Constitutional Democracy is Not an Oxymoron

In a recent article in the National Post's Full Comment   John Varty takes the American conservative commentator Glenn Beck to task for inconsistency.  While this may seem as surprising as the observation that triangles have three sides, in this case the criticism is unjust. 

Professor Varty focuses on Beck's recent comments that America is not a democracy in order to show that President Obama's powers are constitutionally limited.  Varty argues that this is at odds with conservatives' (Beck included) long standing complaint that the courts use the constitution as a weapon to override democratic decisions on moral and social issues, such as the recent rejection of Prop. 8 preventing gay marriages or the historic rejection by the courts of laws against abortion.

However, Professor Varty misses the context.  Conservatives are not opposed to constitutional authority as such, or even the notion that it may occasionally override democratic decisions.  After all, it is the constitution that establishes the democratic process in the first place.  What conservatives object to is the tendency of the courts to do interpretive somersaults to discover new rights in the constitution that the Founding Fathers neglected to mention, and wouldn't have imagined in their wildest dreams.  

Whenever the liberals fail to get their way on a controversial moral issue at the polls, they subvert democracy by having the courts strike it down.  However, it is probably wrong to say that these are cases of subverting democracy.  After all Supreme Court Justices resolve disagreements by voting on them, just like politicians and the electorate do.  And when the it is striking down long established laws by razor thin 5-4 margins, we can be forgiven for wondering why a democracy of nine ought to hold sway over the democratic will of millions.  

The case is quite different in the recent dispute over "Obamacare", one of the American right's big concerns these days.  This is almost certainly the reason behind the conservative argument that America is not a pure democracy.  However, the appropriate jurisdictions of state and federal powers is a matter that the constitution really says something about (as opposed to the right of mothers to kill their babies in their wombs or the right of homosexuals to marry, issues on which the constitution is mysteriously silent).  In this case it is entirely correct to say that democracy is not enough.  Federal authority in such matters is limited and there is at least a dispute that must be legally decided over whether the Federal government overstepped its authority in this case.  Since the issue is still under consideration, I presume reasonable people may have different opinions on how this should be settled, but clearly there is an argument that must be answered.  

The dispute between liberals and conservatives is not a fight about the supremacy of the constitution.  Professor Varty is wrong to characterize it that way. Rather, the real fight is over how the constitution is to be interpreted. Does the constitution mean what it actually says or is there some hidden meaning evident only to the legal intelligentsia?  One suspects that some Supreme Court Judges must receive a secret decoder ring on appointment to the bench to come up with interpretations that are so counter-intuitive.  Although perhaps it is only Democrat Presidents who give these out.   

Of course, it is an open question whether Beck's strategy of appealing to constitutional limits on democracy is very prudent from a political point of view.  After all, if Judges can find reasons to discover rights in the constitution that simply aren't there, one might wonder what prevents them from finding an interpretation circuitous enough to ignore the one's that are.

Ann Coulter isn't the only one who doesn't have freedom of speech at Canadian Universities

Ann Coulter’s speaking tour of Canadian universities is an important reminder of the ongoing attack on freedom of speech in our country’s publicly funded universities. When a university provost warns an invited speaker before she has even entered the country to be careful what she says or she could be in danger of arrest we should wonder what is going on, even more so when the event at the University of Ottawa was shut down by protestors. No one is surprised that university students have public protests – that is entirely appropriate. What is shocking is that they create a physically -- not just emotionally -- threatening climate, set off a fire alarm, and then have the gall to celebrate their successful attack on freedom of expression.


Yet, it is not merely professional pot-stirrers like Ann Coulter and Ezra Levant who the universities are silencing. The current episode is just one among many less publicized cases that should be deeply troubling to Canadians. In several campuses, such as University of Victoria and the University of British Columbia, pro-life groups have had their status as a student group revoked. This means these groups have no access to funding, space, and advertising that opposing student groups enjoy.

