Canadian History - Economic Inequalities?

[Sean Hayward]

Yes, equality is very general and interpretation would change over time, but we are talking about principles, which I think must be allowed a large degree of interpretation. However, I am open to using a different term. What would you suggest instead?

[Renegade]

Yes, equality is very general and interpretation would change over time, but we are talking about principles, which I think must be allowed a large degree of interpretation.

Sean, it is precisely because we are talking about principles that the intepretation shoudl not be allowed a large degree of iterpretation. Can "equality" be interpreted to mean that everyone should have the same wealth, and so gives justitication for complete income redistribution? If so, than I would not think that is a principle that society has agreed on.

However, I am open to using a different term. What would you suggest instead?

I'm not opposed to the use of the term. What I'm cautious about is that the term has a vauge and ill-defined meaning. I can't read what you mean by "equality". If you mean "equality of opportunity" personally I don't that is a principle that society has agreed to. Someone rich may have more opportunities than someone poor. Someone attractive may have more opportunties then someone ugly. Are you meaning that society has agreed to equalize opportunties among all individuals?

[Sean Hayward]

This is why it's so hard to make principles more specific. We already agreed that the principles should be set and be fairly inflexible, and that society should be allowed to interpret those principles and amend the constitution accordingly. So what's the problem?

Yes, equality could be interpreted as meaning that everyone's income should be equal, but it could be interpreted very narrowly on the other end of the spectrum. The term has to be left in it's general form for society to interpret. Don't forget that these principles would only be in a preamble or similar section, and so would not have legal force by themselves, only in the interpretation of the rest of the constitution.

Edited May 9, 2008 by Sean Hayward

[Renegade]

This is why it's so hard to make principles more specific. We already agreed that the principles should be set and be fairly inflexible, and that society should be allowed to interpret those principles and amend the constitution accordingly. So what's the problem?

The problem is that a principle can't be set and fairly inflexible unless the definition is pretty specfic. An amgibious principle is so flexible that it has no power to limit intepretation.

Let me give you an example. Let say one agreed upon principle, was that government could act in the "common good" and that that principle was higher in priority than all others. Without a specific definition of what constituted a "common good" it would give the government unlimited powers to do anything at all on the basis that it part of the "common good".

One of the reasons for having a documented and guaranteed set of rights is that even when the government or the people are driven to act rashly, they cannot trump a basic set of agreed upon rights. This essentially protects miniorities from being bullied by the majority, and it benefits us all, because each of us is a minority of some sort. When a principle is vague and can be interpreted in many different ways, then the protection is useless.

Yes, equality could be interpreted as meaning that everyone's income should be equal, but it could be interpreted very narrowly on the other end of the spectrum. The term has to be left in it's general form for society to interpret.

I would strongly disagree with you that any principle should be embedded if its interpretaion could vary so widely. Why then even bother to put it into a constitution? The government of the day could pass any law it wanted to under the guise of "equality".

You may be ok with a clause of "equality" which is vaguely or not defined being put in the constitution, which could be interpreted as everyone's income can be forcibly equalized, but I certainly am not. I woudl suspect that most people would object to such a principle if they understood that this was a potential implication of the interpretation.

Don't forget that these principles would only be in a preamble or similar section, and so would not have legal force by themselves, only in the interpretation of the rest of the constitution.

But as we have discussed, the principle determine what future rights are enacted in the constituion, so it is essential what is meant by the principle.

[Sean Hayward]

Alright, I see your point, but I fail to see what you propose instead. Please present an alternative. If you try to make the principles very specific, you will end up with very narrow concepts that would not be open to any substantial interpretation, defeating the purpose of enshrining a set of principles in the first place.

[Oleg Bach]

I would put economic rights under the principle of equality. However, we obviously have a problem if you don't believe that equality is or should be a principle of the constitution. We argue about what the principles of the constitution are because there is no definition of them.

The preamble provides context to how the rest of the document is interpreted, but also provides a guide for future amendments. If we had a real preamble, we could look to it for a definition of the principles of the constitution, and use that to judge proposed amendments.

I think that the problem regarding these "principles of the constitution" that we are talking about is that there is nothing identifying what they are in the Constitution of Canada. We should settle this ambiguity by rewriting the existing preambles or by drafting an entirely new preamble.

