Canadian History - Economic Inequalities?

[Sean Hayward]

I am not opposed to the idea of making principles clear, but I have a problem with your idea of making it so specific that it looks more like content than principles.

Yes, the principles preclude the content, I agree. But what you're saying is "if we don't make principles very specific, how do we know what they mean", and my answer is that you must look at the content. It's like if you read the introduction to a book and you aren't sure exactly what it means then you read the rest of the book for elaboration. That doesn't contradict anything I've said here previously.

Of course society is never of one mind, but, in the end, society must act together for the purposes of the law, including the supreme law (the constitution). It is all founded on societal consensus, and how we achieve that consensus.

The main problem I have with your proposed equality principle is that it codifies the forms of discrimination that are unacceptable. It is plainly evident, through a brief look at the past hundred years of Canadian history, that this is bound to change in society's interpretation. My concern is that you would be creating something that would not be flexible enough to allow the principles in the constitution to reflect the principles of society, which is their purpose.

[Renegade]

I am not opposed to the idea of making principles clear, but I have a problem with your idea of making it so specific that it looks more like content than principles.

I guess then we have a dfferent idea of what a principle is. I believe at each level the wording should be as clear and unambiguous as possible. (ie the principles should be clear and specific, the contents aka rights, should be clear and specfiic, and the laws which are derived should be clear an specific). I believe despite our best attempts at clarity, there will be cases which we have not thought of, where it will not be clear-cut. I believe it is in these borderline cases in which there is room for interpretation.

Yes, the principles preclude the content, I agree. But what you're saying is "if we don't make principles very specific, how do we know what they mean", and my answer is that you must look at the content. It's like if you read the introduction to a book and you aren't sure exactly what it means then you read the rest of the book for elaboration. That doesn't contradict anything I've said here previously.

It seems very backward to me. If you have to read a book to understand the introduction, it isn't really an introduction. Further, if the meaning of the introduction changes based upon the content of the book, it is even less worthwhile as an introduction. Given that principles play a much more important role in the document than a book introduction, I think we can't afford to look at principles that way.

Of course society is never of one mind, but, in the end, society must act together for the purposes of the law, including the supreme law (the constitution). It is all founded on societal consensus, and how we achieve that consensus.

I merely point it out, to show that you cannot directly corelate the example of an individual decision-making process and a society. Would an indvidual need a "charter of rights" to govern his own behaviour?

The main problem I have with your proposed equality principle is that it codifies the forms of discrimination that are unacceptable. It is plainly evident, through a brief look at the past hundred years of Canadian history, that this is bound to change in society's interpretation. My concern is that you would be creating something that would not be flexible enough to allow the principles in the constitution to reflect the principles of society, which is their purpose.

Of course it would codify the forms of discrimmination which are unacceptable. We cannot judge equality unless we know on what basis equality is judged. If society's principle and definition of equality change over time so should the document in which the principle is defined.

[Sean Hayward]

Yes, there will always be cases that we have not thought of, or that will change due to changing factors is society. This is why principles must be left general. I disagree with you that each 'level' of law should be equally specific. Think about what you're saying: if the principles of the constitution must be as specific as the content of the constitution, which must be as specific as the laws made under it, then each level would be exactly the same as the total of the subordinate level, and there would be no point in making a distinction between the levels.

No, you don't have to read the whole book to understand the introduction, but you might feel that the introduction is too general if you read it alone. The meaning of the introduction doesn't change from the content of the book, but it provides the specificity that you seek.

You introduced the "individual signing a document" analogy, not I. However, the fundamentals of contract apply to both situations, and demonstrate well my point that general interpretive clauses should not be feared because control over the content is maintained.

No, the forms of acceptable discrimination should not be in the principle itself, unless they are made sufficiently general so as to allow enough room for interpretation. The specifics of what forms of discrimination are acceptable should be in the content of the constitution. We have agreed that the principles should be more difficult to change than the content, so I think that this is a reasonable proposal.

[Renegade]

Yes, there will always be cases that we have not thought of, or that will change due to changing factors is society. This is why principles must be left general. I disagree with you that each 'level' of law should be equally specific. Think about what you're saying: if the principles of the constitution must be as specific as the content of the constitution, which must be as specific as the laws made under it, then each level would be exactly the same as the total of the subordinate level, and there would be no point in making a distinction between the levels.

