Friday, July 27, 2012

Let Chick-Fil-A Open Up Shop in Boston, Chicago


In outraged response to fast-food outlet Chick-fil-A’s opposition to same-sex marriage, Boston Mayor Thomas M. Menino has publicly urged the company not to open an outlet near the city’s Freedom Walk. More recently, Chicago alderman Proco “Joe” Moreno has announced plans  to try to prevent Chick-fil-A from opening its second restaurant in the Windy City. This comes hard on the heels of the Jim Henson Company’s decision to end its erstwhile business partnership with the chicken-joint chain. As wrong as Chick-fil-A’s stance on gay rights is, efforts like those of Menino and Moreno are misguided and wrong. Governments should not be able to block anyone from doing business in a given jurisdiction simply for espousing the wrong viewpoints.

I should begin by emphasizing that the efforts of private individuals and organizations to boycott Chick-fil-A are quite legitimate. As other have already pointed out, the company’s right to free speech in no way trumps the right of its detractors to express their ire with its statements. The rest of us have every right to make our displeasure with the restaurant chain known by protesting against it—and by voluntarily withholding our dollars from it.

The company’s treatment at the hands of government, however, is a different story. As an assemblage of private citizens doing business together, Chick-fil-A has a right to express whatever views it wants, no matter how noxious or foolish they may be. Government, with its unparalleled coercive power and its constitutional duty to respect the freedom of speech, has no business penalizing private actors for uttering the wrong opinions. Speech, by itself, very rarely causes anyone the kind of harm that government can legitimately punish. Moreover, there is no right not to be offended by the propagation of ideas that one deplores.

Still again, giving government the power to chastise citizens in this manner sets a dangerous precedent in favor of censorship. Those who don’t mind such censorship when it is directed against their political adversaries should beware, for many can play at that game. Sympathizers of Mayor Menino and Alderman Moreno should ask themselves how they would react if, for instance, a Bible Belt town banished a company whose president committed the “offense,” not of actually performing abortions, but of merely speaking out in favor of abortion rights. Menino’s and Moreno’s threats smack of the same hypocrisy Nat Hentoff so adroitly identified as “Free Speech for Me—But Not For Thee.”

Alderman Moreno has dismissed free-speech concerns in this case, sniffing, “You have the right to say what you want to say, but zoning is not a right.” This is beside the point. If Chicago stops Chick-fil-A from doing business there in retaliation for company president Dan Cathy’s pronouncements, it is using its zoning power to punish the chain for exercising its’ owners’ and managers’ right to speak freely. Whether they have a general right to be zoned into that particular location is irrelevant. The issue is that the denial of a permit would be used as a penalty for unpopular speech. The penalty need not be a denial of a right in and of itself in order for its use to violate the freedom of speech. 

Ultimately, those who advocate such draconian state responses to unpopular speech are guilty (however unwittingly) of intellectual cowardice. If the anti-same-sex marriage position is so wrong—and I wholeheartedly agree that it is—then its opponents should not fear taking it on in free and open debate. Frankly, they should welcome every opportunity to expose the weakness of the arguments for it. By using government power to suppress and intimidate it, however, they only leave a (false) impression that advocates of marriage equality have no convincing arguments to make for it. They also fuel opposition to same-sex marriage by reinforcing social conservatives’ paranoid belief that their faith is somehow persecuted in America today.

It is bad enough when government chooses winners and losers in commercial markets. Doing so in the marketplace of ideas is inexcusable. Menino, Moreno and their ilk would do well to heed the words of the English poet John Milton: “Let [truth] and falsehood grapple; who ever knew truth put to the worse, in a free and open encounter?”

Saturday, May 26, 2012

The Kids Are Not All Right

I am fond of griping that Canadian politics always seem to become most interesting when I am out of the country. I was away at university in New Jersey when the wily Prime Minister of my childhood, Jean Chrétien, was supplanted by his restive deputy, Paul Martin; when the sponsorship scandal terminally weakened the Liberal Party’s grip on federal power; when Stephen Harper’s Conservatives won a minority government in 2006; and when the Tories finally won a majority, and the NDP supplanted the Liberals as Her Majesty’s Loyal Opposition, last year. (I was here, mind you, to witness the Opposition coalition power play of December 2008, but of course that died pathetically on the vine.)

