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Thoughts On Compassion, The Law, and Constitutions

What follows is drawn from my recent discussions with a group of friends.
On Compassion
I think “compassion” is an over-used term. Seems to me all human beings except the very sick have some degree of natural compassion for others, depending on whether they are friends and loved ones, or even just strangers in trouble. We even kill our  enemies out of compassion for our own.
Special wariness is called for whenever the word is used by governments and states and all who work for them. There is usually an underlying, self-serving agenda being camouflaged by a show of compassion (such as when we hear a gov’t worker arguing for socialized medicine – total government control of supply and demand of medical services and fees – as a benefit for all).
It is especially interesting, I think, to see so many modern men showing “compassion” and the requisite tears in public when this was once frowned upon as unmanly. Hard for me not to equate this with a weakened polity, a feminized populace, and as the outcome of an egalitarian ethic which, quite wrongly, takes for granted that the sexes, for example, are the same, and so their modes of expression (like spontaneous tears) ought to be the same. The intended message of the teary male is: If I show spontaneous emotion and tears, people will see that I have my tender feminine side, too, and so I am a well-rounded and virtuous person.
Don’t get me started on the plethora of movies and TV sitcoms where some woman is slugging every man in the place, firing machine guns, and doing kick-flips like a whirling dervish to knock the bad guys out. It’s ridiculous, really, and it falsifies the reality that if you toss a dead mouse at a man, he will likely step on it, but if you throw it at a woman, she will probably scream or faint – or both.
Sometimes this sort of thing is a cultural theme of the day. Such as when in a Jane Austen novel or movie, for example, we see women fainting over some emotional slight or insult. I mean to say, fainting was a required performance for any feeling, delicate woman back then. Now, men cry easily, and women punch people out.
On Rights
My theory is that “Liberalism” in the West has mutated through four stages to arrive at our present condition, which, well beyond Hayek and all the other excellent liberal theorists we are familiar with, I call “libertarian-socialism”. (You can find the theory spelled out in my book, The Great Divide).
This is a hybrid, or fusion of the two terms, perfectly neither, but enough of both to have resolved the contradiction into which the Western democracies shifted when they tried to stand on two contradictory foundations: liberty and forced equality. It can’t be done, because more of one will always produce less of the other.
But it can be done (as I argue) by splitting the body politic into two bodies – a public body (more or less socialist), and a private body (more or less libertarian). Canada and Sweden are, historically-speaking, the two exemplar nations of this modern reality. It’s a political form never before seen in human history.
So all who use terms like  “liberalism” or “libertarianism” or “classical liberalism” or “conservatism” today to speak of Western political regimes, are in my opinion behind the times and wearing blinkers, because every western nation is now to a greater or lesser degree, libertarian-socialist.
And “the people” like this kind of regime a lot. So this  fusion will continue to tighten its grip on all western populations, and will likely spread slowly around the world as more democracies become wealthier, and so produce greater tax harvests for eager statists (i.e., as they generate more top-down socialism) and so become far more tightly regulated, even as their people resign themselves increasingly to the compensatory pleasures of their own once-forbidden, but today far more numerous private liberties (i.e., as they enjoy more libertarian private rights).
In effect, this has been a Faustian deal on the part of the modern democracies: the people accept their diminishing real political, property, and economic and enterprise rights – and the enormously increased presence of government and taxation in every aspect of life – in exchange for more private liberties and pleasures.
I think that it the democracies of the West had not stumbled into this deal with “the people”, the contradiction inherent in attempting to continue to operate polities straddling the deeply contradictory ideologies of liberty and forced equality would have long-since crumbled badly from within.
There is lots of evidence they may be crumbling anyway, simply because the private libertarian aspect of this equation has been insidiously converting our original We polities into a-moral Me polities, faster than anyone ever imagined.
On Common Law, Code Law, and Canada’s Charter
I would just add, if I may, that English “common law” rights (and privileges and protections) really grew from centuries of case law, or common-law judgements. Bottom-up, actual concrete legal precedents and judgements preserved in legal documents.
The so-called Civil Code favored by French-style nations was and remains an effort to rid society of conflicting case-law judgements by appeal to a set of abstract principles intended to govern all lower forms of laws be requiring them to conform with abstract legal or constitutional principles imposed from above.
Canada began on a British common-law basis, and its British North-America Act was mostly an administrative agreement sorting out and defining the distribution of powers and obligations as between the Federal/Central government, and the Provinces.
But Trudeau Sr. was like Voltaire, who complained: “you English change the (common) law when going from one place to another as often as a traveler changes horses!” He wanted one law for all. He wanted a French-style Code-law Charter imposed on our historic British Common-Law and Parliamentary system
So … Canada ended up with its 1982 The Charter of Rights and Freedoms, which was plopped on top of our common laws and henceforth control all legal decisions as our “supreme” law.
However, Civil codes and Charters are not self-interpreting. So this meant that henceforth judges, rather than legislators, would determine the ultimate meaning(s) of Canada’s laws. I argue this infantilized Parliament with the stroke of a pen. And that was Trudeau’s intent. He thought Parliament was a bad joke and infamously described Canada’s Legislators as “a bunch of losers.”
Conclusion? The English won the battle on the Plains of Abraham. But the French have been winning the war.
I call it “the revenge of Montcalm.”
“living tree” vs “originalist” meanings of a Constitution
Parliament no longer dares to debate contentious moral issues. Those get kicked upstairs to the Supreme Court, and then judges (according to whether left or right or centrist in disposition) “read in” the meanings they prefer for the abstract terms of the Charter.
They have to do that, because Charters are not self-interpreting.
Just one example will do. Section 15 is about “equality” rights.
But the Charter does not specify except very generally what “equality” means.
So judges (if so inclined) simply read in, or construct, their preferred meaning of the word.
This is justified by the “living tree” concept of a constitution, which basically means that a constitution is alive, like a tree that sprouts new branches, and so ought to be adaptable to new situations or standards that arise, that were unforseen. Modern progressives love this view because it means society can be engineered to social and moral perfection from the top down.
Conservatives prefer the “originalist” position which is basically that the Founders who wrote the original constitution had specific and narrow meanings in mind (which we can determine from their actual history of deliberation), and contemporary judges should not be inserting their own interpretations or over-riding original intent with personal views and values. For, if they do that, they are basically declaring, as have so many past Kings and tyrants: “the law is in my mouth!”
So modern liberals and progressives assert they ought to be able to change the intended meanings of a constitution. But conservatives disagree, and argue: We have procedures for amending a Constitution. They make amendment difficult, we agree. But it should be difficult. For if a Constitution has no determinate meaning, then why have a Constitution in the first place? You might as well scrap it all and just let judges and legislators change the laws as they go along and as they please – then, the law will be in their mouths.

This Post Has One Comment

  1. Ernest Miller

    Very insightful. Thank you.

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