I retract my use of the word "specific", it is not an accurate reflection of what I meant. What I mean is that each level should be clear and unambiguous. The distinction between levels should be in the detail provided.

You introduced the "individual signing a document" analogy, not I. However, the fundamentals of contract apply to both situations, and demonstrate well my point that general interpretive clauses should not be feared because control over the content is maintained.

I use the analogy because IMV no sensible person should sign a legal document which is ambigous and can be interpreted in unintented ways. I understand your point about the varing levels of detail in the document. However, IMV, content supported by vague principles make those principles useless.

No, the forms of acceptable discrimination should not be in the principle itself, unless they are made sufficiently general so as to allow enough room for interpretation. The specifics of what forms of discrimination are acceptable should be in the content of the constitution. We have agreed that the principles should be more difficult to change than the content, so I think that this is a reasonable proposal.

I would be fine to not include the acceptable or unacceptable forms of discrimmination if there were another clear way of describing the principle. Since you and I and perhaps others mean very different things when we invoke "equality" I don't see another way of describing clearly what is meant other than defining how equality is measured.

[Sean Hayward]

We agree then, that all law should be clear and unambiguous and that each 'level' of law should differ from the others in its degree of detail.

I am not arguing for vague principles. I am arguing for principles that do not codify specifics, so that they remain sufficiently flexible to change in their interpretation as society changes. The purpose of these principles is to provide an interpretive clause for the constitution, and to provide an inspirational text that represents the principles of Canada. In this role, general principles will function well.

This is a major step forward, that we now agree that including the specifics (forms of discrimination, etc) is not a good idea. I do not believe that you and I vary greatly on our definition of equality, nor do I believe that Canadians in general do either. The phrase that I would suggest is: "The Constitution of Canada shall be interpreted in a manner consistent with the recognition of the basic equality of each individual".

[Renegade]

The phrase that I would suggest is: "The Constitution of Canada shall be interpreted in a manner consistent with the recognition of the basic equality of each individual".

The issue I have with the principle as phrased above is that it is still ambiguous. There isn't the clarity unless "equality" is defined.

Further indiviuals are obviously not equal by almost any measure. Recognizing the "basic equality of each individual", acknowledges something which has no factual basis. The principle should not acknowledge that individuals are equal, instead it should acknowledge that individuals deserve equal treatment.

Edited June 2, 2008 by Renegade

[Sean Hayward]

Alright, then what phrase would you propose? I feel that recognizing "the basic equality of each individual" is as clearly worded as possible without compromising my belief that specifics should not be included. However, I am open to your suggestions. Other principles would be included as well, such as democracy and freedom.

[Renegade]

Alright, then what phrase would you propose? I feel that recognizing "the basic equality of each individual" is as clearly worded as possible without compromising my belief that specifics should not be included. However, I am open to your suggestions. Other principles would be included as well, such as democracy and freedom.

As I've said before:

I would be fine to not include the acceptable or unacceptable forms of discrimmination if there were another clear way of describing the principle. Since you and I and perhaps others mean very different things when we invoke "equality" I don't see another way of describing clearly what is meant other than defining how equality is measured.

So unless a more precise definition of what equality is, and what specfic attributes are being compared to determine equality, it is not a principle I would agree to for inclusion.

Here's the thing, you seem fine to include ambigous language and trust that "society" will somehow deduce clarity. Who exactly is expected to generate this clarity? The elected government at the time, the people by referendum, the courts? IMV, the consititution is a legal document which defines behaviour which is protected and outllines the reason (principle) why this behviour is protected. Without a clear understanding of the meaning of the phrases, it is certainly not something I woudl be in favour of.

[Sean Hayward]

I am fine with including what you call ambiguous language, but only in an interpretive clause. Such clauses are not intended to be interpreted by themselves, and so it is not dangerous for them to be unspecific. The specifics should be contained in the content of the constitution, which is modified through the process of constitutional amendment, which can be done through elected representatives or referendums. The courts also play their role in the interpretation of the constitution, considering the content through the lens of the principles (the interpretive clauses).