Now, briefly back from my second year of law school, I hear that Quebec student unions have organized ongoing street protests and a province-wide “strike” in opposition to the five-year increase in university tuition fees advocated by Jean Charest’s Liberal government. To be clear, I slip the word “strike” into quotation marks because the very notion of students “striking” is rank silliness. It is typical of the fatuous thinking that is so commonplace on the hard Left. Strikes are for people who temporarily abandon their work posts in the compensated labor force to protest unfair pay or working conditions. Such actions directly impact economies in the short term, by hampering productivity and so on. University students accomplish no such thing when they play hooky from school. A truant is a truant, however politically motivated.

The mounting demonstrations have seen vandalism, attacks on bystanders and police and the deliberate disruption and obstruction of classes by some protestors. The movement has staked its claim on the grounds that during the Quiet Revolution, Quebec’s youth were promised that higher education would one day be completely free, and that the tuition hike will risk making higher education unaffordable for many of them.

As a young, politically motivated Quebecer, I totally reject the movement’s agenda, primarily because the proposed reform is an entirely reasonable one. It would increase annual university tuition from a mere $2,168 to a mere $3,793—and incrementally at that, over five years. At the end of that period, Quebec students would continue to pay the lowest tuition fees in all of Canada, as they currently do. As a practical matter, I am deeply skeptical of the claim that most Quebec students and their families truly cannot afford to pay less than $4,000 a year for university. Many of my former high schoolmates—most of whom were not wealthy by any definition—earned almost that much in a single summer of near-minimum-wage work. The fee increase will be introduced in $325 annual increments that amount to less than an extra $6.25 a week—about the price of a single drink at most of the pubs the protesters frequent. 

As a matter of principle, I do not think it at all unjust to expect students—and, again, their families—to shoulder no more than 17% of the cost of providing them with higher education. University is both expensive and valuable, a proposition from which students stand to gain immensely in their careers. It is only fair to expect the cost of post-secondary schooling to be borne at least in part by its primary beneficiaries. If some students truly cannot afford to pay under $4,000 a year, then the government should aim more of its education funding at them specifically. Indeed, the Charest Government has already planned to do just that, funneling bursary money toward lower-income families. Let affluent Quebecers shoulder more of the burden of educating their children. If they can pay heavier taxes than the rest of us due to their greater wealth, surely they can pay more to put them through university. Such means-based education funding is no more unjust than progressive taxation is.

I harbor similar doubts about the protesting students’ claim that the tuition hike will make university less accessible to them and their schoolmates. Young Quebecers are 12% less likely to go to university than their counterparts elsewhere in Canada at present, before the fee increase and while already paying the lowest tuition in the country. It seems that keeping higher education dirt-cheap is no guaranteed way to maximize participation in it. According to Ross Finnie and Richard Mueller of the Educational Policy Research Initiative at the University of Ottawa, cultural and psychological factors—such as familial and community expectations and students’ own career ambitions—have a far greater impact on the likelihood that youth will attend and complete university.

Had Charest proposed to hike tuition up to, say, $10,000 a year at one fell swoop, my perspective would be quite different. It would arguably have been unfair to expect Quebecers to adjust to that drastic an increase in the financial cost of attending university, especially had it not been gradually phased in. Of course, no Quebec government would ever have dared implement such a jarring change to a cherished social-democratic entitlement in this fabled land of “solidarité.” Instead, Charest has brought in a measured, reasonable and gradual change that is probably too modest to make a meaningful difference in Quebec’s sorry public finances as it is…and even this has prompted Quebec students to take to the streets!

