Follow the Constitution, not fear

Sonia Sotomayor, President Obama’s first nominee to the U.S. Supreme Court, is currently facing confirmation hearings.

Talking Points Memo has enlisted an appellate litigator to sift through the proceedings. If you enjoy law, as I do, Pincus’s live reporting is very interesting.

I am particularly delighted by an exchange between Sotomayor and Senator Feingold. Feingold asked a question about the Korematsu case,

in which the Supreme Court upheld the internment of Japanese-Americans during World War II. Judge Sotomayor says the decision was wrong, and Feingold asks how Justices can avoid such errors. “A judge should never rule from fear. A judge should rule from law and the Constitution.”

How does a judge resist fears? “By having the wisdom to understand always no matter what the situation that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it.”

In brief, judges should be guided by the Constitution, not fear. In light of everything that happened during the Bush years (when fear was used as a pretext for executive actions contrary to the Constitution), those are very reassuring words indeed.

Also relevant:  Sotomayor’s reply here:  “In answer to your specific question, Did [9/11] change my view of the Constitution? — No sir.”


Indian Wars 1

Bruce Cockburn — one of my favourite songwriters — recorded a beautiful song about the ongoing “Indian Wars” back in 1991. That is, the music is beautiful; the words deliver a slap upside the head.

Here’s an excerpt from the middle of the song (click on the arrow) :

If it’s not breech-loading rifles and wholesale slaughter
It’s kickbacks and thugs and diverted water
Treaties get signed and the papers change hands
But they might as well draft these agreements in sand.

Noble Savage on the cinema screen
An Indian’s good when he cannot be seen
And the so-called white so-called race
Digs for itself a pit of disgrace.

You thought it was over but it’s just like before
Will there never be an end to the Indian wars?

I’m in the treaty business, more or less. I work for the Government of Canada, and I negotiate self-government agreements. The one I’m working on now is a contractual arrangement, not a treaty. But it’s entirely possible that, some day, I’ll be part of a team which negotiates a modern treaty.

(Treaties are constitutionally protected documents. More on this point below.)

Is Cockburn exaggerating when he sings, “they might as well draft these [treaties] in sand”? Yes and no.

Prior to 1982, the Government of Canada could, and did, extinguish aboriginal and treaty rights unilaterally. To conclude a treaty was like entering into a contract with a person who reserved the right to make changes to the contract without your consent, after both of you had signed it.

Thus Cockburn isn’t being grossly unfair when he speaks of agreements written in sand.

The legal landscape began to shift in 1973, when the Supreme Court of Canada brought down its ruling in the Calder case (Calder v. British Columbia (Attorney General)). The court ruled that aboriginal rights did not arise as a result of the negotiation of treaties. Aboriginal title — the most fundamental aboriginal right — is “derived from the Indians’ historic occupation and possession of their tribal lands.”1

In other words, the right was not bestowed by the legislature. It arises from a time prior to European contact.

The Supreme Court accepted Parliament’s authority to unilaterally extinguish aboriginal rights. Nonetheless, as a consequence of the Calder decision, the Government of Canada began to negotiate modern land claims agreements.

An even bigger development came about in 1982. Most Canadians are aware of the Constitution Act, 1982 primarily because it contains the Canadian Charter of Rights and Freedoms. But the Act also afforded constitutional protection to aboriginal and treaty rights:


35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
      (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
      (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
      (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

The constitutional protection of treaty rights basically means, it is exceptionally difficult for the Government of Canada (or any of the provincial governments) to infringe upon or extinguish those rights. With ordinary legislation, Parliament can make changes just by passing amending legislation. That’s the process Parliament used to unilaterally extinguish aboriginal rights.

Now that aboriginal and treaty rights have been constitutionally protected, the Government of Canada must obtain the consent of a First Nation in order to extinguish that First Nation’s rights.2 Either that, or amend the Constitution:  which is much more difficult than merely voting new legislation into effect.

In the post-1982 environment, with respect to modern land claims agreements, I hope it is no longer true to say, “Treaties get signed and the papers change hands / But they might as well draft these agreements in sand.”

I plan to adopt the title of Cockburn’s song and turn it into an occasional series here at I, Pundit.

I can’t talk about the specifics of the negotiations I’m engaged in. But perhaps, without divulging information that might put my employment in jeopardy, I can share my perspective on aboriginal law and modern land claims and self-government negotiations. All under the rubric of the ongoing “Indian Wars” — unresolved conflicts which arise from Canadian history, and continue to bedevil us in the present.

Will there never be an end to the Indian wars?

I hope and pray there will be — though perhaps it won’t be possible to achieve the goal in my lifetime.

1The quote is from a later judgement, Guerin v. The Queen (1984). In the passage quoted above, Justice Dickson is summarizing the court’s ruling in Calder.

