Irish Jacobitism/Legitimism?

A fascinating discussion here!  I’m not sure I buy it all, whether as an Irishman, an Indigenous person (whether of North America or of Ireland/Europe), or a half-baked Red Tory … even an Orthodox Christian … but intriguing reading and thinking.  I may have to re-read it.

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Using Government for Partisan Purposes?

It’s being alleged in Canada that theocon minority pseudo-Tory Prime Minister Stephen Harper’s chief of staff leaked the information about the conversation between a Barack Obama aide and a Canadian diplomat in Chicago implying Obama’s tough talk on the North American Free Trade Agreement – wanting to amend it to help U.S. workers, or pull out(!) – was just talk.

‘There was another leak on Wednesday. CTV News — which tends to get leaks from the Tories as CBC tends to get leaks from the Liberals — reported that Barack Obama representatives had quietly told Canadian diplomats that the anti-NAFTA rhetoric being spun out in the Ohio Democratic primary is just rhetoric. When CTV broke the story, it was embarrassing to Mr. Obama, who faces voters in the make-or-break primary today.

According to ABC News, the story was leaked to CTV by Ian Brodie, Mr. Harper’s chief of staff. This angered the Democrats, who accused Canada’s Tories of interfering in their election to the benefit of Republican John McCain, although Hillary Clinton actually looks more likely to profit from this story.

Mr. Harper’s spokeswoman issued a denial, saying Mr. Brodie “doesn’t recall” leaking the story, which seems odd, since you’d think he could remember whether he leaked secret diplomatic talks just last week.

So, did Harper’s people hope to embarrass Mr. Obama by revealing his double-talk on NAFTA?’  {Emphasis added.}

If true, this behavior by the Harpies would cross the line that should exist between Her Majesty’s Canadian diplomatic corps and the partisan political process – not to mention once again  meddling in U.S. politics.  It dishonours The Crown, imperils diplomacy, endangers Canada(!), is filthy filthy dirty, and tries to glorify the party in “power” like the American republic does in the White House.  Canada’s Monarchy separates politics from the honourable duties of the Crown such as diplomacy; unlike the U.S., it’s said to be rare in Canada that diplomatic postings are doled out to big campaign donors or turfed incumbents of the “ruling” party.  If Canadian diplomats routinely sound-out U.S. candidates, it’s not to interfere – God knows U.S. anti-Canadianism would bite them in the rear – but to keep their masters informed of potential changes down here.  For Harper to politicize that diplomatic factfinding would be disgraceful and unbefitting the office of HM Canadian Prime Minister.

Another reason for Monarchy

Even if we leave politicians with the initiative, wouldn’t it be nice to know they have someone like Queen Elizabeth they have to run things by, rather than no one at all?

Nepal going down American road

The facts contained within this account sound extremely familiar to readers of this blog and critics of U.S. history and the “American Revolution”!  From decompensating government, regions, and society, to the dubious claims of democracy of the politicians and ‘revolutionaries,’ it’s 1776 all over again, tragically.

Is it too late for the Nepalese people to rescue their nation from false ideology, and reach perhaps a better settlement with the otherwise soon-to-be-deposed King?  Hopefully they will not make the mistake of the American Loyalists and wait for His Majesty to make all the moves: King Gyanendra’s hands are tied unless he knows he has the people behind him, even to take action – perhaps “People Power” style? – to save the day. 

There’s an “election” scheduled, supposedly to manage the transition to a Republic – a decision already made ‘for’ the people and nation by the power-hungry elites, some of whom, the “Maoists,” have been waging actual war for years.  But if this “election” only includes “allowed” parties and candidates, how different will it be from the coups d’etat that usurped the Crown and Sovereignty of the American Colonies a couple centuries ago.

Could a State join Canada?

The article from the last post is about people in Maine interested in having that State secede to Canada.  The author lightly opines, “we would need to change our system of government to Canadian standards and start calling ourselves a province.”

THOUGHT EXPERIMENT.

A State is a sovereign, like “the State of Israel;” a province is a subdivision of a sovereign, like the provinces of the Roman Empire, or of many countries today.  When the UK colonies of Ontario, Quebec, New Brunswick, and Nova Scotia (as we now call them, more or less) decided to get together in 1867, after watching the Union of sovereign States to the south go through a bloodbath of a  Civil War, they decided they wanted ‘a more perfect union,’ and so remained provinces (as all Britain’s North American colonies were sometimes called), legally giving more power to the central “Confederation” they were creating, Canada.  (Up there this word denotes the exact opposite of what it does for Americans, reflecting on the traditional propaganda about America’s previous “weak Articles of Confederation.”)