Then again, let me be careful with my use of the term “Quebec students,” which risks leaving entirely the wrong impression. It appears that this movement is far from representative of the majority of university students across the province. Last month, for example, I read on The Globe and Mail’s website that only about 165,000 of the province’s more than 400,000 post-secondary students had gone on “strike.” Moreover, university faculties and student unions do not require unanimous consent when voting to strike, further diminishing the proportion of Quebec’s overall student body that ascertainably belongs to this movement.

At any rate, even if a clear majority of Quebec students do sympathize with the protestors, that still does not vindicate their stance. When taxpayers pull most of the weight of students’ tuition, elected representatives are within their rights to cut back on that assistance where necessary, in the name of fiscal health. It is understandable that this would irk many students, but their ire is still misguided. Whoever has the gold makes the rules; whoever foots the bill for one’s education has the power to call the shots, at least to some extent. Going to school on the government’s dime necessarily means giving up some freedom to determine one’s educational destiny to the state.

Student union leader Gabriel Nadeau-Dubois is on record as commenting that “the Charest Government seems to have a complicated relationship with democracy.” This was nonsense. No facet of public policy is—or should be—decided in the streets, where only the noisiest slice of the population will be able to make itself heard. Ultimately, the political process is the only channel through which dissenters should be able to thwart the government’s agenda, for that is the only place where the whole society is systematically represented. It is anything but democratic for a minority faction to use strikes (real or imagined), violence, and other such tactics to intimidate a duly elected government into changing course.

“We are not only fighting for our own little interests…[or] not to pay more to go to school,” Mr. Nadeau-Dubois told the CBC’s Mark Kelley in late May. “We are fighting because we think this government is making bad decisions for the future.” He averred that the movement had expanded to oppose “all the austerity measures that were put by the Charest Government in its last budgets.” Even if this is true, the streets are still no place for the province’s population as a whole to influence public policy. That policy is written in the National Assembly, where the legislators who vote for or against them represent the ridings where these student protestors live. The students should have taken their fight there from the start, making those MNAs—and especially Liberal backbenchers—fear for their seats if they did not change course. That is how change should be made in a democracy.

(Of course, such change would be easier to bring about if Canadian politics did not suffer from such stifling party discipline. Then the student activists could have lobbied Liberal backbenchers to break with the party line and vote against the tuition increase. Perhaps then the protestors would have felt less need to demonstrate in the streets…but let me end this digression. I’ve spilled enough ink on the subject of executive power and party discipline already.)

This is one reason why I mostly disagree with those who offer mealy-mouthed praise for the students’ motivation to participate in politics. Montreal Gazette columnist and humorist Josh Freed, for example, told Mark Kelley: “I’m like a lot of Quebecers; I sort of have some sympathy for the kids, because they’re showing some social conscience. For years, we’ve said, you know, students don’t get involved in anything; they’re selfish, they’re greedy, they look after themselves, they’re not socially engaged. In the last year, we’ve seen Occupy, we’ve seen this student rebellion…a lot of these kids think they’re changing the world. They might be misguided, but their hearts are in the right place.” To me, this is faint praise indeed.

To begin, I challenge portrayals of the students as purely selfless, altruistic and idealistic. Pace Mr. Nadeau-Dubois, they are marching mainly to keep their own costs down—i.e. to keep more money in their own pockets. In other words, they are largely—and ironically—motivated by the same self-interest that underpins the capitalist system that so many of them purportedly despise. Secondly, the students’ misunderstanding of free-speech principles and their attempts to circumvent the democratic process cancel out whatever “attaboys” they may have earned by becoming politically active. Thirdly, the old complaints about young peoples’ political apathy were always overstated in the first place. The “nuclear freeze” and anti-apartheid movements of the 1980s and the “anti-globalization” movement at the turn of the century are cases in point. (For the record, those were much better reasons for youth to take to the streets than a $1,700 tuition increase over five years.) The real apathy problem concerned young people’s reluctance to engage with the organized political party process and their preference for extra-legislative methods such as street protests. Clearly, today’s young Quebec activists have not exactly broken that mold.

