In my latest National Post column, I say the mass murder in a Quebec mosque should remind us to seek compassion in our hearts and a civil tone in public debate on difficult issues.
On January 31 of 1801, lame-duck U.S. President John Adams appointed John Marshall Chief Justice of the Supreme Court. Such appointments often backfire; Eisenhower would later bitterly regret elevating Earl Warren to Marshall’s old job. And at the time it was largely seen through the partisan lens of Adams’ effort to stack the judiciary against his hated rival Thomas Jefferson. But it turned out to be one of the greatest appointments in American history.
Adams had originally offered the job to another leading member of what was fast becoming the Federalist party, John Jay. But Jay turned it down partly on the grounds that the Supreme Court had insufficient "energy, weight, and dignity." Which might sound like a weird thing to say given the importance of the judiciary in the American system of checks and balances. But it was in fact not clear in 1801 that the Court was an equal branch or that it could, in fact, invalidate statutes as unconstitutional.
It was Marshall himself, whose skilful and congenial guidance included changing the practice of each judge issuing his own opinion to the presentation of a majority or even unanimous consensus, who made the Court what it has been since. And the critical turning point was Marbury v Madison in 1803 in which a unanimous Court struck down portions of the Judiciary Act of 1789 as unconstitutional.
It was, interestingly, the only time in his 35 years as Chief Justice that the Marshall Court declared an Act of Congress unconstitutional. And it was one whose practical impact pleased the incumbent President and Congress even though they were Jeffersonian Republican foes of the Federalist Party, which probably helped it avoid becoming a focus for partisan wrangling. But however that may be, it was a crucial step in the evolution of the American system to the point that one prominent constitutional scholar declared that only when Marshall finished reading the court’s opinion in Marbury v Madison was the Grand Convention that wrote the Constitutional entirely adjourned.
As for John Adams, who spent a long and productive life in service of his country, he later said "My gift of John Marshall to the people of the United States was the proudest act of my life." It may also have been his most effective.
In my latest National Post column I denounce the legal Juggernaut that has rolled over a blameless Ontario couple and increasingly menaces us all. (My bad: In the piece I misnamed the outrageous Ontario law in question; its actual Orwellian title is the Civil Relief Act.)
In my latest National Post column, I object to people imposing facile negative gender stereotypes on the men's rights movement.
The Washington Post reports from Dhaka, Bangladesh that “Twenty foreigners were killed by six heavily-armed militants at an upscale restaurant in the diplomatic quarter of Dhaka early Saturday after an hours-long siege was ended by Bangladeshi forces. Sharp weapons were used to kill the victims, with local media reporting that some were beheaded. Thirteen other foreign captives were rescued by paramilitary forces who killed all the attackers, Brigadier General Nayeem Ashfaq Chowdhury told reporters. Some police officers were also killed…. Gunfire was heard as troops moved to end the standoff more than 10 hours after the attack began…. At least four security personnel were killed responding to the attack, a senior police official, Assistant Superintendent Fazle-e-Elahi told NBC News…. He described the assailants as "heavily armed and equipped" and "tactically sound." "The attackers are not identified. They were shouting 'Allah Akbar' when they entered the restaurant," Fazle-e-Elahi said.” So once again all the usual elements are present, from Islamist anti-Western motivation to the ability to acquire weapons regardless of legal restrictions (in Bangladesh legal firearms are scarce and tightly regulated; for instance no one under 30 may possess a rifle or handgun) to the helplessness of the victims until good guys with guns do arrive… hours after the ordeal begins and too late for dozens of victims.
The recent terrorist attack in Orlando has prompted some people to call for Americans to surrender their right to bear arms. It’s understandable that they would try to exploit the tragedy. But it is not a rational response. We see that particularly by comparing the Pulse nightclub massacre to the November 15 terrorist attack in Paris, where firearms and explosives were used to kill over 100 people including 89 at the Bataclan theatre. France has strict gun control laws. They didn’t keep the bad guys from getting guns. But they did keep the victims from fighting back. And at the Pulse nightclub, for whatever reason, no patrons seem to have been armed.
