America the just ... 2 of 5 articles on Canadian misapprehensions of the US

American Myths, a five-part series aimed at addressing Canadian misapprehensions about our southern neighbour, is a joint project of the National Post, the Dominion Institute and the Canadian Defence and Foreign Affairs Institute. In this second instalment, columnist David Frum writes on the myth that Canada is a more "just" society than the United States.

As he opened his 2004 election campaign, a scandal-battered Paul Martin reached for a time-tested election winner:

"I know the arithmetic of the tax cut equation," he said. "You can have a country like Canada. You can have a country like the United States. That's a choice you can make.

"But you cannot have a health care system like Canada's, and you cannot have social programs like Canada's, with taxation levels like those in the United States."

Now, as a matter of literal truth, Martin's words were not quite accurate. Canadian federal and provincial governments together spend just south of US$2,500 per person on health care. Multiplied by the 296 million people who live in the United States, that translates to US$740-billion -- or US$60-billion less than American federal and state governments spend now on their existing health programs.

Put it this way: Canada could have American tax rates and the Canadian health care system -- if Canada had an economy as rich as that of the United States.

But if Martin's words were literally false, there is no doubt that they expressed a psychological truth. Many Canadians want to believe that America is a radically less just society than Canada -- and Canadians most especially want to believe that when they notice that the American economy is outperforming Canada's, as it did throughout the years when Paul Martin was managing Canada's finances.

And so they tell themselves that America's lower taxes and higher GDP per capita, lower unemployment and faster growth are all achieved at the expense of more important values: equality, fairness and health care for all.

And indeed, in some important ways, Canada does deliver better results to Canadians than U.S. society delivers to Americans. Crime is generally lower in Canada, as is infant mortality, as is child poverty. (In other respects, it should be said, Canada does worse: Unemployment is higher in Canada, average incomes are lower both before and after tax, and Canadians who suffer heart attacks and other illnesses requiring prompt medical attention are less likely to survive than their American neighbours.)

Critics of American society have a habit of equating justice with equality -- the more equal the society, the more just it is. By this criterion, Canada is more just than the United States, and France is more just than Canada, Denmark is more just than France, and so on. By this criterion, the Soviet Union was more just than post-Soviet Russia, Mao's Cultural Revolution was more just than Hong Kong, and North Korea may well be more just than South Korea -- and down the backward slide we go, from error to absurdity to horror.

There's another and better way to think of justice: A just society is not one that seeks to achieve fair results, but one that lives by fair rules, fairly enforced. The philosophers describe this kind of justice as commutative rather than distributive justice. Lawyers describe it as "the rule of law." Maybe it's most vividly summoned up by a British music-hall song from the 1930s quoted in one of George Orwell's essays:

What is it that they can do over there -- but can't do over here? Lawyers and philosophers have battled over precise definitions for centuries, but here are some of the main elements of a society under the rule of law:

1) The rules are equal: What is lawful for one person should be lawful for all; what is forbidden to one should be forbidden to all.

2) The rules are predictable: Individual rights and duties should be knowable in advance, and should not be changed after the fact without the individual's consent.

3) The rules are stable: When the rules change, they change only with enough notice so that individuals can alter their behavior in time.

4) The rules are supreme: Nobody can be punished unless they have violated one of those equal, predictable, and stable rules.

You can find some version of those rules in every bill of rights of every modern democracy, including Canada's. But it was the Americans who were the first to incorporate them into their fundamental law, 216 years ago. And even now, all these years later, the Americans still live by the principles of the rule of law more consistently than any other nation -- and far more consistently, it is sobering to reflect, than Canadians ... despite Canada's free health care.

Take principle one, equality before the law. That principle has been bent in the United States by affirmative action and racial preferences, but it has not been utterly discarded. In her majority opinion in the 2004 case of Grutter v. Bollinger, which upheld racial preferences at the University of Michigan Law School, U.S. Supreme Court Justice Sandra Day O'Connor opined that preferences should be seen as a temporary deviation from the enduring principles of equal justice. She warned that the court expected such preferences to disappear over the next 25 years, explaining: "Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle."

- Canadian citizens of native origin, for example, may hunt and fish when other citizens cannot. (R. v. Marshall, 1999.)

- British Columbians of native origin may claim lands on the basis of oral evidence that would be thrown out of court if offered by a non-native. (Delgamuukw v. British Columbia, 1997.)

- Generally speaking, governments may legally discriminate in favour of certain groups in hiring, firing and the distribution of public money. (Lovelace v. Ontario, 2000.)

The Canadian and American legal systems are likewise diverging in their respect for the stability and predictability of the law.

The U.S. constitution prohibits ex post facto laws and forbids states to pass laws impairing the obligations of contracts. In Canada, on the other hand, unmarried individuals have had the rights of marriage conferred on them and the obligations of marriage imposed upon them after the fact. (Miron v. Trudel, 1995; M. v. H., 1999). Private corporations have been punished for firing people they had every right to fire under the laws in place at the time. (Vriend v. Alberta, 1998.) And "final" marital separation agreements can be reopened by courts at any subsequent time, if those agreements are seen to disadvantage one spouse (Miglin v. Miglin, 2001) -- although as a practical matter, courts will do so only if the spouse is the wife.

