It’s been an entertaining week here in the US, which seems like a callous thing to say and, frankly, I’ll cop to the charge. I have been entertained – not by the ongoing misery of Covid-19 and its steady rampage across the country I was born in, and certainly not by the everyday and cast-iron racism in most Western countries that’s only been emphasised and highlighted by recent events. No, I’ve been entertained by the other side of the news, namely the functioning of government. If you can’t be entertained by government, you simply aren’t paying attention, or else you’re some kind of anti-tax nut job who can’t acknowledge that your ability to be an anti-tax nut job is due to the existence of an effectively functioning civil government in the first place.
Let’s assume you’re not one of the nut jobs. Look around recently: the French prime minister unexpectedly resigned, momentarily throwing Goldman Sachs-turned-de Gaulle monarchist-wannabe President Macron for a loop. The federal government in Canada cleared its last hurdle to strong-arm the Trans Mountain Pipeline past the recalcitrant BC government and assorted First Nations tribes, with the country’s Supreme Court dismissing the case against it. In the UK, not much happened, although that’s significant in its way as well. And in the US, we’ve had a busy week of Supreme Court pronouncements, including one ruling declaring half the state of Oklahoma to be a federally negotiated tribal reservation despite a million or so white squatters, several rulings emphasising religion’s protected status versus various executive and legislative actions, and then the big whoppers: one ruling stating that Congress can’t subpoena the Executive Branch without a darn good reason, other than in an impeachment proceeding; and another stating that the President had to provide subpoenaed information to federal and state prosecutors and could, in fact, be prosecuted if warranted, with only a mild standard essentially requiring prosecutors to “make sure it’s not frivolous.” Almost every opinion in the US, by the way, was subject to a dissent by the Supreme Court’s resident anti-everything nut job, Clarence Thomas, although if you like reading what an incredibly erudite and well-read grumpy grandfather would say in an eloquent if off-putting holiday dinner rant, by all means, check him out – just scroll to the last few pages of the full link.
I’m entertained in particular because it reveals something I’ve long felt, namely, that every government on earth tends towards a certain kind of “bad state” – that is to say, within each attempt at a good governing form, there lies the seed that will eventually reveal the absurdity of ever devising a single system that is good. Some are easy to see: Bolshevism and Stalinism would always tend towards either slaughter or dissolution, or in dire straits, both – even if when faced with extreme stress, its mixture of false-hope propagandised idealism and deadly threats could combine to defeat monarchist revanchists, the Nazis, and almost capitalism itself. Purist confederations – such as the US before the Constitution was signed, or Yugoslavia, or the post-USSR Confederation of Independent States – inevitably either harden into centralised systems and slough off all but minor downstream powers (post-Civil War US, CIS leading to Russia and the Athenian-like Russian Federation), or into chaotic dissolution, usually with a lot of slaughter thown in for good measure as well (US Civil War, Yugoslavian breakup).
We’re living through a period in the West, however, where many are wondering whether we’re approaching the reductio ad absurdam points for Western democracy. I think it’s a valid question, but I think it needs to be approached somewhat differently. First off, the innovation of the post-war West is not democracy per se: that came earlier. The real innovation is the creation of a broad based civil society, in which a plurality of the population of most advanced countries have been educated enough to be able to participate actively in the affairs of government. Before the Second World War, most countries provided a good education – the grammar school equivalent – to only a tiny minority, with the “first ethnically cleanse, then populate with the middle class” colonies in North America and Oceana being notable exceptions. But after the war, a key part of the rebuilding effort was the rapid expansion of secondary and tertiary education beyond the tiny elite. Not everyone engages, mind you – there are plenty of Homer Simpsons for every Lisa – but nevertheless, there is a plurality of people who can pay attention.
So while we think of “Western democracies”, we should reframe our perspective and instead think of “Western civil societies”. This helps notably in considering the question of the post-Soviet Eastern Bloc members of the EU, for example. Their civil societies are still only 25 or 30 years old, younger in some instances. Communist societies didn’t teach children, they indoctrinated them into Marxist-Leninist thought; thus today’s generation of baby boomer generation leaders in Hungary and Slovakia and Romania and the like aren’t so much part of that plurality in the West that had access to the tools of rational thinking about government, as they are brave but potentially ill-equipped pioneers in a world that looks nothing like what they were told about as children. No surprise, then, that we see a turning away from civil institutions in the East; it will be a generation or more before the slow influence of online access to The New York Times and The Simpsons really kicks in.
