From: clamen@CS.CMU.EDU (Stewart Clamen)
Newsgroups: can.politics
Subject: Re: On Rights (was: On Exaggeration)
Date: 13 Apr 92 08:05:06 GMT
	<1992Mar31.161610.16051@bmerh2.bnr.ca>
	<1992Apr2.210836.24184@thunder.mcrcim.mcgill.edu>
	<1992Apr03.222023.24327@bmerh2.bnr.ca>
Reply-To: clamen+@CS.CMU.EDU
Distribution: can
Organization: School of Computer Science, Carnegie Mellon University


[ I apologize for the delay in responding here.  I'm sure everyone
 (other than robinc) have long given up on this thread. -- SMC] 

In article <1992Apr03.222023.24327@bmerh2.bnr.ca> robinc@bnr.ca (Robin Collins) writes:

   In article <1992Apr2.210836.24184@thunder.mcrcim.mcgill.edu> clamen+@CS.CMU.EDU writes:
   >  I (Frank) wrote:
   >   But what we are talking about here is the alteration of MY
   >   constitution such that some people will have different rights than
      others based on language, ethnicity or such definition.
   >Go take a look at it, much of what you decry is already there.
   >(Constitutional biluinualism, minority language education, etc.)

   There are things presently in the constitution that should be removed,
   in my opinion. (I already mentioned the notwithstanding clause, god.)
   When I defend MY constitution, I don't mean to suggest that the present
   one is palatable, only that it is MINE (and yours) and I care about
   what is in it and what goes in it.

   In terms of the two examples you give though: I would oppose two
   particular languages being made official FOR ALL TIME; if the
   demographics change, this would be unreasonable.  

If Canadians in the future feel that their constitution no longer
their vision, then they are free to change it.  That is why our
constitution includes directions on how to amend it.

   Minority language education (ie the right to it) is guaranteed to
   ALL citizens, not just to those citizens defined presently as
   minorities. In other words, it refers to anglos in Quebec, francos
   in Alberta, Greek-speakers in ....etc.  So I don't see that one as
   a problem.  IF HOWEVER, the Constitution said that only
   French-speakers had a right to do *X*, then we would have a problem
   and an unequal right.

Which constitution are you thinking about?  The one signed by 9
provinces and the federal government in 1982, or the one you hope
Canada will eventually have?  The copy of the 1982 document I have
only guarantees minority language education rights (both to have it
available, and to have it funded out of public funds where numbers
warrant) when those languages are English or French. [Charter of
Rights and Freedoms: Article 23]


   >What you say about the US Constitution is not true.  The American
   >constitution was never used to overturn the slavery of
   >African-Americans, neither did it grant women the right to vote.  Both
   >times, the constitution had to be AMENDED to grant those "new" rights.
   >Blasphemy against the Christian god was illegal until the turn of the
   >century in Massachusetts, and totally constitutional.  There are
   >constitutional authorities who believe that a state could have an
   >official religion.  There are states which still have laws against
   >homosexual acts, and the US constitution still lacks a "Equal Rights
   >Amendment" for women.  (Even our "flawed" constitution (your opinion)
   >has one of those.)  The US Constitution was an avant-garde document
   >when it first came out, but it is outdated today, in my opinion.


   I agree. I did not mean to suggest that constitutions should not be
   amended. I was defending however, the principles of the original
   Constitution and also the Bill of Rights that followed shortly
   afterwards (ie the first 10 amendments.)  Note also that with one
   exception, none of the amendments repeal other amendments (the
   exception refers to movement of liquor or something.)  I think you
   will find that the amendments generally complement the original
   document. They do not contradict it. Perhaps the amendment that
   says the President can only be elected to two terms is
   undemocratic. I would accept the repeal of that one.  But let's not
   split hairs here. How many of the major principles is abrogated by
   amendment?

The one (13th Amendment) which abolished slavery, which was previously
a State responsibility.  The existance of slaves is explicity
mentioned in earlier forms of the constitution, which stipulated that
a slave counted as 3/5 of a person for purposes of representation and
direct taxation.

The one (14th Amendment) which applied the Bill of Rights to the
states.  (Previously, they were restrictions on the federal government
only.)

The one (15th Amendment) which grants blacks the right to vote.
Voting rights were previously a state responsibility.

The one (19th Amendment) which grants women the right to vote.
Voting rights were previously a state responsibility.

And this doesn't even address the fact that since the 1940s, the Feds
(and the court) has interpreted "control over interstate commerce" to
allow the Feds to interfere in what was previously thought to be
exclusively state domains (eg. agriculture, food and drug regulation,
interstate crimes (kidnapping, certain gun controls)).

   >In any event, here is my interpretation about langauge rights and the
   >US Constitution.  As I am not a constitutional lawyer, accept my
   >analysis as an amateur's opinion:
   >You are correct in observing the US Constitution makes no mention of
   >language.  But all that means is that the legislative authority over
   >language issues is left to "The States and the People".  There is
   >nothing I can see that prevents a state from declaring English the
   >state official language (in fact, many have).  

   Don't get me wrong. I don't think declaring english or whatever is a 
   problem, except if minority rights are removed to do so. There will
   probably be a showdown on the issue of Spanish language in California
   or Florida one day. So if English was declared the only langauge for
   all time, I think this would be undemocratic. In that english is 
   demographically
   reasonable (where numbers warrant... and they do), it is not unfair.

What is this "for all time" stuff.  If a constitution has an amendment
procedure, no existing provision is "for all time".

