CANADIAN ELECTIONEERING SPEECH DECISION

The Canadian Supreme Court issued a landmark electioneering speech decision yesterday. In a 6 to 3 ruling in the case Harper v. Canada, the Court upheld spending limits on "third party" (non-candidate, non-party) election advertising and deferred to parliament's authority to regulate in this area. Law professor Allan Hutchinson writes in defense of the Court's ruling ("The court shushes the rich"):

Since classical Athens, the continuing electoral challenge has been to separate finance from franchise, and money from mouths. The Supreme Court reiterated the idea from earlier litigation that it is simply undemocratic for economic clout to skew political emancipation. While the rich are as entitled to be heard as anyone else, they deserve no greater hearing. A flourishing democracy, therefore, needs to control as much as facilitate the impact of economic inequality on public debate.

. . .

The substance of the Supreme Court's decision might be contended by many. But let's hope that most can agree that the court has put the decision back where it belongs. Those who want less or no limits on election spending can take their cause to our pre-eminent forums for democratic debate and decision-making -- Parliament and the provincial legislatures. The court's decision is a win-win for anyone committed to the primacy of democratic politics.

Other commentators were more critical of the Court's ruling. The National Post calls the decision a "body blow to free speech," the Calgary Sun calls yesterday a "black day for Canadian democracy," and the Globe and Mail writes that the Court "got it dead wrong" and "fumbled a fundamental freedom." The Toronoto Star's Chantal Hébert writes:

At a time when the main parties are going out of their way to cloud their policies, muting outside voices may well fog the picture rather than enhance its clarity.

'SUSTAINED ACT OF COLLECTIVE WILL'

Tony Blankley's editorial makes me sad for three reasons.

1) It is too convenient for Republicans to argue that criticism of the incumbent president emboldens the enemy and shows cracks in our "collective will." Republican self-interest dictates that they attempt to silence their critics. This is not acknowledged by Blankley, or by most others in the public-criticism-is-tantamount-to-treason crowd.

2) "Collective will" is built in a democracy through public means, including the processes of criticism that opposition and minority members of government employ. There is no fully top-down collective will formation in a democracy. Political systems with top-down collective will formation are called authoritarian. Subsystems in a democracy can have top-down collective will formation, but these subsystems are, for that reason, neither democratic nor liberal. The army has a top-down collective will formation. It is neither democratic nor liberal.

3) Blankley's approach to the war mirrors the imprecision in the Bush administration's own policies. For Blankley, the war on terrorism is about "break[ing] the will and pride of all those in the Islamic world who would dare to terrorize us and the international system." Good luck with that, Tony. Talk about precise and obtainable objectives. Here's a thought: how about just destroying terrorist networks, for a start? Any chance that attempts to "break the will and pride" of folks in the "Islamist world" might actually help to encourage islamicist terrorism? Or is that suggestion another betrayal of the top-down collective will formation that you'd like to see imposed on refractory Bush critics, perhaps through a renewal of sedition laws, that you now darkly hint that you will support at some future date?

Cut the silliness about "collective will," please. Democracies are what they are: political systems in which policy is formed through an interaction of diverse elites, differentiated publics, and the more diffuse category of the public as a whole. If you want to form collective will, you need to have ideas that are attractive to lots of people. The war in Afghanistan was such an idea. The war in Iraq was not. Stop trying to make it into something it's not, namely, a good idea that only partisan critics of Bush have an interest in criticizing. It's just not clear that the war in Iraq was a good idea. And no matter how many times you utter the words "collective will," you cannot change the fact that the war on Iraq is and remains controversial across a wide set of experts, elites, and interested publics. Just accept that fact, please. You can assert that the war in Iraq was necessary for national security, pure and simple, as if wars came with labels, one of which is "this war is necessary for national security." But that don't make it so, Tony. Sorry.

Link to Blankley's editorial via atrios.