But the fear in today’s talking head society is about the “mature” democracies – I’ll put those down to the US, the UK, and Canada. If we look to the US, we see the problem baked into the modern, post-Civil War Constitution: there is an inexorable tendency towards what is known here as “the imperial presidency.” The Constitution gives the President essentially all management power over government, but the President must manage within the budgetary limits which are set by Congress, the advice and consent of the Senate in a wide range of matters, and subject to legislation which originates in Congress and, while subject to Presidential veto, can ultimately be imposed by Congress through its ability to override said veto.
Sounds like a reasonable balance, no? Well, not really – because the management of even a smallish late 19th or early 20th century bureaucracy gave the President in practice enormous power to set the tone of government. Beginning with William McKinley, who used a combination of patronage and discretionary powers within military and foreign policy in particular, accelerating through Theodore Roosevelt, then Woodrow Wilson, Herbert Hoover, and finally culminating in the crisis presidency of Franklin Roosevelt, a determined President – especially one faced by a fractious or divided Congress, or with a pliant Congress which is subject solely to the President’s charisma for its power – can readily accumulate powers beyond the intent of the Constitution. In its final form – the New Deal state of FDR and of the post-war grand consensus – the federal government is a dominant player in the economy, which makes the management decisions of the executive branch have ripple effects far beyond simple bureaucratic matters.
Since the budget setting power of the Congress is grounded in the needs and ability of the broad economy to fund it (we’ll put aside for the moment the issue of modern monetary policy, which I talk about elsewhere), this gives the executive a kind of trump card (excuse the pun). Think about it: the government sector in the US, which is one of the smaller ones in the West in general, still represents around 30% of the real economy when downstream multipliers are considered. For example, while the military budget is around 4% of GDP in the US, it supports substantial economies in communities around military bases, discretionary consumer spending by military personnel, etc.. This means that, while Congress has some ability to constrain the executive through the budget on the margin, in aggregate, Congress can’t make wholesale changes to government spending without disrupting the economy. Since no consensus body anywhere has ever relished wholesale change, that just doesn’t happen – and knowing that, even a President with a basic modicum of integrity has significant leverage over the fundamental power of Congress, that of the purse.
That leverage, combined with broad discretion in foreign and military policy, gives the modern president all the trappings of the imperium, without the purple robes (thankfully – while Obama probably would have looked great in a purple lined toga, the idea of Trump in one feels like a bad CGI villain in a Star Wars movie). So while the US has in theory three “equal” branches of government, it has evolved – again, inexorably – to having a dominant branch in the executive, with Congress acting alternatively as cheerleader or annoying thorn in the side, and a judiciary that has no active power at all and can only react to grievances brought in court. We’ll come back to that in a second.
The United Kingdom, on the other hand, historically has tended towards an imperial Parliament. That is to say, Parliament – the legislature – is the sole sovereign power. At one time the monarch exercised power through Parliament, but after the Glorious Revolution, the monarch slowly but surely lost its power as Parliament retained its right to replace the monarch through any number of legal mechanisms, the most obvious being the Succession Acts. Even the notion of a bicameral legislature has gradually eroded such that now the UK really possesses an imperial Commons. With the evolution of fully articulated party politics, and the retention of a first-past-the-post voting system, the validly formed majority block in Parliament can essentially rule unchecked (although once-every-five-year minimum election cycling limits the time over which a given majority block can have guaranteed reign).
It’s a famous feature of the UK that there is no formal constitution, only the accumulated history of legislation passed and still in force, and the tradition of common law which in theory guards against arbitrary abuse by government. But it’s important that the common law only guards against the arbitrary abuse of power: if Parliament, voting via its majority block, approves an abuse of government power – say, limitless right to detain any citizen without a lawyer, or approval of torture, or whatever – then it becomes non-arbitrary and binding because of the imprimatur of Parliament. The courts may further resist this – and we note that the final arbiter are the Law Lords, who themselves are part of parliament – but the majority block in theory could then revise the power of the Supreme Court. It might be complicated to do in practice, but in law and in theory, a majority block acting deviously in Commons could do, really, whatever it wants.
So what prevents this from happening? Unfortunately, really, it’s only the informal boundaries provided by culture and tradition – which, in what has historically been a Britain with strong traditions and a thin tolerance for radical change, has been enough. Britain has changed markedly, however, in the last century, on nearly every dimension of what defines a “culture”. What was a collection of regional and class-based differences, shared by a common distaste for anything French, is now a much more complex melange of identities which only really bond on a shared agreement that football is great, cricket is boring but great, children are annoying, and comedy equals ridicule and misogyny in roughly equal doses. And emotions are inherently evil and must be stopped at all costs – that too. Parsing that out, it seems like a thin barrier to an imperial Commons, and so it has proven recently (although I’ll grant that the love of ridicule has proven to be surprisingly effective as a tool, except when deployed against politicians who decide to proactively invite ridicule as a means of gaining media time). Either the majority is weak, and falls back on populism with things like Brexit referendums, or the majority is strong, and it rules by decree on Zoom.
