Reasons for optimism about democratic reform in BC

17118594-17118594“While realization is, of course, not unimportant, I believe that the very possibility of such a [reasonably just] social order can itself reconcile us to the social world. The possibility is not a mere logical possibility, but one that connects with the deep tendencies and inclinations of the social world. For so long as we believe for good reasons that a self-sustaining and reasonably just political and social order both at home and abroad is possible, we can reasonably hope that we or others will someday, somewhere, achieve it; and we can then do something toward this achievement. This alone, quite apart from our success or failure, suffices to banish the dangers of resignation and cynicism.” – John Rawls, The Law of Peoples

The outcome of last year’s referendum on proportional representation was a bitter disappointment to many, including myself. Although it is unclear whether the result really represents a ringing endorsement of the status quo, and not simply unease or confusion about the alternatives on offer, it is likely to be a long time before proportional representation is again a live issue in BC politics.

For those of us who argued — and still argue — that our current electoral system is fundamentally unjust, this fact is very depressing. Signing up for a progressive political cause normally means signing up for a very long string of losses, but these setbacks can be endured because the hope of eventual victory remains. In this case, however, that hope may seem to have been taken away: supporters of change have been told that the issue is now closed forever. But this claim deserves scrutiny. Is there really good reason for advocates of proportional representation to lose hope and give up? Not really.

Opponents of electoral reform have argued that the issue has been put to rest because the people have rendered a decisive judgment in a series of referendums. On the surface, this claim appears to rest on an appeal to democratic principles, because only democratic principles could possibly explain why a referendum result should be regarded as absolutely authoritative. The idea that defeat at the ballot box is sufficient to permanently remove an option from public consideration, however, is essentially undemocratic (a point I’ve argued before on this blog).

The design of democratic institutions normally presupposes that the people’s judgment is highly changeable. One reason for this presupposition is that the identities of the particular individuals who collectively constitute the people change over time. Another reason is that people are capable of (and responsible for) revising their political judgments in light of new evidence and normative considerations; if people did not have this ability, it is not clear that we would be fit for democratic self-government. It is because of this changeability in the people’s collective judgment that elections are held at relatively frequent intervals, candidates are entitled to stand for election even after multiple losses, and parties can include substantially similar policies in their platforms after multiple defeats.

Democracy does give the people the authority to render judgment on candidates, parties and policies, but it also limits the reach of this authority; if some particular voters at a particular point in time had unlimited authority to render final judgment on all these matters, this would encroach on the prerogatives of other particular voters, or voters at some other particular time. If democratic principles entail that electoral defeat is not sufficient to permanently remove a candidate, party, or policy from the public’s consideration, it is not clear why a referendum result should be sufficient to achieve the same result. As I noted above, only democratic principles could possibly explain how referendum results can have this kind of authority. But in fact, democratic principles entail that referendum results do not have this kind of authority. So the claim that this referendum result was sufficient to take proportional representation off the table permanently is false.

This is not to say that advocates of reform should dismiss the result. Voters don’t have the authority to render final judgments, but they do have the authority to render provisional judgments. The provisional judgment of the voters in this case was not to proceed with electoral reform. Because this judgment is genuinely authoritative, it would be wrong for the government to proceed as though voters had delivered a different judgment, and wrong for advocates to ask the government to do so. We can and should keep making the case for proportional representation, but I don’t think we can legitimately expect the government to move forward with it.

We should also pay close attention to people’s reasons for voting against reform. One reason seems to have been lack of trust in the process leading up to the referendum, and the process envisioned for filling out the details of the chosen system in the event of a victory for Yes. This concern is not unreasonable and ought to be taken into account in any future proposal for electoral reform.

Finally, it is clear from the result that a large number of British Columbians are interested in some kind of democratic reform. Proportional representation is one kind of democratic reform, but it’s not the only kind. And other reforms that are worthwhile for their own sake may eventually help build support for PR.

Substantially increasing the size of the legislature, for example, would make it easier for MLAs and constituents to enter into meaningful contact. This would also have the effect of increasing the number of backbenchers relative to the number of front bench positions, which should help restore some moderation to party discipline. With a much larger legislature, concerns about the size of electoral districts should be less prominent in the debate over proportional representation. And even without electoral reform, a larger number of districts is likely to make election results somewhat more proportional.*

Another option would be to explore the introduction of electoral fusion, which I previously discussed in this post. Fusion might not be a great fit with BC’s political culture as it is presently constituted, but the changes it would probably require strike me as generally positive overall. Most importantly, it would provide for one of the greatest benefits of proportional representation — making room in electoral politics for the contributions of smaller, more policy-oriented parties — without requiring any change to the size of the legislature, district boundaries, or electoral formula.

