Entries from November 1999

Canadas Reckless Supreme Court

David Frum November 15th, 1999 at 12:00 am Comments Off

Canadian Prime Minister Jean Chretien has just announced that Supreme Court Justice Beverley McLachlin will ascend to its chief justiceship next year. This promotion has been cheered, in Canada and beyond, as a heart-warming symbol of female progress. Mr. Chretien must be very pleased: By focusing attention on his new chief justice’s sex, he distracts attention from his judiciary’s destructive record.

On the very day the McLachlin appointment was unveiled, fishermen in the Atlantic provinces were cutting each other’s nets and edging toward racial violence as a result of a September Supreme Court decision that Indians need not observe the fish-conservation laws imposed on whites in an effort to preserve Canada’s depleted east-coast fishery.

The fish case was a mere coda to an even more explosive decision handed down last year by the Supreme Court, which held that Indian tribes were the presumptive owners of all the real estate in the huge Pacific-coast province of British Columbia. In 1998, the Supreme Court also decided — on the basis of no textual authority at all — that Canada would be obliged to negotiate a secession agreement with Quebec if the French-majority province voted to secede.

The public’s reaction to the Supreme Court’s attacks on the ideals of national unity and equal citizenship regardless of race have been almost unanimously hostile. The public has had more trouble figuring out how to cope with the courts’ rewriting of the law of the person and the family. In 1988, the court voided all restrictions on abortion. In a 1997 case that arose when the Manitoba child welfare agency tried to force a pregnant drug addict who had previously given birth to two brain-damaged babies into a drug-treatment program, the court flatly pronounced that: “The law of Canada does not recognize the unborn child as a legal person possessing rights.” In 1998, the court came within one vote of recognizing a constitutional right to euthanasia. Over the past decade it has effectively abolished the institution of marriage, first by forbidding provincial legislatures to distinguish in law between married and cohabiting couples, then by forbidding them to distinguish between heterosexual and homosexual cohabitors.

Americans should understand that in acting as it has, the Canadian Supreme Court is not pursuing some idiosyncratic path of its own. On the contrary, the authorities Canadian courts cite when they embark on their radical projects are almost always the gurus of American liberal legalism: Ronald Dworkin, Laurence Tribe, Catherine MacKinnon. Since 1982, when Pierre Trudeau grafted a justiciable Charter of Rights onto Canada’s 1867 Constitution, Canada’s courts have become for the legal left what Spain was for the Wehrmacht in the 1930s: a place to test the tanks and dive-bombers with which it intended to do even greater damage elsewhere.

Catherine MacKinnon observed with satisfaction in her 1993 book “Only Words” that while American courts still adhere to the “stupid” theory that the law must do justice, Canadian judges make use of the law to impose their visions of radical equality upon their recalcitrant society: “The Canadian interpretation [of constitutional rights] holds the law to promoting equality, projecting the law into a more equal future, rather than remaining rigidly neutral…”

Neutrality is a quality nobody would ascribe to the Canadian courts. For preferred litigants, like gay-rights groups, they have cheerfully rewritten the law, writing into the Constitution protections for sexual orientation that were discussed and rejected when the charter was adopted. But they have adamantly refused to do the same for the rights of property and contract that were also omitted in 1982.

What Prof. MacKinnon calls the “Canadian” interpretation is of course the interpretation only of a narrow and self-selecting group. The big Canadian electorate is turning steadily more conservative. Strongly right-of-center governments hold power in Ontario and Alberta and a third will almost certainly come to power in British Columbia after the election expected in 2001. Mr. Chretien’s Liberals, by contrast, won only 39% of the vote in the 1997 federal election, and hold their current three-seat majority in the 301-member House of Commons only by the grace of the splitting of the conservative vote between the soft-line Progressive Conservatives and the harder-line Reform.

But thanks to the increasingly activist courts, the Canadian political left has been able to leverage its dwindling strength in the country into a near-absolute hegemony over the country’s law. The nine members of the Supreme Court are appointed by the prime minister at his sole discretion. The same one man appoints every other senior judge in the country. Indeed, many of those prime ministerally chosen lower courts are even more radical than the top court: the Supreme Court of British Columbia earlier this year created a constitutional right to own and view child pornography. It is against this background that the news reports describing Beverley McLachlin as a “moderate” must be read.

Justice McLachlin was born in the tiny settlement of Pincher Creek, Alberta, in 1943. She joined the top court in 1989. In a press conference on Nov. 5, she sought to distinguish herself from her immediate predecessor, the very ideological Antonio Lamer, by subtly reminding Canadians that she had dissented from the catastrophic fishing-rights case: “I think,” she said, “it is essential to good judging that the rule be sensitive to consequences, and judges, when they make rulings, give some thought to how their rulings are going to fit into the institutional matrix of society.”