Last year the University of Calgary went one step further charging members of its pro-life group for refusing to take down a public display showing aborted fetuses. (Notably, none of these people are very concerned that some people might be offended by soft core porn publicly displayed every day on Calvin Klein billboards). It is true the charges were eventually dropped. But, it is interesting that this was done by the Government, not the university. Universities have also cancelled debates on abortion, on the dismissive (indeed offensive) argument that it would be like debating whether a man has a right to beat his wife.

Again and again Canadian Universities are attacking the very freedom they exist to preserve and promote. Last year Queen’s university hired students to eavesdrop on the conversations of their fellows, lest anything offensive be said. The plan was nixed at the objections of some alumni. In recent months, conservative columnist David Frum quarreled with York University’s provost Patrick Monahan over the university’s decision to impose several restrictive conditions on a pro-Israel event organized by a Christian student group allegedly for safety concerns foreseen protests could cause. Yet, the same measures were not required of hosts of an “Israel Apartheid Week” on campus. Such inequity suggests an attempt to deliberately silence views out of step with the university’s culture.

In the case of Ann Coulter one of the organizers of the protest has gone on national news networks justifying the attempt to shut down the event arguing that U of O’s students value their “safe space” for learning. As rude as Coulter sometimes is she has never physically attacked those who disagree with her. What sort of safety is at issue here, the safety to not have your opinions challenged?

Indeed, safe spaces are important in the learning environment – in elementary school; but, in a university? At an event that one has to go out of one’s way to attend? With a speaker who is renowned for stirring up controversy? One would hope that university students would be sufficiently familiar with intellectual controversy to be to cope in the midst of passionate debates and even rude comments.

Indeed both the Canadian government and Catholic social teaching recognize that there are, and should be, legitimate limits on freedom of speech. But, this doesn’t, and shouldn’t, extend to the possibility of hurting someone’s feelings, especially when that person freely and deliberately engaged in a controversial and sensitive debate. These limits certainly should not be used as a means to silence political opinions just because some people find them uncomfortable or upsetting. There is a growing culture of censorship in our universities, and whatever we think of Coulter’s views, we should be thankful to her unique form of political theatre for giving the problem national attention.

PS:  This was posted a little late, as I had sent it to an editor who did not get back to me.  Since the time of writing Dean Steacy an investigator for the Canadian Human Rights Commission has said under oath that freedom of speech is an "American concept".  (see here http://www.richardwarman.com/transcripts/2007-01-Marc_Lemire/May_10_2007.pdf at p. 4793) More happily Senator Doug Finlay has called for a Senate inquiry into freedom of speech in Canada in reaction to the Coulter/University of Ottawa event. (for the senate debate look here:  http://parl.gc.ca/40/3/parlbus/chambus/senate/deb-E/013db_2010-03-30-e.htm?Language=E&Parl=40&Ses=3#52 )

Judicial Activism Making Canada Safer for Child Porn

Chief Justice of the Canadian Supreme Court, Beverley McLachlin has repeatedly rejected the accusation of conservatives that the Supreme court is guilty of judicial activism. Yet, last week they were at it again. This time setting free Urbain P. Morelli, a man found with child pornography on his computer.

The police “illegally” searched his home, after receiving information from a computer technician who had expressed concerns about Morelli. The court argued the police used a poorly worded search warrant, the nerve of them. His lawyer argued there hadn't been enough evidence to justify a search warrant. And of course the technician didn't provide sufficient grounds to issue a search warrant, he'd only noticed a webcam directed to Morelli's daughters play area where her toys were and seen links to “lolita” (i.e. internet code for young girl) sites in his favorites. On his second visit the links had been erased and the toys removed. Nope, no reason to be concerned at all. The police and court must have really been foolish thinking it would be reasonable to conduct a search in those circumstances.

But, even if one is insane enough to think this doesn't justify issuing a search warrant, when the police conducted the search illegal porn was found. But the Supreme Court tells us using this would violate the rights of the accused. So even though he is guilty, he cannot be punished. Now we do want to discourage police from searching people frivolously. What is the best way to prevent frivolous searches? Setting free someone guilty of child porn or...... hmmmm how about punishing police officers who conduct illegal searches. It is not only silly to set free those who clearly have committed crimes because of mistakes the police or lower courts made in gathering the evidence. It is dangerous. If there is clear evidence the crime was committed, then the logical thing to do is to use it regardless of how it was attained. Illegal methods of gathering evidence can be much more effectively discouraged by regulating and punishing officers who use them.