So there you have it: things aren’t so depressing after all! If proportional representation was a good idea the day the referendum launched, it’s still a good idea now. Good ideas don’t get shut out forever. It’ll probably be a while before we get another chance to get this one put into action here in BC, but we need to take the time and figure out how to make the most of that chance when it comes around anyway. And there are other worthwhile democratic reforms we can pursue in the meantime.

*In Patterns of Democracy, Arend Lijphart notes (citing research by Rein Taagepara and Matthew Shugart) that disproportionality under FPTP is significantly greater where the size of the legislature is less than the cube root of population size. BC’s legislature is currently a little more than half the cube root of the population.

Does the notwithstanding clause make any sense?

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Canada has a constitutionally entrenched set of guarantees for certain basic rights and freedoms: the Charter. Specific guarantees include fundamental freedoms (including freedom of conscience and religion, freedom of expression, and freedom of association), democratic rights (including the right to vote), mobility rights, legal rights, equality rights, and language rights.

Before the Charter was enacted, Canadians already placed special value in these rights and freedoms. Because of this, governments tended to treat those rights and freedoms with respect. Governments that failed to do so risked punishment from the voters. So before the Charter, Canadians already possessed certain basic rights and freedoms and these were already protected through the democratic process.

At the same time, the process that protected basic rights and freedoms also made them vulnerable. Sweeping restrictions on freedom of conscience and religion might be avoided for fear of electoral backlash, but restrictions targeting members of a minority group might carry no such risks. Democracy provides a measure of protection for basic rights and freedoms, but it does not provide equal protection.

These are the reasons why the Charter was enacted: first, because Canadians value certain basic rights and freedoms, and second, because the incentives of electoral politics are not an adequate safeguard against the violation of those rights and freedoms. Entrenching the Charter added the protection afforded by the legal process to the protection already afforded by the democratic process.

In addition to a list of basic rights and freedoms, the Charter also contains a provision (section 33, the notwithstanding clause) that allows legislatures to override fundamental freedoms, legal rights, and equality rights (but not democratic rights, mobility rights, or language rights) simply by including a declaration to that effect in a bill. Such declarations expire after five years (the maximum life of a legislature) but may be renewed indefinitely.

Section 33 ostensibly provides a safeguard against judicial overreach in applying the Charter, to balance the Charter’s safeguard against legislative encroachment on basic rights and freedoms. But I’m not sure this makes a whole lot of sense.

The rationale behind the five-year expiry date for invocations of the notwithstanding clause is that voters can be counted on to punish governments that misuse the notwithstanding clause. This is equivalent to saying that voters can be counted on to punish governments that violate basic rights and freedoms. But to reiterate, the reason the Charter was enacted in the first place is because we recognize that we can’t count on the democratic process to protect basic rights and freedoms. So if the justification for the notwithstanding clause depends on the assumption that voters will punish governments that misuse it, the justification fails because, as the Charter’s very existence demonstrates, that assumption is false.

Now here comes the practical bit. The notwithstanding clause threatens to make superfluous those sections of the Charter that are subject to override. But the rights and freedoms set out in those sections of the Charter are extremely important; they need real protection. So if section 33 makes those parts of the Charter superfluous, section 33 ought to be repealed. Unfortunately, repealing section 33 is very difficult. But if it’s the case that section 33 ought to be repealed, it must be the case that section 33 ought not to be used. If section 33 ought not to be used, its use ought to be prevented when possible. As it turns out, this is possible. The federal government can prevent provinces from using section 33 by threatening disallowance of bills that use the notwithstanding clause. And if my reasoning so far has been sound, it should.

An unconvincing case against redistribution, part 2

This is a followup to my previous post on Michael Huemer’s argument that redistribution violates property rights. As I outlined last time, Huemer’s argument depends on the claim that for a system of legal property rights to be morally acceptable, it must satisfy the constraints of certain pre-institutional natural rights. Among these, Huemer claims, are natural property rights, which he tries to establish by invoking a thought experiment about a hermit:

Suppose you are exploring a remote wilderness region outside the jurisdiction of any government when you come upon a clearing containing a rude hut. The hut appears to have been built by a hermit, who is its only inhabitant. Since property rights depend entirely upon governmental laws, and none are in force here, you determine that the hermit does not own the hut. Over his vociferous protestations, you decide to spend the night in the hut, eat some of the food that the hermit has grown and gathered, and then paint the hut lime green. You don’t need to do any of these things; you just do them for fun. If there really are no property rights in this situation, you have just as much right to do these things as the hermit does.

