Tuesday, February 20, 2024

Canadian Historical Review: An article to read

Birtle Residential School
Article of the week -- my week at least, as I may have been slow coming to it -- has to be “'Not a Shred of Evidence': Settler Colonial Networks of Concealment and the Birtle Indian Residential School" by Tyle Betke. It is in the most recent issue of the Canadian Historical Review (and likely available only to subscribers). It's about sex slavery, and death, and coverup, at a residential school in the early to mid twentieth century.  

It ought to put an end to the "until you prove every case and exhume every body, it's okay to assume it never happened" approach to the whole issue of abuse at residential schools.  Probably it will not.  

Since the link may not make the full text available, I'm copying part of one representative paragraph, concerning the experience of one family: 

Lazenby’s superiors within the DIA also helped cover up the truth by discrediting the girls and their family members. The father of the girls was known to the DIA. He was one of many Indigenous parents across Canada who advocated for the proper education and treatment of their children. He had sent multiple petitions and letters of complaints to the DIA Upon hearing the news of Currie’s charges, Deputy Superintendent General of Indian Affairs Duncan Campbell Scott characterized the girl’s father as “a trouble maker.” Scott surmised that the father was causing trouble because of having “become embittered recently” when his other daughter died while running away from the school.

Wednesday, February 14, 2024

"A benignity of temper" -- Love in 1798


 - From Russ Chamberlayne, who reports this comes from a New Brunswick newspaper of 1798.  Happy Valentine's Day, unless you are observing Ash Wednesday and abstaining from all such things for the next forty days.

Tuesday, February 13, 2024

History of those lost to history

Can a dictionary of national biography include someone whose name is unknown, whose birthplace and deathplace are unknown, and of whom no actions or activities were ever recorded? There's no portrait either.

You wouldn't think so. It's certainly a bit of a stretch. But the Dictionary of Canadian Biography did it last week. It seems to break all the conventions of the biographical dictionary genre. 

But it works. Here's Harvey Amani Whitfield's biography of "Name Unrecorded."

Maybe there are some analogous cases. The DCB long ago published a biography of a ghost. That one worked too.

Friday, February 09, 2024

Book Notes: Friesen on Norquay

Here's one worth looking for, and not just for proof that Canadian history (including political history, including the history of nineteenth-century politicians) is hardly as dead as it is said to be.

Gerald Friesen's long-awaited biography of John Norquay, the first indigenous premier of Manitoba, is now in the University of Manitoba Press catalogue, and should be shipping in April. 

Friesen is the author of The Canadian Prairies: A History and other works. From having enjoyed cups of coffee with him intermittently over the years, I know he has been working on and talking about Norquay and this book for quite a while.   

Monday, February 05, 2024

History of leaders and parliaments

The Supreme Court of Canada recently held that Premier Doug Ford is entitled to keep secret the "mandate letters" he issues to his cabinet at the start of a new legislature.  I don't think I have strong views on this matter.  But political scientist Emmett Macfarlane does -- he has "reservations" about the SCC decision. 

"I have reservations" is the polite way legal people say judges are WRONG. I find I have reservations about Macfarlane's position on all this.

He points out that Justice Karakatsanis, who wrote the (unanimous) decision for the Court, reaches the conclusion:

that “the Premier’s deliberations cannot be artificially segmented from those of Cabinet. … the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet”

.. and therefore they may become part of Cabinet's decision-making process and have some claim to confidentiality. I would have said the idea that the premier is part of Cabinet and not above it or immune to its views was close to being bedrock parliamentarianism. If a premier is CEO, and cabinet members and caucus members simply there to do his bidding, it follows that the government is absolutely unaccountable to anyone between elections.  Now obviously we have a situation approaching that in Canada, but one hopes that the Supreme Court would not declare it to be constitutionally necessary.

Macfarlane does just that, however:   

It is the Premier’s Office that sets the policy agenda....
He describes, approvingly, a situation where "staffers in the PMO/Premier's offices bring their bosses a public opinion poll and they [i.e., the premier] say “okay, we’re not doing that anymore, don’t worry, I’ll tell the cabinet next week.”  This, presumably, is what parliamentary government comes down to.

God knows, that sort of thing must happen in Canadian cabinets. But it's depressing that a leading political science professor argues cabinets, let alone caucuses, are entirely without power or agency -- or even the authority to debate policy, and that such is the right way and the real way, and it's high time the courts gave it their sanction.

In any real parliament, mandate letters would come from the caucus to the premier/prime minister and cabinet: "you hold office as long as we support you in office, and here is what we expect from you during that time." I see from the back pages of this blog I've suggested this before.  

Wednesday, January 31, 2024

Historians in the court: professorial advice for the U.S. Supreme Court

The leading historians of the American Civil War, Reconstruction, and nineteenth century constitutional politics are turning up in droves to offer friendly advice to the Supreme Court of the United States in the case Trump v. Anderson. That's the one about Trump's eligibility or ineligibility to be a candidate for the presidency of the United States, in light of his role in an insurrection against it.  

Short version: were it up to the historians, the Trump would be toast. They make very strong arguments in two short readable briefs that the intent of the legislation at issue was very clearly to prevent people who do what Donald Trump did from being eligible to stand for the Presidency or any other elective office of the United States.

One brief comes from Jill Lepore, Drew Gilpin Faust, and David Blight. Based on her pieces in the New Yorker, I'm inclined to believe Lepore is right about just about everything all the time, but she's also a Harvard prof and director of the Amendments Project (which is relevant, Trump v Anderson being all about the meaning and intent of Section Three of the Fourteenth Amendment of the US Constitution.  The other two have solid credentials too.

