Section 33, Bill 31, Bill Davis
Sep. 13th, 2018 06:21 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
cincinnatus_c
I ask myself, "Why choose this hill to die on?" Well, but Doug Ford is not very likely going to die on this hill. Think fast: who in Ontario or Canada has ever led his or her party to a majority election win (so, not Joe Clark 1979-1980), never having been head of government before (so, not Pierre Trudeau 1980-1984 or David Peterson 1987-1990), and then led his or her party into at least one more election (so, not Edward Blake 1871-1872) but never won another election with that party? Right, Bob Rae! Now, who else? Not so fast, eh. As far as I can tell without being unreasonably careful about it for present purposes, Bob Rae is actually the only one, ever, in Ontario. The last one federally was R.B. Bennett, 1930-1935; Bennett, by my quick tally, is the only one, ever, federally, unless you count Alexander Mackenzie 1873-1878, which you probably should since he had only briefly been prime minister before calling the only election he won. (Mackenzie probably holds the distinction of being the only prime minister in Canadian history appointed by a parliament that previous had a prime minister (namely, John A. Macdonald) from a different party.) Same question for the U.S.: name a one-term president whose party didn't hold the presidency in the previous term! Right, Jimmy Carter! Now, who was the last one before him? No? The last president before Jimmy Carter to win one term, after his party's not being in office in the previous term, and never be re-elected was Benjamin Harrison (who defeated Grover Cleveland after one term of Cleveland's, except that Cleveland defeated Harrison in the popular vote and then defeated him in the electoral college in the election after that.) The only other one, ever, as far as I can see, was the second president, John Adams. So, if you're counting on a one-and-out from Doug Ford, or from Donald Trump, (or, if you swing that way, from Justin Trudeau, for that matter,) history suggests you're likely to be disappointed.
All right, I say to myself, why expend so much political capital, then, so soon after forming government, on something that (a) you didn't run on, at all (which is a funny thing in itself: given that the PCs did almost everything in their power--chiefly, making Doug Ford their leader--to lose an election they were destined to win anyway, why fail to mention that as soon as you're in office, you're going to cut the size of Toronto city council, as it happens in the middle of the municipal election campaign?), (b) is obviously, well, crazy, and (c) notwithstanding its craziness, is of such relatively little importance?
(On point (b): I'm not sure why there was such apparent surprise that the judge found Bill 5 unconstitutional; I don't think judges are typically in the habit of finding ways for laws they just don't like to be unconstitutional, but I do think judges are typically pretty good at finding ways for laws that they think ought to be unconstitutional to be unconstitutional. Bill 5 obviously ought to be unconstitutional on some sort of procedural grounds--it's kind of hard to imagine something that more obviously ought to be unconstitutional in a representative democracy than changing the board on which the game is played in the middle of an election campaign. So, you start asking yourself what sorts of things the constitution says that speak to what's wrong with doing that, and you come up with some things.)
But then, I realize, maybe this isn't capital being expended at all--maybe this is an investment. Not because Bill 5 was "wildly popular"--which, that I've noticed, is Doug Ford's first blatantly Trumpian alternative fact (since, that I've seen, there was one major poll that found a small plurality in favour of it and another one that found a small plurality against)--but because it's wildly popular with the people it's wildly popular with, and, maybe more importantly, wildly unpopular with the people it's wildly unpopular with. The judge, by giving Ford an opportunity to invoke the notwithstanding clause, may have played right into his hands--again, why invoke the notwithstanding clause over something so trivial?--because that move is so wildly unpopular with the people it's wildly unpopular with. For years, the story went, the PCs were unelectable in Ontario because of the divisiveness of Mike Harris: we don't want to go back to all the protests! Except that the Mike Harris PCs were re-elected to a second majority, and radically changed how Ontario works in ways that the subsequent Liberal governments didn't undo.
