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.  

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?

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.)

History of Voting

Journalist Dale Smith questions the Supreme Court of Canada's recent decision that it is unconstitutional for Canada to remove the right to vote in federal elections from Canadian citizens who have resided outside Canada for more than five years.

The majority in the case focuses on Charter issues. They find the individual right of a non-resident to participate outweighs the interest of Canada in connecting voting to residence, and see no great problem in potentially large numbers of voters who don't live anywhere in Canada. Smith:

To reiterate – we vote for local representatives. We don’t vote for parties, or party leaders, no matter what we may have in mind when we go into the ballot box – we mark the X for the local candidate, end of story. For an expat, it’s not the connection to Canada that should be at issue – it’s the connection to the riding, because that’s how we allocate our votes. The dissenting judges got that, but the majority and virtually all of the commentary I’ve seen on the matter ignored it, despite it being the first principle of our electoral system.

My occasional reading of SCC decisions in my legal history work has left me with a very great respect for Supreme Court judges and how they manoeuvre through the thickets of constitutional interpretation. But on this one I think Smith, and the dissenters (and the Ontario Court of Appeal, which was overturned here) have a point.

Smith is essentially arguing on the principles of the 1867 constitution, now called the "Constitution Act, 1867," which sets out principles of parliamentary democracy. The judges here, however, are interested almost exclusively in the Charter, which sets out individual rights vis-a-vis governments.  It's as if lawyers and judges and many other Canadians kinda lost interest in much of the original constitution, once they had the shiny new Charter to work on.

Supreme Court "free beer" decision: good history, good law

I was on my way to a conference yesterday when my phone told me the Supreme Court of Canada had unanimously overthrown a lower court's finding that s.121 of the British North America Act prevents the provinces from taking steps to manage and encourage economic and social development within their boundaries. Since the SCC's position is pretty much what I had proposed in an expert witness affidavit that became part of the case, I was kinda chuffed. (Full text of the decision is here.  And my affidavit is here.)

I'm happy enough that the SCC decision makes not the slightest reference to my evidence -- historians should make history, not law, and the judges start out by rejecting the notion that any particular expert's opinion should overturn settled law.

Still, of all the historical evidence presented to the various courts drawn into this controversy, mine is most compatible with the constitutional vision set out by the Supreme Court: mainly, that the overarching principle of the constitution is a federal one, in which the provinces are responsible governments whose powers and responsibilities cannot be arbitrarily wrenched away, either by a higher level of government or by a few words torn out of context from the constitutional document.

I'm claiming the win. Bring me the finest muffins and bagels in the land.

Update, 25 April: Andrew Smith, the principal historical consultant to the losers in Comeau, declares that he has been sustained by the Supreme Court  -- though the lawyers who retained him are pretty clear that they took a shellacking. Smith's blog has also praised and linked to this analysis by legal scholar Leonid Sirota, who also understands what a firm rejection the court delivered to the vision of an all-powerful s.121. 

SSRN and the SCC: history in court

I'm genuinely curious here: does a Top Ten rating at SSRN mean something?  Or is it more like one of those "You have been selected for our Who's Who of Genuinely Fabulous People, and for just $500....?  A paper of mine is currently top ten over the last 60 days in SSRN's Trade Policy category, and I'm not sure how much to gloat.  (At least SSRN is not asking for money)

Probably not much. The popularity of the essay surely comes because the Comeau case has been pending at the Supreme Court of Canada, and pretty much every trade and constitutional lawyer in Canada is currently representing an intervening party. That must be driving some downloads! 

Fellow blogger Andrew Smith reviewed the Comeau issue here yesterday at his blog, and takes note of various contributions to the debate, including his own and mine.

Andrew, who was an expert witness in the Comeau case, has the difficult task of defending the proposition, more or less, that the confederation makers were genuine ideological free traders and did not believe in federalism. As a result, he says, "There are many statements with which I disagree that appear in Christopher Moore’s paper."  True dat!