Edited June 4, 2008 by Sean Hayward

[Renegade]

I am fine with including what you call ambiguous language, but only in an interpretive clause. Such clauses are not intended to be interpreted by themselves, and so it is not dangerous for them to be unspecific. The specifics should be contained in the content of the constitution, which is modified through the process of constitutional amendment, which can be done through elected representatives or referendums. The courts also play their role in the interpretation of the constitution, considering the content through the lens of the principles (the interpretive clauses).

We'll just have to disagree on that one.

WRT "economic rights", IMV according to my understanding, and consistent with other's definitions I have posted, it is clear to me that "economic rights" as you have defined them, fit neither the principle of natural rights nor equality. Since you provide no unambigous definiition of either principle I'm not sure how in your mind you can be confident that it does.

[Sean Hayward]

Well, even if we do not recognize economic rights in the constitution, the fact is that many of them have been adopted by various governments across Canada through laws and other policies. The Quebec Charter of Human Rights and Freedoms, for example, recognizes economic and social rights in provincial legislation. I believe strongly that economic rights do fit the principle of equality perfectly. However, that is my interpretation of equality and your interpretation is different. I can definetly provide an unambiguous definition of MY INTERPRETATION of equality, but I think that it is dangerous to include specifics in the principles of the constitution. I cannot provide an unambiguous definition of natural rights because it seems to me a very ambiguous concept: who decides what rights would exist without government?

[Renegade]

Well, even if we do not recognize economic rights in the constitution, the fact is that many of them have been adopted by various governments across Canada through laws and other policies. The Quebec Charter of Human Rights and Freedoms, for example, recognizes economic and social rights in provincial legislation. I believe strongly that economic rights do fit the principle of equality perfectly. However, that is my interpretation of equality and your interpretation is different. I can definetly provide an unambiguous definition of MY INTERPRETATION of equality, but I think that it is dangerous to include specifics in the principles of the constitution. I cannot provide an unambiguous definition of natural rights because it seems to me a very ambiguous concept: who decides what rights would exist without government?

So we come full circle don't we? I can't see how we can add principles to the constitution when the principles aren't defined clearly enough so that individuals can understand them and the implications of them. You've said before that you need consensus to add the principles to the consitution. I'm really not sure how you can expect to get that consensus without a specfic definition and an understanding of the principle.

I don't wish to rehash the earlier discussion of natural rights. I'm sure if you do some searching on the internet you will find quite a bit of detail on what makes a right a "natural right".

[Sean Hayward]

Yes, we have come full circle. We have made our positions clear and pursued the issue to the point of exhaustion.

Non-specific principles can and should be added to the Constitution of Canada as an interpretive clause. I believe that your fears about ambiguity on that matter are unfounded because the principles would only be in an interpretive clause, carrying no legal weight in and of themselves. Look at examples of interpretive clauses in other countries' constitutions if you don't believe me. The Preamble to the US Constitution, an interpretive clause, provides a series of ambiguous principles. They are widely supported by Americans, as they accomodate varying interpretations while providing a central phrase that all can accept and support.

I am sure that I would find a great deal of discussion on the internet and other places about what natural rights are, etc. I am also sure that I would find radically different concepts and variations of what constitutes a natural right. There is as much ambiguity in the concept of natural rights as there is in the concept of equality.

Edited June 5, 2008 by Sean Hayward

[Renegade]

Non-specific principles can and should be added to the Constitution of Canada as an interpretive clause. I believe that your fears about ambiguity on that matter are unfounded because the principles would only be in an interpretive clause, carrying no legal weight in and of themselves. Look at examples of interpretive clauses in other countries' constitutions if you don't believe me. The Preamble to the US Constitution, an interpretive clause, provides a series of ambiguous principles. They are widely supported by Americans, as they accomodate varying interpretations while providing a central phrase that all can accept and support.

The US Constitution preamble is as sadly lacking as is the Canadian charter. It is likely widely supported because no one truly would understand its implications.