It looks to me like the mainstream media are portraying it as being particularly damning to Ford that Conservative heavyweights like Brian Mulroney and Bill Davis have spoken out against using the notwithstanding clause. (Since Bill Davis is pretty much an author--a framer, if you like--of the notwithstanding clause, I'm not so sure that a judge is not soon going to find Doug Ford's use of it out of order.) But their opposition, and not that of the bike-riding, latte-sipping Toronto socialists, may be the opposition Doug Ford values most, just like the opposition, and humiliation, of the Bushes and Romneys is what Trump values most. (The humiliation of his attorney-general--who, unlike Donald Trump's opportunistically and superficially defiant attorney-general, is Ford's former rival, not his (apparently) former ally--is the icing on Ford's cake. (Not to mention John Tory, who Doug Ford has managed to force into fighting a move that Tory would probably otherwise have supported. If you think Tory and Ford are secretly in cahoots on this, you have probably forgotten John Tory's making fun of Doug Ford's leadership campaign launch.)) Like Donald Trump, Doug Ford is carrying out a populist take-over of his party. The Charter, and constitutionalism in general, is a wedge in the heart of Conservatism in Canada: to populist Conservatives, the Charter is a Liberal document and the Conservative defenders of (the) constitutional order are enemies of the people, obstacles to the immediate expression of the popular will. Bill 5, and a fortiori Bill 31, is Doug Ford's Muslim travel ban: a deliberately polarizing nose-thumbing at the constitutional order and its defenders on all sides.
Currently at the back of my shed: 18.2. High today at Peterborough airport: 26.7.
All right, I say to myself, why expend so much political capital, then, so soon after forming government, on something that (a) you didn't run on, at all (which is a funny thing in itself: given that the PCs did almost everything in their power--chiefly, making Doug Ford their leader--to lose an election they were destined to win anyway, why fail to mention that as soon as you're in office, you're going to cut the size of Toronto city council, as it happens in the middle of the municipal election campaign?), (b) is obviously, well, crazy, and (c) notwithstanding its craziness, is of such relatively little importance?
(On point (b): I'm not sure why there was such apparent surprise that the judge found Bill 5 unconstitutional; I don't think judges are typically in the habit of finding ways for laws they just don't like to be unconstitutional, but I do think judges are typically pretty good at finding ways for laws that they think ought to be unconstitutional to be unconstitutional. Bill 5 obviously ought to be unconstitutional on some sort of procedural grounds--it's kind of hard to imagine something that more obviously ought to be unconstitutional in a representative democracy than changing the board on which the game is played in the middle of an election campaign. So, you start asking yourself what sorts of things the constitution says that speak to what's wrong with doing that, and you come up with some things.)
But then, I realize, maybe this isn't capital being expended at all--maybe this is an investment. Not because Bill 5 was "wildly popular"--which, that I've noticed, is Doug Ford's first blatantly Trumpian alternative fact (since, that I've seen, there was one major poll that found a small plurality in favour of it and another one that found a small plurality against)--but because it's wildly popular with the people it's wildly popular with, and, maybe more importantly, wildly unpopular with the people it's wildly unpopular with. The judge, by giving Ford an opportunity to invoke the notwithstanding clause, may have played right into his hands--again, why invoke the notwithstanding clause over something so trivial?--because that move is so wildly unpopular with the people it's wildly unpopular with. For years, the story went, the PCs were unelectable in Ontario because of the divisiveness of Mike Harris: we don't want to go back to all the protests! Except that the Mike Harris PCs were re-elected to a second majority, and radically changed how Ontario works in ways that the subsequent Liberal governments didn't undo.
It looks to me like the mainstream media are portraying it as being particularly damning to Ford that Conservative heavyweights like Brian Mulroney and Bill Davis have spoken out against using the notwithstanding clause. (Since Bill Davis is pretty much an author--a framer, if you like--of the notwithstanding clause, I'm not so sure that a judge is not soon going to find Doug Ford's use of it out of order.) But their opposition, and not that of the bike-riding, latte-sipping Toronto socialists, may be the opposition Doug Ford values most, just like the opposition, and humiliation, of the Bushes and Romneys is what Trump values most. (The humiliation of his attorney-general--who, unlike Donald Trump's opportunistically and superficially defiant attorney-general, is Ford's former rival, not his (apparently) former ally--is the icing on Ford's cake. (Not to mention John Tory, who Doug Ford has managed to force into fighting a move that Tory would probably otherwise have supported. If you think Tory and Ford are secretly in cahoots on this, you have probably forgotten John Tory's making fun of Doug Ford's leadership campaign launch.)) Like Donald Trump, Doug Ford is carrying out a populist take-over of his party. The Charter, and constitutionalism in general, is a wedge in the heart of Conservatism in Canada: to populist Conservatives, the Charter is a Liberal document and the Conservative defenders of (the) constitutional order are enemies of the people, obstacles to the immediate expression of the popular will. Bill 5, and a fortiori Bill 31, is Doug Ford's Muslim travel ban: a deliberately polarizing nose-thumbing at the constitutional order and its defenders on all sides.
Currently at the back of my shed: 18.2. High today at Peterborough airport: 26.7.