Then there’s the June 28 attack at Istanbul airport, using explosives and, again, firearms that Turkish citizens and residents are emphatically not allowed to own. And a correspondent has also noted that the murder, apparently an act of insanity rather than terrorism, of British MP Jo Cox, involved a firearm in a nation that in recent years has brought in very strict gun control.
Cox was shot using a weapon that was by various reports either an antique or improvised. But she was also stabbed. And the knife wounds alone would very probably have proved fatal; London has seen a gruesome jihadi killing using a car, knives and a cleaver. In any case there are also millions of illegal guns in Britain readily available to criminals and maniacs. But no law-abiding citizen present when she was attacked was armed and able to shoot the attacker before he could stab Cox repeatedly and fatally.
The notion that stricter gun control will prevent or reduce terrorist incidents, or acts of insane murder, simply doesn’t fit the facts. Terrorists can use explosives, as in the 7/7 attacks in London. And both they and thugs can easily get firearms even when ordinary citizens cannot, because of the by now familiar point, at least it should be familiar, that criminals don’t obey the law.
When trying to explain similar events, it is important to focus on the elements they have in common especially if we are the sort who boasts of “evidence-based decision-making”. And what we find in these attacks is jihadist motivations and the ability of bad guys to get weapons including firearms regardless of local laws. Yet people were also quick to attribute the Pulse nightclub shooting to Western homophobia, very curious given that the assailants were adherents of an austere, nihilistic and ferociously anti-Western brand of Islam. Oddly, there was little attempt to link the Bataclan attack to dislike of cosmopolitan or hedonistic lifestyles, even though that was an important aspect of the Paris terrorists’ choice of target. And it’s hard to see how homophobia could have motivated the Istanbul attack.
To exploit such incidents to push arguments against gun control or social conservatism is understandable, even predictable. But it’s not rational. And it’s not very nice either.
Today I got this envelope from Statistics Canada saying "2016 Census: Complete the census - it's the law." (Equally rude in French: "Recensement de 2016: Répondez au recensement - c'est la loi".) I am told the government is the servant of the people. But this peremptory tone, giving orders without even a pretence at "please," is not how a servant speaks to a master. Quite the reverse. Remember how all the right people were shocked and appalled when the Harper Tories got rid of the long form census? Without accurate data, they complained, social scientists would find it hard to engineer satisfaction of the human units to a sufficient number of decimal places. Which I always found rather an odd conception of the proper role of government and of its abilities. And look how they talk to us now that it's back.
The smart set make a lot of fuss about "evidence-based decision-making". But a decision to trust the intelligence or benevolence of government doesn't seem to me to be based on much sound evidence. Not even the personal stuff I have to provide or else, according to this envelope that just marched into my house, waved a pair of handcuffs at me and started shouting questions.
An odd piece in today's National Post by former federal justice minister and attorney-general Peter Mackay laments that "Over the last decade, the Supreme Court has often seemed at odds with elected governments over legislation designed to emphasize enforcement of the rule of law and reflect the public demand for greater accountability." The complaint is not odd given how often the Court was at odds with the ministry in which he served or given how often Courts do now make law. What is odd is that he offers no remedy.
In the piece, which I'm not linking to because I can't find an online version, he complains that judge-made law seems not to meet the needs of the situation: "Lost in the activist celebration in some circles are the basic facts. Recidivism rates in some areas of our justice system are on the rise and public confidence in our system is waning and turning victims in particular away from reporting." And he notes that judges increasingly go beyond their mandate to strike down blatantly unconstitutional law to override decisions made by legislators elected in campaigns in which those issues were thoroughly debated. But his argument seems to be mostly against the substance of what judges are doing, not the process.
To be sure, his concluding paragraph says "Today one branch encroaches on another over mandatory minimums or truth in sentencing. Let the next activist victory not be at the expense of society’s most vulnerable." And the first part seems to point to rebalancing our constitution. But the second seems to me to be a plea to judges not to misuse their mighty new powers.
I say "activist" victories should not be at the expense of society's elected representatives, and of the right of the rest of us to control government and set the terms under which it operates. All three branches of government, that is. Which is why, again, we launched our "True Strong and Free" project to fix the constitution, including restoring balance with respect to the judiciary rather than just begging judges to be nice to us.