Thursday, April 15, 2021

History of best and worst at the US Supreme Court -- updated

Scotusblog, the American blog about the Supreme Court of the United States [whence "SCOTUS"] has been running a March madness-type bracket competition to determine the champion justice of that court. 

Currently John Marshall, CJ 1801-35, the first great judge of the court and effectively the one who secured for it the authority to make constitutional rulings that could not be overturned by Congress or the president, is going up against Earl Warren, CJ 1953-69, leader of the Warren Court's "constitutional revolution" in civil rights jurisprudence. 

Warren had to beat out the renowned Louis Brandeis (SC judge 1916-39), so two heavyweights for sure.  But in the semis, Marshall was up against Antonin Scalia (SC judge 1986-2016) whose death led to the debacle when the Republican Senate refused to consider the replacement nomination from President Barack Obama. I thought Scalia was mostly famous for his anti-gay and anti-black rulings, and for his way of always produced the most reactionary interpretations possible of the US constititution and calling it a legal philosophy. His "originalism" has not been taken very seriously as a theory of jurisprudence outside the United States, but there it remains significant enough to carry Scalia to the semi-finals, I guess.

As a counter-weight, the podcast 5-4 Pod, with a more lefty/critical take on the court, is running its own contest to determine the worst Supreme Court justice. Looks like Roger Taney, whose Dred Scott decision helped launch the US Civil War, will run away with it. Scalia was not listed in the opening round of sixteen.

Who might be candidates in a Supreme Court of Canada version of this?  Frankly, I fear there are too few justices of enough renown (or ill-repute) to make up a bracket, and too few scholars to vote on it.
I could see Bora Laskin going up against Beverley McLachlin in one semi-final, and Ivan Rand facing, hmm, Brian Dickson in the other. Dickson was the progenitor of the "living tree" doctrine of constitutional interpretation that has mostly prevented originalist notions in Canadian jurisprudence. Laskin the winner?

But those are about the only names I can come up with as possibilities in Canada. The competition hardly starts until 1950, when the court got out from under the Judicial Committee of the Privy Council in London, so the pool is not large.

Any nominations? 

Update, April 16:  Alan B. McCullough asks:

Was Brian Dickson the progenitor of the "living tree" doctrine of constitutional interpretation? Is the phrase, and the doctrine, not normally attributed to Viscount Sankey of the Judicial Committee of the Privy Council in the Persons Case of 1929? Sankey may have felt comfortable in adopting this position given the history of JCPC decisions which arguably strengthened provincial powers and undermined the idea of originalism in Canadian jurisprudence.

Yes, you are absolutely right in crediting Viscount Sankey.  

Definitely the phrase begins with Sankey and the Persons Case of 1929. To justify overthrowing a long string of judicial rulings that had declared that a piece of legislation that said "persons" obviously meant "men" and should be interpreted as such, Sankey wrote, "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits." That is: since the status and public role of women had evolved since the words of the constitutional text were written, interpretation of its words must reflect that changed situation."

This is beautifully set out in Robert Sharpe and Patricia J. MacMahon's 2008 book The Persons Case.

But Sharpe and MacMahon go on in that book to show that the "living tree" argument presented by Sankey in 1929 had almost no influence upon interpretations of the Canadian constitution during the next fifty years -- either at the JCPC or, after 1950, at the Supreme Court of Canada. It was Chief Justice Dickson's court that breathed life into the living tree and made it the foundation of the Supreme Court's interpretions of the constitution and the brand-new Charter of Rights and Freedoms. Hence, I was speculating, Dickson's claim to be considered in a "best of" ranking.  

Sharpe, with Kent Roach this time, is also the author of a large 2003 biography of Dickson, Brian Dickson: A Judge's Journey 

 

  




Tuesday, April 13, 2021

History of oaths (updated)

Citizenship by Zoom

I happened recently to be reading Fire and Ashes, Michael Ignatieff's apologia for his brief career in elective Canadian politics. A future blog post may take up some of the weirdness of that career. But for the moment, I'm struck by his description, on first being elected to Parliament, of his discomfort about swearing the MPs' oath, which says nothing of an MP's duty to the constitution or to parliament or to democracy or to the Canadian people he now represented, but only requires loyalty to Elizabeth II.