   >Also, since Education
   >is a State power, a state can dictate the language of instruction to
   >the local educational boards (if present).  So, for instance,
   >California and New York currently require their local boards to
   >provide first-language Spanish instruction at the primary level where
   >numbers warrant. (*) These states could tomorrow decide to rescind
   >that order, or go farther, and require all local boards to teach in
   >English only, all without going against the US Constitution (although
   >it is possible that such acts would go against their own (state)
   >constitutions; I have no idea.) 

   Right, and that's fine.
   
   If however a state declared that Spanish was not permissible
   because the constitution said english only, and yet that state was
   majority spanish speaking.....you see my point?  That is why not
   putting the language in is probably safer than stating particular
   language(s). However bilingualism stated in Canada is acceptable
   ONLY if it is not immutable, or is restrictive in the sense of
   depriving other speakers of equal rights.

If the state were majority spanish speaking, it could alter its state
constitution and remove the "English only" clause.

I agree with your desire to not see other speakers' equal rights
restricted, but I again claim that you are being too orthodox.  Would
you be happier with a Quebec education policy that abolished all
minority-language public schools, so that EVERYONE (First Nations,
included?) would have to attend the same (French) public schools, then
one (such as the current Education law) which allows certain children
to attend certain public schools, while allowing anyone to attend
French-language public schools?

   >I am not against equal rights for everybody.  But I am also for equal
   >opportunity.  That's why I am for constitutional bilingualism.  

   In the present context, so am I.

Then what are we arguing about, precisely?

   >The
   >absense of such a provision would be discriminatory against the
   >Canadians who are linguistic minorities in their home provinces.  I am
   >against the provisions to Quebec's French Language Charter that

    Do you mean bilingualism or multilingualism?

Bilingualism.  I'm afraid that I am not any more progressive than the
current "Bilingualism/Multiculturalism" position of the Feds.

   The clause need not be there if it is specified that WHERE NUMBERS WARRANT,
   languages become official. Thus any language fits in, but just the two
   presently dominant. In terms of english/french, numbers warrant on the
   national scale rather than the regional scale. Obviously, regionally,
   the numbers are quite different.But even now, bilingual hiring IS regionally
   specific: In Alberta only 3% of public servants are bilingual; in Ottawa,
   I think it is about 25%; I would suspect that in Quebec City, the majority
   are french-speaking only.
   ANyway, I have said I don't have a problem with bilingualism. I have 
   a problem with unilingualism written in.

Ah, I think I've figured out what you see as the problem!  You're
afraid that Quebec will gain powers in the current round of
constitutional talks that will give it the power to pass laws like
Bill 178 without having to invoke the Notwithstanding clause.  Allow
me to let you in on a secret, if Quebec separates, it will be able to
pass laws like Bill 178 without the Notwithstanding clause also, and
all hope of Canadians allaying the assimilation fears of French Quebec
will be lost.  Which *political* option do you prefer, and which
option do you believe offers more freedom to Canada's linguistic (ie.
English/French) minorities? 

   >In a strange way, Bill 178 was a good thing for Canada.  The
   >Notwithstanding clause has now acquired a stigma that should prevent
   >it from being used indiscriminantly.  

   A bit of reverse thinking here?

Perhaps.  But I believe that the NWC is a good thing to have around,
but a thing that could be easily abused.

   >   One need not specifiy specific rights to anglophones or others in
   >   Quebec to preserve their interests. One need only define equal
   >   rights to all.  But you are wrong in suggesting that some of us
   >   simply condemn the NA in Quebec and the language law.  Some of us
   >   happen to be at the forefront of opposing bigotry in the rest of
   >   Canada as well. Some of us are actually consistent!
   >
   >Please explain how "equal rights for all" what would prevent Quebec
   >from denying funding to any minority language school in its domain, be
   >it English, Italian, Greek, Inuktituk, Hebrew, or Cree, when it felt
   >like it.  Explain how Quebec could be prevented from discontinuing
   >government service in English (a power it probably already has now).


    A very important point.
   One of the equal rights for all is the right of ALL to have minority
   language schools. Everyone should have that right. While you may be
   an english speaker now, and thus in a majority position, if english
   became a minority language, then the minority language provision would
   kick in. Am I clear on this? So one doesn't have to define which languages
   are in a minority position today. This may change in time anyway.

Sounds great.  Let's put that on the list of constitutional proposals,
but below the more pressing issues like: self-determination for the
First Nations, revamping the Senate, environmental protection, and
proportional representation for the Commons.  I can see it as part of
a plan of enshrining multiculturalism in the Constitution at some
point in the future.  

   And minority language rights may even be more generous than the
   term *where numbers warrant*, because it means all you need is the
   money from your language community to set up privately. Possibly
   where numbers warrant would refer more to public financing of your
   schools?  I don't know, I haven't really thought about the details.

Third language (ie. not English/French) schools already exist in a lot
of places.  I haven't heard of recent instances where such schools
were not recognized as legitimate by a provincial government.  Most of
such schools do not receive government support (although many Quebec
third-language schools do.  I cannot talk about other provinces.)
--
Stewart M. Clamen			Internet:    clamen@cs.cmu.edu
School of Computer Science		UUCP: 	     uunet!"clamen@cs.cmu.edu"
Carnegie Mellon University		Phone: 	     +1 412 268 2145
5000 Forbes Avenue			Fax:	     +1 412 268 5739
Pittsburgh, PA 15213-3890, USA
Newsgroups: can.politics