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Sunday, October 25, 2009

And Don't Forget About Neil Peart....

At the Volokh blog, David Bernstein has a post about those "touchy Canadians."  He writes:

Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon. The Canadian left has a penchant for importing left-wing ideas from the U.S. and elsewhere, adopting them as public policy, and then accusing anyone who objects of being “anti-Canadian” because these policies somehow define Canadian identity. I like Canada a lot myself, but I should hope that there is more to Canadian identity than national health insurance, gun control, and aggressive hate speech laws.

David expands on his post in the comments section, which is fairly lively.  I put up an even longer comment in response, the gist of which is that I think things are good deal more complex, both as to Canadian law and Canadian culture, than David's description suggests.  I hereby incorporate it by reference.   

UPDATE: David has written a very gracious comment on this post suggesting that I simply reprint the comment, which I have done below.  I'm grateful for such a civil and productive discussion!  The comment itself could have used some editing, and doubtless would have been better edited if it were a primary post and not a dashed-off comment, but I have reproduced it warts and all.

David, speaking as a Canadian, albeit a quite voluntary Canadian expatriate and, one of these days I hope, American citizen who prefers the jurisprudence of the First Amendment to Canadian freedom of expression jurisprudence, I have to gently take issue with your post and your gloss on it in the comments. I say “gently” because, like any generalization, it contains important germs of truth, and pointing to contrary impressions or anecdotes will not refute them. But I do think the picture is a little more complicated than you suggest, unless you are making an observation that is so specific by definition as to defy drawing any larger conclusions. 

One distinction I would draw is between the reception of American law in the eighties and early nineties in Canadian constitutionalism, which was more apish and had much to do with the fact that many of the then-rising generation of Canadian constitutionalists got their start as American LL.M.s and were simply importing American scholarship in a fairly mechanical way in the absence of a more detailed sense of Canadian constitutionalism, and the treatment of American law today, which seems to me an era in which Canadian law stands far more on its own bottom. The wholesale and mechanical reception of American constitutional law in Canada today is far rarer, and for that matter the citation of American law and scholarship is more infrequent. Also, it should be said that to the extent there is still borrowing, the transplantation now is more complex; it’s not simply a matter of taking foreign materials in toto, but of grafting them on to a fairly developed body of Canadian constitutional thought. I may disagree with some of the currents of that thought, but the whole matter is more complex, I think, than the picture you draw. 

Moreover, there is an increasing, although still minority, trend of thought in Canadian constitutional law, both of foreign origin and autochthonous, that criticizes some of the directions in Canadian constitutional law that you discuss, both as to general constitutional law method and as to freedom of expression. Indeed, there has always been a substantial opposition to views such as those stated by the majority in Butler, although now there are also interesting views questioning, say, the living tree and dialogue metaphors of Canadian constitutionalism.

I also, again without denying its existence entirely, would tend to disagree gently with your view that the left draws on American law and ideas freely when it serves its purpose and then accuses those who object to these ideas of being anti-Canadian. For one thing, it is vanishingly rare for someone in Canada to use the term “anti-Canadian.” For another, the leftists I know do not draw all that much on American thought anymore, and certainly not in a wholesale fashion; they draw on all kinds of sources of thought from all kinds of places, including the US, and I think they tend to do so in a more complex fashion than your description might suggest. Third, to the extent there are debates within and between the left and right about what constitute “Canadian” social values, which there certainly and legitimately are, I think they are more genuinely debates about those values themselves than they are debates about where the values come from. And those values, right or wrong (and right or left), really are Canadian in their own way; they’re not just borrowings from the US, and certainly don’t end up just being absolute twins of the versions that have circulated at various times in the US. 

Again, my point is not that what you have said is not true; of course there are some Canadians who meet your description. Nor is it to agree with Canadian thought on these issues, although on my reading there is not in fact a Canadian consensus on these issues. It is rather to suggest, if for no other reason than that I would hate to have American readers assume otherwise, that it is not the whole story, even about the Canadian left, and it may not (does not, I think) reflect the rhetoric or thought processes of a majority of Canadian thinkers of any ideological stripe. I do think there are too many Canadians whose language suggests a reflexive wariness about or defensiveness toward Americans, but I think this masks a far more complex relationship among even those Canadians toward American thought, culture, and values, which is quite different in practice than that rhetoric might suggest.

Two last points on a long comment which I could have just slapped onto my own blog. First, although it was not fully my own culture, there certainly are aspects of Canadian culture and identity that have their own substance and go beyond the few things (gun control, say) that you mentioned. I’m sure you know this and were speaking somewhat tongue-in-cheek, but certainly there can be thicker conceptions of Canadian culture and identity than this, and it is not right, although I also sometimes fall into this, to say that Canadian identity is just a negative space, let alone one defined solely by the United States. Second, in response to the commenters who suggested that Canadians believe in limits on rights while Americans don’t, or that Americans don’t believe on such limits except for those benighted elites who sit on the Supreme Court, this seems like a partially phony distinction. Many Americans and many Canadians may have different notional views of rights, although of course there is diversity on these questions. But in practice Canadians do believe that rights can overcome limits and do in many cases, and in practice Americans believe that rights can be overcome by limits and reach just that result in many cases, although sometimes by defining the rights in terms of their limits rather than engaging in explicit balancing. Both rights AND their limitations seem like pretty conventional and (notwithstanding the view that the Court has somehow imposed this on us against our will) perhaps inevitable aspects of liberal constitutionalism, in the US and elsewhere, although we can conceptualize these in different ways. 

Posted by Paul Horwitz on October 25, 2009 at 05:22 PM in Paul Horwitz | Permalink


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Paul, I think that's an excellent comment, and you should post it in its entirety here. The comments to the original post have really slowed down, and I don't know that many people are going to get to see this. I also don't know how many Prawfsblawg readers are going to bother clicking the link.

Posted by: David Bernstein | Oct 25, 2009 10:33:35 PM

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