Thursday, February 17, 2022

Part I

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A Challenge to Constitutional Order in Canada as the Government Invokes the Emergencies Act — Is the Trucker Protest Really an Existential Threat to the Nation?

Much of the world appears to be looking at Canada, at least in part, as something of a spectacle with the trucker protests. But the unfolding story there turns out to be of tremendous importance and not just for Canadians. We are looking at a challenge to constitutional order. We are looking at a government that is now overreaching in its declaration of the Emergencies Act. And even though it says it is not suspending basic constitutional freedoms, almost by any honest evaluation, that’s exactly what it is doing. And that requires a closer look. But before we look at what’s going on in Canada, let’s just remind ourselves of what’s at stake. And this will be fun and instructive as we think back through how we got to a constitutional order and what makes that different.

If you go back before a constitutional order, you’re going to have to go back before the 13th century. Will you say that’s a long time ago? Well, it is. But in the year 1215, a momentous event happened. In the year 1215, rebellious barons in England forced the king, the now infamous King John, to sign an agreement that limited monarch’s power, limited the power of the king of England. Now, he did so by force, but that’s actually part of the story. The fact is that even by force, ultimately by force, he did so. And in that act, in what became known as the Magna Carta Liberatum, he signed the great Charter of Liberties, which wasn’t a modern constitutional document with modern ideas of constitutional rights, but it was the great turning point constitutionally. Everything is basically dated before 1215, or after 1215. And clearly, we’re living in that constitutional age.

And thankfully so, the age after the year 1215, the time after King John was forced to sign the Magna Carta. So just thinking about this, it’s interesting to ask the question. Before something like the Magna Carta in the English-speaking world, by what authority did kings rule? Well, the answer to that is quite easy. They ruled by what was claimed to be divine right. The argument was that God had either made or allowed them to be king. They were God’s anointed by a religious decree, and thus they were understood to rule by divine right. God himself, according to this political theory, had given the king the solitary ability to rule. Now, the power and authority of a king, an emperor, or a prince, for that matter, a queen who might be ruling would be given some limitations from time to time by the very reality that there are other powers, including the aristocracy, the land owning class.

But the reality is that the divine right of kings gave kings, queens, other crowned heads enormous authority, but that authority really did shift in the year 1215. It really did shift in the English speaking world with the Magna Carta. That’s why if you go to the national archives, if you look in the United States at the history of our constitution, just about any civics class is going to point back not just to 1789 and the emergence of the American constitutional order. Not just back to 1776 and the declaration of independence, but back to 1215 at Runnymede when King John had to sign the Magna Carta. But as you move forward from 1215 towards modern history, where did the idea of a modern constitutional order come from? Well, it had its roots right there at Runnymede with the Magna Carta. But as you think about a modern constitutional order, it comes down to this.

It is a system of government that recognizes the legitimacy of the government in a formalized is charter, a formalized contract between the people that is the governed and the government. And as you think about American history, this is where we get the phrase, the consent of the governed. And you find that, most importantly, in America’s emerging history from the colonial age to the early national age, the understanding that American freedoms, later described as constitutional freedoms, came down to this agreement by the consent of the governed to be governed by a government that would live and operate according to the limitations of the constitution. And this is why as you look at American constitutional history, one of the most important issues has been the category of so-called enumerated powers. That’s in the documentation itself. It gets to the fact that government has certain powers. They’re enumerated.

That is to say, number one, number two, number three, number four. And if it is not so stated and enumerated, it is a power the federal government does not possess. Now, before we leave that, just understand that one of the great tensions between liberals and conservatives in American life for now well over a century is the question as to whether or not the federal government should be constrained and limited by that doctrine of enumerated powers. About that, consistent conservatives have been very consistent. If it’s not an enumerated power, it is not a power of the federal government. Liberals, on the other hand, have argued that the constitution is just too restrictive. And so they’re the ones that came up with the idea of a living constitution that has to be adjusted, has to grow by a necessary evolutionary means in order to meet the needs of a modern expanding society. And again, conservatives would say, “You can do that, but you can only do that with legitimacy by amending or revising the constitution, not by simply ignoring it.”

But the big story we’re talking about today is taking place in Canada. The big issue really is taking place in Canada. And thus, the big challenge is to Canada’s constitutional order. But as we’re thinking about this transition, let’s go back to the United States for a moment and recognize that the United States constitution, as originally ratified, included, by political necessity, the first 10 amendments to the constitution known as the Bill of Rights. Unless that Bill of Rights had been included, there would not have been a sufficient number of states to ratify the constitution in the first place as you look at the era from 1788 to 1789. That’s really important to keep in mind as we go across the northern border to Canada. The closest equivalent to the Bill of Rights in the Canadian constitutional order is Canada’s Charter of Rights and Freedoms, sometimes merely known as the Canadian Charter. But when did it become a part of Canada’s constitutional order?