In this light, even the weak “thorn in the side” power that remains in Congress in the US seems like a stronger firebreak. But the real advantage offered by the US constitution is the judiciary. Even the Supreme Court, however, has to walk a fine line when facing off against a populist executive branch which is determined to reign unchecked. This session, the Court had several pivotal decisions. The first came last month, in Department of Homeland Security v. Regents of Univ. of Cal., where the University of California sued the government over its intent to deport children who were brought by their parents illegally to the US, but were given rights of residency by the Obama administration via an executive order. The Court ruled against the government in a narrowly constructed but fascinating opinion: basically, the Trump administration failed to follow its own administrative procedures for overturning an existing executive order, and so had violated the “due process” clause of the Constitution. This gives the administration the ability to re-file to overturn the policy, but the public comment and order procedures mean the Trump administration practically can’t do anything about it unless Trump is re-elected.
The second case of note, in my view, is Our Lady of Guadalupe School v. Morrissey-Berru, in which US anti-discrimination laws were found to violate the rights guaranteed in the Constitution, in this case, freedom of religion. The case involved a teachers in different Catholic schools who were fired, in the named case allegedly for disclosing she had cancer. Putting aside the awful un-Christian firing itself as a moral act, the justices ruled that, since the teacher leads the class in prayer, teaches an hour of Catholic stuff a day as part of the curriculum, and works with the school administration in defining religious curriculums, then the school has basically full rights to hire and fire – regardless of reason – under what’s called a “ministerial exemption.” Basically, government cannot dictate who a religious body can appoint to teach its religion – or set standards which the religious body must meet. There is some tension here, as speaking as an at best lapsed Catholic, one can imagine that there may be compelling reasons to prevent someone from teaching children in any setting, but the Court doesn’t make moral decisions, it simply assesses the balance of the law – and the Constitution binds both the executive and the legislative branches.
Case three was McGirt v. Oklahoma – one of those “only in America” lawsuits, for bad reasons and, ultimately, for good. Oklahoma was formerly known as the Indian Territory, where Cherokees and other First Nations were forcibly deported in the early 1800s by the US Government in what became known as the Trail of Tears. The idea was that the tribes would have permanent reservation rights to the Oklahoma land, in return for giving up any claims to parts of Tennessee, Mississippi, and Alabama, and the “treaties” were approved by Congress. Because Americans in the 1800s were basically unscrupulous genocidalists with respect to First Nations peoples, this agreement was at first eroded, and then finally ignored after the tribes sided with the Confederacy in the Civil War. Impatient cattle ranchers and settlers gradually invaded the territories with the approval of federal agents. But, critically, Congress never abrogated the treaties. So the Court decided that, in effect, half of the state remained subject to the treaties, and First Nations people cannot be subject to Oklahoma state law, and potentially, contracts entered into with First Nations people under Oklahoma law may be unilaterally invalidated by the First Nation signatory.
Again, the Court here acted to keep the other branches to their word – or else at the very least, go through the motions of rescinding the law, including due process requirements and the like, if they want to break their word. Now much like in the UK, a determined (white supremacist) government could break a treaty, with a two-thirds Senate majority and Presidential approval – and indeed, many horrific laws were passed in the Jim Crow era with the consensus approval of white supremacists in the White House, Congress, and the courts. But the system, in this case, actually worked – although ironically it worked in a case involving a serial child sex offender who didn’t want to be prosecuted under Oklahoma law because of the risk of the death penalty.
The last case of interest this week was Trump v. Vance, in which the state of New York, attempting to gather evidence against the Trump foundation and various Trump businesses in a tax and business fraud case, subpoenaed Trump’s accountants for his business and tax records as part of a grand jury process. The Court said, basically, the subpoena is valid, and that Trump can be prosecuted for criminal law violations while in office by a state prosecutor. Famously invoking Jefferson’s “no man is above the law” language and multiple essays from the founding days of the republic, the Court ruled in a lopsided majority that, while a perhaps greater standard may exist for state prosecutors to go after a president for a given violation, the president can’t hide behind the office. In a related but quite different case, a House committee tried to obtain the same information, and the Court – again in a lopsided decision – ruled that while criminal prosecutions were valid reasons to pursue evidence, political prosecutions were not, and Congress can only ask for information clearly related to an existing legislative deliberation – or else Congress can always go ahead and impeach the President, which is also fine but is different than what the House was trying to do.