Key word is preamble. Which is the tone and most importantly the spirit of the document. The preamble is the purpose explained in brief. For instance the preamble to the charter is to paraphrase - the supremacey of God (goodness) and the rule of law there under. A lawyer friend of mine explained the God factor this way - "Whether you believe in God or not is not the issue. The insertion of the term God is there for the reason of bringing the participants in to a state of higher mindedness in order to detract and defuse those that seek to have ultimate authority that will lead to abuse of power" .

One must be careful when toying with the preamble of any declaration. If it is changed then the body of the whole work has lost it's meaning..perfect example was the little preamble put on the American coinage as a safety mechanizm.."In God we trust" - the purpose of this preamble to all finacial matters was to ensure that money or "mammon" did not make you nuts...or lose perspective that money was NOT God...that it was a social lubricant and was to assist in the experience of living and not become a curse and only purpose to existance..preambles are everything..it is the soul of the document..once it is removed or changed to suit certain groups we are screwed.

[Sean Hayward]

The problem right now is that we don't have a real preamble to the Constitution, so we have no point of reference to determine what its founding principles really are. This places the whole debate on shaky ground because there is no authority that we can look to for the principles.

[bush_cheney2004]

One must be careful when toying with the preamble of any declaration. If it is changed then the body of the whole work has lost it's meaning..perfect example was the little preamble put on the American coinage as a safety mechanizm.."In God we trust" - the purpose of this preamble to all finacial matters was to ensure that money or "mammon" did not make you nuts...or lose perspective that money was NOT God...

Not the case at all....the official American motto "In God We Trust" has its roots in pre and post Civil War America and religion, and it really means "God", not some lesser idea about money not being God. It is not a preamble at all in this regard. The motto has only been consistently used in US currency/coins since the 1930's.

[Renegade]

Alright, I see your point, but I fail to see what you propose instead. Please present an alternative. If you try to make the principles very specific, you will end up with very narrow concepts that would not be open to any substantial interpretation, defeating the purpose of enshrining a set of principles in the first place.

Not at all. Principles ought to be specific as possible. It should enshrine what is meant. The purpose of the principle is NOT to permit a completely wide open interpretation, on the contrary it should be clear enough so that that the interepretation is obvious as possible.

If we want to have to abide by a set of prinicples don't you think that we need to be as clear as possible on the specifics of that priniciple? How else does society know what it is agreeing to enshrine?

Edited May 13, 2008 by Renegade

[Sean Hayward]

Then what is the difference between the principles and the contents of the document? If you make the principles so specific, they will not be subject to interpretation. Being unable to change in interpretation, they will be useless in terms of providing a reference point for the whole document.

What term or phrase would you suggest as an example principle?

[Renegade]

Then what is the difference between the principles and the contents of the document?

IMV, the principles define intent. The content (ie the "rights") are the specfic rules which laws must abide by in order to carry out that intent. Rights which have no bearing on a principle (ie intent) should not be included in the document.

If you make the principles so specific, they will not be subject to interpretation. Being unable to change in interpretation, they will be useless in terms of providing a reference point for the whole document.

I disagree. Interpretation is a question of how to implement the principles and thus provides the reference point. Interpretaton is NOT a license to vary from the underlying principle.

What term or phrase would you suggest as an example principle?

If for example the principle was that "individulals have complete control of their own body" there would be many implication which result in "right". For example, an individual has the right to deny hosting a pregnancy, the individual has the right to die if they so choose, etc.

[Sean Hayward]

Alright. Your proposed principle seems reasonable to me. The problem I have with what you're saying is that if you make the principles as specific as possible, they will be useless for interpretation of the whole document. For example, if you start with the principle of equality, and make it more and more specific until it is very narrow and includes only "equality before and under the law", then it is the same as the right contained in Section 15 and obviously it is so narrowly defined that it is useless for the purpose that we agree these principles should be enshrined. Interpretation is not a license to modify the underlying principle, but you must realize that what seems like "modifying the underlying principle" to you today may be interpreted very differently in the future.