TAZ ON IRAQI REACTIONS TO ABU GHRAIB

Via Richard Herzinger, consider this article in taz on the mixed reactions of the Iraqi press to the prisoner abuses in Abu Ghraib. The article is not what you'd expect from taz, a newspaper with an unabashed leftist ideological bent. My rough translation of a key passage:

Like many Iraqis, [Minister for Human Rights Bhaktiar] Amin calls for an independent investigation of Abu Ghraib and a quick punishment for guilty parties. But he expresses at least as much annoyance with Arab politicians and journalists who criticize the American regime so vociferously. He accuses them of hypocrisy. "They were all silent when Saddam's regime murdered thousands of prisoners," he says, as he becomes the voice of the dictatorship's victims once again. Not a single arabic station was prepared to broadcast an interview with him in those days.

"As bad as the American human rights abuses are," he continues "we should not forget that our country is built on a graveyard." At least 300,000 people are buried in mass graves. [According to Amin,] the real tragedy of the land of two rivers is that there is not enough discussion about [those deaths]. "But the victims have a long memory."

It's this memory that keeps many victims of [Saddam's] despotism from joining the chorus of America's critics. There are pictures of the dictatorship's crimes as well, but they are not well known in the West.

Wie viele Iraker fordert Amin eine unabhängige Untersuchung der Vorgänge in Abu Ghraib und eine schnelle Bestrafung der Täter. Mindestens so sehr treibt Amin indes der Ärger über die Haltung der arabischen Politiker und Publizisten um, die heute lautstark die Amerikaner kritisieren. Heuchelei wirft er ihnen vor. "Alle haben sie geschwiegen, als das Saddam-Regime tausende von Häftlingen hinrichtete", sagt er und ist wieder ganz Stimme der Opfer der Diktatur. Kein einziger arabischer Sender sei damals bereit gewesen, ein Interview mit ihm auszustrahlen.

"So schlimm die Rechtsverstöße der Amerikaner sind", fährt er fort. "Wir dürfen nicht vergessen, dass unser Land auf einem Gräberfeld gebaut ist." Mindestens 300.000 Menschen wurden in Massengräbern verscharrt. Dass darüber bis heute viel zu wenig gesprochen werde, sei die eigentliche Tragödie des Zweistromlands: "Aber die Opfer haben ein langes Gedächtnis."

Es ist diese Erinnerung, die viele Opfer der Despotie davon abhält, in den Chor der Kritiker Amerikas einzustimmen. Auch von den Verbrechen der Diktatur gibt es Bilder, aber diese sind im Westen kaum bekannt.

There is a fine line between excusing the abuse and putting it in perspective. I think that many commentators on the right in the U.S. -- from Rush Limbaugh to Victor Davis Hanson -- have crossed that line recently. And even though making this observation might seem to veer close to the line: working through the social trauma of the Baathist dictatorship is going to be one of the central tasks of postwar Iraq, and for Iraqis, I imagine, figuring out how to stand toward the American prisoner abuse at Abu Ghraib is going to be a comparatively simple affair.

KEYES OR THE MEDIUM LOBSTER?

Read this, then this.

Alan Keyes linked the MA marriages with terrorism and the prisoner abuse at Abu Ghraib:

Both same-sex marriage and abortion, he said, rests in the same root: rejection of the principle that our rights are not from people but from God.

Terrorism comes from the same disregard for innocents, and the recent mistreatment of Iraqi prisoners also exhibits a dishonoring of the country's founding principles, he said.

Maybe Keyes is the Medium Lobster.

SABRI

Tennessee v. Lane stole all the headlines, but Sabri v. United States is a pretty cool case as well, and it's a lot shorter, so if you're going to read one of the Court's announced cases this week and don't have the time to wade through six opinions (only Breyer, O'Connor and Kennedy didn't write separately in Lane), make it Sabri.

The case is filled with potentially interesting issues -- including the desirability of the expansion of federal criminal law, limits on congressional spending power, the meaning of the necessary and proper clause (a constitutional law course staple), and the extent of the Rehnquist Court's revolution in federalism. The libertarian Cato Institute filed a brief (see here), which attempts to limit congressional power by advancing a narrow, judicially enforceable reading of the necessary and proper clause. The Supreme Court wasn't too thrilled with that argument, although Clarence Thomas seems to have found it attractive.

See also District judge Richard Kyle's opinion here, PDF file), and materials from the 8th Circuit opinion are here [Sorry, no permalink, but check out the "One Stop Searching" page - and enter 02-1561 in the number field]. The Eighth Circuit has got a good web site with links to oral arguments and briefs filed in the case. Check it out.