But if Mrs. McLachlin is to be considered a moderate, it is only by comparison to the extremists with whom she shares the bench. She voted in favor of every one of the racial preferences for native Canadians up to the fishing case. She belonged to the pro-euthanasia minority and to the “no rights for the unborn” majority. She has been one of the court’s most reliable anti-marriage votes.

The recklessness of Canada’s courts is a problem for Canadians of course. It is Canadians who must deal with the consequences of their new legal order: an out-of-wedlock birth rate now rising past 25%, the destabilization of land titles, the crackling tension between whites and indigenous people, the increased likelihood of Quebec separation, the devaluation of human life. But the lessons to be drawn from the Canadian experience are universal.

Judicial arrogance nearly as extreme as Canada’s has in the past afflicted in the U.S. and could well afflict it in the future. It’s not exactly true, as Mr. Dooley once quipped, that the Supreme Court follows the election returns. But those returns do make a difference, and Americans might want to keep that in mind over the next 12 months.

The Fall Of France

David Frum November 8th, 1999 at 12:00 am Comments Off

>The argument over gay marriage is gradually ceasing to be a
theoretical one. Over the past decade, Canada, Denmark, Greenland, Hungary,
Iceland, the Netherlands, Norway, and Sweden have created one form or another
of domestic-partnership arrangement for the benefit of homosexuals. On Oct. 13,
France joined the trend by enacting a law that confers the legal advantages of
marriage on cohabiting homosexuals. In doing so, it demonstrated in the most
spectacular way possible just what it is that opponents of gay marriage are so
worried about.

>What France has adopted actually and inevitably falls a
little short of full wedlock for homosexuals. Only the Scandinavian countries
have yet dared go that far, and they could do so only because of their peculiar
religious situation. The Danish, Norwegian, and Swedish established churches
are controlled by the state to a degree unmatched outside the old Communist
bloc. The government promotes ministers to bishops, allots the churches their
budgets, and even has power to legislate the contents of the prayerbook. When
Denmark became the first country on earth to adopt gay marriage in 1989, the
Danish Lutheran Church instantly knuckled under. The Norwegian Church acceded
to the Norwegian state in 1993, and the Swedish Church did the same in 1995.

>The French government possesses nothing like that sort of
power over the French Catholic Church. Nor are the French people as highly
secularized as the people of Scandinavia. So when the Socialist government of
Premier Lionel Jospin took up the subject of gay marriage two years ago, it
understood it had to tread warily. To apply the word “marriage,” with
all its sacramental associations, to a form of union condemned by Catholics
might provoke a dangerous political reaction. France’s increasingly numerous
and assertive Muslims would probably not like it much either. So rather than
confront religious sensibilities, the government-like those in the Netherlands
and Canada-decided to avoid conflict through euphemism.

>It would create a new legal status for homosexuals,
analogous to marriage, but not exactly the same, called a “civil
solidarity pact.” Couples linked in civil solidarity pacts would file
joint tax returns, receive all the welfare and employment benefits of spouses,
and enjoy the inheritance rights of husbands and wives. If a French citizen
entered a pact with a non-citizen, the non-citizen would become eligible for
citizenship in exactly the same way as the non-French husband or wife of a
French citizen. In order to qualify for all of these advantages, a couple would
need only to appear before a court clerk and sign on the dotted line. Either
partner could end the pact by providing three months’ notice in writing.

>Such pacts are obviously very convenient things, and it
rapidly became evident that one way to mitigate political opposition to them
was to make them available to just about everybody. After two years of
haggling, the benefits of the pacts have been extended to cohabiting
heterosexual couples, to widowed sisters living together, even to priests and
their housekeepers. The French have crafted a grand new alternative to
marriage, one that offers almost all of marriage’s legal benefits and imposes
many fewer of its legal obligations. Given French society’s already growing
distaste for the institution of marriage (about a million French heterosexual
couples live together unwed), there is every reason to expect the new pact
gradually to crowd out and replace marriage. It’s a familiar story in the
history of the evolution of law. Once upon a time, a contract became a contract
only if it was sealed with wax in an elaborate ceremony. Then courts began to
recognize less formal written and oral contracts as nearly equally binding, and
soon the old form disappeared.