In response, I suggested that natural property rights are unnecessary to explain why my behaviour would be wrong in this situation. Rights to privacy, freedom of association, and respect provide sufficient grounds for objection to my behaviour. This response, however, leaves open the possibility that the grounds for objection include natural property rights, even if natural property rights are not necessary for my behaviour to count as objectionable.

This possibility can be ruled out by meta-ethical considerations. As I’ve argued before on this blog (in the context of an argument for the equal intrinsic value of persons), moral facts cannot be brute facts (facts with no further basis, reason or explanation). This is because moral facts cannot be directly observed, and brute facts cannot, by definition, be inferred. This means we cannot possibly have knowledge of brute moral facts. Assuming there are no moral facts which moral agents are necessarily ignorant of, then, there are no brute moral facts. All moral facts are either true in virtue of some other, more basic moral (or otherwise broadly normative) facts or they are necessarily true.

Here’s why this is a problem for Huemer’s argument. Huemer posits natural property rights because, in his view, there are no other norms that could explain the wrong done to the hermit. This means that natural property rights must not only be pre-institutional, they must be morally basic — otherwise it would be possible to explain the wrong done to the hermit in terms of the more basic norms constitutive of natural property rights.

If there are no brute moral facts, then natural property rights can only be morally basic if it is necessarily true that there are natural property rights. But we should believe that natural property rights exist necessarily only if it is, on reflection, inconceivable for them not to exist. It would be inconceivable that natural property rights do not exist only if it is inconceivable that no wrong is done to the hermit and nothing besides natural property rights could explain that wrong. Because other explanations are available, it is conceivable that there are no natural property rights. So it is not necessarily the case that there are natural property rights. Because there could only be natural property rights if it were necessarily the case that there are natural property rights, there are no natural property rights. So natural property rights, as Huemer understands them, are not among the grounds for finding my treatment of the hermit objectionable.

An unconvincing case against redistribution

According to the philosopher Michael Huemer (in his paper “Is Wealth Redistribution a Rights Violation?”), taxation for the purpose of redistribution violates moral property rights of individuals. I’m not totally sure I follow his argument, but as best I can make out it’s something like this:

1. Moral property rights are determined strictly by the content of natural law (pre-institutional norms), strictly by positive (i.e. human-made) law, or by a combination of natural and positive law, where the positive law must conform to limits established by natural law.
2. If moral property rights were strictly natural, their parameters would in certain cases be indeterminate and thus incapable of guiding action.
3. The parameters of moral property rights ought to be determinate.
4. Moral property rights are not determined strictly by the content of natural law. (from 2 and 3)
5. If moral property rights are determined strictly by the content of positive law, then if slavery is legal, one can have a moral right of property in another person.
6. One cannot have a moral right of property in another person.
7. Moral property rights are not determined strictly by the content of positive law. (from 5 and 6)
8. Moral property rights are determined by a combination of natural and positive law, where the positive law must conform to certain limits established by natural law. (from 1, 4 and 7)
9. Natural law includes pre-institutional “core” property rights to which positive law must conform in the absence of some special justification.
10. A violation of core property rights occurs if the right-holder is coerced into transferring legitimately acquired property to another.
11. Taxation for the purpose of redistribution typically involves coercively transferring legitimately acquired property to another.
12. Taxation for the purpose of redistribution violates core property rights. (from 10 and 11)
13. A regime of property rights established by positive law that includes taxation for the purpose of redistribution is morally defective in the absence of some special justification. (from 8, 9 and 12)

The argument starts to go off the rails, I think, in premise 9. I’m more than happy to agree that legal property rights are constrained by pre-institutional norms. But it’s not clear that these pre-institutional norms include pre-institutional property rights, and Huemer’s argument for this claim seems inadequate. The argument involves the following thought experiment:

Suppose you are exploring a remote wilderness region outside the jurisdiction of any government when you come upon a clearing containing a rude hut. The hut appears to have been built by a hermit, who is its only inhabitant. Since property rights depend entirely upon governmental laws, and none are in force here, you determine that the hermit does not own the hut. Over his vociferous protestations, you decide to spend the night in the hut, eat some of the food that the hermit has grown and gathered, and then paint the hut lime green. You don’t need to do any of these things; you just do them for fun. If there really are no property rights in this situation, you have just as much right to do these things as the hermit does.