2Parliament can still infringe (without extinguishing) aboriginal and treaty rights by means of legislation. But even infringement has become more difficult. Since 1982, Parliament must be prepared to demonstrate that any infringement of aboriginal or treaty rights is justified. That was the ruling in another Supreme Court of Canada decision, Sparrow v. The Queen (1990):  “The Court discusses some factors that might be considered in the context of justification — factors such as the degree of impairment of the right, whether there has been compensation in situations of “expropriation”, and whether there has been consultation with Aboriginal peoples about the intent to regulate — but the Court is also careful to say that appropriate factors are to be developed on a case-by-case basis.”

Police officers lying like a rug

An interesting article in the Vancouver Sun argues that the police — RCMP officers — were wildly mistaken in their accounts of a crisis event. Naturally, their account put them in a better light than the alternative record:  a videotape recorded by a private citizen at the scene.

Is it possible that the officers colluded with one another to deliberately falsify their report?

I once witnessed an incident involving police on a street here in Ottawa. I intervened when perhaps I shouldn’t have. I wasn’t shocked, but nonetheless troubled, when I later learned that the Ottawa constables had lied about the series of events.

The Sun article concerns the tazering death of Robert Dziekanski at the Vancouver airport. (Dziekanski’s death was previously discussed by nebcanuck here and here.) In the Sun, Ian Mulgrew reports:

Const. Kwesi Millington, the 32-year-old who unleashed the Taser, continued Tuesday to acknowledge his version of events was completely at odds with an amateur video recording of the encounter.

Millington was wrong on the number of times he deployed the weapon. He mistakenly described Dziekanski as being agitated and wildly swinging a stapler. He falsely said Dziekanski had to be wrestled to the ground by all four officers.

He did not issue the standard warning: “Police. Stop or you’ll be hit with 50,000 volts of electricity.” He said that during the one-second pause between the first and second discharge of the Taser, he “reassessed” the situation before deploying the weapon again.

However, Millington said Dziekanski was still standing when he jolted him the second time, when the video shows definitively that the first blast left the middle-aged man writhing in pain on the airport floor.

Millington then did not follow proper procedures for recording his use of the Taser; when he finally did fill in the required report, his account was staggeringly skewed. […]

His colleagues who testified earlier — Const. Bill Bentley and Const. Gerry Rundel — made similar fundamental mistakes in their notes and statements. […]

The officers maintain they haven’t discussed the events with each other, even though they were allowed to return and spend time together at the detachment after the Tasering. As well, two weeks later, they met for a so-called “critical incident debriefing.” […]

The suggestions of collusion are disturbing and it’s difficult to understand why the RCMP would have allowed the officers to be alone together after Dziekanski’s death. The optics are dreadful.

Police covering each others’ asses after a public relations disaster? What are the odds of that?

The incident that troubled me involved the use of force by police officers on a woman. The police had arrested her male companion; he was already in a police car when I arrived on the scene.

One officer was speaking to the woman. As I came walking by, the officer turned his back to the woman and began to walk away.

She spit in the direction of his back.

I suppose he heard the sound she made. In any event, he immediately rushed back in her direction, grabbed her arm, spun her around, threw her down on the sidewalk, and landed on her back with his knee, with considerable force. (Though I’m sure the force was measured, or he would have seriously injured her.)

I won’t get into the details of how I responded except to say that I thought the officer’s response was excessive. Later, I filed a report at the local police station.

Later still, I was invited to the police station to give my account of events. And I was told that the woman had spit in the face of the officer. Now that’s quite a trick — spitting in someone’s face when his back is toward you. But all the officers agreed, that was exactly what had happened.

Let’s face it, this sort of thing goes on all the time. People who are members of the underclass are easy targets for cops.

I’m not naive. I understand that these same people — people I have just described as members of the underclass — create a lot of trouble for the police and the community.

Still, police officers aren’t supposed to employ force in defence of their fragile male egos. A cop shouldn’t throw someone down on the sidewalk and drop onto her back just because he’s pissed off at her.

If he does, other cops will rush to protect his reputation. You can bet on it.

The incident that I witnessed was small potatoes. The sort of minor injustice that occurs everyday — sometimes at the hands of a person in a position of authority.

Mr. Dziekanski’s confrontation with the RCMP resulted in his death. That’s a much bigger deal.

But the general principle is the same. Cops sometimes use excessive force. And when they do, other cops will spring to their defence.

In the Youtube era, the officers might be shocked to learn that their version of events has been contradicted by video evidence. Which constitutes one small victory for justice — as nebcanuck pointed out in his original comment on this story.