The students have the right to make their displeasure with the government known publicly, of course. Yet nothing is more aggravating about this controversy than the students’ habit of decrying any police effort to quell their more disruptive tactics as violations of their free speech rights. The right to express oneself is not a license to prevent other students from going to school, to stop professors from teaching, or to block workers from going to work. Sabotaging the orderly conduct of business—the very activity that finances the students’ matriculation, the hard work of others on which they depend for their educations—is not protected by the Charter of Rights and Freedoms. Nor does Canada’s Constitution grant students the right to demonstrate anywhere or at any time that they please. Municipal authorities have the legitimate power to circumscribe the geographic range of the protests so that they do not prevent law-abiding citizens from going about their daily business.

Recognizing this, the Charest Government has introduced special legislation to bring an end to the disturbances. Bill 78, which is set to expire in July 2013, reportedly prohibits all demonstrations of more than 50 people unless participants first notify police of their locations and routes. It also bans demonstrations within 50 metres of the grounds of universities and CEGEPs in the province, and forbids education employees to strike in ways that stop students from attending classes. The passage of this law has had the predictable effect of fueling the demonstrations with a renewed sense of outrage. It has only strengthened the movement’s hand by further enabling its leaders to claim that they are standing up for fundamental freedoms against a repressive government. Most importantly—unlike the government’s previous approach to the protests and quite unlike the proposed reform itself—Bill 78 has raised legitimate civil-liberties concerns. The restrictions on the freedom to march are the most odious and the vesting of added powers in the police is highly troubling. Police officers are only human, and after months of often violent confrontations with wrongheaded youths, they cannot always be trusted to exercise this degree of power impartially or responsibly.

What, then, is a beleaguered Premier to do?

Charest could try taking a page from Margaret Thatcher’s book. She faced down a year-long coal miners’ strike in the mid-1980s that could have brought down her government—as labor unrest in the 1970s had mortally wounded previous British governments—and emerged victorious. She did so by stockpiling enormous reserves of coal and oil in advance to keep Britain’s economy moving once the strikers left their posts. She ordered police to restrain union picketers who often used violent tactics to try to prevent dissident miners from going to work. She forcefully denounced the strikers’ efforts to blackmail the British public by bringing the nation to a standstill in order to achieve their agenda.

Thatcher also wisely refrained from using excessively draconian methods that would have alienated both the miners who stayed at work and the public at large. She refused to take civil action against the miners’ union—which had called the strike without a national ballot of its members—so as not to alienate the working miners and other unions on whose support she depended. She intervened to stop the National Coal Board from forcing safety personnel to work in coal mines that had been closed, thus avoiding a parallel strike that would have been fatal to the government’s reforms. Last but not least, Thatcher hung tough for a solid year, staying the course in the face of stiff opposition from both the nation’s strongest union and a vast swath of public opinion that sympathized with the miners.

 It can only be hoped that Jean Charest will prove to have the Iron Lady’s guts—and guile. Bill 78 is an example of government overreach that risks backfiring spectacularly. Public opinion has recently shifted in the government’s favor; the latest CROP poll has roughly two-thirds of Quebecers supporting the tuition hike and three-fifths backing the government’s general position. Charest cannot afford to alienate this “silent majority.” While the aforementioned poll also indicates that many Quebecers also favor Bill 78, this support could easily dwindle following the inevitable constitutional challenges to the law in court. The government needs to maintain the high ground, defending law and order and Quebecers’ freedom to teach, study and work; it cannot risk appearing to trample on civil liberties.

Charest should continue to support the majority of Quebec students who have opted to complete their studies as normal. The police should continue to protect professors and students who want to carry on throughout the summer semester and into the autumn if need be. Universities should be given whatever resources they need to maintain the academic calendars for the 2012-2013 school year in their originally scheduled form, even with sharply reduced attendance. Any students who remain on “strike” should simply be given failing grades that will go on their academic records. Let these youth deal with the natural consequences of the tactics they have chosen to employ. Then we will see how willing they truly are to make sacrifices for the common good.

