Category: Law

Posts about law-making, the courts, and legal concepts in general

Clinton, Trump, and the electoral college

Here’s an irony of the Trump election:

The electoral college was recommended by Alexander Hamilton, who argued in Federalist Paper 68 that: “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications”.

Of course, if the 2016 election had been conducted based on the winner of the popular vote getting the presidency then candidates, parties, and voters would all have behaved differently. You can’t take the results of a game played with one scoring formula, then project that the results would have been the same under different rules. Among other things, under a popular vote system both Democrats and Republicans would have worked harder to turn out the vote in uncompetitive states, and voters would probably have been more willing to cast a ballot in non-swing states. It’s impossible to say whether Trump would have done better or worse than under the electoral college, making the petition to have the electors choose Hilary Clinton instead misguided, at least insofar as they rely on the popular vote outcome as justification.

The “not in an eminent degree endowed” justification may be stronger, but it’s hard to argue that the members of the electoral college (or signers of the petition) are more capable of judging the question legitimately than voters following the system which the U.S. has in place for electing a president.

Radios

Carrying around and being close to transmitting radios makes me nervous.

They may be programmed to harm their owner from the outset, or reprogrammed by private hackers or government forces.

They are the means through which ubiquitous surveillance is maintained, alongside agreements and clandestine action against fixed-line phone and internet providers. Perhaps the most important rule for understanding computer, internet, and network security today is that your government is attacking you.

So… when I walk around with radios it stresses me out. That includes the cell network, WiFi, and Bluetooth radios in the ragged old iPhone4 which I sometimes carry. It includes the capable and sophisticated antennas in my laser-etched Macbook.

To an extent, it includes the increasingly inescapable RFID tags built into passports, credit cards, and bank cards.

I distrust the state.

I think the unprecedented ability of the state to track and permanently archive our conversations, movements, and financial transactions alters how we should feel about democracy, governance, and technology.

If you are evil, or curious, or a nationalistic defender of state authority, you need to start studying software defined radio.

In contrast, I find radios which can only receive comforting and anachronistic. “Radio” still means to a lot of people, a machine to receive and interpret data sent by radio frequencies. GPS receivers and radio clocks are good examples.

Writing my first book

Nothing about my PhD so far has been easy. As long-time readers may recall, my first comprehensive exam was only passed after two attempts and a lot of effort. The strike was painful, and has made me particularly question the quality of undergraduate education that U of T provides, in terms of class and tutorial sizes, the selection of professors, and support for and integration of teaching assistants into the learning process. I am now edging toward a formal research proposal for departmental approval and ethics review.

I originally wrote a longer document which talked more about methodology and many other things, but my supervisor encouraged me to write something more concise with the essential features of the proposed research project.

The plan now is to make sure the short document is a plausible nucleus for a successful PhD, including through a presentation to a brown bag lunch at the U of T Environmental Governance Lab on October 27th; to incorporate what has been left out in the older longer proposal; and to seek departmental and ethical approval before beginning first round remote interviews.

My supervisor has intelligently cautioned me about seeking too many critiques of these documents – a factor which has complicated and delayed my efforts so far, and which may be drawn from my experience as a civil servant. I have also been warned by Peter Russell that I am starting to write my thesis in the form of the proposal. So no comments please, unless they are strictly limited and focused on the process for making this proposal viable.

Treaty Alliance Against Tar Sands Expansion

This is a thoroughly intriguing development:

First Nations communities from Canada and the northern United States signed a treaty on Thursday to jointly fight proposals to build more pipelines to carry crude from Alberta’s oil sands, saying further development would damage the environment.

The treaty, signed in Montreal and Vancouver, came as the politics around pipelines have become increasingly sensitive in North America, with the U.S. Justice Department intervening last week to delay construction of a contentious pipeline in North Dakota.

The document itself calls “[t]he expansion of the Tar Sands… a truly monumental threat bearing down on all Indigenous Nations in Canada and beyond”.

The document identifies risks from pipeline spills, train derailments, and tanker accidents. On climate change, it identifies “effects that have already started to endanger our ways of life and which now threaten our very survival”. The document calls for signatories to “officially prohibit and to agree to collectively challenge and resist the use of our respective territories and coasts for the expansion of the production of Tar Sands, including for the transport of such expanded production, whether by pipeline, rail or tanker”

According to CBC News it has been signed by 50 aboriginal groups in North America, including the Standing Rock Sioux tribe which is resisting the Dakota Access Pipeline, as well as opponents of the Kinder Morgan Trans Mountain Pipeline and Energy East.