Essentially the argument is:

14. If the hermit does not have a property right to the hut he build and inhabits and the food he has produced, he has no grounds for complaint if you stay in the hut, alter its appearance, and eat the food he’s produced.
15. The hermit does have grounds for complaint under these circumstances.
16. The hermit does have a property right to the hut he inhabits and the food he has produced. (from 14 and 15)
17. The hermit does not have a legal property right.
18. The hermit has a non-legal (natural or otherwise pre-institutional) property right. (from 16 and 17)

Premise 14 seems to be the weak link here. It’s not at all obvious that the hermit can only complain on the grounds that his property rights have been violated. He might object to my behaviour because my company is unwanted, for example — i.e. that I’m infringing his rights to privacy and freedom of association. My behaviour may also fail to show due respect for the solitary way of life he’s chosen. And although Huemer stipulates that my conduct in this particular instance causes no harm to the hermit, a generally applied moral permission to occupy the hut he uses and eat the food he produces (for no reason, as the thought experiment also stipulates) could reasonably be expected to cause harm. This gives the hermit good grounds to reject a principle permitting that behaviour; in contrast, I cannot reasonably reject a principle forbidding that behaviour. Such a principle would, I think, fall far short of what Huemer imagines pre-institutional property rights to be — and what he needs pre-institutional property rights to be in order to reach the conclusion that redistribution violates pre-institutional property rights.

I’ll leave it at that for now, but the problems with Huemer’s case against redistribution don’t stop there. Even if it must be granted that there are pre-institutional property rights, there are reasons to doubt that redistribution necessarily or even typically encroaches on such rights. These further problems will be the subject of my next post.

Good policy, not “populism”, will make the NDP ready to govern

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In an article by Alex Ballingall published on Saturday, Avi Lewis is quoted saying that the federal NDP should “chug this Kool-Aid [of populist politics] rapidly if they don’t want to be wiped out.” This is a strange metaphor to use in this context, given its widespread association with the mass murder-suicide at Jonestown, which claimed 918 lives. In the vernacular, “drinking Kool-Aid” has come to connote wilful acceptance of ultimately self-destructive delusions out of unthinking (normally political) group loyalty. This probably isn’t the best framing to use when you come bearing advice—especially not when the advice includes tips on effective political communication.

Regardless of framing, however, Lewis’s advice is not good. His view seems to be that the NDP should not develop actual policies. While he expresses approval for Jagmeet Singh’s latest call for measures to make sure the rich pay their fair share of taxes, he then expresses disappointment that Singh followed through on this slogan by proposing actual policies pertaining to tax fairness. “Why go for something that you have to explain?” Lewis asks. Instead of proposing policies, Lewis suggests, the NDP should stick to making “demands” delivered in simple phrases like “Federal Jobs Guarantee”.

A major problem here is that Lewis appears to have confused party politics with mere protest. Political parties normally do not confine themselves to making demands of those in power; rather, parties aspire to hold power themselves. Of course the NDP may, in its capacity as a part of the parliamentary opposition, make demands of the government. But the party’s job is also to go beyond making demands and present a credible alternative government. As such, the party must develop policies of its own that can be implemented if the voters entrust it with power; if the party can’t or won’t do this, then obviously the voters would be wrong to entrust it with power.

Lewis’s advice, then, makes sense only if the NDP is conceived strictly as a protest party, and not as a legitimate contender for power. Speaking as a New Democrat, I think that’s hogwash. Canada needs a social democratic government, and the NDP is the only party offering that option. New Democrats therefore owe it to the country to be a party that is worthy of consideration as an alternative government. Making reasonably detailed policy proposals available for public scrutiny and debate is part of what it takes to live up to that standard, and I’m pleased to see Singh following through on this.

What’s wrong with Popper’s case against PR? Everything.

Gavin_Hamilton_-_the_oath_of_brutusThe Oath of Brutus – painting by Gavin Hamilton

Last week, the National Post ran an op-ed by Peter Shawn Taylor explaining the celebrated philosopher Karl Popper’s case against proportional representation. I didn’t find Taylor’s piece convincing, but I was sufficiently intrigued to take a look at the argument in Popper’s own words, in the essay “The Open Society and Its Enemies Revisited”. I’m not sure I should have bothered; Popper himself was even less persuasive. His argument is fatally compromised by contradictions and factual errors.

To give a little background, Popper is today best known for his work in philosophy of science, and in particular for his theory (“falsificationism”) that science proceeds exclusively by the deductive process of falsification. According to this view, all scientific theories can be categorized as either falsified or as possibly true, but never as confirmed or even probably true. While Popper’s falsificationism has few (if any) defenders in contemporary philosophy of science, his ideas have had a profound impact on the field, and the central idea is a staple of basic science education. But although this is undoubtedly Popper’s most widely known philosophical legacy, he also made noteworthy contributions to other areas of the discipline, including political philosophy.

