David Cole in Taki’s Magazine draws attention to a pertinent point: when you are guilty of thoughtcrime, your actual words are of no importance to the leftist inquisitor. This is bad enough in ordinary encounters among civilians, but when the habit spreads to the Supreme Court of the United States, the psychic approach to interpreting laws can have disastrous consequences. By psychic approach I mean the habit of endowing oneself with powers of knowing that someone has bad intentions despite fair, scrupulous, neutral or lawful language expressing them.
Which brings us to the Supreme Court, and why Americans need to appreciate the bullet we dodged in November 2016. Hillary would have given us another Sotomayor to replace Scalia, and now, another one to replace Kennedy. And the peril of too many Sotomayors (or just one, frankly) was laid bare last week in the “wise Latina’s” dissent in the Trump travel-ban ruling. The facts in the case were fairly clear: The travel ban does not cover only Muslim nations, and the Muslim nations it does cover represent only a small portion of the Muslim world. There is no wording in the ban that is anti-Muslim, and the nations affected by the ban had been identified by the previous administration as high-risk for terrorism.
The ban, as Chief Justice Roberts wrote for the majority, is “neutral on its face.”
Sotomayor, however, writing for the minority, donned her psychic sombrero and took a different approach. Yes, the ban might be neutral as written, but Trump’s statements while on the campaign trail indicated that his intent was to craft a Muslim ban, even if he didn’t. Therefore, the ban must be ruled unconstitutional because Trump initially wanted something unconstitutional, even if what he actually did was not unconstitutional.
Call her Yogi Master Sonia, because that’s one hell of a contortion.
…..Sotomayor’s dissent relies on something known as legislative intent. Among legal scholars, there’s a long-running debate: To what extent should a court take into account the intent of a law’s author(s) when ruling on the legality of that law? The prevailing school of thought in American jurisprudence is that courts should abide by the “plain meaning rule.” In essence, that means that if a law is clear and unambiguous in its text, the court need not, or should not, try to mind-read the intent of the author(s). This was the reasoning of the majority in its decision on the travel ban. The text of the directive is plain, the directive falls within the president’s legitimate powers, and the directive has a legitimate reason for being (national security).
From the leftist perspective, thoughtcrime is the issue, not the facts or the plain statements of the law. Leftists are authorized to see thoughtcrime or heresy in any person. When dealing with a heretic, no respect for human dignity or conscience is to be given.
We suffer from a something even more pernicious in Canada, I submit. This is the view that there exists something called “charter values” which are the in the exclusive domain of the Supreme Court justices to find and apply. Sotomayor, the “wise Latina” knows you have bad intentions. The Supreme Court of Canada knows, by contrast, that its intentions are pure, so that it is free to invent stuff that is nowhere in the written language of the Charter of Rights and Freedoms, or the Constitution Act, 1982.
Bruce Pardy writes about the Trinity-Western decision of our own Supreme Court, which ruled that the Law Societies of British Columbia and Ontario were within their rights to refuse to recognize Trinity Western as a law school.
“It’s a vibe kind of thing”. Only they did not use such words, they called upon “charter values”, not the actual words in the Charter of Rights and Freedoms. to legitimize their distaste for an explicitly Christian law school.
On June 15, the court ended Trinity Western University’s quest to open a law school. The university had challenged the refusal of the law societies of B.C. and Ontario to approve the school. The law societies did not question the quality of the legal education to be delivered but objected to Trinity’s “community covenant,” which requires its students and faculty to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” A majority of the court found that the law societies were entitled to violate Trinity’s religious freedom in the name of “Charter values.” While freedom of religion is guaranteed as a fundamental freedom in section 2(a) of the Charter of Rights and Freedoms, Charter values are found nowhere in the text. They are, yes, “just the vibe of the thing,” used by the Court to trump actual Charter rights and remake the Constitution.
Trinity’s covenant, the majority said, imposed inequitable barriers on entry, especially for LGBTQ students, and held that the actions of the law societies reflected a “proportionate balancing” of the Charter protections at play. It may sound fair and reasonable but it is actually profoundly twisted. The case did not feature competing Charter protections. Trinity’s religious freedoms were not pitted against the equality rights of LGBTQ persons because no such rights existed. The Charter does not apply against anyone but the state. As a private religious institution, Trinity was not subject to the Charter or for that matter to the B.C. Human Rights Code. Trinity was the only party with Charter rights, enforceable against the law societies as agencies of the state. Calling the covenant an “inequitable barrier” is disingenuous. Religious communities consist of private persons gathering together and agreeing on a code to which they choose to adhere. They impose those standards on no one but themselves. No one is forced to join them and no one has the right to go to their law school, which is part of a private religious institution. There is nothing to “balance.” Until, of course, the court invokes Charter values. You know, the vibe of the thing.
…Turns out Charter values aren’t the vibe of the actual thing at all, but a competing set of moral judgments that exists in the Court’s imagination. The Charter was conceived and drafted as a roster of individual negative rights that protected against interference from an overbearing state. Charter values, as articulated by the court, are collectivist values of progressives: (substantive) equality, (social) justice and (group) dignity. Charter values are decidedly not the individual liberty values of classical liberals or the traditionalist virtues of conservatives.
When I say that the Supreme Court of Canada is just making shit up, I mean exactly what I say, and they are doing so on a vast and unconstitutional scale.
To borrow the language of the two dissident justices of the Supreme Court:
The majority’s continued reliance on values protected by the Charter as equivalent to rights is similarly troubling. Resorting to Charter values as a counterweight to constitutionalized and judicially defined Charter rights is a highly questionable practice. Charter values are unsourced, amorphous and, just as importantly, undefined. The majority’s preferred value of equality is, without further definition, too vague a notion on which to ground a claim to equal treatment in any and all concrete situations, such as admission to a law school. A value of equality is, therefore, a questionable notion against which to balance the exercise by the TWU community of its Charter‑protected rights.
I leave it to you to discuss which may be worse: the notion that the judiciary can declare an act illegal because its members feel that it was motivated by thoughtcrime, which they can discern from their insights into the state of your soul, on the one hand, or the idea that the judiciary can make up entire categories of law (Charter values) that have no statutory basis whatever.
Which makes you feel more insecure in your remaining rights and freedoms?
PS Strangely, and welcomed, is the opinion piece in the CBC site, of all places, by Anna Su:
It is almost comedic for the Court majority to unconsciously invoke the promotion of diversity — which it did in upholding the law societies’ decision not to accredit TWU’s law school —as if it only means one thing. But as Justices Suzanne Côté and Russell Brown wrote in their dissent, tolerance and accommodation of difference, including religious difference, also serve the public interest and foster pluralism.
Remember what I said a few weeks ago: we are living in a Liberal Oceania. Ignorance is strength, freedom is slavery, and diversity is uniformity.