[Renegade]

The problem I have with what you're saying is that if you make the principles as specific as possible, they will be useless for interpretation of the whole document. For example, if you start with the principle of equality, and make it more and more specific until it is very narrow and includes only "equality before and under the law", then it is the same as the right contained in Section 15 and obviously it is so narrowly defined that it is useless for the purpose that we agree these principles should be enshrined.

As I've said before, principles should convey intent. Without specificity, intent is not apparent. In the example you raise, the specific principle is not "equality before and under the law", IMV it is "the government will treat all people equally and will not discrimminate on the basis of race, gender, age, religion, or sexual-orientation". The principle as I reworded it was more explicit on what are non-permissable factors for discrimmination. For example, wealth and income were not included as factors, making it permissable to discriminate based upon those factors.

Interpretation is not a license to modify the underlying principle, but you must realize that what seems like "modifying the underlying principle" to you today may be interpreted very differently in the future.

I have said that I am not opposed to a future society modifying the underlying principle, albeit it should be much more difficult than modifying the rights that are derived from that principle. As well, I wouldn't be opposed that trained and experienced jurist are the ones which we resort to for interpretation. As you will note from Supreme Court rulings, that SCC jurists study long and hard before changing an interpretation from a previous SCC ruling, and will not do so without just cause.

Edited May 15, 2008 by Renegade

[Sean Hayward]

I can agree with that principle you suggest. Age is tricky because the government does (and should) discriminate on the basis of age. I would re-phrase it a little so that it does not refer to what the government will do, but rather to what the principles of Canadians are. For example, "the Constitution of Canada shall be interpreted in a manner consistent with the recognition of the equality of each individual regardless of ethnic origin, gender, beliefs or sexual orientation". This is similar to a part of the Canada Clause in the Charlottetown Accord. I have a great deal of trust in the courts to interpret these things effectively.

[Renegade]

Age is tricky because the government does (and should) discriminate on the basis of age.

Personally I disagree that age should be a criteria for discmmination. If government is allowed to discrimminate on the basis of age, should everyone else be allowed to use it as the basis of discrimmination?

I would re-phrase it a little so that it does not refer to what the government will do, but rather to what the principles of Canadians are.

I'd be fine with that.

For example, "the Constitution of Canada shall be interpreted in a manner consistent with the recognition of the equality of each individual regardless of ethnic origin, gender, beliefs or sexual orientation". This is similar to a part of the Canada Clause in the Charlottetown Accord. I have a great deal of trust in the courts to interpret these things effectively.

While I'm ok with that, I think principles shoud go further. Not only should they guide interpretation, but as I've said they should guide content. Any content not consistent with the principles should be invalidated. I too am fine with the courts ability to interpret these things however the wording has to explicit. The courts value is in interpreting documents and they can do their job best when the wording is clear and explicit as possible. I am much more comfortable with courts ability to interpret principles then I am the ability of the uninformed public to decide what consttitue a "right".

[Sean Hayward]

I mean that governments must discriminate on the basis of age in areas such as alcohol, tobacco, motor vehicles, etc.

I think we agree on the idea of entrenching principles, and we agree that they should be used to guide both interpretation of existing content and the addition of new content. Elements of the constitution that are inconsistent with the entrenched principles would be, in effect, invalidated by the courts because they would have to be interpreted in a manner consistent with the principles.

The courts and the public have different roles in this context, but both must consider the entrenched principles. The courts use the entrenched principles to interpret existing content. The public uses the entrenched principles to make decisions regarding changing the content. It is not a "one or the other" situation.

[Renegade]

I mean that governments must discriminate on the basis of age in areas such as alcohol, tobacco, motor vehicles, etc.

Your examples illustrate the bias in society which exist around age. The discrimmination around age is based upon an assumption that age indicates competence in making decisions about tabacco, and alcohol or denotes skill around operating a motor vehicle. If forced to not use age, the government would then have to develop proper measurments to determine competenancy and level of skill.

Afterall a 14-year old, brought up on video-games may have more skill to operate a vehicle then a 75 year-old with failing eye-sight.

The fact that we disagree about age being a factor which should be used for discrimmination further illustrates a point I was trying to make. We can agree that "equality" is a good principle, but unless we discuss the specifics, we won

't surface areas of disagreement.