Turning the page on torture

Remember: even the Pentagon concedes that a dozen prisoners have been tortured to death by US interrogators. Human rights groups put that number at close to a hundred. Most of the techniques we saw displayed at Abu Ghraib were authorized by the president and vice-president. And they monitored the waterboarding sessions very closely.

Andrew Sullivan

On Tuesday, Barack Obama will become the President of the United States of America. I strongly supported his candidacy, in part because he forthrightly opposed torture.

That’s a big change from the current administration.

Obama remains steadfast on this point, even though he’s no longer running for office. Here he is on Sunday, on ABC’s This Week. The discussion of torture is kicked off when Stephanopoulos quotes Dick Cheney at 1:33.

I’m not thrilled to see Obama waffle on the CIA’s “special” program. But he sounds all the right notes when he refers successively to the rule of law, the U.S. constitution, international standards, and America’s core values and ideals.

President Bush pays lip service to those concepts, too. He insists that all of the interrogation techniques his administration employed were lawful — even waterboarding. (Beginning at around forty seconds here.)

Obama is a constitutional lawyer; he knows what the law actually says. And I’m prepared to trust him when he says that his administration will act within the law.

America’s first black President? — that’s wonderful!

A President who will not torture? — that’s downright priceless!

Elder abuse … and euthanasia

Just as babies are vulnerable to neglect or abuse, so are the elderly — people at the other end of the life cycle.

The Globe and Mail is reporting a terrible case of elder abuse today. The victim, Tony Butler, is a 69 year old man who is unable to communicate — the after effects of a stroke he suffered in 2004.

Mr. Butler is 6’1″ tall. When he was rescued from his apartment, he weighed only 68 pounds. (His weight has nearly doubled since then.)

Mr. Butler’s adult daughter, who eventually rescued him, says his catheter appeared never to have been changed.

Mr. Butler was neglected by his “much-younger ex-girlfriend” who has been sentenced to eighteen months in jail for failing to provide the necessities of life.

Mr. Butler was also abused by his former girlfriend’s new, heroin-addicted boyfriend. He was found tied to a bed with a dog leash, his body covered in bruises, both new and old, wearing makeup from head to toe. He had three broken fingers and a badly swollen arm.

Not to mince words, this couple starved and tortured a 69-year-old man who was debilitated due to a stroke.

From time to time I hear about something like this, and it never ceases to enrage me. How could anyone do such a thing?, I wonder.

But of course babies, children, mentally handicapped folks, and other vulnerable individuals are not infrequently abused. It’s unspeakably depraved; it’s also somewhat commonplace.

This is a bit of a tangent, but the existence of elder abuse makes me reluctant to jump on board the euthanasia bandwagon.

I understand why someone who is suffering from a degenerative illness might be impatient for life to end. But I also bear in mind that such individuals are highly vulnerable.

Whether their illness is tolerable or intolerable depends, to a significant extent, on the support they receive from loved ones. But sometimes loved ones are cruel. Other times, they have a vested interest in seeing the elderly person die.

Our first duty as a society is not to make euthanasia available to those who desire it. (So far, I’m glad to report that Canadian courts have turned a big thumbs down on assisted suicide.)

Our first duty is to provide adequate care:  to relieve pain and provide companionship; to make the end stage of a person’s life as comfortable and pleasant as possible under the circumstances.

In that situation, a person might still prefer to die. That scenario presents a very difficult moral dilemma, to my mind.

But whatever decision we ultimately make, we mustn’t be naive about human nature. Consider how easy it would be for a loved one to say,

Gee, Gran, you look really uncomfortable today. It must be a terrible ordeal to go to sleep in pain, knowing you’ll still be in pain tomorrow, from the moment you open your eyes in the morning. It must be hard to cope, when there’s nothing in your future to look forward to. But we don’t consider you to be a burden, Gran — honest we don’t.

Next thing you know, dear old Gran is asking for a merciful death:  and the loved one is cheerily collecting an inheritance.

Unthinkable? Not when you consider what happened to Tony Butler.

The personal dimension of marriage

(Part two of a series. Part one is here.)

Contemporary Westerners regard marriage, first and foremost, as a personal matter. The two people must decide for themselves whether their relationship has the right stuff, such that they wish to spend the rest of their lives together.

The government, the Church, the couple’s neighbours — all of them should basically butt out of a matter that is not really their business.

The legitimacy of this emphasis on personal choice seems self-evident to us Westerners. We are aware that other cultures practice arranged marriages, but we would never submit to such an arrangement ourselves.

This is really only half of the equation. As I will soon demonstrate, there is an essential social component to the institution of marriage, even here in the West.

But even the phrase the institution of marriage is liable to grate a little. To us, marriage is not so much a social institution as it is a private agreement between two individuals.

In ancient Israel, the scales tilted in the other direction. Ancient Israel placed tremendous emphasis on the social dimension of marriage.