And then, serendipity, I came across a recent essay by Ashok Charles at the Canadian politics blog Counterweights, about the inadequacy of the citizenship oath sworn by newcomers becoming citizens of Canada. 

Many of those who immigrate to Canada are coming from societies with conceptions of civil rights, freedoms, and responsibilities which are significantly different than our own.

When immigrants have fulfilled the requirements of citizenship, our citizenship oath represents our only opportunity to elicit a formal commitment in regards to how they will conduct themselves as full-fledged members of Canadian society.

It would be prudent to require a pledge to uphold democracy, egalitarianism, secularism and multiculturalism. Each of these principles is upheld by our Charter of Rights and Freedoms and, as such, they are fundamental Canadian values. We benefit when joined by newcomers who honour them.

Instead they, like our Members of Parliament, get the oath of loyalty to a foreign monarch and her heirs and successors.

Somehow, the death of Philip, Duke of Edinburgh, has inspired a lot of commentary about the great value of the monarchy to Canada. We need to remember also the costs we incur everywhere in our public life. 

Update April 15, 2021: Alan B. McCullough responds:

While I happen to be a monarchist, mostly for reasons of tradition, I see some merit in the suggestion that MP’s and citizenship oaths could be revised to make some reference to upholding the constitution and democracy. 

You quote, I presume approvingly, Ashok Charles’ statement that the Charter of Rights and Freedom upholds “democracy, egalitarianism, secularism and multiculturalism.” 

Democracy, egalitarianism, and  multi-culturalism are specifically mentioned in the charter; secularism is not. On the contrary the preamble to the charter reads ” Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Although some have argued that the preamble is a dead letter, the general rule is that a preamble is intended to establish a context in which the legislation is interpreted. Furthermore, if one regards the preamble as a dead letter, that also discards the idea that Canada is founded on the principle of the rule of law. Beyond the preamble, Section 2 of the Charter states that freedom of conscience and religion are fundamental freedoms. This can hardly be taken as meaning that the charter upholds secularism although I would argue that freedom of conscience protects a citizen’s right to be an agnostic or atheist.

Mr. Charles also raises expresses some concerns with the concept of multi-culturalism – he writes “It is fair to say that many of those who immigrate to Canada are coming from societies with conceptions of civil rights, freedoms, and responsibilities which are significantly different than our own.” Section 27 of the charter states “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” The charter does not support multi-culturalism per se; it supports a specific multicultural heritage. We may have difficulty agreeing on exactly what this heritage is but both Mr. Charles and I might agree that not all cultural practices should be protected by the charter. 

Constitutional drafting is (or should be) a subtle art, and I'm not sure I support precisely the shopping-list formula Ashok Charles has adopted here as the best way to improve the oath. As Alan McCullough says, a phrase about upholding the constitution and democracy -- maybe just the constitution? -- might well be better than risking the complications he mentions.


 

 

Thursday, April 08, 2021

History of Poland, the Holocaust, and historians who write on that subject

No country suffered more than Poland in the Second World War or had more imposed on it, by Hitler's Germany and by Stalin's Soviet Union. And references to "Polish death camps," when what is meant are Nazi death camps on Polish soil, leave Poles justifiably offended.  

But the current government of Poland takes the position that Poles and Poland were only and exclusively victims in the war.  Any statement about collaboration by Polish citizens or officials in the murder of any of the three million Jews murdered on Polish soil during the war is considered by the Polish state as defamatory and subject to state prosecution. State historical agencies are now required to whitewash any hint of Polish complicity in actions against Jews during the war. Several historians have faced prosecution and other threats simply for recording incidents in which Polish citizens collaborated in murders and dispossessions.

Recently the New Yorker published a long feature on the travails of those who attempt to write accurate histories of these difficult matters. Much of it focusses on the historian Jan Grabowski who, with a colleague, has been found guilty of defaming a long-dead Polish official in a history book called Night Without End: The Fate of Jews in Selected Counties of Occupied Poland (so far published only in Polish). An appeal has been launched.

