Past time, actually. Long past. So I'm delighted to see that, to mark the 150th anniversary of Confederation, the Macdonald-Laurier Institute has just reissued the paper Citizen of One, Citizen of the Whole that Brian Lee Crowley, Bob Knox and I wrote back in 2010. Perhaps it is the mark of an unredeemable nebbish to be proud of a paper on such a topic as free internal trade. But with governments including our federal one struggling with difficult policy choices to increase economic growth, it continues to amaze me that this juicy low-hanging fruit has gone unpicked.
In the paper, to which Brian has added a new introduction, we argue that it is not just economically sensible for the federal government to fulfill our Founders' vision by using their clear Constitutional authority to strike down petty protectionist interprovincial trade barriers. It is also a moral obligation.
What a great way to celebrate Canada's 150th birthday.
Vermont is not all that controversial. Is it? No. It’s just this rather pleasant New England state with the odd distinction of being among the most Democratic in the United States and the most heavily armed. But precisely because it does not arouse strong passions, it’s interesting to reflect on its admission to the Union on February 18 of 1791.
Interestingly, that decision was controversial, because Vermont was on land ceded by the French after the Seven Years’ War and at one point New York, Massachusetts and New Hampshire all claimed some of it. By 1770 it was basically New York versus the local staid pious New England rowdies, especially Ethan Allan and his "Green Mountain Boys" who were frankly rather scary vigilantes against New York authority.
Until, of course, the British decided to suppress liberty in their colonies at which point everybody decided to forget their old quarrels and go get George III even though Ethan Allan continued to contest New York’s authority. So here’s the interesting thing.
In the general uprising against British authority, a group of Vermonters gathered in convention declared themselves a sovereign state in 1777. Then they named themselves Vermont, and adopted the first constitution in North America to ban adult slavery. (Eighty-one years later, in 1858, Vermont banned slavery altogether.)
For fourteen years people tried to avoid the awkward topic of whether there was or was not a "Vermont" even though it issued its own money, had a postal service and elected governors. And Congress could not act without New York’s consent under Article IV, Section 3 of the constitution. Finally New York threw in the towel and, after successful negotiations over where exactly the border lay and what compensation was due to New Yorkers whose land titles had been ignored in Vermont, Vermont became the 14th state and (duh) the first new one after the original 13.
What’s interesting here is that Vermont’s claim to statehood rested on two key points. First, the people who then lived there wanted it. And second, they had successfully acted as a state in fact. In short, people bowed to reality.
I’m not saying might makes right. The origins of many nations and subnational jurisdictions give serious pause on grounds of legitimacy, especially in a world that no longer recognises the "Doctrine of Discovery" of places that already had people in them, and is distinctly uneasy with the "Doctrine of Conquest". But the simple fact is that as far back as you can find anything resembling reliable records, land is in possession of those who took it from others including the aboriginals who were in Vermont when Europeans showed up. And sometimes de facto is the best basis you can find for de jure, that is, you agree that Vermont should be accepted as existing essentially because it does exist.
We still hope for perfect justice. We cannot do less. But at times we admit that things are what they are and we must make the best of them.
I do not think a great many people, even in New York, go about today saying Vermont is a fraud and an imposition. But precisely because it does not arouse strong passions, it’s a good test case of our willingness to defy, or accept, what actually does exist in favour of what we wish existed or feel might perhaps have existed under other circumstances.
In what seems truly a bygone era, Fidel Castro seized power in Cuba on February 16 of 1959. Yes, 58 years ago. And a Castro is still in power in this ghastly real-life Autumn of the Patriarch.
I could say a lot of things about Fidel Castro without getting to anything nice. Like how revealing it is that he would have switched jobs repeatedly while still being the guy you got shot for disobeying. And how typical it is of a regime that for all its yapping about true democracy had no legitimacy that it became dynastic like North Korea. (Mind you his own daughter, from one of his many infidelities, fled the island prison in disguise in 1993 and his own sister opposed him from American exile.) But never mind him.
What I want to do on this dismal anniversary is insult all the leftists who placed such high hopes on him to begin with and then somehow insisted despite everything that he really was a good man and a liberator. Anybody can make a mistake. Even the New York Times in originally hailing him as "the Robin Hood of the Caribbean". But to persist in one, to speak of democracy and human rights and peace in a sanctimonious tone while siding with this seedy brutal villain and denying repeatedly that he was a Communist, or in case he was denying that it mattered if he was one, surely indicates grave defects in judgement.
Especially as it is a habit of the left, from Stalin through Castro to Mugabe and beyond; as Jay Nordlinger memorably put it in National Review back in 1994, "Like an adolescent girl on holiday, the radical Left is always falling in love with some unsuitable foreigner..."