Accordingly, Israelite marriages were typically arranged by the parents of the bride and groom. The parents’ primary consideration was the social connections that would result from their child’s marriage.

Nevertheless, parental authority was not such as to leave no room for the feelings of the young couple. There were love marriages in Israel. The young man could make his preferences known (Gn 34:4; Jg 14:2), or take his own decision without consulting his parents, and even against their wishes (Gn 26:34-35). It was rarer for the girl to take the initiative, but we do read of Saul’s daughter Mikal falling in love with David (1 S 18:20).

Actually, young people had ample opportunity for falling in love, and for expressing their feelings, for they were very free. 2 M 3:19, it is true, speaks of the young girls of Jerusalem being confined to the house, but this text refers to the Greek period and to an exceptional state of affairs. The veiling of women came even later. In ancient times young girls were not secluded and went out unveiled. They looked after the sheep (Gn 29:6), drew the water (Gn 24:13; 1 S 9:11), went gleaning in the fields behind the reapers (Rt 2:2f.) and visited other people’s houses (Gn 34:1). They could talk with men without any embarrassment (Gn 24:15-21; 29:11-12; 1 S 9:11-13).

Roland de Vaux, Ancient Israel: Its Life and Institutions, p. 30.

Wherever young men and women come into contact with one another, sexual attraction is liable to follow. Parents in ancient Israel were not so hard-hearted as to completely disregard the romantic longings of their children.

Still — the social dimension weighed more heavily in ancient Israel; whereas the personal dimension weighs more heavily with us.


Proponents of same sex marriage prefer to emphasize the personal dimension. Their position is, Who I marry is no one’s business but my own.

It’s a strong argument. It is consistent with our Western emphasis on individual rights and freedoms. For example, freedom of conscience suggests that individuals can decide for themselves what is right and wrong, and order their lives accordingly.

Some people deny that the prohibition against same sex marriage is discriminatory. Homosexuals are free to marry just like anyone else, they claim:  they can marry someone of the opposite sex whenever they choose to do so.

It’s a facile (even contemptuous) argument. Sexual orientation is deeply personal and evidently involuntary. (That is, homosexuals do not choose to find people of the same sex attractive, any more than heterosexuals choose to find people of the opposite sex attractive. It just is that way.)

If a woman is attracted to others of the same sex, of course that is who she would choose to marry. To deny her that option is, indeed, to discriminate against her. It is to deny her the personal choice that is open to heterosexual couples.

On the other hand — proponents of same sex marriage can’t deny that there are three other dimensions to marriage:  the social, the religious, and the statutory. Those dimensions also must be taken into account.

Marriage is not solely a personal matter, and it can’t be treated as such. That will be our focus in the next post on this topic.

The four dimensions of marriage

Marriage has four dimensions:  personal, social, religious, and statutory.

This post is a follow up to our recent discussion of same sex marriage. Same sex marriage is a contentious issue precisely because of marriage’s four dimensions:

  • Personal:
    Same sex couples maintain that the decision to marry is a personal one. No one outside of the relationship should tell them whether they can or cannot marry.
  • Social:
    Some opponents of same sex marriage assert that changing the definition of marriage affects their marriages, too. It’s a weak argument, in my view. But it is true that all citizens have a stake in the institution of marriage:  it is a fundamental building block of society.
  • Religious:
    Traditionally, church officials are the public figures who solemnize marriages. Some churches insist that the state cannot change the definition of marriage because (in their view) the definition was established by God.
  • Statutory:
    The state is responsible for giving legal recognition to marriages. The state is obligated to treat all citizens equally. On the other hand, there may be public policy reasons for protecting and promoting one kind of family arrangement over alternatives to it.

Each dimension can come into conflict with one or more of the other dimensions. But all of the dimensions must be preserved and respected. In other words, we can’t resolve the same sex marriage controversy by pretending that marriage is one-dimensional:  for example, by emphasizing the personal (as same sex couples tend to do) or the religious (as Christians tend to do).

I intend to explore marriage’s four dimensions in a series of posts. As part of our discussion, I will outline the available data on marriages in ancient Israel.

Too often, Christians have a vague idea that Western traditions about marriage are derived from the Bible. On the contrary:  each culture has a distinctive “take” on marriage. We shouldn’t expect to find a close correspondence between the traditions of ancient Israel and the traditions of contemporary Western democracies.

In any event, when we consider marriage from the perspective of a different culture, that information will clarify the issues we’re debating in contemporary society. What did the four dimensions of marriage look like in ancient Israel?

My primary source for ancient Israel’s traditions will be chapter two ("Marriage") in Roland de Vaux’s book, Ancient Israel: Its Life and Institutions, 2nd ed. (translated from the French by John McHugh; published in London by Darton, Longman and Todd, 1968).

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