Popper’s political philosophy, as Taylor describes it, treats political questions similarly to scientific questions in the sense that democracy isn’t (or shouldn’t be) about installing good rulers, it should be about removing bad ones. “The new problem, as distinct from the old ‘Who should rule?’,” Popper wrote, “can be formulated as follows: how is the state to be constituted so that bad rulers can be got rid of without bloodshed, without violence?” And Popper’s answer? By adopting “the principle that the government can be dismissed by a majority vote.” This principle, he claims, has been adopted by all modern democracies.

Whoa, hold on a second. There are many democracies where that principle has not been adopted—including Canada and its provinces. The federal and provincial governments in Canada aren’t elected or dismissed by voters at all. Perhaps Popper means that a governing party can be removed from power if a majority of voters vote against it? If so, he’s still wrong; governing parties rarely win a majority of votes.

One might reasonably object that not voting for the governing party isn’t the same as voting against it. But this objection isn’t available to Popper, because as we’ll see shortly, his case against PR assumes that those things are the same. If not voting for a party is the same as voting against another party, then governments in Canada are normally formed by or composed of parties that a majority of voters have voted against. This means that the design of Canadian democracy already violates the Popperian principle that a majority vote should be sufficient to result in the termination of a government (even if only indirectly by the loss of its parliamentary majority).

Let’s suppose, however, that this principle has been adopted by all democracies, as Popper claims. Well, some democracies use proportional representation. It follows that there are democracies that use proportional representation and have adopted the principle that a majority vote should be sufficient to dismiss a government. But Popper’s argument against proportional representation turns on the claim that PR is incompatible with the principle that a majority vote should be sufficient to terminate a government. This is a giant, double-barrelled contradiction: Popper must simultaneously claim that PR is and isn’t compatible with his majoritarian* principle, or he must simultaneously claim that all democracies observe the majoritarian principle and that some do not.

Perhaps Popper can avoid the charge of contradiction by denying the claim that some democracies use proportional representation, at least as he uses the term. That wouldn’t be too far off, because when Popper gets around to explaining PR, he complains that PR allows voters to choose only parties rather than people to represent them. This is true only under a system of closed party lists in a single national district, and as far as I know, only one country in the world uses that system (Israel). If that’s what Popper means by PR, then his argument might not be self-contradictory, but it also wouldn’t be relevant to the electoral reform debate in Canada, where closed lists in a single national or provincial district aren’t under consideration.

Popper’s argument could only have any relevance for us if he intended it to apply to PR more broadly, including systems like MMP. So let’s assume that was his intention. How, in his view, would PR violate the majoritarian principle? Popper’s answer is that a party that has just been rebuked by voters can remain in power by assembling a working majority by calling on the support of another, even less popular party to form a working majority. This violates the majoritarian principle; a party that receives less that a majority of votes is (according to Popper) a party that is opposed by a majority of votes. And if a party that is opposed by (for example) 60% of voters (i.e. a party that receives 40% of the vote) is able to arrange the support of a party opposed by 80% of voters, it does not thereby acquire majoritarian legitimacy even though the alliance would be sufficient for a parliamentary majority.

As noted above, however, our electoral system routinely and systematically generates violations of Popper’s majoritarian principle. In fact, some supporters of PR object to the status quo on precisely these grounds. Where they differ from Popper is on the idea that a vote for a given party is a vote against all other parties. If a party that received 40% of the vote forms a coalition with a party that received 20% of the vote, the result is a coalition that is collectively supported by 60% of voters—a decisive majority.

This response seems a bit simplistic to me. After all, if I like apples in my fruit salad and you like pears, it doesn’t follow that we will both enjoy fruit salad with apples and pears. So it’s true that formation of a coalition may very well end up angering or alienating supporters of the participating parties. But this is true of compromise in politics more generally, and so by itself it is no reason to worry about government by coalition.

In any case, the point that no electoral system on offer registers opposition to this or that party or candidate is valid. Election results only allow for the determinate registration of support for this or that party. A coalition of parties representing 60% of the vote may be preferred by anywhere between 100% to 0% of voters. All the election result allows us to say for sure is that the coalition is composed of parties supported by 60% of voters. Although this doesn’t satisfy Popper’s majoritarian criterion, it does satisfy a majoritarian criterion. And in a parliamentary democracy with an electoral system that only allows voters to register support and not opposition, it is the only majoritarian criterion that can feasibly be applied. PR would satisfy this criterion, whereas the status quo does not. So Popper had a point about the importance of setting up the rules of democracy so that governments can be removed when they lose majority support. But on further analysis, this point turns out to imply that we ought to adopt PR rather than stick with the status quo—precisely the opposite of the conclusion Popper was trying to reach.