The answer to that would be 1982. You’re right, 1982, not the 1700s, not the 1800s, not even the 1900s. 1982. Prior to that, there was a federal statute in Canada that offered some protection of the same rights that was adopted in 1960. But the point is that statute was considered to be too weak to actually protect those liberties. And that’s the reason why this charter was adopted 1982, supposedly to protect those rights and freedoms with a constitutional authority, not just a statutory authority, not just law. This is a constitution, which is a charter of an agreement between the government and the governed, in this case, not in the United States, but in Canada. And these rights are understood to be inviolate. They are absolutely to be protected. They are the very basis of the constitutional order. But then again, evidently not, because in the light of the protest taking place in Ottawa and in other Canadian cities, the prime minister of Canada, Justin Trudeau, has invoked what is known as the Emergencies Act.

It is a special, very clear statutory authority in Canada that suspends at least some public rights, some citizen rights in order to establish public order when there is a demonstrated threat as would be the case in war to the stability and survival of Canada’s constitutional order. So yes, you heard that right. The Canadian prime minister has invoked this Emergencies Act because there are a lot of trucks and truckers with their trucks idling causing a problem in Canada’s major cities, including its capital, that has now been defined as an existential threat to Canada’s constitutional order. And thus the government under the leadership of Prime Minister Trudeau is treating Canada’s current situation as if it is under attack by a foreign enemy.

Part II

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U.S. Media Claim that Trudeau’s Emergencies Act Move Will Not Suspend Fundamental Freedoms, but Are They Just Denying the Truth? — A Lesson for Americans to Watch

Now, with many others, I’ve been watching this story unfold and I’ve been perplexed by the coverage in the American press. You could expect that the American major media are not necessarily well versed in the Canadian constitutional order, but you would expect better than what we found from so much of the mainstream American media on this. For example, a report that ran in the Wall Street Journal, again, a very credible newspaper. This article cited the fact that the Canadian prime minister had invoked the Emergencies Act. And that meant to give the government “special temporary powers meant to ensure safety and security during a national emergency.” Now, again, just look at the video you’ve been seeing.

This is described as a national emergency, but you also had the quote from the prime minister, “It is now clear that there are serious challenges to law enforcement’s ability to effectively enforce the law. We cannot and will not allow illegal dangerous activities to continue.” Now, that’s the kind of language that can be used by any government authority to shut down anything if constitutional order is basically disrespected. We’re also told, again, this is the Wall Street Journal, “For a public order emergency, those powers can include preventing people from traveling to and from a specific area, requiring some essential service providers, for example, tow truck operators to render services and restricting public assembly under certain circumstances.”

But then comes the next sentence, and this is what is perplexing from the beginning. Perplexing, if not infuriating. “Mr. Trudeau,” again, the Canadian prime minister, “said the government isn’t calling in the military, nor is it suspending fundamental rights as guaranteed in the country’s constitution.” Well, if it’s not suspending those constitutional rights, what exactly is it doing? The response has to be, in all honesty, that the Canadian government is doing exactly what it says it isn’t doing, which is suspending fundamental freedoms. A team of reporters for the New York Times reported similarly about the Emergencies Act. “It allows the authorities to move aggressively to restore public order, including by banning public assembly and restricting travel to and from specific areas. But Mr. Trudeau and members of his cabinet offered repeated assurances that the act would not be used to suspend fundamental rights.” Except, again, that is exactly what they are doing.

This kind of declaration of emergency has happened in Canadian history once and only once before. And that was under what was known as the War Powers Act. And here’s the very interesting thing. The prime minister of Canada who took that action was also named Trudeau. And he would be the one and only one father of the current Canadian prime minister. And that was his father, Pierre Elliott Trudeau, a famously liberal prime minister of Canada, who in so many ways represented a modern liberal approach in Canadian politics, very similar to the Kennedy family in the United States during the same era.

Ryan Alford, professor of law at Lakehead University in Canada came right out and declared the prime minister’s power grab to be unconstitutional. He wrote this, “Trudeau’s father, Prime Minister Pierre Trudeau, was the first to take such an extreme measure in the context of an actual terrorist uprising in 1970. Throughout the previous decade, terrorists known as the Quebec Liberation Front, or FLQ had set off more than 200 bombs. In that October, they graduated to kidnapping.” We’re then told, “In response, Trudeau the elder, invoked the War Measures Act as the Emergencies Act was then called and sent in the troops.”