>In this case, however, the disappearance of the old form
imposes consequences on innocent third parties: children. Already, 40 percent
of France’s children are born outside marriage. The cohabiting couples who have
these children may imagine that they are providing their children a home just
as stable as that provided by marriage, but they are deluding themselves. In
France, as everywhere else, the average cohabitational relationship lasts about
five years. Apologists for cohabitation praise it as a less burdensome
alternative to marriage; the truth is that it is a near-certain prelude to

>What has all this to do with gay marriage? Everything. The
argument over gay marriage is only incidentally and secondarily an argument
over gays. What it is first and fundamentally is an argument over marriage.
Unless a government is sufficiently powerful and disdainful of religion to
crush the objections of the local churches–and few governments are–gay
marriage will turn out in practice to mean the creation of an alternative form
of legal coupling that will be available to homosexuals and heterosexuals
alike. Gay marriage, as the French are vividly demonstrating, does not extend
marital rights; it abolishes marriage and puts a new, flimsier institution in
its place. Proponents of gay marriage freely borrow analogies from the
civil-rights movement. But we are not talking here about throwing open the
country club to people of all races; we are talking about bulldozing the
country club and building something entirely different in its place.

>The gay-marriage argument is only the latest round in an
argument over marriage and the family that began some 35 years ago. It pits
defenders of marriage against those who condemn it as stultifying and
oppressive. It pits the wishes of adults against the needs of children, the
urgings of the self against the obligations of family. As such, the argument is
a much more evenly matched battle than a gay-straight fight would ever be. The
battle has been lost in France and Scandinavia. It is well on the way to being
lost in Britain and Canada. And it is very much in danger of being lost in the
United States.


The Myth of Gop Isolationism

David Frum November 1st, 1999 at 12:00 am Comments Off

“A New Isolationism” — that is the motive that President Clinton attributed to the Republican senators who opposed his test-ban treaty. His slogan was echoed on the front page of The New York Times in a news analysis by R. W. Apple: “The Senate’s decisive rejection tonight of the Comprehensive Test Ban Treaty was the most explicit repudiation of a major international agreement in 80 years, and it further weakened the already shaky standing of the United States as a global moral leader.” Soon, a whole line of parrots was squawking the same refrain.

The weapons that the test-ban treaty would condemn to obsolescence exist principally to protect America’s allies. It might seem an audacious stunt for the people who want to weaken the defense of those allies to accuse those who want to continue to protect them of isolationism. But why not? For half a century, the word isolationism has been one of the most effective cudgels in the armory of Democratic political rhetoric. The journalists who write about national politics in the 1990s learned their history from books written by professors whose first political passion had been the ordeal of Woodrow Wilson and his League of Nations, and it is through the filter of that tendentious history that they understand the politics of the present.

Tom Wolfe describes in one of his essays a dispute with a left-wing German writer in the late 1960s. The German delivered an ominous warning: “The dark night of fascism is falling in the United States!” Wolfe replied that the dark night of fascism might be falling in the United States, but it seemed always to land in Germany. In the same way, while the Republican party is constantly in danger of succumbing to isolationism, it is the Democrats who consistently have succumbed.

What’s usually omitted from the League of Nations story is the detail that Henry Cabot Lodge, the leader of the Republicans in the Senate, had favored American intervention in the First World War almost from the firing of the first gun. Woodrow Wilson and his pacifist secretary of state, William Jennings Bryan, enraged Republicans by refusing even to prepare for war. Wilson won the 1916 election by warning that a vote for the Republicans was a vote for war. Even when he himself took the country into war a month after his second inauguration, Wilson worried the Republican leadership by his willingness to contemplate a compromise peace with Germany that would have left the Allies in the lurch. At Versailles, Wilson signed two treaties — both the well-known Versailles treaty, with its attached League of Nations covenant, and also a treaty by which the United States and Britain promised to defend France if she were again attacked by Germany. Lodge made it clear to Wilson that the Senate would ratify the guarantee to France; but when the Treaty of Versailles was voted down, Wilson held back the guarantee treaty, partly out of personal spite (a noticeable trait of America’s most overrated president) but also because he feared that making commitments to other countries outside the structure of his league would lead the United States . . . to intervene in European wars.

The foreign policy fights of 1919-20 thus did not principally pit interventionists against isolationists, although isolationists certainly were heard from. They pitted Republicans who trusted in American power against Democrats who trusted in treaties and moral force. Wilson’s league is described in the history books as a great lost opportunity to preserve the peace of Europe. But the league could only have preserved peace if it had controlled some effective military force — and Wilson opposed the creation of such a force more adamantly than anyone. Theodore Roosevelt, by contrast, who would certainly have won the Republican presidential nomination in 1920 had he lived, favored retaining the draft and maintaining the U.S. Navy at something approximating its wartime size.

