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Leonid Sirota Profile picture
@DoubleAspect
Jul 9, 2018 • 7 tweets • 3 min read • Read on X
If you are a Canadian in need of a quick smug self-satisfaction fix, look no further: nationalpost.com/news/canada/wh….
If, however, you think seriously about our Supreme Court, you probably already know that, contrary to popular belief, Canadian courts are ideological―even if their ideological homogeneity makes this easy to overlook: nationalmagazine.ca/Blog/September….
And while Canadians don't care much about #SCC appointments, they should! In just the last couple of months, the #SCC read free trade out of the constitution, proclaimed that administrative decision-makers can have "unlimited" powers, and eviscerated religious freedom.
In some of these cases at least, there have been powerful dissents. Not all Canadian judges are quite interchangeable, and who gets appointed to the #SCC matters more than those engaged in self-congratulation care to recognize.
By the way, there are some big bloopers in that NP article: for one, Canadian courts don't just interpret the Charter; we have a Constitution Act, 1867, and as the #Comeau case showed, its interpretation can be as difficult as that of its contemporary the 14th Amendment.
For another, no serious originalist today thinks that it's enough to say that something didn't exist in 1868 to show that it's not constitutionally required now. (Incidentally, there are Canadian originalists. Talk to them! ;) )
Lastly, at the risk of pedantry: "the upholding of Obamacare" did in fact happen despite Justice Kennedy being inclined to side with the conservative side of the #SCOTUS―both generally and in NFIB v Sebelius. /End

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More from @DoubleAspect

Leonid Sirota Profile picture
Dec 12
This is simply not so. The cases in which the notwithstanding clause is invoked just aren't the ones where one can plausibly argue that courts are at fault for being unrestrained―whatever exactly that means. A thread. 1/7
Good Spirit at the SKQB, holding that funding non-Catholic students at Catholic schools, but not extra-religious students at other religious schools, is discriminatory? At most a mistake in a close case (I think it was correct, but SKCA didn't.) 2/7
City of Saguenay, holding that religious neutrality binds the state but not its employees, which is overturned by Bill 21? Perfectly sound in a North American context (and again quite correct). Not unrestrained. 3/7
Read 7 tweets
Leonid Sirota Profile picture
Sep 29, 2020
I see some tired canards about originalism being trotted out again―by people who don't seem to have read any originalist scholarship published in the last 15, or even 25, years or spoken to anyone who has. These arguments are older than I am, but here's a response. A thread. 1/
Here's @rolandparis saying originalism is uniquely American, and single-mindedly partisan: . Neither is true. (Btw, even if originalism were somehow American, that wouldn't make it wrong.) 2/
As @BenOliphant and I have shown at considerable length, Canadian cases, both those decided by the JCPC and those decided by the SCC, including under the Charter, rely on various forms of originalist reasoning: papers.ssrn.com/sol3/papers.cf…. 3/
Read 14 tweets
Leonid Sirota Profile picture
Sep 28, 2020
A quick thread on this, in response to people saying that a right to bear arms is the product of the American rebellion against Britain and alien to the British an Canadian traditions. Sorry, but you are just wrong. 1/
Let's start with Blackstone, who says that the right to have arms for self-defence is a natural right of the subject. (Source: oll.libertyfund.org/titles/2140#Bl…) Of course, this right is subject to legal regulation, like all rights, but that doesn't make it not a right.
Next, let's look at the Bill of Rights 1688, to which Blackstone refers. (Source: legislation.govt.nz/act/imperial/1….) This qualifies the natural right in the anti-Catholic and classist way of the Glorious Revolution, but preserves it for the majority of the subjects. 3/
Read 9 tweets
Leonid Sirota Profile picture
Sep 21, 2020
ICYMI: @MarkPMancini and I respond to bad faith attacks on a scholar. The constant distortion of other people's statements, even hyperbolic or poorly articulated ones, for partisan point-scoring and outrage needs to stop. doubleaspect.blog/2020/09/21/of-…
Also ICYMI, just last week I wrote about a similar case with the opposite partisan valence: doubleaspect.blog/2020/09/15/con…. This isn't just a problem when the other side does it. Your side does it too, and that's just as wrong.
And please spare me the tone-policing. A world in which only moderate, caveated, "professional" sentiments can be expressed, a world from which cantankerousness and hyperbole are banished would be hell.
Read 5 tweets
Leonid Sirota Profile picture
Aug 9, 2020
I'm late to this, but ICYMI, please read this piece by @Justin_Ling for @the_lineca. Prisoners losing no more rights than is necessary is an important principle, and it is being violated. theline.substack.com/p/justin-ling-…
A couple of quibbles with @Justin_Ling: (1) the ding on free speech advocates for ignoring this issue may be fair, but I wonder how much of a priority for prison advocates it is either. It's a real blind spot, and it deserves better than point-scoring.
And (2), I'd have liked to see a bit more of a discussion about practicalities. Even prisoners seem to accept need for monitoring communications. But can this be done well and at a manageable cost? Rights have costs, sure, but still.
Read 4 tweets
Leonid Sirota Profile picture
Jul 30, 2020
Not going to respond to individual tweets, but here's a thread on @RunnymedeSoc, @CDNConstFound and demands for "transparency" about its funding sources. NB: These are my own thoughts. I obviously don't speak for Runnymede or the CCF.
People claim that they need to know where Runnymede's and the CCF's money comes from, because that supposedly would help them form a view of these organisations' activities. I think this is rubbish. 2/
All Runnymede events are advertised. They are public. They are free to attend, except for the annual conference. Many are recorded (and more should be). All the panels at the annual conference are recorded. 3/
Read 15 tweets

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