It’s true that after over a century of legal adjustments, court rulings (especially by the Brits aiming to protect the constitutive Provinces from Federal encroachment), and political compromises, Canada today seems among the world’s loosest federations, and it’s common to say the Provinces are “co-sovereign” with the Confederation (or Dominion), in almost American terms.  And while, in theologian Stanely Hauerwas’ perfect phrase, “there may be no denying the descriptive power of this statement,” and the Provinces of Canada may have evolved nearly into sovereign States, it still remains a bit of an exaggeration, constitutionally speaking.

Let me elucidate.  As described in their unilateral Declaration of Independence, 13 of the colonies / provinces to the south considered themselves “free and independent States” on or about July 4, 1776 – and they meant States, not State.  Over the next 11 years several wars among them almost broke out, one-on-one affairs IIRC, including New York vs. New Hampshire over the territory claimed by yet another one, the independent Republic of Vermont which everyone forgets, which wasn’t cooperating much with the other 13 at all, sought to exchange ambassadors with the Mother Country, and even to reunite with it!  So in 1787, when a mostly-secret “convention” proposed their “more perfect union,” one thing these “free and independent States” didn’t give up was sovereignty.  The new (written) Constitution merely delegated some of these States’ sovereign attributes or powers or rights to the Union, retaining all those not explicitly delegated.  In this arrangement, similar in species to the “pooled sovereignty” often referred to in connection with the European Union, these States and their Union were definitely co-sovereign (though the term isn’t used in the U.S., being of more-recent Canadian coinage), the Union in the areas delegated to it, and the States in every other way.  American law takes this very seriously, even though the States delegated to the Union powers the world usually considers primary reflections of sovereignty, such as international relations, defense, and currency … and even though there’s been some growth of Federal power due to Constitutional Amendments and court rulings down through the years.  Perhaps the best illustration of this is the fact that not just any case can be appealed to Federal courts; it has to be “a Federal matter,” otherwise the State courts have the last word.

(This came up after the 2000 Presidential Election.  As you may have heard, we don’t actually elect the President of [the Executive Branch of] the United States, Presidential Electors do.  And these Electors are State officers, not Federal.  Each State legislature is completely free to prescribe how to choose its Presidential Electors.  In the first place, as the mischievous Florida Legislative Republicans reminded us, Electors don’t have to be popularly elected; it’s up to each State.  [Though it’s debatable whether they would’ve gotten away with changing the rules after the fact. Would the U.S. Supreme Court have been that brazen?]  More importantly, how each State elects its officers is entirely its own business, and not normally “a Federal matter.”  Therefore, most of us considered that the Federal courts had no business hearing GW Bush’s appeal from the Florida Supreme Court regarding interpretation of Florida’s election laws and administration, by its own State courts.  To get around this, Bush had to concoct a laughable argument that his civil rights – a Federal matter – would be violated if every vote were counted in the counties in which Republican shenanigans were alleged by the Al Gore campaign and many others.  This was an argument of the proverbial “legal mind: the ability to think about something intimately related to something else, without thinking about that to which it is related”: Civil Rights, intended to protect Blacks from re-enslavement after the Civil War, used to deny many Florida Blacks and others the electoral franchise accorded them in this contest under Florida law!  [This is exactly the same area of law that supposedly bestowed human rights on corporations in the U.S., and of course the irony is identical. It’s also the kind of reasoning made famous by the medieval {Western, Catholic} Scholastic philosophers and theologians, now employed by a son of the Protestant Reformation, a Methodist: rationalizing about how many teeth a horse was allowed to have based on made-up prior principles … instead of opening his mouth and counting them!!!  Instead of rationalizing, Florida law provided that the winner of the election would be determined by counting the votes cast.  WHAT A F*CKING CONCEPT!!!]  In a tragic example of expansion of Federal power by court ruling, the Federal courts allowed Bush, and ultimately so did a partisan Supreme Court – although they sure didn’t want their ruling used against  Republicans, when they said, in flagrant violation of every legal principle and tradition this country – and all Common Law countries – supposedly stand on, that their ruling shouldn’t be used as a precedent in any future case.  So much for independent judiciary and rule of law … and the last 7 years of American and world history!  Yes, Canada, courts aren’t always legally correct.)