Already the Morelli decision is making the country safer for those with a taste for child pornography. Seaman Travis Stanfield had his charges dropped by military prosecutor Maj. Benjamin McMahon who said that the Supreme Court's decision about Morelli tied his hands. Stanfield had only confessed to owning a dvd of child porn.

Still there is some reason for hope. The Supreme Court's decision to toss out the evidence against Morelli was split 4-3. So it is nice to know that three of the judges on our highest court have some semblance of sanity. But, then again the punishment Morelli had been given by the lower courts was a whopping 18 month conditional sentence. So why worry about judicial activism, those guilty of child porn aren't going to jail anyway?

Maternal Health Initiative

The liberal party's recent attack on the Conservative's planned Maternal Health Initiative is just one more sign of an opposition truly desperate for attention.  Ironically their news release on the issue says ideology should be kept out of the initiative, while the entire text is an ideological tirade. ( http://www.liberal.ca/en/newsroom/media-releases/17427_liberals-ask-harper-to-keep-ideology-out-of-maternal-health-initiative). 

The health of mothers and children presents many real and pressing problems.  Rather than address any of these or make some positive contribution to the discussion, the Liberal approach is to go back to scaremongering about abortion and contraception, as though these issues had anything to do with the policies under consideration.  This is unfortunate, as even those who support abortion do not see it as desirable and no one sees it as a benefit to the health of woman or children.  The only thing a pro-choice person can say in its favor is that it is a "necessary" evil. But, Canadians have a right to expect positive policies on maternal health, not just ideological platitudes.

Much of the news release is an attack on Conservative MP Brad Trost's petition against federal funding for Planned Parenthood, which is now named the Canadian Federation for Sexual Health.  But, CFSH is a voluntary charitable organization, and it seems quite reasonable to suggest that a debate about whether charitable organizations whose primary purpose is to promote practices that are highly controversial among the Canadian public should receive government funding.  Yet, again we find the Liberal Party of Canada acting in the most illiberal manner possible, condemning people for daring to bring important topics into public political discourse. 

Clearly, this is simply partisan politics, but even from that perspective the approach is irrational.  True, Paul Martin used this strategy with limited success against Harper.  However, how many years of Conservative rule does Ignatieff think Canadians need before figuring out Harper does not have a hidden agenda.  Further, the Liberal position has fallen flat, garnering little to no media attention.  What it has done is further alienate Catholics, Christians, Muslims and others who are at home in the center of the political and economic spectrum.

In the end the Liberal Party's statement is just one more indication of its own irrelevance. To quote Toronto Archbishop Thomas Collins:  "When there are so many obvious practical steps that can be taken to promote maternal and child health throughout the world, it is sad to see Mr. Ignatieff introduce into the discussion this negative proposal, which in no way serves to improve the health of mothers or children, but which rather imperils the most vulnerable among us. "     
http://archdioceseoftoronto.blogspot.com/2010/02/statement-from-archbishop-collins-on-g8.html

Abolishing the long-gun registry, better late than never.

Below is a letter to the Editor of the Saint City News (St. Albert Alberta) that I sent off this morning.  The article I am replying to is at: http://diary.davidclimenhaga.ca/2009/11/rathgeber-talks-law-n-order-talk-but.html  (Above is Candace Hoeppner Conservative MP for Portage-Lisgar who introduced the private members bill to abolish the long-gun registry)

Enjoy.
JW

To the Editor,
David Climenhaga’s attack on Edmonton-St. Albert MP Brent Rathgeber for voting to abolish the wasteful long-gun registry is off base. The important statistic, one that defenders of the registry have never been able to tell us, is how many crimes per year does the registry avoid. I’m inclined to think few to none. Climenhaga is simply wrong to say that the registry saves people from becoming victims of crimes. The vast majority of crimes are committed with illegal weapons and, of course, registration doesn’t mean a gun won’t be used in a crime; it only means the police have a record of the weapons existence. Criminals do not register guns, so Rathgeber is quite correct to say the law is an unwarranted burden on law abiding citizens.