The increasing divergence between American and Canadian norms of justice is not occurring by accident. The rule of law is a fundamentally individualist concept, and the ideal of justice protected by the rule of law is libertarian, not egalitarian. Canadian courts, by contrast, increasingly think in collectivist terms. If in order to attain some vision of equality, men must be treated differently from women, or blacks from whites, or aboriginal Canadians from everybody else -- well, so be it. Canada's newest Supreme Court justice, Rosalie Abella, warns that courts err when they have "allowed the individualism of civil liberties to trump the group realities of human rights."

Every legal system has its flaws and failures. The U.S. civil justice system wreaks plenty of havoc: Just a very few weeks ago, for example, the drug-maker Merck was hit with a $253-million judgment against its painkiller Vioxx, in a case marked by blithe disregard of scientific and medical evidence by a Texas jury. ("Jurors who voted against Merck said much of the science sailed right over their heads," said the Wall Street Journal. " 'Whenever Merck was up there, it was like wah, wah, wah,' said juror John Ostrom, imitating the sounds Charlie Brown's teacher makes in the television cartoon. 'We didn't know what the heck they were talking about.' ")

The defects of other legal systems are, however, weak condolence for the failures of one's own. "Justice, justice shalt thou pursue," decrees the lawgiver of Deuteronomy, and it is an obligation binding on each and every nation.

The United States has sought to pursue justice by adhering to the ancient ideals of the rule of law. Canada, like the social democracies of Europe, has attempted a different path. Justice has anciently been depicted blindfolded, weighing litigants in her scales without partiality. The Canadian ideal, however, increasing demands that Justice open her eyes -- and put a thumb on the scales to assist her chosen favorites.

Almost four decades ago, the most anti-American of all Canadian prime ministers urged Canadians to make themselves a "just society." It would shock him and those who think like him to hear those words applied instead to the United States. But that only means that in the interim, Canada has itself drifted so far away from justice as to have lost sight of the most fundamental and most important meaning of the word in the civilization to which Canada belongs.

"But Canada has enshrined permanent racial preferences into Canadian law:

- Canadian citizens of native origin, for example, may hunt and fish when other citizens cannot. (R. v. Marshall, 1999.)"

Frum is seriously distorting the issue of fishing and hunting rights on native land. Natives enjoy this rights by the existence of treaties with the British government that precede Confederation.

Those natives who have not signed treaties are deemed to possess those rights by oral tradition but more importantly, continuous occupancy of native people on their lands, also preceding Confederation.

The Dene have occupied their lands by oral traditions and the opinion of linguists, ethnographers and archaeologists for ten thousand years.

Well, to many Canadians' eyes he is already a CINO (Canadian in name only).

Canada's loss, America's gain.

I used to enjoy listening to Barbara Frum (Dave's mother) on CBC Radio's "As It Happens" and I was sorry to hear of her death. (I would place CBC Radio ideologically somewhere between the BBC and Radio Havana. Barbara Frum was neither overtly nor covertly political, just a great interviewer.)

I spent a couple years in Toronto until my application for permanent resident status was denied. I returned to the USA (Petersburg VA), bringing with me my lovely and precious Canadian wife.

Canada's loss, America's gain.

No he makes a point that is patently false by stating that oral evidence would not stand up in a US court.

Native land claims are settled in Canadian courts which have ruled that oral traditions and continuous occupancy have the same status as a formal treaty. So how a US court would rule is irrelevant.

Canada has not instituted special rights for natives or a separate class of citizen. It has ruled that those rights have always existed and are prior to subsequent legislation.

No he makes a point that is patently false by stating that oral evidence would not stand up in a US court.

No. He doesn't say that.

The difference is that Native American rights in the US are established by treaty -- written law -- and the fact of their US citizenship, another written law. How, exactly, this diverges from Canadian practice I couldn't say.

Canada has not instituted special rights for natives or a separate class of citizen. It has ruled that those rights have always existed and are prior to subsequent legislation.

Interesting. Another possible difference. In the US, the English crown surrendered all sovereignty with the Treaty of Paris. Rights of citizenship were established by the constitution. Land rights are established by deed or treaty, and I don't believe there's any acting principle in US law for rights that have "always existed".

"Take principle one, equality before the law. That principle has been bent in the United States by affirmative action and racial preferences, but it has not been utterly discarded. In her majority opinion in the 2004 case of Grutter v. Bollinger, which upheld racial preferences at the University of Michigan Law School, U.S. Supreme Court Justice Sandra Day O'Connor opined that preferences should be seen as a temporary deviation from the enduring principles of equal justice."

Compare this to: "But Canada has enshrined permanent racial preferences into Canadian law:" (as apposed to US law)

So Frum is comparing the American affirmative action/racial preferences decision under Grutter v. Bollinger in the US Supreme court with native rights rulings in Canadian courts and implies that Canadian rulings are racially prejudicial because of a precedent in a US court.

The decisions in Canadian courts are not based on racial preference/prejudice or affirmative action. These are concepts grounded in precedents set in US law.