To do it and learn nothing is to double down on nasty folly. Why have so many done it, and not just on the radical left, including our own Prime Minister Justin Trudeau?
For that matter, why are there still Che T-shirts?
Perhaps only the sort of person who would make a documentary on Magna Carta would care that on February 12 of 1689 the "Convention Parliament" declared that in fleeing the country, crossing the English Channel to France, King James II had abdicated. Or perhaps not, if you’re still reading this second sentence. In which case I hope you’ll agree that it shows a remarkable devotion both to the practical reality of self-government and to the legal formalities that give effective and lasting shape to the passion for liberty.
We are of course in Glorious Revolution territory here. And getting rid of yet another would-be tyrant Stuart had created significant problems of the sort discussed by Jean-Louis de Lolme in his neglected masterpiece The Constitution of England, in that the entire British system was focused on the monarch not as anything remotely approaching an absolute ruler but as the formal locus of the powers of government. And therefore the refusal of the monarch to play his appointed role made a mess of the formal machinery of state.
James was of course wrong to believe that, given his technical powers and duties, he could stop the government from operating by taking his football and going straight home or, to be precise, throwing the Great Seal used to summon Parliament into the Thames river. Parliament could and did meet anyway. But he did create for them a rather complicated question as to why exactly, and how exactly, they could act outside precedent without themselves creating a precedent of arbitrary rule.
In this crisis the Parliamentarians did two important things. First, they decided that given the extraordinary circumstances they were not merely an ordinary parliament but, for the purposes of straightening out the Constitutional mess, a "convention," that is, a meeting of the English nation with the power to make fundamental arrangements on behalf of we the people. Second, they debated at length whether the throne was in fact vacant.
William of Orange, who had helped chase James away by landing in some force at the invitation of leading Englishmen (who rallied larger armies to his side) and who was married to James’s responsible Protestant daughter Mary, played an important and responsible role here by refusing simply to seize the throne even though everyone who mattered understood that he was to be king. But how and why?
Some Whigs argued that by his "social contract" with the English people William was now king by popular consent. (Others wanted a "republic" in the sense of a government with no monarch rather than its proper meaning of a government of laws not men. But they were few and far between.) Meanwhile some Tories held that the departure of Mary’s wretched father had not left the throne vacant but rather immediately and automatically made her Queen, leaving her husband beside the throne not on it. Still others maintained that James had left the country without leaving the throne so what was needed was a Protectorate and maybe at some point restoration of a (har har) repentant James.
Parliament began to hack through this tangle by declaring in January that England was a Protestant kingdom and only a Protestant could be king, disposing of James and his new son. And while this resolve sounds bigoted to modern ears, like the protection of the right to arms in the 1689 Bill of Rights only for Protestants, a long association of Catholicism with disregard for Parliament gave it some plausibility at the time. But while it determined who was not king, it left the question of who was king or queen suspended in mid-air.
In February the Commons said the king had abdicated. But the Lords said there was no such thing as abdication in common law and that if James was no longer king Mary automatically was. However they soon folded, mostly because it was clear that Mary would not rule without William and Mary’s also Protestant sister Anne would not accept the throne in place of either or both. They proposed that William and Mary should both reign, which the Commons accepted on condition that William alone should rule.
On that basis, and on their acceptance of the Bill of Rights and the rule of law, William and Mary were proclaimed King and Queen of England, Scotland and Ireland. William then dissolved the Convention Parliament and summoned a new one, which turned the acts of the former into proper law by passing Acts then signed by a monarch.
It might all seem like jiggery-pokery or theatre. But it mattered enormously to be sure that the rule of law was somehow being upheld even under circumstances where procedure could not run through normal channels, and not simply to accept things because everybody agreed they should happen or nobody dared speak up. Including, it turned out, this precedent of a legislature or specially elected assembly becoming a convention representing the people if the executive put itself outside the law.
For instance in Britain’s 13 colonies in the 1770s. And while it might seem the Convention Parliamentarians would have cause to regret their precedent given its used in the American Revolution, the fact is that George III was behaving toward his North American subjects very much as James II had toward his British ones. And in creating a robust extraordinary precedent for dealing with a rogue executive they helped the Anglosphere preserve self-government and liberty under law in the 1680s and the 1770s.
It is hard to believe that, as late as Edward Coke’s time, it was credible in England to assert that the monarchy was originally founded by Brutus of Troy. (Not et tu Brutus. Another guy.) And yet in Japan it was believed well into the 20th century that their monarchy was founded in the 7th century BC, specifically on February 11 of 660 BC, by Jimmu, a descendant of the sun goddess Amaterasu. Also of the storm god Susanoo, by the way. I mean, why stop at one?