Again, professor of law at Lakehead University in Canada says that retrospect, it becomes very clear that the then Canadian prime minister named Trudeau had exaggerated the threat in order to justify a power grab from Ottawa. This law professor points out that one of the stipulations of Canada’s Emergencies Act requires the invoking of a national emergency defined “as something so serious that it cannot be resolved by means of any other law or combination of laws.” But then the professor points out that the two most urgent challenges during the current protests, that would be the blockages of the ambassador bridge and also the national border at Sweet Grass, Montana to Coutts, Alberta.

Well, it turns out that those issues were resolved by peaceful means by local law enforcement. There was no such national emergency that would come close to justifying this power grab. Professor Alford concluded his essay with these words, “Pierre Trudeau’s actions in 1970 created deep and long-standing divisions within the Canadian public, some of which persist 52 years later.” What his son is now doing is perhaps even worse. And I quote, “Continuing destroying the fabric that holds the nation together on a far flimsier pretext than even the October crisis is unconstitutional and the real threat to Canada’s democracy.”

Charles Cooke writing in the United States at National Review points out that the Canadian prime ministers disgraced his office with this grab of power. He quotes the great Russian literary figure, Anton Chekhov, who in a famous letter of 1889 wrote, “One must never place a loaded rifle on the stage if it isn’t going to go off.” And as Chekhov said, “It’s wrong to make promises you don’t mean to keep.” Now, in this case, Charles W. Cooke is accusing the Canadian prime minister of doing exactly that about which Anton Chekhov had warned. He puts it this way. “If a free people does not wish to have sweeping, enabling laws used against it by the state, it must decline to place such laws on the statute books in the first place. For like Chekhov’s gun, once there, they are bound ineluctably to go off.”

So just to think about this for a moment, I first noticed the problem when I saw the mainstream media walking all over the story basically saying, “This is not a violation of fundamental freedoms,” and then making very clear that’s what it is, but they never clean the situation up. I think at least part of this is due to the fact that many Americans don’t know much about Canada’s constitutional system, not to mention it’s fairly recent constitutional history. But the fact is that people in Canada now very well understand that Canada’s prime minister and his government have gotten away with invoking this law under the flimsiest of pretext, because no one really takes seriously that those truckers, wherever they’ve been found in Canada, represent a fundamental threat to the integrity and the continuation of Canada’s constitutional order.

That is ridiculous. But this lesson isn’t just for Canadians, it’s a lesson for Americans to watch, particularly in an age in which we have our own government powers constantly expanding. As Charles Cooke concludes, “If as seems to be the case, Canada’s constitutional order has an escape hatch of this size and frivolity built into it, then it isn’t much of a constitutional order at all.” But the dimension of Christian worldview thinking we ought to bring to the fore here is the fact that this idea of the consent of the government, this idea of legitimate government being bound to a compact that restricts and limits the power of government. This was an enormous advance in human dignity and in the preservation of human liberty, but it only works so long as the people don’t put up with a government that acts in extra constitutional and unconstitutional ways.

Christians operating from a biblical worldview and a biblical understanding of sin understand that government will eventually everywhere always try to exercise powers that are beyond those rightfully invested in it. And that’s not just because government X or government Y faces this temptation. Government faces this temptation. The framers of the American constitutional order understood that. The English barons who forced the confrontation with King John at Runnymede in the year 1215 understood that. My guess is that an awful lot of Canadians are learning this the hard way right now, recognizing that a constitutional order that allows political leaders to put a pause on those constitutional freedoms, even as it’s saying that that’s exactly what it’s not doing.

The fact that this is happening in Canada, this becomes an object lesson and an ominous sign to lovers of liberty and constitutional order everywhere. But I’m going to allow myself one further comment on this situation, and that is this. If you keep on electing party leaders who become prime ministers in Canada, named Trudeau, you can expect you’re going to get more of this in the future in just a subsequent generation. Something else we need to watch, by the way, in Canada as we’re thinking about how moral change takes place in a society, we’ve often remarked about the fact that in one sense, Canada tracks more with Europe than with the United States.

We’re closer geographically, but in some ways, Europe is closer in cultural ways to the legal and constitutional order there in Canada. And one of the things we have been watching in recent weeks is that having failed in a recent national election, the Canadian Conservative Party has replaced its leader, or at least most importantly, it toppled the ex-leader who’s known as Erin O’Toole. What makes this important? What’s important is to recognize that once Erin O’Toole had actually gained a relatively short period of leadership in the Conservative Party, he turned the party away from conservatism and in particular on social and moral issue, things like abortion, same sex marriage.