Finally, Charest must continue making his case to the public in order to solidify their support for the reform. He should make a televised address to all Quebecers to explain the reasons for the tuition increase, the reasonableness of it and the obstinacy of the student activists who oppose it. He should draw the line at his agreement to slow down the tuition hike and to provide more generous subsidies to lower-income students—and retreat no further. Now is the time to give the student unions a Hobson’s choice: take it or leave it.

If this fails to quell the disorder, Charest can cut this Gordian knot by taking the advice of the National Post’s Tasha Kheiriddin and calling a snap election. This would, of course, entail great risks, especially given Charest’s personal unpopularity with Quebec’s electorate, the upcoming Charbonneau Commission to investigate corruption in Quebec’s construction industry, and the fact that he would be seeking an unprecedented fourth consecutive mandate. Nonetheless, this would at least force the student leaders to take their case to the political process, where it belongs. It would also enable them to distance themselves from the violent agents provocateurs in their midst—and to surmount the obstacle of Liberal party discipline in the National Assembly.

Let Mr. Nadeau-Dubois and the rest campaign for political candidates who represent their agenda—or better yet, let them run for elected office themselves. Let the Parti Québécois demonstrate the real extent and sincerity of its professed support for the student unions. “Can we have a dialogue?” Mr. Nadeau-Dubois plaintively asks. “Can we have a social debate about how we finance our universities?” Yes, indeed, we can and should have that debate—in the halls of political power, not in the concrete jungle.

There is a bigger-picture issue at play here. This showdown is another facet of a burgeoning crisis that all industrialized nations will face in the years and decades to come. As birthrates decline and populations age, ever greater financial strain will afflict the social safety nets that were built on high ratios of taxpaying workers to elderly retirees. As public budgets worldwide groan under the weight of these and other increasingly unsustainable entitlements, more and more governments will cut back on their social commitments. This retrenchment of the welfare state will inevitably lead to disturbances of the social peace. Spendthrift governments will eventually reach breaking points at which creditors both foreign and domestic will refuse to lend them the money to finance cherished social programs. The cutbacks will come one way or another, and they will meet with fierce resistance from populations accustomed to leaning on government crutches.

To weather these storms, we will need to devise more efficient ways for states to fulfill their basic duties to their people. We will need to reform the welfare state in order to preserve it in some form. Efforts to do so will inevitably engender determined opposition. To overcome that opposition for the greater good, national leaders will have to acquire and hone skills of statecraft and persuasion—and muster a modicum of political courage.

Friday, August 12, 2011

Injudicious Activism

“‘Judicial activism’ in defence of liberty is no vice,” wrote political columnist David Harsanyi last February on the Web pages of the libertarian magazine Reason. In this, he is joined by legions of his sympathizers, who maintain that the judiciary should take the lead in downsizing the post-New Deal regulatory state and curtailing its purported violations of individual freedom. This libertarian case for judicial activism has been iterated with increasing frequency since the recent invalidation of the Patient Protection and Affordable Care Act on constitutional grounds this year, first by two federal district judges and most recently by the US Court of Appeals for the 11th Circuit. As the argument has it, the judges who ruled “Obamacare” unconstitutional either in whole or in part did not violate Americans’ democratic will as expressed by their elected representatives. Rather, they appropriately exercised judicial review to check an out-of-control government that had violated one constitutional right too many.

As a libertarian who would like to minimize government intrusion, coercion and confiscation as much as any other, I beg to differ.

For as long as I have known what the term means, I have deplored judicial activism in all its ideological stripes. I first became familiar with the term when I took a course in Constitutional Interpretation in college. I soon learned that no single political camp has monopolized the practice of fighting its battles, and imposing its agenda on the country, via the unelected branch of government. The Supreme Court of a century ago spent a generation obstructing the establishment of the welfare state, based on a “liberty of contract” that is nowhere to be found in the Constitution. The liberal mid-twentieth-century Court brought us other unenumerated rights like privacy in general and abortion in particular while temporarily striking down the death penalty. Through it all, each of the major political factions predictably cheered when its weltanschauung was gratified and bleated in protest when it was thwarted. I have always looked with disgust at this most salient of hypocrisies in American politics. Everyone is a judicial activist—when it suits him.