Night without End is one of several books Grabowski has written or co-written on the subject of the Holocaust in Poland, and during the pandemic he's been living in Poland. But as the article makes clear, he's actually a Canadianist, a University of Ottawa professor whose doctorate from the Universite de Montreal is about settler-indigenous relations in New France. Here's a line from Grabowski about his experience of Canadian historical practices, quoted by the terrific Russian-American journalist Masha Gessen, who wrote the New Yorker article.
“I look at my colleagues,” he told me, “who are touching on the most, most horrible parts of Canadian history, which is the extermination of aboriginal people, the horrifying fate of aboriginal children under the Catholic Church’s guidance. These people, however, are not hunted down by the state. There is open debate,” he said. “You try to assess your heritage in the light of horrible things and wonderful things.”
I've noted Grabowski before, along with his Polish-American colleague, the noted historian of Poland Jan Gross, also targeted by the Polish authorities.  

Wednesday, April 07, 2021

History of pizza


Pizza: a ‘species of the most nauseating cake … covered over with slices of pomodoro or tomatoes, and sprinkled with little fish and black pepper and I know not what other ingredients, it altogether looks like a piece of bread that has been taken reeking out of the sewer.’  (some foodie visiting Naples, 1836)

Britain's History Today is saluting the pizza, from its ancient origins, to its identification with the poorest of the poor in Naples, to its renaissance as a symbol of Italian unification when Margherita the new Queen of Italy adopted the basil/mozzarella/tomato pizza (showing the colours of the new Italian flag), to its conquest of the world in the twentieth century. 

Image: from History Today

 

Monday, April 05, 2021

History of research during pandemics

 The editors of the Canadian Historical Review have posted an intriguing, disquieting, post at the UTP Journals blog

They keep an eye on the gender of historians submitting articles for publication at the CHR.  And the proportion of men over women among would-be contributors has risen during the Covid lockdowns of the past year. Men have long outnumbered women among those submitting to the journal. Only the "invited contributions" category has shifted the needle toward equality somewhat.  And since the vast majority of submissions are unsolicited -- what they still quaintly call "over the transom."  

But a) who'da thunk the pandemic would change these numbers? and b) isn't it obvious when you do think about it? 

There's lots of testimony that the pandemic has affected women's work experience more than men's and that women have left off work to attend to family matters more than men have. So sure, it will apply to people sitting at their desks banging out research monographs for the scholarly journals.

Kudos to the CHR editors for thinking to check on it. 

Monday, March 29, 2021

History of murder

Mark Reynolds draws our attention to the Canadian murder story in a book by American writer Bill James, best known as the baseball statistician and inventor of "sabermetrics." James speculates that among the possible victims of the early 20th century serial killer who is the subject of his book was a family of four killed in February 1906 in the coal-mining community of Old Bridgeport, Cape Breton Island.

 James notes lots of gory similarities, but is not entirely convinced of the identification, since his killer, Paul Mueller, did not like cold weather (!) and because Nova Scotia was a long way away (Very American ideas about Canada, no?) The case was never solved, but the victims were bludgeoned with an axe while sleeping and then had their home burned down around them -- which was pretty much the standard Mueller method.

The CBC story on the unsolved murder also points out that the Nova Scotian detective and future Halifax police chief who unsuccessfully investigated the case has his own biography. but not an admiring one. Nova Scotia writer Bob Gordon makes the case that Nic Power would charge anyone with anything so long as it got good press coverage. His book, with the telling title The Bad Detective: The True Story of a Victorian Sleuth, will be available in May.  

Sunday, March 28, 2021

History of Influence

The American news site Axios reports that President Biden recently gathered a group of historians at the White House for a conversation.  The meeting is said to reflect "Biden's determination to be one of the most consequential presidents." Axios called it a "marker of the think-big, go-big mentality that pervades his West Wing." Participants included Doris Kearns Goodwin, Michael Beschloss, author Michael Eric Dyson, Yale's Joanne Freeman, Princeton's Eddie Glaude Jr., Harvard's Annette Gordon-Reed, and Walter Isaacson.

It made me wonder. If Prime Minister Trudeau attempted something similar, what would they talk about?

And who might he invite? I asked my wife, "Do you think Justin Trudeau has read 1867: How the Fathers Made a Deal."

"Maybe The Story of Canada," she said.  So that's that.

Update, March 29:  Russ Chamberlayne offers this Wikipedia list of books about Canadian prime ministers which might offer some contenders.