*Note on terminology: Confusingly, “majoritarian” is sometimes used by political scientists to refer to a family of electoral systems that tend to produce legislative majorities—even when (as in the case of first past the post) those majorities can be achieved without a majority of votes. In this post, I’m not using majoritarian in this technical sense.

Some thoughts on the election in Vancouver

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Vancouver City Hall photographed by Donn B. A. Williams

After I got home from the Cambie Report‘s election party, I jotted down a few thoughts on the results in Vancouver, which I’m re-posting here for the record and to maybe spark some discussion.

1. Some (including me) speculated that this would be the year of the independent in Vancouver on account of a) the number of very strong independent candidates running, b) established parties like the NPA and Vision seeming to fall into disarray, and c) the proliferation of small parties with virtually no name recognition. In retrospect it should have been obvious that the sheer number of contenders for council (exacerbated by the random ballot order) would lead voters to rely more heavily on party label heuristics and shut out the independent council candidates altogether (along with the many upstart parties).

2. Given the proven value of controlling established party labels, I expect there will be more internal competition over control of the established party labels in the period between elections going forward.

3. Going into the election my view of Vision was that it had developed into a pure Gregor Robertson vehicle, and I expected the party would do very poorly when he announced he wasn’t running for re-election. But they had some strong candidates and I thought the Vision label might still count for something, so I’m surprised by their near-total annihilation. They’re done, forever. I expect Allan Wong will find another party or end up sitting as an independent before his term is up.

4. The ballot order effect (again, especially pronounced because of the number of candidates in contention) seems to have been strong. For example, why did Boyle do so much better than Yan? Why did Reddy take the school board seat for OneCity, and not the incumbent, Bercic? Why did Parrot, whose personal campaign seems (to me) to have been nonexistent, take the school board seat for COPE instead of Day, who did run a noticeable personal campaign? It seems the winners in all these examples benefited from a higher ballot position. Results like these serve to underline what we already knew: randomizing the ballot order isn’t much help in neutralizing the ballot order effect if all the ballots have the same random order! Numerous municipalities have demonstrated that they’re on board with the principle of randomized ballot; to really tackle the problem that the randomized ballot was meant to address, though, they need rotating randomized ballots. This next step falls within the jurisdiction of the province, not the municipalities.

To clarify, I’m not saying that the winners mentioned above are in any way less fit for office or less deserving of victory. My view is that the number of fit and deserving candidates in this campaign far exceeded the number of offices to be filled. My point is that in some cases, ballot order seems to have made a difference in the outcome for these candidates—sometimes a decisive difference.

5. The housing crisis was supposed to be the big issue in this election, and it was, but it seems like voters collectively opted not to do much about it—not with the tools available to municipal governments, anyway. One interpretation would be that people are basically fine with the housing situation after all, but I don’t think that’s likely. I think it’s more likely that people are (rightly or wrongly) looking for solutions led by the provincial and federal governments before endorsing bold action at the municipal level. This implies that housing will be a bigger issue for the region’s voters in the upcoming federal election than it would have been if the municipal election had turned out differently.

6. Although Stewart’s victory was extremely narrow (he beat Sim by 0.57% of the vote), the combined vote for inclusive urbanist mayoral candidates was overwhelming and no party left standing at the end of the campaign can afford to ignore this in their conduct on council in the next few years.

What the feds can do right now about the notwithstanding clause

Screen Shot 2018-10-15 at 4.50.56 PMThe only way to be sure

In a previous post, I argued that unlike reservation (which allows a lieutenant governor to submit a provincial bill to the federal government for approval before granting royal assent), the federal power of disallowance (which allows the federal government to annul a provincial law within one year of the bill receiving royal assent) is not forbidden by convention. Briefly stated, the argument was as follows:

1. If disallowance was forbidden by convention in 1992, it would have been struck from the constitution in the Charlottetown Accord.
2. The Charlottetown Accord did not strike disallowance from the constitution.*
3. Disallowance was not forbidden by convention in 1992. (from 1 & 2)
4. Nothing has happened between 1992 and 2018 to indicate that a new convention has been created that would forbid the power of disallowance from being exercised.
5. There is currently no convention forbidding disallowance. (from 3 & 4)

My purpose in making this argument was simply to point out that a bit of conventional wisdom (no pun intended) on a relatively obscure part of the constitution might be mistaken. Even if convention permits disallowance, it seems as though currently prevailing political attitudes do not. Those attitudes might change in the future, just as they have in the past. But for the foreseeable future, I argued, it seems very likely that the power of disallowance will be kept behind glass.

I’ve changed my mind. The federal government should break the glass right now and declare that it will disallow any provincial law that uses the notwithstanding clause.