Regardless, we are only talking about at a theoretical level. Regardless of if the specifics were in the "principles" section or were fully elaborated in the content, the principle of equality as I beleive it to be, mean that all people would be accorded equal treatment and a positive right such as economic rights would not fit that criteria.

I am sure that I would find a great deal of discussion on the internet and other places about what natural rights are, etc. I am also sure that I would find radically different concepts and variations of what constitutes a natural right. There is as much ambiguity in the concept of natural rights as there is in the concept of equality.

You willl only know if you actually do the research. If you do find radically different concepts and variations, I'd be interested in seeing them. To date what I have seen in "natural rights" has been pretty much consistent.

[Sean Hayward]

What are these unknown implications of the preamble to the US Constitution that you speak of? It has been in effect for over 200 years and it has not caused any of the problems that you say would be caused by an ambiguous interpretive clause. And I don't think many Americans would agree that it is "sadly lacking". Most Americans would tell you that it is an inspirational description of their national principles.

Yes, your interpretation of equality does not include economic rights. Mine does. That is the point of having principles without specifcs. We both believe in equality, but we have different interpretations of what exactly that means. The Constitution of Canada needs a set of principles that is able to accomodate varying but similar concepts.

I don't have the time to do an adequate job of researching the theories of natural rights, but I am sure that there would be quite a variety of interpretations if I did. To retrace our previous steps, who decides what rights would exist without government? It is absolutely impossible to develop an authoritative answer to that question.

Edited June 10, 2008 by Sean Hayward

[Renegade]

What are these unknown implications of the preamble to the US Constitution that you speak of? It has been in effect for over 200 years and it has not caused any of the problems that you say would be caused by an ambiguous interpretive clause. And I don't think many Americans would agree that it is "sadly lacking". Most Americans would tell you that it is an inspirational description of their national principles.

The preamble states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

What specificly does "promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity" mean? What are the implications? Many of the implications can be read many ways and are thus the nature of court battles. Hence I say the implications are unknown.

It is irrelevant if many Americans think that it is "sadly lacking". I doubt that many Americans have given much thought to the issue. I would venture that most Canadians do not think that the preamble for the Charter is "sadly lacking" though both you and I agree that it is.

Yes, your interpretation of equality does not include economic rights. Mine does. That is the point of having principles without specifcs. We both believe in equality, but we have different interpretations of what exactly that means. The Constitution of Canada needs a set of principles that is able to accomodate varying but similar concepts.

No what I'm pointing out is that they are not similar concepts at all. What they are is completely different concepts which go under the same name: "equality". If there is insufficient detail to explain the concept, then there is no way to tell if we are talking about the same principle or not. Simplying evoking the word "equality" invokes very different concepts among differnent people.

Look, your argument for vaugueness has been so that society can evolved its interpretation OVER TIME. What I am pointing out is that we don't agree on the meaning of the principle while looking at it AT THE SAME TIME. We both originate in the same society and are looking at the statement within roughly the same context. If we can't read the same statement and both agree on the meaning of the statement then there is in sufficient detail in the statement.

To retrace our previous steps, who decides what rights would exist without government? It is absolutely impossible to develop an authoritative answer to that question.

I guess it starts with a presumption. The presumption is that each individual controls himself and the products of his body. Rights can logically can be deduced from that presumption. If you dont' agree with that basic presumption, there is no authoritative way to derive those rights

[Sean Hayward]

The implications are known, and they are few. The purpose of an interpretive clause is to provide the courts with some frame of reference to interpret the content. They have no legal weight in and of themselves. I don't see where the unknown or dangerous implications are.

It is irrelevant what the people of a country think of their constitution? If that is your opinion, then I see the nature of our disagreement so much more clearly. Constitutions, and all laws, are not made in a vacuum, they are made in accordance with the realities in society.

If principles are to be put into the Constitution of Canada, they should not be specific in their wording, or they will be the same as content. What is the point of entrenching principles that are just carbon copies of certain elements of the content.

The passage of time is a major consideration in this debate because, as we have both agreed, these 'principles of the constitution' should remain constant or near-constant as the rest of the constitution, and, to a greater extent, other laws, changes with the will of society. Therefore, the principles must be flexible and fundamental enough to remain constant over a very long period of time. It is my opinion that these objectives are best achieved by leaving the principles in an ambiguous form.