Thursday, March 25, 2021

Constitutional history: a place for order and good government after all

Not a lawyer, no lifetime of constitutional analysis behind me. But I'm inclined to think today's Supreme Court decision authorizing the federal government to impose a carbon tax under the "peace, order, and good government" power is good constitutional thinking.*

POGG is potentially a sledgehammer for Ottawa. Practically any action might be justified as being in the name of "peace, order, and good government" and not exclusively within provincial powers. But POGG is only one line in one section of a long constitutional text. The architecture of the Constitution Act devotes a great deal of care and attention to establishing the provinces as responsible governments, and setting out a broad range of powers only the provinces can exercise. It would not do so if the provinces and their powers could be arbitrarily erased by invocation of a single line elsewhere in the text. As a result, both the old Judiciary Committee of the Privy Council and its successor the Supreme Court of Canada have been cautious in authorizing POGG, as they should be. Provincial powers usually survive POGG challenges, as they should.

Chief Justice Richard Wagner's majority reasons, as summarized here at least, declare that since climate change is both a pressing area of national concern and one where the "failure of one or more provinces to co-operate would prevent the other provinces from successfully addressing it",  there are legitimate grounds to see the question as one of the rare ones which meet the high threshold POGG requires. 

It's a 6-3 decision, however, with some strong dissents. Justice Russell Brown, one of the dissenters, seems to rely on a slippery-slope argument against any application of POGG: 

"Its implications go far beyond the [carbon tax] act, opening the door to federal intrusion — by way of the imposition of national standards — into all areas of provincial jurisdiction, including intra-provincial trade and commerce, health, and the management of natural resources. It is bound to lead to serious tensions in the federation."

Rowe said that the POGG or national concern doctrine should be a "residual and circumscribed power of last resort."

One might think that POGG already is a circumscribed power of last resort, and that Wagner has made a cogent argument that this is precisely one of the rare situations that justify its existence, hardly the start of a movement to abolish the provinces as sovereign powers within their own sphere of jurisdiction.  The constitution, it turns out, does not preclude action on climate. Score one for the constitution.

* The phrase was originally devised as "peace, welfare, and good government" by the constitution- makers at Quebec City in 1864. 

Update, March 26:  I see (what early press reports mostly skipped): theSCC declared that carbon pricing is a regulatory levy, not a tax. Taxes must go into general revenues; levies can be focussed for specific outcomes. So there's that, too.

Wednesday, March 24, 2021

History of art, very old art


The New York Times has a long report on new studies of the Shigir Idol, a carved wooden monument found east of the Ural mountains of Russia in 1890, and now reliable confirmed to be about 12,500 years old -- that is, when the area was still deglaciating and the larch tree it was carved from had barely gained a foothold locally.  It is by far the world's oldest piece of wooden statuary, more than twice as old as Stonehenge or the Egyptian pyramids.

As its researchers point out, ancient societies that worked in stone or ivory have a much better chance of being respected for their art and culture than those, particularly hunting/gathering peoples, who would work with wood or cloth. The Shigir Icon, "a nine foot totem pole" with multiple carved faces and other ritual marks, nicely proves the point.

The story also has a nice closing touch about who gets to do archaeology.

“What do you think is the hardest thing to find in the Stone Age archaeology of the Urals?”
A pause: Sites?
“No,” he said, sighing softly. “Funding.”

Tuesday, March 23, 2021

This month at Canada's History

At Canada's History, the current issue's lead story is Bill Zuk's account of how pioneer American flyer (or as they said then, "aviatrix") was formed as a flier and adventurer by the years she spent in Toronto during the First World War, where she did medical work, survived the 'flu pandemic, and discovered aircraft. "I can attribute the beginning of my aviation career to what I experienced here in Toronto," she said later.

Wierdly, the Nazi bureaucrat Joachim von Ribbentrop also launched his career in Canada, spending the years 1910-14 as a well-connected, seemingly harmless young businessman and social climber from Montreal, Ottawa, and upcountry British Columbia. Cec Jennings reports how Ribbentrop fled home to Germany at the outbreak of the First World War. He never returned and was hanged for war crimes in 1946.

Plus Nancy Payne on BC's Sointula settlement, indigenous artists reclaiming the Rockies, a bunch of reviews, and much more. My own contribution this month looks at the census of New France, taken by Jean Talon in 1666 and remade by historian Marcel Trudel three hundred years later. The 2021 census of Canada takes place in May.

Subscribe! There's a photo and story on the back page that's not to be missed.

 
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