This is the opposite of what happened in Canada in 1867: the Fathers of Confederation delegated to the Provinces some powers, rights, and privileges, delineated others as shared by the Confederation and Provinces, with the rest remaining with the Confederation.  Arguably, legally, the Provinces are creatures of the Confederation – and hence Provinces – even though they antedated it!

For comparison purposes, in 1901 the drafters of the Australian Commonwealth constitution, fearful of a Canadian-style (theoretically) stronger center, went more with the American model again, on behalf of the federating colonies there.  And so Australia’s constitutive parts, like America’s, are sovereign States, not Provinces – and BTW, their State viceregal officers Governors instead of Lieutenant-Governors.  (Which brings up another illustration: Canadian Provinces have LGs because historically they are lieutenants to the Governor General, even Federal employees, appointed on Federal Advice, not Provincial employees, clearly subordinating the Provinces to the Federal Crown, in spite of the fact that they can have “Her Majesty In Right of” a Province … even suing “Her Majesty In Right of Canada”!)

This is not to say that a State can’t create additional sovereign States; in fact it’s alleged to have happened in a number of newer “federal” countries, essentially constituting their subdivisions Sovereigns in certain areas.  The Holy Roman Emperors even bestowed actual sovereignty on some of their subject principalities (while they remained subject).  I fully expect this century that some Canadian court will find Canada’s Provinces are, have always been, or have become, Sovereign States.  Whether this would require formally reopening the constitution, or could take effect by itself in the British tradition of uncodified constitutional evolution, I don’t know.  Or else Provinces will insist on (greater) involvement in nominating their LGs, and then, on the exclusive right.  Quasi-American Alberta might even be the first to declare itself a (Canadian[?]) State!

Nevertheless, the question before us for now is whether, as the words of the columnist quoted atop this post suggest, an American State would have to give up Statehood to join Canada.  (I doubt she had this question in mind, so I must take full blame myself!)

Before answering it, just for the record, let’s establish whether Maine and other things like it in the U.S. really are States.  After all, only 13 States formed the Union … Vermont joined having formerly been independent just as they … so did Texas, maybe California … that’s it.  The rest were carved out of Federally-controlled/occupied “Territories” (including Indian Lands), settled by Whites and others from elsewhere, then elevated to Statehood and “admitted to the Union.”  But if we accept that sovereigns can create other sovereigns, that’s OK.

So.  Could the Canadian Confederation include both Provinces and States?  Well apparently there’s such a thing as “asymmetrical federalism,” best illustrated by the Russian Federation at this time, the Holy Roman Empire previously (sort of).  But theoretically two ‘levels’ both claiming all but delegated powers would seem to cancel each other out!  Furthermore, Maine residents would be used to the theory of the 9th and 10th Amendments to the U.S. Constitution, saving an undetermined reservoir of rights to them even against the government of Maine … as well as the whole three centuries of experience with The Common Law of Maine (including Massachusetts before Maine’s separation from it).  Section 26 of Canada’s Charter of Rights and Freedoms brings the 9th Amendment into Canada so to speak, but only insofar as it relates to “any other rights or freedoms that exist in Canada”: here’s one place where the competing “residual powers” doctrines collide head-on, because Mainers might not want to give up U.S. or Maine Unenumerated Rights, especially if they don’t know the extent of what they’d be giving up – kind of like the reluctance to codify the Royal Prerogative for fear of leaving out something that’ll become important in the future.  Then again, not knowing might make it easier for the Mainers!  Aside from this perhaps academic conundrum, in terms of legal systems it might go OK, since each Province does have its own version of the Common Law already, we’d just be adding Maine’s to the mix.  Maybe even the Residual conflict could be finessed with words saving as much of what each side is used to already as practicable.

What’s Admission look like?  Several of the relevantly-named documents here convey an idea, although they all cover admission of British territories … without a lapse of 250 years! 😉

Does Maine remain a State in all this?  I don’t see why not.  The physics of the balance of powers between State and Federal might be shuffled slightly in the move from the USA to Canada, and some shared powers would probably be introduced that America isn’t used to constitutionally … but then again, in reality America has evolved some degree of sharing via Federal mandates and/or funding, it’s just that the method and tone are very different, less ‘interactive’ you might say!