I think we agree on the idea of entrenching principles, and we agree that they should be used to guide both interpretation of existing content and the addition of new content. Elements of the constitution that are inconsistent with the entrenched principles would be, in effect, invalidated by the courts because they would have to be interpreted in a manner consistent with the principles.

Yes we agree here.

The courts and the public have different roles in this context, but both must consider the entrenched principles. The courts use the entrenched principles to interpret existing content. The public uses the entrenched principles to make decisions regarding changing the content. It is not a "one or the other" situation.

Nice idea but I don't really see any mechanism which forces the public to consider "entrenched principles to make decisions regarding changing the content.". The public indirectly influences content by picking elected officials. There is frequently little to no relation to the principles in their choice of elected officials. Frequently chrisima, and short term self-interest are stronger motivators than alignment to principles. For example, seniors may vote for representatives which give them a larger age-based tax deduction, regardless of any relation to a principle of equality.

[Sean Hayward]

There are health issues surrounding the consumption of alcohol or tobacco at a young age that I don't believe could be dealt with using any other test than age. Voting is similar. Would you allow children to vote? This is why I suggested a more general definition of equality, to allow interpretation to change over time.

Well, people can vote for anyone for any reason. You can't change that without undermining democracy. There is no way to ensure that political decisions are made in accordance with the fundamental principles, but entrenching those principles would provide general guidelines and a reference point for discussion.

[Renegade]

There are health issues surrounding the consumption of alcohol or tobacco at a young age that I don't believe could be dealt with using any other test than age.

Health issues exist around the consumption of alcohol or tobacco even at older ages. The question is when is an individual competent enough to make a choice that whatever benefit they may derive outweighs the health issues. I believe there are some people over the required age limit who are not competent to make that choice, just as I believe there are some under the limit who are. Age is a crude test for competency however it is a simple one to enforce. I believe if forced to, a different way would be found to determine a "competent" individual from an "incompetent" one.

Voting is similar. Would you allow children to vote?

I would allow anyone to vote who is qualified and competent. Some children may fall into that category.

This is why I suggested a more general definition of equality, to allow interpretation to change over time.

Since when pushed to specifics, we don't even agree on the definition of equality, why would you think an ambiguous definition would generate more agreement?

We live at the same "time" and we have different views on what equality is. The only way we can ever agree is to outline specifically what we mean. We decidedly should not put in an ambiguouss definition and hope that at some future time specifics and agreement materialize.

Well, people can vote for anyone for any reason. You can't change that without undermining democracy. There is no way to ensure that political decisions are made in accordance with the fundamental principles, but entrenching those principles would provide general guidelines and a reference point for discussion.

I highly doubt it. In virtually every politically campaign I have seen, the discussion centers around policies and implementation. Very rarely is there even a discussion of principles. Frankly, that is because the bulk of the population doesn't seem to care.

[Sean Hayward]

I think we would be hard pressed to find a test that would be effective in the alcohol and tobacco situation, other than age. Is there any test in particular that you have in mind? Using a competence test might work for voting, but it may have the side effect of disenfranchising many adults, which might be unacceptable to society.

A more general definition would generate agreement because it allows more room for interpretation on both an individual level and a societal level. Principles are meant to be general, so that they apply to all contexts. If we say that equality is a principle of Canada, we can all agree on that. But we are each allowed our own interpretations of what it means specifically, and we may contribute those interpretations in political debate.

[Renegade]

I think we would be hard pressed to find a test that would be effective in the alcohol and tobacco situation, other than age. Is there any test in particular that you have in mind? Using a competence test might work for voting, but it may have the side effect of disenfranchising many adults, which might be unacceptable to society.

Actually I don't see why a competence test is any less valid for alcohol or tabacco than for voting. In either case we are requiring the individual to make a significant decision. Why would you assume that they are capable of making an informed decison in one case but not the other. No, I don't have a specific test in mind. Society "accepts" what it is used to. I'm sure there was a time where anyone could drive a vehicle wihtout needing specific tests or qualificaitons, once society got used to testing and licensing, it came to "accept" it.

A more general definition would generate agreement because it allows more room for interpretation on both an individual level and a societal level. Principles are meant to be general, so that they apply to all contexts. If we say that equality is a principle of Canada, we can all agree on that. But we are each allowed our own interpretations of what it means specifically, and we may contribute those interpretations in political debate.