Related: Is environmentalist solidarity with indigenous peoples opportunistic?

Trudeau’s carbon pricing plan

Today Prime Minister Trudeau announced that the federal government will require all provinces to have a carbon price of at least $10 per tonne by 2018, rising in $10 increments to $50 per tonne in 2022. There’s a lot of politics at work here. The Alberta government says they will only accept the plan in exchange for an export pipeline, while climate activists emphasize that the whole point of a carbon price is to prevent such projects. Trudeau seems to think he has split the opposition in Parliament, and set up an approach that most Canadians will support:

Polls suggest there is overwhelming support for the idea of carbon pricing, and that many Canadians back the imposition of a national climate change target. Trudeau alluded to that generosity of spirit when he said Canadians are prepared to work together and follow through on the commitments to fighting climate change made in the Paris Agreement on climate change. But such good will has its limits.

Environmental groups rushed Monday to condemn the planned price as being too low to take a bite out of Canada’s emissions. Dale Marshall of Environmental Defence said the carbon price needs to rise at the same rate beyond 2022 — a point on which Trudeau was mute.

…

It’s a perfectly sound strategy, provided he forsakes his environmentalist allies. It is becoming clearer by the day, they are not going in the same direction as he is.

Trudeau needs to have the courage to tell Canadians that fossil fuels are on the way out as a source of jobs, tax revenue, and economic prosperity. Building new extraction and export projects is wholly at odds with the direction Canada and the world need to go. A price on carbon is a mechanism for discouraging fossil fuel projects, not an excuse for letting them proceed.

Consultation on elections in Canada

Parliament’s Special Committee on Electoral Reform is holding an online consultation about Canada’s electoral system. It covers issues including mandatory voting, voting machines, and possible changes to our electoral system.

People can submit written evidence, ask to appear before the committee, or complete an online consultation. The online consultation closes October 7th.

If you take part, I encourage you to tell the committee to reject online voting and any electronic voting machine that doesn’t produce paper records for voters to check and to be used in routine verification and re-counts. Without such hard copy records, the voting system would be terribly vulnerable to fraud.

Arms control and MIRVs

President George H.W. Bush followed up these arms control initiatives. In 1991, he signed the Strategic Arms Reduction Treaty (START I), which called for reducing the number of ICBMs and warheads on both sides; ICBMs were reduced to 1,600 and deployed warheads to 6,000. In January 1993, just before President Bush left office, he signed another Strategic Arms Reduction Treaty (START II), of enormous significance for strategic stability because it banned MIRVs on ICBMs. Considering the well-known theory that a MIRV might “invite” a surprise attack because of the economy-of-destruction of one attacking Soviet warhead taking out a US missile (still in its silo) armed with ten warheads, the ban on MIRVs was seen as enhancing strategic stability by eroding any incentive for an “out-of-the-blue” attack. Hence this treaty solved the problem that all the MX mobile-basing modes [including missiles on airplanes; trains; trucks; submerged on the continental shelf; or always moving between a huge number of shelters (p. 49-50)] of the past had eventually been judged incapable of solving. (Unfortunately, START II is no longer in effect. As I will discuss later, the Russians withdrew from the treaty and began building a new class of MIRVed ICBMs after the George W. Bush administration withdrew the United States from the ABM Treaty with the Russians.)

Perry, William. My Journey at the Nuclear Brink. Stanford Security Studies. 2015. p.72-3 (paperback)

Is environmentalist solidarity with Indigenous peoples opportunistic?

During the last few years, solidarity with Indigenous peoples has been a major area of emphasis for environmentalist, climate change activist, and anti-pipeline groups. In part, this seems to be based on the view that indigenous peoples have the strongest legal tools for blocking new fossil fuel projects, at least in Canada.

This raises the question of how genuine the support for Indigenous people really is. Do these environmental groups provide such support principally for the narrow (yet essential) purpose of avoiding catastrophic climate change? Is it somehow automatically the case that indigenous communities will choose low-carbon energy if given more power to influence political and economic choices? When Indigenous groups support fossil fuel development, for whatever reason, what is the appropriate response for those seeking to prevent catastrophic climate change? And even if the impulse to prevent catastrophic climate change is morally laudable, how should indigenous communities feel about being used as a means to that end?