Yes, but who defines the specifics of natural rights? Without government, I could kill, steal, enslave, etc. Does that make those things natural rights? The whole concept is a grey area, and it all appears very ambiguous to me.

[Renegade]

The implications are known, and they are few. The purpose of an interpretive clause is to provide the courts with some frame of reference to interpret the content. They have no legal weight in and of themselves. I don't see where the unknown or dangerous implications are.

Perhaps you can then explain what these "known" and "few" implications are. For example, does the "right" to bear arms, hinder or help to achieve the purpose of "insure domestic Tranquility, provide for the common defence..."?

It is irrelevant what the people of a country think of their constitution? If that is your opinion, then I see the nature of our disagreement so much more clearly. Constitutions, and all laws, are not made in a vacuum, they are made in accordance with the realities in society.

It is relevant what an informed public thinks. It is irrelevant what an uninformed public thinks. It is my opinion that he majority of the public are ill informed or simply don't care about constitutional matters.

If principles are to be put into the Constitution of Canada, they should not be specific in their wording, or they will be the same as content. What is the point of entrenching principles that are just carbon copies of certain elements of the content.

As I've said before the content is simply further detail which should be consistent with the principle. And the prinicple should be clear enough so that the content should be derived unambigously.

The passage of time is a major consideration in this debate because, as we have both agreed, these 'principles of the constitution' should remain constant or near-constant as the rest of the constitution, and, to a greater extent, other laws, changes with the will of society. Therefore, the principles must be flexible and fundamental enough to remain constant over a very long period of time. It is my opinion that these objectives are best achieved by leaving the principles in an ambiguous form.

You don't address the fact that because of ambigous wording, we simply don't agree on a principle (eg equality) regardless of the passage of time.

Yes, but who defines the specifics of natural rights? Without government, I could kill, steal, enslave, etc. Does that make those things natural rights? The whole concept is a grey area, and it all appears very ambiguous to me.

If you accept the presumption as I've outlined above want to discuss the specifics of how natural rights are derived from that presumption, I am happy to do so in a separate thread. If you could kill, steal, and eslave without also violating another individual's natural rights than you would have the "right" to do so. The nature of those acts makes it clear that those are not natural rights. The presumption I have outlined above also implies a presumption that others have the same rights as you.

[Sean Hayward]

The only legal implication of an interpretive clause is to assist the courts in their interpretation of the content. If the interpretive clause is ambiguous, that might make it less relevant for legal purposes, but it would certainly not make it dangerous. If ambiguity is the price that must be paid for an interpretive clause that will be able to remain constant in a changing society, then it is a price worth paying. The people, their representatives, and the courts must all interpret the principles in the constitutional process.

It is true that many people are uninformed or uninterested in these matters, but there are also many people, a significant group, that are informed and do care. It is their opinion that matters, and their opinions are expressed clearly enough to see.

The content is further detail that should be consistent with the principles, but the principles have to be unspecific, or ambiguous, so that they remain relevant to the whole of the content and are flexible enough to remain constant even when society, as it inevitably does, changes.

You are correct that the exact nature of the principle would not be described in an ambiguous principle, but that is the purpose of making it ambiguous, to leave the interpretation up to society and the courts. This provides a flexible interpretive clause that would remain constant, while the exact meaning changes over time, as society changes.

I do not want to discuss natural rights at this time, but I am trying to show you that it is a very ambiguous concept. According to your explanation, to kill is not a natural right becuase it violates another's natural rights. But isn't it a violation of a natural right to prevent someone from killing another, which they would be able to do if there was no government? If you allowed them to kill the other person, you would be violating the natural right to life, but if you prevented them, you would be violating the natural right to kill. That seems a very ambiguous concept to me.

Edited June 16, 2008 by Sean Hayward

[Renegade]

The only legal implication of an interpretive clause is to assist the courts in their interpretation of the content. If the interpretive clause is ambiguous, that might make it less relevant for legal purposes, but it would certainly not make it dangerous. If ambiguity is the price that must be paid for an interpretive clause that will be able to remain constant in a changing society, then it is a price worth paying. The people, their representatives, and the courts must all interpret the principles in the constitutional process.