I couldn't disagree with you more. You are no longer talking about interpreting the same principle. If you don't identify specifics, people can have widely different "interpretations" of the same principle, making that principle useless for anything. If we don't agree on what "equality" is how do you expect us to agree that "equality" should be a principle we should embed? Would you personally sign a legal document which committed you to a vague principle without specifc understanding of what that principle meant? I sure wouldn't. Since we are talking about legal documents it would be foolhardy to embed deliberately vague language in the hope that it would be suffiicent guidance so that people agree.

Edited May 23, 2008 by Renegade

[Sean Hayward]

The point of using a general phrase for a principle is that it can accomodate similar positions under the banner of one principle. All reasonable people have a similar idea of what equality means, but, as we have seen here, exact definitions vary slightly. A more general definitions allows us the room to declare our allegiance to the same principle, but keep our own varying but similar interpretations. I would sign a legal document that included general definitions of principles, if those definitions were to be used only as an interpretive clause, which is what we're talking about here, and I agreed with the principles.

What you are saying seems to mean that you think that leaving any room for interpretation is dangerous. I think that it would be dangerous not to leave room for interpretation. Over time, the "legitimate grounds for discrimination" (ie. factors that equality doesn't apply to) are bound to change in society's interpretation. Today, most people see age as a legitimate grounds for discrimination. You obviously do not. If the specifics of equality were entrenched today using this society's interpretation, age would not be included. However, if we leave the definition general, then the specifics can change with society's interpretation, and perhaps age would no longer be considered legitimate grounds for discrimination in the future.

[Renegade]

The point of using a general phrase for a principle is that it can accomodate similar positions under the banner of one principle. All reasonable people have a similar idea of what equality means, but, as we have seen here, exact definitions vary slightly. A more general definitions allows us the room to declare our allegiance to the same principle, but keep our own varying but similar interpretations.

As they say "the devil is in the details". Reasonable think they have similar ideas on what a principle means until they delve into the details and find that they have radically different principles. I've given you the example that what is meant by the principle of "equality" for some people, can mean the equality of wealth. This is a radically different principle than the equality of oppportunity. While I understand your desire for room for interpretation, I believe that the room for interpretation for a general prinicple such as "equality" is so broad that it means that we are not talking about the same underlying principle.

I would sign a legal document that included general definitions of principles, if those definitions were to be used only as an interpretive clause, which is what we're talking about here, and I agreed with the principles.

As we have agreed before, the principles do not just guide interpretation, they guide what is permissable content. It wou it seem that you are far more willing to sign documents which are open to subjective intrepretation than I woudl be.

What you are saying seems to mean that you think that leaving any room for interpretation is dangerous. I think that it would be dangerous not to leave room for interpretation.

There is already sufficient room for interpretation. For example if age-based discrimmination is prohibited as a principle, a society would have to interpret which programs such as OAS are age-discrimmiatory or are not.

Over time, the "legitimate grounds for discrimination" (ie. factors that equality doesn't apply to) are bound to change in society's interpretation. Today, most people see age as a legitimate grounds for discrimination. You obviously do not.

The key here is "over time". What we are talking about is not "over time" it is at the moment of including the phase, there should be sufficient agreement on the details of the principle. If sufficient people see age as a legitimate grounds for discrimmination, and exclude it from the definiion of a priniple of equality, it would be fine because it still includes the specifics. (ie it is a deliberate omission).

BTW, it is interesting to me that most people would think that age is a legimite form of discrimmination, but would feel unjustly treated if they were rejected for employment because they were "too old".

If the specifics of equality were entrenched today using this society's interpretation, age would not be included. However, if we leave the definition general, then the specifics can change with society's interpretation, and perhaps age would no longer be considered legitimate grounds for discrimination in the future.

No if in the future society's idea of the principle of equality changes, then they should amend the principle not simply "interpret" it differently.

[Sean Hayward]

I don't think that equality of opportunity is radically different from equality of outcome. They are very different in the details, sure, but they both have their root in the same ideal of equality: the idea of a "level playing field" and a "fair deal" for all members of society.