Frum is saying that oral evidence should not have precedent over a legal contract in a society where everyone is equal before the law. So he is comparing the Canadian legal system with the US and finds the Canadian system wanting.

The fact is the political and legal traditions are fundamentally different. He didn't come right out and say,

"Oral evidence would not stand up in a US court."

But he is saying it I you follow the development of his argument.

The rhetorical slight of hand lies here. "Canadian citizens of native origin, for example, may hunt and fish when other citizens cannot. (R. v. Marshall, 1999.)"

The reason natives can fish when non-natives can't is that natives have never relinquished their right to fish unrestricted by treaty or natural right.

It's not that natives have special rights it is that non-natives have no claim to historical right and therefor are subject to legislation.

This was never an issue until the salmon runs became depleted and it was non-natives that depleted those resources.

"I don't believe there's any acting principle in US law for rights that have "always existed".

Yes you are right that is a fundamental difference. Canadian natives gave up the right to ownership of their land in exchange for the right of continuous occupancy and the right to hunt and fish in perpetuity.

They did this because they did not recognize the concept of ownership of land and valued the trade opportunities with the British.

Later when the reservation system was imposed and their traditional right to hunt and fish were being curtailed they began to understand the idea of "gradual encroachment" where they were put on small reserves which effectively restricted access to lands for hunting and fishing.

Add to that the abomination of sexual abuse at residential schools. Native kids were removed forcibly from their families and moved hundreds of miles away only to be physically and sexually abused by priests and nuns.

In Canada natives are now regaining those lost rights and I say all power to them.

Interesting that you and I have such different takes on Frum's writing, although I think his arguments would benefit from better development.

Frum is comparing the American affirmative action/racial preferences decision under Grutter v. Bollinger in the US Supreme court with native rights rulings in Canadian courts and implies that Canadian rulings are racially prejudicial because of a precedent in a US court.

I think you're stretching the point beyond Frum's intention.

Canadian courts are not based on racial preference/prejudice or affirmative action. These are concepts grounded in precedents set in US law.

Yes. Frum is pointing out the exceptions to his thesis.

Frum is saying that oral evidence should not have precedent over a legal contract in a society where everyone is equal before the law. So he is comparing the Canadian legal system with the US and finds the Canadian system wanting.

Not so much that the oral evidence has "precedent", but the fact that one group of citizens has this right where another group doesn't. The concept doesn't exist in US law.

The reason natives can fish when non-natives can't is that natives have never relinquished their right to fish unrestricted by treaty or natural right. It's not that natives have special rights it is that non-natives have no claim to historical right and therefor are subject to legislation.

To an American mind, that IS a special right.

Concerning fishing rights, in the US, treaty tribes have the right to petition the US government for protection of waterways, fish populations, etc. – basically treaty enforcement.

Can a native in Canada encroach on individual property rights by verbal claim?

"Not so much that the oral evidence has "precedent", but the fact that one group of citizens has this right where another group doesn't. The concept doesn't exist in US law."

and.....

"Not so much that the oral evidence has "precedent", but the fact that one group of citizens has this right where another group doesn't. The concept doesn't exist in US law."

This is part of the sleight of hand in Frum's argument. If you look at the actual treaties signed by US natives and Canadian natives you will find the same rights to access to the land 'in perpetuity'. The difference is that during the Indian Wars in the late 1860's these rights were abrogated due to the claim of native insurrection answered be President Grant with the US 7th Cavalry.

In Canada native treaties were undermined by magistrates and rum merchants. The effect was the same except that military was not did not intercede, except in two cases, the Metis Rebellion and the Slocan uprising in BC which involved three natives how killed a police officer.

Again the issue is not a question of special rights but rights denied.

As for the last issue, "Can a native in Canada encroach on individual property rights by verbal claim?"

This is a complicated issue that is in the process of being arbitrated.

So far the most important precedents are being settled by the Treaty 8 Dene nation in the Yukon. The Dene have agreed to withhold any claim to private land held in good title for the sovereignty over unregulated Crown land deemed to fall under traditional title. Even in these cases the Dene nation is claiming only a small portion of their original territory.

They have made these agreements in exchange for complete sovereignty over the land they maintain.

Land rights are established by deed or treaty, and I don't believe there's any acting principle in US law for rights that have "always existed".

The U.S. signed many treaties with the Indian tribes long after the Treaty of Paris. Those do still pertain.

Moreover, treaties are of equal status to the Constitution; it says so in the Constitution itself. There are a lot of conservatives who bitch about the Indians having rights that whites don't have, but as a matter of settled law, this is not violating anyone's Constitutional rights.

The privileges granted to the tribes by treaty supersede the "equal protection" clause of the 14th Amendment and anything else that is found in the text of the Constitution, Bill of Rights, or subsequent amendments. True conservatives should realize and accept this, if the rule of law and respect for tradition and precedent are to mean anything.

-ccm

PS. I'm not an Indian-- we supposedly have a few drops of Indian blood dating back to the 1600s, but of course I am never going to get any of these tribal treaty rights myself. I just think fair is fair, and this is the way the law and the treaties were handed down to us from our forefathers, and we ought to honor those commitments.

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