Then there’s the matter of the 3 Indian Reservations and associated Trust Lands in Maine (our example).  I don’t believe Canada holds lands in trust for First Nations groups or individuals like the U.S. Federal government does.  Quite a bit of the U.S. is actually Indian Trust Lands!  The U.S. exploits the land, pursuant to Treaties, and is supposed to collect the revenues and forward them to the Tribes or individual Indians who own them.  (They’ve been screwing this up for years though – so bad they even had to take down their website? – and Indians suing the government allege they’re out 12 Billion dollars all tolled!  Maybe they’d have better luck going to the Chinese!)  Especially Out West, Trust Lands have farms or ranches on them, or mineral extraction, or even towns, counties, railroads, highways, etc.  I don’t know how much land we’re talking about in Maine, but they originally claimed more than 2/3 of the State on the basis of unratified Treaties before a settlement agreement in 1980.  There’s also the matter of the Reserves themselves.  I’m not too familiar with Indian Law in Canada, and it’s pretty rough down here, but there’s the potential to consider that Reserves and Tribes are in fact subject sovereign States themselves (the 1800s Supreme Court’s “domestic dependent nations,” as bad as that sounds!), and my impression is that Tribal self-governance and Sovereignty are farther along here than in Canada.  For that matter, there are also a fair number of French-speakers in Maine … and the theory that most of them are Métis, facing potential recognition under the Canadian constitution as Aboriginal North Americans, and whatever that may entail – adjudication of Aboriginal Rights, Land Title, Sovereignty, hunting and trapping rights….

Does Canada accept a State though?  Well, talks with Maine might “call the question” of the Statehood of the other Provinces anyway.  OTOH, constitutional sticklers might consider it too great a risk to the union; as I’ve said, courts aren’t always legally correct.

As for the columnist’s other comment, “we would need to change our system of government to Canadian standards,” the British North America Act 1867 presumes the kind of government the Provinces have now, ie, the Lieutenant-Governor appointed by the Governor General (on advice of the Prime Minister) in The Queen’s name, governing with the advice of a Ministry retaining the confidence of (in Maine’s case I guess the lower house of) the legislature; and a legislature consisting of the LG and its one or two houses.  ISTM any deviation from this would require a Constitutional Amendment.

Another way might be a Treaty of Union between all Canada and Maine, or USA and Canada with respect to Maine, which Canada could simply receive into its law as constitutional legislation.

Métis are Legally Aboriginal

I’ve just remembered why the Canadian Constitution Act 1982 says Métis are as Aboriginal as Indians and Inuit: Because Métis have Aboriginal and/or Treaty Rights of which Canadian Law is required to take notice.

I have said I think Indigenous is a better word for Métis than Aboriginal, because as I read the word in its plain meaning, Aboriginal means “here first” (or at least, before actual European-led settlement began) or “from the beginning.” Métis as such, being of Mixed Aboriginal and non-Aboriginal ancestry by definition, wouldn’t be described that way.  But I was looking at the matter perhaps anthropologically (Heaven forbid!) or sociologically, even just grammatically.  The constitution is a legal document, addressing a special set of concerns not necessarily identical to or coterminous with those of the anthropologist, sociologist, or grammarian.

For centuries in the Anglo/American legal system, Aboriginal groups, and sometimes Aboriginal individuals, have been held by courts to continue to possess certain rights in tenure (Aboriginal Title) and/or use of territory and resources (Aboriginal Rights), to the extent that the rights in question are not incompatible with Crown rule “where The Queen’s Writ runs,” or have not been extinguished* by the Crown-in-parliament, ie, by competent, valid legislative statute.**  This ultimately goes all the way back to when the Welsh and Anglo-Saxons were the Aboriginals when William the Conqueror arrived in Britain in AD 1066, since the Common Law in England has been held to antedate the Conquest.  It also would have applied to Ireland if The Case of Tanistry had gone another way in the 1600s; the court ruling was that the Celtic chiefly or clan succession system (to lands) by that name, by a competent, previously-appointed, -nominated, or even -elected adult near relative (rather than strict primogeniture) was incompatible with Crown rule.  (I remember thinking when I read about it a few years ago that, in the light of more recent and diverse Imperial and Commonwealth jurisprudence and governmental experience – my gosh, India! Africa! – that the Irish practice of tanistry might have been upheld vis a vis British rule had the case only been brought today rather than 400 years ago.  I forget exactly why, though.)