One could reprise this story again and again. Genuine isolationism has from time to time flared up inside the Republican party, as it did in 1940-41. And the traditional Republican commitment to protectionism in the decade after World War I inflicted more damage on the world economy and world peace than outright isolationism ever could have. Nevertheless, through most of this century, the main constraint on American world leadership has been the aversion of the leaders of the Democratic party to recognizing that world leadership is founded on power, not moral example. This aversion slowed American rearmament in the late 1930s, because the same Progressives who supported Franklin Roosevelt’s domestic program were convinced that it was the greed of “merchants of death” that had provoked the 1914 war. And likewise, it was the Progressives’ fantasies of postwar friendship with the Soviet Union that accelerated America’s military build-down after 1945 and that slowed America’s response to Soviet aggression and espionage for three crucial years.

This unwillingness to shoulder the responsibilities of power has come to characterize the Democratic party more and more strongly over the past three decades. Nowhere can it be seen more sharply than in the fascination with arms control that has served many Democrats as a substitute for a foreign policy idea over the past three decades, but it is on display in many other areas as well: the bugout from Indochina, the hacking at the defense budget in the 1970s, the refusal to aid the opposition to the Nicaraguan Sandinistas in the 1980s, the vote of the large majority of congressional Democrats against the Gulf War in 1991.

Since 1993, the United States has been led by a Democratic president who thinks of himself as an internationalist. To his credit, Bill Clinton is a free trader — even if by now most of his party have become thoroughly protectionist. But Clinton shares his party’s proclivity for grand aspirations unbacked by force. From Haiti, through Somalia, to Iraq and Yugoslavia, this administration has again and again made commitments and threats it was never able to muster the resolve to honor or carry out.

The critique of the Clinton foreign policy has been written many times of course. And yet somehow, it never quite takes hold. The old trope of Republican isolationism and Democratic internationalism is always ready to spring to life again, despite its falsity about both past and present. The trope lies ready to use because it accords so neatly with the received ideas about the two parties that furnish most journalists’ minds. And it reminds us that until the Democratic partisan historiography that still fills America’s textbooks is replaced by a more independent and objective story of the nation’s past, Republicans will continue to be wrongfooted by ancient myths


David Frum November 1st, 1999 at 12:00 am Comments Off

>“Value-subtraction” was the term used by American
economists to describe the process by which factories in Communist Russia
combined leather, glue, and dye into shoes worth less than the raw materials
that had gone into them. The Cornell historian Michael Kammen seems to have
replicated that depressing achievement in the pages of his latest book. He has
chosen a fascinating and important topic, delved deeply into the existing
literature, borrowed some interesting ideas, and produced the intellectual
equivalent of a pair of Bulgarian evening pumps.

Kammen’s book is
not, in fact, a history of taste. It is a history of arguments about taste, and
especially the argument that erupted in Britain in the middle of the last
century and in the United States in the early years of this one over the fate
of high culture in an age of mass purchasing power. Would great art and
traditional handicrafts be submerged by plinky songs and mass-produced
vulgarities? Or could a bourgeois society find some way to preserve the
artistic ideal?

>In the 1930′s, according to Kammen, that argument became
subsumed in a slightly different one. Depression-vintage Marxists rejected the
old certainty that, culturally speaking, the lower classes were inherently
defective. In particular, what was regarded as the authentic culture of working
people–sea shanties, Shaker chairs, primitive paintings, quilts, Negro
spirituals–suddenly acquired immense prestige. If the Victorian Matthew Arnold
had worried whether culture could survive democracy, the Marxists of the 1930′s
introduced a fresh culprit: capitalism and, specifically, the mass
entertainment produced by those shiny new industries of the 1920′s–Hollywood,
the radio, and the book club. Variants of this Marxist argument, and variants
of the variants, survive to the present day.

>Kammen’s is a familiar story, told in a more than familiar
way, with few heroes but all the usual villains. He dutifully condemns as
reactionary and snobbish anyone who identifies with the Arnoldian tradition,
from Van Wyck Brooks in the 1920′s down to Hilton Kramer. Beyond that, however,
this is a book crammed with judgments that never add up to a thesis and with
facts that never constitute a coherent narrative. Periodic glimmers of an
original thought are as hastily stifled as a burglar’s flashlight.