Following elections in Ontario and Quebec, most Canadians live under provincial governments that are prepared to use the notwithstanding clause to override constitutionally protected rights and freedoms. While it’s true that the notwithstanding clause is as much a part of the constitution as the rights and freedoms it is used to override, many Canadians have assumed that it too is to be kept behind glass. If the notwithstanding clause is to be used at all, it is certainly not to be used frivolously. The actions of the Ford and Legault governments, however, show that governments are in fact prepared to use the notwithstanding clause frivolously. To the extent that support for the notwithstanding clause remaining on the books was conditional on the understanding that it would only be used with care, that support should now be withdrawn, and any use of the notwithstanding clause should be vigorously opposed.

One way to oppose the use of the notwithstanding clause would be to withdraw one’s support from politicians that use the notwithstanding clause, and transfer one’s support to politicians that also oppose its use. Another way would be to amend the constitution so as to take this tool out of the government toolbox altogether. Unfortunately, neither of these options can deliver relief in the short term. To deliver relief in the short term, the federal government should adopt a uniform policy of disallowing any law incorporating the notwithstanding clause.

Saying that the notwithstanding clause ought to be repealed is equivalent to saying that it ought never to be used. If the notwithstanding clause ought never to be used, then there is no reason to tolerate its use at any time. Disallowance gives the federal government the ability to prevent the notwithstanding clause’s use. So if the notwithstanding clause ought to be repealed, then any use of the notwithstanding clause should be disallowed while we work towards striking it from the constitution altogether.

*Updated on November 28 2018: To clarify, the Charlottetown Accord would have removed mention of disallowance from the constitution. But the text it substituted for the provisions on disallowance provided for a de facto attenuated form of disallowance: the governor-general (acting on advice of the prime minister) could direct a lieutenant governor to withhold assent from a bill, thus preventing it from becoming law.

Sarah Fine’s democratic argument against the right to exclude

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According to political philosopher Sarah Fine (see also here), restrictions on international migration are difficult to justify on democratic grounds. Her argument, as I understand it, goes something like this.

1. To exclude a person from immigrating is to govern them.
2. Excluded migrants do not have a say over the policies that exclude them.
3. Excluded migrants are governed without having a say in how they are governed. (from 1 & 2)
4. Government authority is legitimate only when it is exercised over people who have a say in how they are governed.
5. Governments may not legitimately exercise their authority to exclude migrants. (from 3 & 4)

While I share Fine’s skepticism about the right of states to exclude migrants, I worry that this argument has the seemingly perverse consequence of justifying internal restrictions on migration even as it rules out restrictions on international migration. Why? Consider this alternative formulation.

6. A government is legitimate if and only if the people over whom that government exercises authority have a say in how they are governed.
7. Exclusion involves governing the excluded.
8. A government must either (option A) give the excluded a say in the policies that result in their exclusion or (option B) it must stop excluding people. (from 6 & 7)
9. Option A is impractical with respect to international migrants.
10. Therefore governments must adopt Option B with respect to international migrants. (from 8 & 9)

A problem with this argument, as I see it, is that option A is not impractical with respect to internal migrants. Canada, for example, is a democracy. If Canada were to adopt internal migration controls, then, people who wish to move about within Canada would have a say in the policies that restrict their ability to do so. This means that imposing internal migration controls would count as a legitimate use of government authority, by the criterion spelled out in premise 6. As it happens, internal migration controls are forbidden by the Charter of Rights and Freedoms. But Fine’s view implies that this is purely a matter of constitutional law, not moral right or political justice—there are no normative grounds for including mobility rights in the Charter, or for states that are not bound by any similar documents to respect internal mobility rights. I find this difficult to believe.

One might object that Fine is not assuming a criterion of legitimacy anywhere near as weak as the one in premise 6. No one who embraces liberal democracy would accept the people having a say as a sufficient condition of legitimacy. And if having a say is not a sufficient condition for legitimacy, then the permissibility of internal migration controls would no longer follow from the fact that the people on whom those controls are imposed have a say in how they are governed.

But it seems to me that the ostensible advantage of Fine’s democratic argument is precisely that it yields a strong conclusion (states may not exclude migrants) with an especially weak assumption about the constraints governments must operate within. By comparison, other arguments for open borders (or at least a presumption against the right to exclude) must depend on much stronger and hence more controversial claims about human rights, the nature of justice, the conditions of legitimacy, and the relative moral standing of “insiders” and “outsiders”, whereas Fine’s argument, if successful, would command the assent of anyone who accepts a basic precept of democracy—whatever else they may disagree about.