Since the 1600s the Crown, its successors (eg, the USA) and its agents (eg, colonial proprietors or governors) have frequently tried to free-up lands and/or resources they desired, in the hands of Aboriginal groups outside Europe, by Treaty – not always accompanied by the threat or reality of violence as commonly in the case of the U.S. … nevermind broken Treaties.  It’s possible they thought relatively-voluntary relinquishment would be easier than by war, which would inevitably follow mere legislative extinguishment way off in London or Ottawa.  Even the U.S., I suppose, is to be lauded for not simply extinguishing – or trying to – all rights by a piece of paper on Capitol Hill, despite its mostly “warlike”(!) approach to Aboriginal peoples since the Revolution.

In any case, any land title or other Aboriginal Rights not ceded by Treaty (or sometimes equivalent negotiated settlement) remains in the hands of the Aboriginal possessor(s).  In what is now Canada many Métis groups and individuals in the past or even the present have lived “on the land,” occupied territories for centuries alongside or “in-between” Indian Tribes, hunted, gathered, fished, trapped, signed or “adhered to” Treaties ceding some but not necessarily all Aboriginal Rights – who knows, maybe even have mineral rights!  There are even a handful of Métis Reserves (reservations) in Canada.  And Métis living elsewhere may still hold unceded Aboriginal Rights or Treaty Rights, whether as Métis or even strictly as Indian/Inuit descendants.

In addition, like the U.S., Canada often offers benefits or assistance – never enough of course – to Aboriginal groups and individuals as part of (lobbied) social legislation or executive government functions.  While not technically part of the constitution or Treaties, these may be more available to Métis from lawmakers and Governments now that they’re officially recognized in the constitution as Aboriginal.  Métis in Canada suffer much from discrimination, poverty, and health problems, little different from their Indian or Inuit cousins.

Now how about other countries?!!

(*–I do not believe this use of extinguished is the same as when, in the 20th century, the United States Congress acted to “terminate a Tribe.”  Congress has since “unterminated” some “terminated Tribes,” but Aboriginal Rights “extinguished” are considered incapable of being “unextinguished” or restored, at least in Commonwealth Nations.  However, I am not a lawyer, just an amateur legal scholar!)

(**–The way I read U.S. constitutional documents, I’m not sure any U.S. legislative body is empowered to extinguish Aboriginal Rights without Treaties or similar agreements, like a Westminster Parliament probably is by Common Law, since U.S. lawmakers have only powers explicitly or clearly implicitly delegated to them by written Constitutions, Federal or State, respectively.  Thank God!)

Why Canada’s Different, and Getting More Different

This quote I found here is related to that book a little while back on this topic:

While America was founded on the idea of “life, liberty, and the pursuit of happiness,” Canada’s constitution is dedicated to “peace, order, and good government,” a decidedly less individualistic, more community-minded stance, which explains Canada’s predisposition for “balancing individual autonomy with a sense of collective responsibility,” according to Adams.

The rampant individualism found in the US comes at the expense of security and stability. “[I]n an instant, illness, crime, or an injudicious investment portfolio can turn the proverbial American Dream into an outright nightmare,” Adams writes in “Who Are the Real Masters of Docility?,” an essay found on theglobalist.com.  As a result, “an ever greater proportion of America is clinging to old institutions — family, church, state … even gangs — as anchors in an increasingly chaotic world.”  Americans are seeking stability in traditional authorities: “a strong police force, a strong military, a strong nation, the President and Commander-in-Chief.”  Ironically, then, in this land of the free, people are afraid to explore new perspectives, new ways of living.

And from the article to which the above is a sidebar:

Sure, {Canada}’s a capitalist country and there’s competition, but it’s less ferocious, less cutthroatTrue, if rankings of Gross Domestic Product are any measure, the US is richer than Canada.  But Canada has a higher quality of life.

This isn’t in the first place Canada-worship on my part, but Classical Conservatism, aka progressive conservatism, aka Red Toryism, aka reason not ideology, pragmatism not experimentation (‘American pragmatism’? Hah!), the Common Good of everybody – all of us – not just MEMEME.

And Time magazine complains about Russia under Putin?!  Worry about real nascent(?) Fascism here!