A second brief comes from twenty-five academic historians, notably James MacPherson, author of Battle Cry of Freedom, first published in 1988 but still taken as an authoritative one-volume survey of Civil War history, and Nell Irvin Painter, Princeton prof and history of The History of White People.  I have not minutely scrutinized the two briefs to see if they have any substantive disagreements.  they look to be broadly in sync.

Law and history are different fields. A lot of historians called as expert witnesses have come out feeling pretty beaten up from the differences in what historians and lawyers think of as "evidence."  But since the issue here is the specific meaning of one particular statute from the 1860s, and since many of the current Supreme Court judges fixate on what the actual meaning and intention of the Constitutional framers was at the time, why should not the expert analysis of a lot of historians who are deeply informed about this exact question be relevant? 

Historians, including these ones, cannot help quoting what politicians said in legislatures about what the legislation in question means. (If you read Canadian constitutional history, you may be amazed how often what John A. Macdonald said in parliament about the BNA Act, 1867 has been treated as if it was the same as the BNA Act, 1867.) Judges like to observe that what matters is the words of the legislation itself, not what people said in trying to sell a bill to their fellows.  

Do the historians fall into this trap? A lot of Supreme Court clerks are probably madly pursuing this very question right now. The historians do quote a lot from the legislative debates, but they must be aware of the trap here and do not fall blindly into it. 

What standing do any of these profs -- presenting as amici curiae, friends of the court -- have to tell the judges what the law is? They do address that (and declare no party to the case assisted them in any way):

Amici’s interest in this appeal arises from the gravity of the case before the Court and the necessity of grounding any decision in a proper historical understanding of Section Three of the Fourteenth Amendment. As eminent American historians with expertise in the relevant era, actors, and events, amici are well qualified to assist the Court by establishing the original intent, meaning, and public understanding of the Disqualification Clause. (The Lepore group)
We have professional interests in helping the Court reach its decision by appropriately analyzing probative historical evidence. (The McPherson group)

You can read 'em yourself (see links above). Will Supreme Court judges think like Ha'vid profs?

Tuesday, January 30, 2024

Historical Wisdom

 "An orthodox history," as the great English medievalist F. W. Maitland wrote, "seems to me a contradiction in terms." 

                    Fritz Stern, Varieties of History (1956)

Monday, January 29, 2024

The Broadening of Canadian History

Cook by Barker Fairley
I haven't been willing to keep up with the stream of pieces from The Hub that go on accusing Canadian history of being dead. But Donald Wright of UNB has gone there for us with an effective response.  

It's not his own, mostly. He's sharing the wisdom of Ramsay Cook who, oddly, has himself been dead since 2016, but somehow still seems smarter than most of his colleagues. 

In 2009, Cook delivered the inaugural H. Sanford Riley Lecture in Canadian History at the University of Winnipeg, his alma mater when it was still United College. His title—“Who Broadened Canadian History?”—was an obvious riff on Who Killed Canadian History?, which in his words was “a polemical little tract.”

'Tseems Cook's talk from 2009 has not been published, but the argument Donald Wright draws from it in his own Hub essay gives the gist -- and is a substantial response in its own right.  Read the whole thing.

(When I first met Ramsay Cook, he struck me as someone who had been the smartest guy in the room most of his life -- and had learned to live with it. That is, very sharp, but comfortable and unpretentious about it. Maybe he still is.

(Fun fact: If you put G. Ramsay Cook  -- his usual signature -- into a search engine, you may have to wade through a lot of links to Gordon Ramsay, the television chef.)  

Friday, January 26, 2024

History of a photograph, history of copyright

As a mystery, it's not quite up with who shot President Kennedy, or even who shot J.R., but Hugh Stephens makes a lively story out of "Who Shot the Last Spike photograph?" on his Substack newsletter on copyright issues.

It's an opportunity for Stephens to look into how photography became accepted as a creative form worthy of copyright protection, with nods to Canadian legal historian Myra Tawfik's work on the evolution of Canadian copyrights -- including her recent book For The Encouragement of Learning.

Photography’s entry into the copyright world was not without controversy. For some it was merely a mechanical process, not worthy of protection. But unlike AI-created works (as opposed to works created by humans with some assistance from AI), photography did and does allow human creators to express and interpret the world around them, albeit using a mechanical device.

I realize that this could be an awkward subject for some of my academic readers, given that Canadian educational institutions increasingly base their budgets on copyright appropriation. But copyright isn't going away -- though it seems the educational "exemption" loophole will endure at least until Access Copyright shuts down and an effective copyright collective can emerge in this country. 

Photo: by Alexander Ross, copyright 1885, long since entered into the public domain.

Wednesday, January 24, 2024

History of Politicians and Judges: the Emergencies Act ruling

I've long been under the impression that the Supreme Court of Canada, while bold in constitutional interpretation ever since patriation in the 1980s, has generally been cautious about substituting "what it would have done" in place of the policy decisions made by elected politicians holding governing responsibilities -- even if those boundary lines are sometimes hard to define.

This quick analysis by political scientist Emmett Macfarlane  -- entitled "A Dubious Judgment on the Emergencies Act" -- argues that Justice Richard Mosley of the Federal Court has been a good deal less restrained in his judgment on the Emergencies Act case.

Because the decision primarily concerned the decision to invoke the EA (rather than the constitutionality of any provisions of the EA itself), the Court’s job was to assess the reasonableness of the decision “with deference owed to the decision maker and its specialized expertise” (para. 202). The judge, however, ends up not so much reviewing the reasonableness of the decision in light of the circumstances facing the government so much as undertaking a total reappraisal, with the judge substituting his judgment for that of the government’s, with little to no deference to be found.  [italics added]

It's well worth reading. Not my field of expertise, but it sounds like the Supreme Court may find grounds to weigh in on this case. (Though there is a Federal Court of Appeal between Mosley and the Supreme Court.)

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