Now it may well be that the Emperorship was in some way established by a guy named Jimmu or something of the sort in or around 660 B.C. Possibly he set up shop in Yamato on February 11, now celebrated as "National Foundation Day" in Japan. After all, there was a historical figure at the centre of the Arthurian legend, a leader of the Romanized Britons after the legions left, despite later embellishments ranging from the inspiring to the downright silly. And Jimmu too may well have been a real person, or modeled on one.
Brutus of Troy? Not so much. I mean, maybe there was a Trojan called Brutus and maybe he even was descended from Aeneas. But however he got into a 9th century Historia Britonum it was not by ship west from Troy, out through the Pillars of Hercules and then north to glory. Nor was "Britain" named for "Brutus". (Nor, I submit, did Aeneas flee to Italy after the sack of Troy and have a son Ascanius who founded Alba Longa. Nor was Brutus descended from Noah’s son Ham. And so on.)
Perhaps you think it childish of me to make sport of these legends. But I do so in order to draw attention to a crucial difference between the governments, constitutions and political cultures of England and Japan. And I do it while acknowledging that the government of Japan seems in many ways to have enjoyed a more organic and harmonious relationship to its citizens than elsewhere.
The thing is, even if people believed the more fanciful tales about Brutus, and gave them some minor weight in legitimizing monarchy in Britain in principle, nobody ever sought to bolster their claim to kingship, or for sweeping powers for the king, by pointing to Brutus. English kings, going back long before Canute, established their claim to the throne by governing well. And governing tyrannically was never justified by the origins of the monarchy even if people sometimes got away with it for a while. At bottom, Brutus was just a piece of colourful embroidery.
Jimmu was not. Or rather, Amaterasu was not. The Japanese Emperor really did claim divinity, via Amaterasu’s grandson Ninigi, supposedly Jimmu’s great grandfather, and a whole lot of his people believed it. Not all, of course. But those who did not kept their mouths shut or someone shut them permanently for them. And because the Emperor was a living god, to the point that when after defeat in 1945 they actually saw the rather unimpressive figure of Hirohito in his ill-fitting suits (because tailors were not permitted to touch a living god even to measure him) and heard his all-too-human voice they were profoundly shocked.
It sounds as silly as Brutus of Troy. But this claim, which incidentally could not be made in a Christian society, made genuine self-government impossible. Canute rebuked courtiers for telling him he was such a favourite of God that he could command the waves. Japanese Emperors would have rebuked and possibly executed courtiers for telling him he was not himself a God. And it matters.
It’s no accident that a regime headed by a living god could launch World War II even though it was neither morally justified nor practically sensible. Who’s going to tell a divinity he’s a belligerent nitwit?
In 1865 the United States finally abolished slavery. It happened far too late and tragically it happened without abolishing bigotry or extending legal equality to the freed slaves and other blacks. Hatred is an amazingly, grimly persistent thing. As was underlined on February 8 of 1865.
Slavery was abolished according to the dictates of the United States Constitution, specifically through the 13th Amendment, passed by the Senate on April 8, 1864 and the House of Representatives on January 31, 1865. Obviously it could not be enforced through the South until the Civil War was officially ended by the Confederate surrender. But it also could not take effect until it was ratified by three quarters of the states following appropriate formal procedures.
Well, sort of. The Union having won the Civil War, it was in a position forcibly to impose governments on the defeated Southern states that did things genuinely elected governments would not do, like ratify the 13th Amendment. (Even, in many states, if those governments resulted from elections in which federal troops forced local whites to let their black neighbours vote.)
Thus Georgia became the crucial 27th state to ratify the Amendment in on December 6, 1865, putting it over the required three-quarters of the 36 states then in the Union including those that had rebelled in 1860-61. The rest subsequently tagged along, though Mississippi unsurprisingly didn’t get to it until March 1995 and "forgot" to send the required notification to the U.S. Archivist for another 18 years until Mississippi resident Ranjan Batra watched the movie Lincoln and started asking awkward questions. But here’s something even worse.
In Delaware, voters rejected the 13th Amendment on February 8, 1865. Yes, rejected it. In Delaware, a state whose inhabitants had voted against secession on January 3, 1861 and supplied 9 infantry regiments to the Union Army. Another Union state, New Jersey, also rejected it in March 1865 but relented in early 1866. But Delaware only ratified it in 1901.
Are you kidding me? Even after the Civil War, which you helped win, you voted to keep slavery? Sadly, it is so.
P.S. Kentucky, formally a Union state but with divided loyalties and dozens of units fighting on both sides in the war, said nay in 1865 and did not repent formally until 1976.
In my latest National Post column, I argue that if the Liberals were foolish to promise painless, universally popular electoral reform, we were also foolish to believe them that this and other problems were easy to solve just by wishing them away.