So I read my fellow libertarians’ defenses of this abuse of judicial review with great dismay, for several reasons. The first is the aforementioned disingenuousness. For instance, it seems to have become an article of faith among my co-ideologues that the Constitution protects the “liberty of contract” recognized by the Supreme Court in Lochner v. New York in 1905. This liberty, of course, is conspicuous by its absence from the text of the supreme law of the land; but no matter. According to the Ninth Amendment, “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Liberty of contract is one of those other rights “retained by the people,” so the Constitution protects it as well, even without mentioning it.

Were I still the confirmed leftist I was in my adolescence, I would look aghast at the havoc this would wreak on minimum-wage laws and sundry other regulations deemed necessary for society’s general welfare. My retort would not be long in coming. I would see the libertarians’ constitutional right to liberty of contract and raise them a constitutional entitlement to universal health care.” Neither of these “privileges or immunities” is explicitly mentioned in the Constitution; why read one into this venerable eighteenth-century parchment and not the other? Indeed, some liberal legal scholars have already advocated judicial recognition of such “constitutional welfare rights”—particularly Berkeley Law School professor Goodwin Liu.[1] Would libertarian boosters of judicial activism graciously acquiesce if the courts were to read such a government-expanding right into the Constitution? Quaestio respondet sibi.

At any rate, I have yet to make my peace with the idea of unenumerated constitutional rights. If rights left unmentioned by the document are as valid and enforceable as their textually entrenched cousins, why enumerate any of them at all? What is the larger purpose of putting those freedoms in writing in the first place? In my view, the point of doing so is to create an empirically verifiable, objective record of which rights are in fact protected by the Constitution—and which ones are not. Pace the Ninth Amendment, conjuring up brand-new rights and privileges and inserting them into an unamended text vitiates that purpose. For one thing, it is a veritable recipe for judicial overreach, since the courts have the last word on constitutional interpretation. It leaves judges free to run off half-cocked, reading into the Constitution whatever provisions they deem necessary. Why should any American politicos—liberals, conservatives, moderates or libertarians—trust unelected jurists to do the right thing at all times, when the latter need not fear being turfed out of office if they overstep?

For another thing, leaving the process of constitutional interpretation completely unmoored from the text would shield a literally infinite list of privileges against democratic majorities’ ability to abridge them. Those who believe that public policy should be broadly guided by the will of the people should think twice before endorsing this methodology. Is there no form of proactive governance that Americans should be free to implement? Are we to believe that most forms of government intervention are so odious that the Constitution should forbid them—no matter how much the American people might desire them? Yes, it is crucial that a democratic constitution protect certain rights and freedoms from the “tyranny of the majority” of which Tocqueville warned. It is equally crucial, however, that those fundamental freedoms be finite, lest the will of the people be not merely circumscribed, but completely emasculated.

This brings me to perhaps the most fundamental reason why libertarian judicial activism rubs me the wrong way. First of all, it insinuates that the Constitution is basically a libertarian document, just as liberal judicial activism treats the Constitution as though it were intrinsically liberal, and conservative judicial activism similarly mangles the document from the Right. These philosophical conceits offend the democratic spirit. For any constitution to play ideological favorites, tilting the public policy playing field in favor of one political camp at the others’ expense, would be almost self-evidently unjust. In a true democracy, opposing political visions ought to compete—vociferously, to be sure, but peacefully and equitably nonetheless—for the hearts and minds of the people. In this never-ending struggle, an authentically democratic constitution and the judges who interpret and enforce it are supposed to remain as neutral as possible, not take sides.

