted in 2013. Marriage equality. Griswold. Loving. Don’t ever listen to anyone who tells you such fears are silly or overblown.” Actually, listen to them — if you can hear them over Traister’s permanent rage-tantrum.

What strikes me about all of this is not the emotive hyperbole — that’s par for the course in a country where every discourse is now dialed to eleven. What strikes me most in these takes is the underlying contempt for and suspicion of the democratic process — from many of the same people who insist they want to save it. How dare voters have a say on abortion rights! The issue — which divides the country today as much as it has for decades — is one that apparently cannot ever be put up for a vote. On this question, Democrats really do seem to believe that seven men alone should make that decision — once, in 1973. Women today, including one on SCOTUS? Not so much.

December 2, 2021

If there are no restrictions on voting age, what other expansions of the franchise might amuse the Supreme Court of Canada?

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 05:00

In Wednesday’s NP Platformed newsletter, Colby Cosh suggests that, given the SCC’s demonstrated preference for getting rid of restrictions on voting rights, we may be in for some interesting legal times:

A band of plucky teens, we are told, are suing to have Canada’s voting age lowered. They are not the first to try, and it goes without saying that the youngsters are a front for a gaggle of do-gooder groups who think that it would somehow purify our democracy in the fires of justice if 16-year-olds could vote. NP Platformed thinks this is a terrible idea that has logical problems on its face. If the age-18 voting limitation can’t be defended, how can any such limit be defended?

Rest assured that the grown-up lobbyists who have a sore bum about the voting age won’t be recruiting four-year-old boys to articulate their cause or serve as litigants. It will all be photogenic, politically sophisticated, fantastically unrepresentative teenagers.

But let’s set the snark aside for a moment. You may be asking, as we here at NP Platformed world headquarters did, how a charter challenge to the voting age can happen at all. Surely there’s solid caselaw about this? If you look into the matter, as we did, you might find yourself saying “Uh oh.” As we did.

The most revealing discussion we could find is tucked away in a footnote in a 2019 paper by University of Ottawa Prof. Michael Pal. Within this wad of small print, Prof. Pal outlines the whole issue. The charter says flat out that “Every citizen of Canada” has the right to vote in elections, and various species of legal voting disability have been removed over time, leaving persons under 18 as the only citizens within Canada who cannot exercise this right.

[…]

“The analogy between youth voting restrictions and inmate disenfranchisement breaks down because the type of judgment Parliament is making in the two scenarios is very different. In the first case, Parliament is making a decision based on the experiential situation of all citizens when they are young. It is not saying that the excluded class is unworthy to vote, but regulating a modality of the universal franchise. In the second case, the government is making a decision that some people, whatever their abilities, are not morally worthy to vote — that they do not ‘deserve’ to be considered members of the community and hence may be deprived of the most basic of their constitutional rights. But this is not the lawmakers’ decision to make.”

We’re just gonna say it: “regulating a modality of the universal franchise” is drivel. If this is the bedrock on which age restrictions on voting rest, age restrictions on voting are in trouble.

The constitutionality of a voting age was also discussed in the Supreme Court’s 2019 Frank case, which annihilated the voting eligibility restrictions for Canadian citizens living abroad. In that case it was dissenters, specifically justices Suzanne Côté and Russell Brown, who brought the matter up. If legislatures can’t restrict the voting rights of Canadians who have been living in Cucamonga or Timbuktu, how can they impose any limit at all?

The dissenting pair quietly pointed out (at paragraph 144) that the phrase “regulating a modality” is gaseous nonsense, and that the Supreme Court, in its endless lust for making the franchise more inclusive, seems to have made any restrictions at all untenable. (Why, indeed, should the franchise be limited to citizens? Municipalities are already asking this question!)

November 17, 2021

The Supreme Court of Canada — four-ninths woke

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 03:00

In The Line, Leonid Sirota discusses a disturbingly narrow victory for freedom of speech in the Supreme Court of Canada’s decision in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse):

The Supreme Court’s recent decision in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse) has attracted considerable public attention, and for good reason. Although no law was in danger of being found unconstitutional, the case did concern the limits of the freedom of expression, which have always been controversial, and are perhaps more controversial now than they had been in decades. In brief, the issue was whether nasty jokes by an “edgelord comedian”, as The Line‘s excellent editorial described Mr. Ward, at the expense of Jérémy Gabriel, a well-known disabled child artist, amounted to discrimination that could be punished by an award of damages.

Much has already been written about the Supreme Court’s narrow decision in favour of Mr. Ward; for my part, I have already commented on (mostly) the majority opinion on my blog. Here, I focus on the dissent, in which, as The Line put it, “[t]here’s an incredible amount of popular modern discourse seeping into judicial reasoning” that “culled plausible-sounding legalese from Twitter logic”. That sounds about right.

But let me put it slightly differently. The dissent is, in a word, woke. And I do not mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a snowflake. I think he deserves sympathy on a human level, though not the protection of the law for his claim. Rather, what I mean by calling the dissent woke is that it embraces a number of specific tenets of contemporary social-justice ideology, which, if they become law ― and they were just one vote away from becoming law ― would be utterly corrosive to the freedom of expression.

For one thing, the dissent erases the line between words and actions, so that disfavoured words are treated as deeds and therefore subjected to vastly expanded regulation. Justices Abella and Kasirer (with whom two others agree) write:

    We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child.

In what is going to be a theme of my comment, this twists the meaning of words beyond recognition. Conduct is conduct and speech is speech. Using words instead the proverbial sticks and stones is not just a disguise. It’s the better part of civilization. The law relies on a distinction between words and actions all the time. This is a principle, and a general one, but it has also been a cornerstone of the law of the freedom of expression in Canada since the early days of the Charter. I have criticized the majority decision for disregarding precedent and doctrine. The dissent does the same, only much worse.

Besides, as I once noted elsewhere, the negation of the distinction between speech and conduct often combines with a belief that violence against some politically heretical group or other is permissible with the toxic belief that “[w]hat one says, or does, is expression; what one’s opponents say, or do, is violence.” This, in turn, means that law dissolves into a raw competition for political power, with the ability to decide whose expression will be stripped of its “protective cloak” and proscribed as the prize.

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