It is true, as Climenhaga points out, police leaders often support the registry. That is understandable, but in a country with limited resources in the midst of an economic crisis it is reasonable to ask if the registry is a necessity or an expensive and largely frivolous luxury. Climenhaga shrugs off the cost, saying that the program has already been established. But that neglects the significant ongoing costs of keeping it up. To say we have already wasted over $2 billion dollars , so keep the taps flowing is simply unacceptable. In the fight against crime we need more police on the ground, not more government bureaucracy.

Death with Dignity Bill C-384

I've been reflecting a lot on the issue of Euthanasia lately as Bloc Quebecois MP Francine Lalonde has reintroduced a sweeping private members bill to legalize euthanasia, not only for physical, but also mental, suffering. The bill's 2nd reading has been postponed to Dec. 1st, 2009.

I think there are are many reasons to reject her proposal. But first of all it is important to be clear what we are talking about. Although many polls suggest support for euthanasia in the public, especially in Quebec, this is frequently because people confuse the right to withdraw from treatment with Euthanasia. This is a critical difference. There is no moral obligation to undergo extraordinary and burdensome treatments. There is no rational or religious grounds for an obligation to extend life as long as possible. One may legitimately withdraw from treatments that impose burdens disproportionate to their benefits. No serious philosopher, theologian or politician argues that there is. But this is a far cry from Euthanasia, which is the termination of some one's life due to suffering.

At the debate on 1st reading liberal MP Paul Szabo made this point well saying: "It [i.e. this bill] would not give the right to die with dignity to someone. It would give to someone the right to take a life.......All human life is dignified life."

The most common argument in favor of euthanasia is an appeal to choice. The philosophical presupposition to this argument is the harm principle which was articulated by the philosopher John Stuart Mill. This is the well worn adage that you should be free to do whatever you want as long as you don't harm others. But, it is interesting that Mill himself argued that one could not appeal to the harm principle to sell oneself into slavery. On the surface it might seem this should be allowed. If I am willing to accept slavery to pay for a life saving operation for my wife or child say, then who are you to stop me. However, Mill noted that the purpose of the harm principle was to protect freedom and slavery clearly vitiates the very freedom the principle is supposed to protect.

I think the same case can be made for euthanasia. To kill oneself is to radically, once and for all, put an end to all future choices. It is, indeed, a radical end to ones ability to choose in way which is much more radical than selling oneself into slavery. After all a slave may be freed at some later time. My point, of course, is not that euthanasia is on par with slavery, but rather that euthanasia is in fact an attack upon the very freedom its most ardent promoters intend to defend. Euthanasia does not protect freedom, rather it is the death of freedom.

Is Sane Conservatism an Oxymoron?

Hello, my name is Jason, and I am an Conservative, a Catholic, and (hopefully) sane - although I suppose you are in a better position to judge the last point than I am. Of course, living now in Alberta I find that it is much easier to be a Conservative Christian and maintain your status as a sane human being. However, having been brought up in Ontario (out east for those here in AB, and the center for those living there) it was never quite certain that sane conservatism wasn't after all an oxymoron.

Sadly, after wasting a little time looking at a number of conservative blogs and websites it isn't hard to see why that is. So often we are our own worst enemies preaching to the choir so to speak. What I would like to do here is provide a place for calm reasoned reflections on issues that matter. Issues which are often emotionally charged and discussed in irresponsible incendiary ways.

Since I teach Thomistic philosophy in a school of theology preparing lay people and seminarians for ministry in the Catholic Church it should be no surprise that many of my concerns lay in the area of the "social conservative" camp. Yet, I don't want to limit myself to these topics and the blog is open to virtually anything; philosophy after all studies pretty much all things, it just does so in a unique way.

Since I keep up a fairly busy schedule I expect to be posting once or twice a week, in order to be realistic. I hope what you read here gives you something challenging to think about and I look forward to hearing your responses.