We are only talking about an interpretive clause here, so all you would have to do to find out what the principle of equality means in the constitution is look at the content. There is a clear distinction to be made between the role of the principles and that of the content.

Principles would serve as a guide for both interpretation of existing content and what is permissable new content. In the "signing an agreement" analogy, the signee represents society. I, the signee, would sign an agreement with general principles because they would only be used as an interpretive clause, and, although general principles allow for more content to be considered permissable than specific principles, I would always control the content because I am the signee. When you sign an agreement like that, you don't have to be afraid of too general an interpretive clause because you also have control over the content itself. The same is true with society (the signee) and the constitution (the agreement).

Yes, what we are talking about must consider changes over time because a constitution must be flexible enough to last for a very long time, until it is replaced. A constitution cannot be just considered in the moment, without thought for the past or the future.

Regarding what you said about age discrimination, I find that some people who were the most vocal opponents of certain types of discrimination when it hurt them seem to suddenly become justifiers of the same type of discrimination when it benefits them. Take the example of racial minorities fighting for racial equality and then becoming advocates of affirmative action.

If a future society's interpretation of a principle changes, then they should amend the content of the constitution to better suit their new interpretation. A more gradual change occurs in the courts, where interpretation is constantly changing to reflect society's interpretation.

Edited May 25, 2008 by Sean Hayward

[Renegade]

I don't think that equality of opportunity is radically different from equality of outcome. They are very different in the details, sure, but they both have their root in the same ideal of equality: the idea of a "level playing field" and a "fair deal" for all members of society.

I disagree. We are talking about radically different principles. The difference is the root of the difference between capitalism and communism as ideologies. This goes far beyond interpretation.

We are only talking about an interpretive clause here, so all you would have to do to find out what the principle of equality means in the constitution is look at the content.

I thought we aqreed that principles determine content not visa versa. You have now said that to understand the principle you have to look at the content. This is a complete reversal. Principles should be independant of content. Content must align to principles.

There is a clear distinction to be made between the role of the principles and that of the content.

Of course. Which is why your statement "to find out what the principle of equality means in the constitution is look at the content." is puzzling and contradictory to previous discussions.

Principles would serve as a guide for both interpretation of existing content and what is permissable new content. In the "signing an agreement" analogy, the signee represents society. I, the signee, would sign an agreement with general principles because they would only be used as an interpretive clause, and, although general principles allow for more content to be considered permissable than specific principles, I would always control the content because I am the signee. When you sign an agreement like that, you don't have to be afraid of too general an interpretive clause because you also have control over the content itself. The same is true with society (the signee) and the constitution (the agreement).

That analogy may work if the "signee" was of one mind. However society is represented by a large variation in viewpoints. Because we have agreed that there should be varying degrees of consensus required to change different content, it makes a radical difference if the specficity is in the principles or in the content or in specfic laws. A principle should be harder to change (and require broader consensus) than content, which should be harder to change than laws. It makes a great deal of legal difference if the specficity on the areas of change are in one area vs the other.

Besides, if society was always of one mind, we probably wouldn't need documented and guaranteed principles and rights. It is precisely because society is not of one mind and there always is the possiblity for majorities to oppress minorities, that you need a charter of rights.

Yes, what we are talking about must consider changes over time because a constitution must be flexible enough to last for a very long time, until it is replaced. A constitution cannot be just considered in the moment, without thought for the past or the future.

Of course, which is exactly why we cannot embed abiguous principles which we each interpret differently.

Regarding what you said about age discrimination, I find that some people who were the most vocal opponents of certain types of discrimination when it hurt them seem to suddenly become justifiers of the same type of discrimination when it benefits them. Take the example of racial minorities fighting for racial equality and then becoming advocates of affirmative action.

I have found the same behaviour, so I very much agree with your assessment. Only by documenting a specific principle and making sure that all programs are consistent with this principle, can we elimninate this kind of contridictory positions.

If a future society's interpretation of a principle changes, then they should amend the content of the constitution to better suit their new interpretation. A more gradual change occurs in the courts, where interpretation is constantly changing to reflect society's interpretation.

I don't disagree, however by agreeing on what the specfics of the principle up front it reduces or eliminates the need for revisions due to multiple "interpretations"