I completely disagree. Frequently courts try and interpret what the constitution framers meant by a certain clause. That job is not aided by ambiguity. If clarity means that the principles must change when society's principles change, then so be it. It is far more important to understanding what we are agreeing to, than to be hesitant to add clarity because of some worry that in the future society's principles might change.

It is true that many people are uninformed or uninterested in these matters, but there are also many people, a significant group, that are informed and do care. It is their opinion that matters, and their opinions are expressed clearly enough to see.

I agree, but they are not the masses, they are the minority.

The content is further detail that should be consistent with the principles, but the principles have to be unspecific, or ambiguous, so that they remain relevant to the whole of the content and are flexible enough to remain constant even when society, as it inevitably does, changes.

You are correct that the exact nature of the principle would not be described in an ambiguous principle, but that is the purpose of making it ambiguous, to leave the interpretation up to society and the courts. This provides a flexible interpretive clause that would remain constant, while the exact meaning changes over time, as society changes.

Has this not been beaten to death? You want ambigous principles so society can intrepret it as it sees fit. I want specific principles so that it is clear what is being agreed to. Personally I think that ambigouty you seen undermines the purpose of having documents like the Charter of Rights which seeks to entrench rights without discretion of the society to take away those rights.

I do not want to discuss natural rights at this time, but I am trying to show you that it is a very ambiguous concept. According to your explanation, to kill is not a natural right becuase it violates another's natural rights. But isn't it a violation of a natural right to prevent someone from killing another, which they would be able to do if there was no government? If you allowed them to kill the other person, you would be violating the natural right to life, but if you prevented them, you would be violating the natural right to kill. That seems a very ambiguous concept to me.

Any ambigouty is only when rights clash and one has to take precednce. IMV the role of a document such as a Charter of rights is to define those individual rights and to determine how situations such as confilicts between sets of rights are resolved.

[Sean Hayward]

This debate is basically exhausted. If there is to be a defined set of principles enshrined in the Constitution of Canada, it should be in a form that allows interpretation to change as society changes. This may require ambiguity. If the principles are to be so specific that they must be updated regularly, then there is no point in putting in such a set of principles; we might as well just leave the constitution without a defined set of principles.

[Renegade]

This debate is basically exhausted. If there is to be a defined set of principles enshrined in the Constitution of Canada, it should be in a form that allows interpretation to change as society changes. This may require ambiguity. If the principles are to be so specific that they must be updated regularly, then there is no point in putting in such a set of principles; we might as well just leave the constitution without a defined set of principles.

I don't have a problem if the constitution must be updated because principles change. I happen to believe that the principles even when specfic, do not really change.

[Sean Hayward]

I don't see the point in entrenching principles if they have to be modified on a regular basis. Principles should remain constant and ambiguity may be required to allow for that. I think that the specifics of principles certainly do change, rapidly in some cases. Just look at the change in political situation during the last century.

Edited June 24, 2008 by Sean Hayward

[Renegade]

I don't see the point in entrenching principles if they have to be modified on a regular basis. Principles should remain constant and ambiguity may be required to allow for that. I think that the specifics of principles certainly do change, rapidly in some cases. Just look at the change in political situation during the last century.

I'm not sure if you can use Canada as an example as its constitutional documents are relatively recent.

If we use the US as an example, I don't think any of its principles have changed since inception. Perhaps you can be more specific on what you mean by a "regular basis". Is change every200 years or so frequent or infrequent by your standards?

[Sean Hayward]

Well, actually much of the Constitution of Canada consists of documents dating back as far as 1867, and even further if you include the Act of Settlement and the Royal Proclamation of 1763.

Yes, you have just agreed with what I've been arguing this whole time, in one sentence. The principles of the United States haven't changed since inception, but the interpretation of those principles has changed dramatically.

Change every 200 years is certainly not frequent by my standards. But a change in the text itself is far different from a change in interpretation. That is my point, that the principles ought to be flexible, or ambiguous, enough for significant changes in interpretation to occur without requiring changes in the constitutional text.