>What went wrong? Like those Soviet factory managers, Kammen
is trapped within a corrupt and authoritarian system–in his case, American
academe–whose rules require him to ignore reality for the sake of ideology.
And the most salient piece of reality that Kammen neglects or is unable to come
to terms with is this: the steady reduction of standards and ambition in h/s
sector of American cultural life since 1950.

>When Michael Kammen joined the Cornell faculty in 1965, I
would wager that not one of his colleagues would have admitted to watching
television regularly or to liking rock and roll. Their tastes in art would have
conformed to the demanding modernist canon: in painting, Picasso; in sculpture,
Calder; in poetry, T. S. Eliot; in architecture, Louis Kahn. The thought of
reading one of the commercial novels recommended by the Book-of-the-Month club
would have made them shudder, and the suggestion that such books might be added
to an undergraduate reading list would have sounded in their ears like the
death knell of civilization.

>Absurd as the pretensions of yesteryear could be, they
still make a poignant contrast to those of today. Which of Kammen’s present
colleagues would hesitate to confess to watching Seinfeld? Or to enjoying the
Rolling Stones? The austerity of high modernism has given way to the ironic
celebration of Disney World. Professors who in 1965 would have scorned Irving
Wallace today not only read but assign Mice Walker.

>Kammen comments approvingly that since the 1960′s, educated
people have discovered they can enjoy popular culture. That is hardly a new
development. What is new is something that Kammen is still old-fashioned enough
to be shocked by: the academic discipline of cultural studies, which ascribes
deep intellectual interest to the once-reviled products of mass culture.

>When this field got going 30 years ago, it operated in a
spirit of suspicion and hostility: see how those evil corporations delude and
manipulate! But over the past three decades, suspicion and hostility gave way,
first, to an ironic appreciation of the products of mass culture, and then–as
old-style Marxism lost favor serially to the New Left, the counterculture, the
deconstructionists, and finally postmodernism–to something very like genuine

>Kammen describes how leading cultural-studies professors
now “find creativity in the act of consumption and emphasize the concept
of ‘appropriation’: selecting those aspects of media messages that are meaningful
to [consumers] and then ‘recycling’ to suit their own needs.” It is this
line of reasoning that has brought us doctoral dissertations on the novels of
Barbara Cartland and the semiotics of wrestling, and in time–who knows?–to
appreciations of Hooters restaurants, Jean-Claude van Damme movies, and the
aesthetics of pseudo-Georgian tract mansions.

>Although he repudiates the aesthetic nihilism of the
cultural-studies professors, Kammen offers no explanation of his reasons for
doing so, preferring instead ex-cathedra pronouncements of the “My own
position is more like that of Jones than that of Smith” variety. Aware
that in failing to appreciate the hermeneutics of soap operas he is heading out
onto a dangerous limb, he taps his way delicately. But he cannot quite smother
his feeling that high culture is listing badly in present-day America, or that
the sight grieves him. He even gives signs of glimpsing why it is in so much

<>The democratic ethos that some critics
had hoped for in the 1920′s and others demanded in the 1930′s finally became
actualized as a dominant view during the 1960′s. It became much less acceptable
to demean the taste of ordinary men and women. Parallel with that trend,
cultural critics of a populist persuasion began to insist that mass culture had
some attractive or redeeming aspects, and, moreover, that intellectuals had no
right to tell lowbrows what to like or dislike.

>As explanations go, that is not exactly right. Present-day
intellectuals are quite willing to tell lowbrows what to like; it is just that
they have kicked Milton and Dryden off the list and put Maya Angelou and Sylvia
Plath in their places. But Kammen has at least accurately identified
contemporary culture-bearers’ discomfort with the old notion of high standards,
even as he recoils from inching further along that limb. At one point, he notes
with incredulity that “as late as 1948, T.S. Eliot continued to assert
that culture, by which he really meant high culture, and ‘equalitarianism’
could not be reconciled.” But the reason Eliot continued to assert that
proposition was that it was true. There is, after all, no way to vindicate
cultural standards without acknowledging (a) that some artists have more talent
than others and (b) that some readers, listeners, and spectators have better
judgment than others.

>Kammen himself is constrained–almost–to admit as much.
“The sacralization of culture during the later 19th century,” he
writes cautiously, “may have been accompanied by an excess of cultural
authority–an undemocratic and therefore not a desirable situation. But the
marked decline of cultural authority during the later 20th century, a combined
consequence of corporate power and cultural democracy, may not be so entirely
desirable either.” And there he halts, for to go one step beyond “may
be” and “not so entirely desirable either” would plunge him off
his limb and into a thicket of dangerous taboos that he does not dare to break
or even to question.