He basically did the same thing we have seen in other supposedly conservative parties. He just jettisoned. He threw overboard anything that might make the Canadian people think that the Conservative Party was in moral terms actually conservative. And that, again, is a warning not only to Canadians, they’ve seen this happen, not only to conservatives in Great Britain. They’ve seen this happen, but to conservatives in the United States, because there’s always the danger we will see that happen as well.

Part III

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Once A Prince, Now A Parable of Moral Shame: Prince Andrew Settles Lawsuit Over Sex Trafficking Allegations

But also for today, I want to look at headlines that have to do with Britain’s now infamous Princes Andrew, the second son of Britain’s reigning monarch, Queen Elizabeth II. And tomorrow we’re going to talk about her great anniversary taking place, but today we’re simply going to look very quickly at the fact that Prince Andrew, having been accused by Virginia Giuffre of having basically sex trafficked her when she was a teenager. He has now signed some agreement, some form of settlement with Virginia Giuffre in such a way that the case will not now go to court.

The testimony will not be held, but here’s what we need to understand. The stain is still there. There are many who are frustrated that the trial did not go on because they were looking forward to the documentation of what exactly had taken place when Virginia Giuffre and her attorneys would’ve had to prove in court the allegations. That’s now not going to take place, but the moral point is this, and Christians should think in these terms. By the time that this agreement was signed, by the time that Prince Andrew conceded that he would pay money to Virginia’s Giuffre and also give money, an unspecified amount of money, but you can count on the fact a fairly large amount of money to causes that are seeking to bring about and into sex trafficking. By the time he answered this sorted affair in this way, there is no legal confession of guilt, but the fact is everyone around the world will now look at Prince Andrew of the United Kingdom in a different way.

He will be understood in a different light. And by his own agreement, forced basically by the public upon his mother, also with the encouragement of his brother, the heir to the throne, the Prince of Wales, Prince Andrew will no longer go by the title or the customary honorific, your Royal Highness. He has been stripped of royal patronages and of other military honors. He is in a completely different category. And the fact is that even as he is the second son of the current reigning queen of England, he is going to be, you can count on this, very obviously absent from many formal occasions and from many historic photographs. His erasure makes a moral statement. This headline reminds us that sex trafficking is a very real danger. And in particular, there are many young people who are in grave danger, many. Untold numbers who are being trafficked, both young men and young women, both boys and girls.

And in this case, you are looking at Jeffrey Epstein and you’re looking at an incredibly sorted story because you’re looking at so many people counted among the rich and the powerful and the celebrated on both sides of the Atlantic who have been caught up and exposed in this horrifying affair. This was a civil suit, not a criminal charge. So in this sense, the person who brought the legal action, Virginia Giuffre, was actually free to sign a settlement so long as it was to her satisfaction. And there are people who are angry at her for signing the settlement, but in a system of law where there are these kinds of civil actions, the reality is that if both parties do come to a settlement, the terms of that settlement, if acceptable to a court, basically constitute the end of the matter. The end of the matter legally, perhaps even the end of the matter financially.

But here’s where Christians need to understand something very clearly. It is not the end of the matter morally. And thus, even though this agreement has been signed, the settlement has been received and accepted. The British people will never look at Prince Andrew the same way again on both sides of the Atlantic. His celebrity now turns into a liability rather than an asset. He now becomes an embarrassment to his entire family and an embarrassment to the entire monarchy and thus to the people of the United Kingdom. The fact is, by the way, that Prince Andrew remains Prince Andrew, by virtue of his birth. He remains, by the way, in his part, in the line of succession to the throne.

At one point, he was second in that line, only behind the Prince of Wales now because the Prince of Wales had two sons and one of those sons also had children. He is ninth in the line of succession, which is to say, Britain is actually in very little danger of having anyone who is now named Prince Andrew becoming King Andrew. The issue of sex trafficking, the reality of moral monsters, like we have seen in so many of these stories, has been a wake-up call for many people in the United States and elsewhere. And for Christians, it is also a matter of alerting us to the reality of sin that takes on forms that even have the horrifying implications of trafficking children and young people for the causes of sexual perversion.

When I was a boy, my favorite cartoon on television was known as Fractured Fairy Tales. And the parable of Prince Andrew is a fractured fairy tale. Once a prince, legally still a prince, he’s basically known now for being a parable of moral shame.

Tomorrow, we’ll talk about a happier issue, which is the anniversary of Queen Elizabeth upon her accession to the throne. Again, a very interesting chapter from world history and one we are she sharing in the present.