The Court in each case showed both its teeth and its deliberative discretion in deciding rules not of politics, but of governance. Governance is different than strictly interpreting a law and how it should be applied; it involves interpreting whether a law fits into the social governing compact – between branches of government, between citizens acting privately in protected realms, between criminal prosecutors and suspects, between government and groups with whom it has made promises. That division between law and governance is notably absent in the UK, where there are no real checks on Parliament acting in session to reign over the state and its people. It is, of course, wholly imperfect in the US – we note that two of the cases described above effectively let off the hook litigants who were, in any light, acting immorally; one would hope that the court could provide guidance without having a sex offender be the test case, or to deny compensation to the estate of a woman who died several years after being fired from a job which, to all observers, she had done well, to make room for a cheaper and younger substitute.
And that brings us to Canada. Canada is a hybrid of the US and the UK: it has a kind of imperial Parliament, and the governing bloc in session has only bare limits on its power as a federal body. But the provinces in Canada have much of the power of the individual states in the US before the Civil War, and in particular have vast swaths of governing power which are reserved to them explicitly (in the US, the reserve clause powers are implicitly reserved, and as a result, that clause has been subject to erosion over the life of the Constitution). The Supreme Court is more limited than in the US because so much governance is outside of federal jurisdiction; it cannot interpret provincial law except in the narrow band of deciding whether the law engages the powers reserved to the federal government. But there is another exception to this limitation.
Namely, the provinces and Parliament agreed in 1982 to be bound by the Charter of Rights and Freedoms, which sort of kind of looks like the American Bill of Rights, and sort of overlaps with some common law assumptions in the UK, but is different from both. As a core part of the Canadian Constitution – but critically, overriding some of the reserved powers of the provinces with respect to the rights and freedoms guaranteed by it – it stands much like the US constitution in binding all branches of government, at all levels, to its provisions. But a key innovation is that it allows for governments to refer questions to the Supreme Court of Canada for review prior to passing legislation. That means you don’t have to wait for a sex offender to come along and test a point of law, or for a terminally ill teacher to get fired.
It’s quite a nifty safety valve for the political process – politicians, when faced with popular demand for, say, a “get tough on crime” law, or language restrictions on French in Alberta or further restrictions on English in Quebec, can refer a law to the Court for answer to a reference question. The Court has broad respect throughout Canadian society, crossing cultural, regional, and other boundaries, and its opinion is broadly capable of reducing tensions on key issues. Its decisions, moreover, do not need to include the reasoned opinions common to US Supreme Court decisions – particularly when they decline to hear a case or affirm a lower court ruling in its entirety. This careful discretion acts as a kind of quiet imperial judicial power, similar to the way central banks carefully parse their releases and often use silence to indicate their views more than they use explicit affirmation or denial.
This reinforces my love for Canada as my favourite country for a variety of reasons. One of the best reasons is an escape valve to the escape valve built into the Charter, the Notwithstanding clause. First off, what a great name – it rolls of the tongue like a more elegant “but but but!” screamed out by an impatient attorney raising an objection. Second, it’s brilliant by being broadly empowering in purpose, but hemmed in by both scope and time. And third, it’s one of those things that has managed to unite Prog Cons in Alberta, Parti Quebcoises in Quebec, and true-blue Tories in Ontario – all of them love throwing around a Notwithstanding Clause pie in the face of the federal government from time to time.
The clause, basically, allows a province to supersede any immediate judgement or reference on a point of Charter law for up to five years. The Charter, in other words, is the highest law of the land, but notwithstanding that, the provinces still have a bit of excess sovereignty they can exercise. But only for five years, which can be extended, but all provincial legislatures are subject to a maximum five year term by a clause in the Charter which is not subject to the Notwithstanding clause and so by definition it would have to be extended by more recently elected government. And as the previous sentence indicates, the clause is only exercisable only for certain questions of legal rights and equality (anti-discrimination) rights.
It’s used from time to time – three times so far successfully – but really it acts as a symbol. The provinces are subject to the Charter, but notwithstanding that, in a real emergency, they can try something out for five years, but after that they really have to think about it again. So Canadian. So human. So perfect.
Canada’s seed of imperfection, by the way, was planted back when Upper and Lower Canada merged. Really? The British and the French in a harmonious union? Come on. There isn’t enough poutine, bacon and maple syrup in all of Gatineau to make that work, although cheap hydropower and oil sands can help bribe everyone for a little while, I suppose.
On that note, I missed July 1 this year – but happy belated 153rd anniversary of the effective date of the British North American Act of 1867 to my friends in the Great White North! Touques off to you, you hosers!