If Fine’s criterion of legitimacy is interpreted merely as a necessary but not sufficient condition of legitimacy, however, her argument loses this advantage. As soon as it’s suggested that internal migration controls might be permissible on democratic grounds, Fine could add that the right to move about freely within the borders of a country where one has a say in how they are governed is a further necessary condition for legitimacy. But this would make her democratic argument dependent on stronger and hence more controversial claims about humans rights, etc. after all.

Separately, I wonder how plausible it is that giving people a say is even a necessary condition. While there is certainly some relationship between the status of being governed by a given entity and the right to a say in how one is governed by that entity, it’s not clear to me that the latter always follows from the former. I think permanent residents and even temporary workers ought to have the ability to vote in at least some elections, but it’s hard to believe this is true of tourists—even though tourists are also being governed. If tourists don’t have the right to a say, then being governed is not a sufficient condition for having a right to a say, and giving all of the governed a say is not a necessary condition for legitimacy, so Fine’s argument would fail.

A saving move might be to say that although giving the governed a say is necessary for legitimacy, the governed may have their say indirectly, through their own governments and those governments’ participation in processes and institutions of international governance. This might salvage the plausibility of the claim that giving people a say is a necessary condition for legitimacy, but it’s not at all clear to me how it would, on its own, establish a general presumption against the right to exclude. Migrants from countries that satisfy a minimum standard of democracy would have their indirect say in how they’re governed by the destination country, and so it would be permissible to exclude them or deny them voting rights during their stay. On the other hand, migrants from non-democracies could not be excluded, and would have to be granted voting rights during their stay. Although this conclusion has some appeal, especially if we believe that the global migration regime ought to be ordered to prioritize the interests of the poor and oppressed, it does not amount to a prescription for open borders.

Extremism is a red herring in the electoral reform debate

Self-operating_napkin_(Rube_Goldberg_cartoon_with_caption)There’s a simpler way to do things

A common argument from opponents of proportional representation (the principle that a party’s share of the seats in the legislature should be the same as its share of the popular vote) is that any form of PR will make it easier for parties with dangerous extremist views to get representatives elected. Partly because of such concerns, no form of PR being considered in BC will award compensatory seats to any party that receives less than 5% of the popular vote.

Nevertheless, some critics feel that there’s a high enough chance of 5% of BC voters voting for an actual Nazi party that we had better stick with our current non-proportional system. This amounts to the claim that the probability of an actual Nazi party acquiring political power in BC is sufficiently high that rigging the entire electoral system specifically to keep Nazis out of the legislature—regardless of the collateral damage—is a prudent, measured, proportionate response.

Well, it’s not. In fact the whole extremism issue is a red herring.

Let’s assume the following:

1. All things being equal, PR tends to make it easier for extremists to get elected.
2. More than 5% of the electorate would cast ballots for a hypothetical Nazi party in the event that BC adopts a system of PR with compensatory seats.
3. A liberal democratic society is under no moral obligation to tolerate, let alone empower organizations that pose a credible threat to its liberal democratic character.

This last assumption implies that it is morally permissible for a liberal democracy to use legal means to exclude Nazis from the political process, while the first two suggest that it would be prudent to do so.

Even with these assumptions, however, the conclusion that preserving our non-proportional electoral system is the best way to fight the extremist threat doesn’t follow. To reach this conclusion, supporters of FPTP must go further than suggesting an effective response to the risk of Nazis in the legislature; they must provide grounds for rejecting alternatives. And there’s at least one far simpler way to keep Nazis out of the legislature: ban Nazi parties from contesting elections. This solution is compatible with any kind of electoral system, including all forms of PR. And because extremists can be excluded from electoral politics at least as effectively and simply under PR as they are under FPTP, concerns about extremists in electoral politics are irrelevant to the debate over PR as such.

What grounds might supporters of FPTP give for rejecting this solution? One objection might be that the definition of what constitutes a Nazi party would either be too narrow to provide effective protection against genuine Nazi parties or so broad that it might result in some non-Nazi parties being banned as well. Whatever the merits of this objection, however, it’s not available to those who support FPTP as a means of keeping extremists out of the legislature; they already treat excluding non-Nazi parties as an unintended but acceptable consequence of their preferred mechanism for excluding Nazi parties. If unintentionally excluding non-Nazis is OK for FPTP just as long as it successfully excludes Nazis, then it should also be OK in the context of PR. And if unintentionally excluding non-Nazis is not OK, even if it is strictly necessary in order to effectively exclude Nazis, then arguments for FPTP based on the current system’s success in excluding Nazis must fail.

So much for that objection. Are there other objections with greater merit? If so, opponents of PR need to make those objections clear. If they really believe the stakes are as high as they claim, one would think they’d need no encouragement to do so.