At any rate, I think it self-denigrating to suggest that our libertarian philosophy needs such constitutional coddling. Are our powers of persuasion really so feeble that we cannot win our countrymen over to our side? Many argue that “the people” are too easily misled and deceived to see the libertarian light, or perhaps simply too apathetic to follow it. This strikes me as a lame excuse for us to fold our kiosk in the marketplace of ideas. Moreover, it is disingenuous in the extreme for us to look with such contempt on the very people whom we mean to liberate.

I am a libertarian. I, too, wish to keep the government out of the people’s faces to the greatest extent possible—in all areas of human endeavor. Nonetheless, such matters are not, and should not be, the province of the Constitution or of the courts; that job should be left to the people’s elected representatives. I recognize that not everyone shares my convictions, and that other worldviews deserve to go a few rounds in the ring with mine. Rather than run after unelected judges’ apron-strings, I prefer to tackle my ideological opponents head-on and beat them fair and square. When government violates a right that the Constitution does explicitly protect, that is the time to take our fight to the courts. When the Constitution is silent about the freedoms we defend, our battle belongs in the court of public opinion. I believe in libertarianism—but I believe in democracy more.

[1] Goodwin Liu, “Rethinking Constitutional Welfare Rights,” 61 Stan. L. Rev. 203 (2008).

Sunday, December 20, 2009

Citizen Chen

I have always believed that the citizens of a free society should not be punished for acting, within reasonable bounds, to protect themselves or their property from criminals. When the police are able to deal with the robber or attacker in a timely and effective fashion, the job should indeed be left to them. When this is not the case, individuals who are able to bring the perpetrators to heel in a responsible manner should not flinch from doing so. Nor should the state penalize them for doing what needs to be done, which officers of the peace may be unable—or unwilling—to do.

As an ongoing travesty of justice in Toronto in shows, Canada’s criminal justice system would beg to differ.

It was last May that surveillance cameras at the Lucky Moose market in Toronto’s Chinatown captured a man stealing $60 worth of plants riding away with them on a bicycle. 51-year-old Anthony Bennett, a man with a petty crime rap sheet 33 years long, returned to the same store an hour later, presumably to help himself to some more merchandise. This time, however, he was confronted by the store’s owner, David Chen, and fled on foot. Mr. Chen and several store employees gave chase and caught Bennett, reportedly hog-tying him with twine and trapping him in a delivery truck until police arrived several minutes later.

What happened next boggles the mind and makes a mockery of the very concept of justice. For apprehending the thief and restraining him until the authorities showed up, Mr. Chen was charged by police with unlawful confinement, assault, concealing a weapon (he happened to be carrying a box-cutter at the time), and kidnapping. Worse still, the perpetrator, who was originally supposed to serve a 90-day jail sentence at the prosecution’s request, was able to finagle a mere 30-day bid out of negotiations with the court—in exchange for testifying against Mr. Chen.

I would love to be able to say that the Crown did the “decent” thing by dropping the kidnapping and concealed weapon charges several months later. Unfortunately, decency had little to do with it. For the most serious charge, that of kidnapping, Mr. Chen would have had to be tried before a jury, where he almost certainly would have been acquitted. At any rate, the Crown initially offered to drop the more severe charges if Mr. Chen would plead guilty to assault and unlawful confinement—an offer he promptly refused. This plea bargain suggests that Crown prosecutor Colleen Hepburn’s eventual decision to drop the aforementioned charges anyway was not made as a matter of conscience.

The legal case against Mr. Chen is that in Canada, such “citizen arrests” are lawful only when the perpetrator is in caught in the act of breaking the law. Since Chen ran Bennett down before the latter was able to filch any more goods upon his return to the market, the argument goes, what he did was illegal. Yet it appears that this is less clear than the Crown and its sympathizers would have it. According to University of Alberta criminal-law professor Sanjeev Anand, Canadian legal precedent permits such citizen arrests if there is reason to believe that the perpetrator has committed an indictable offence. The surveillance camera footage of Bennett’s initial theft gave Chen that reason.

Yet even if the Crown is right, Chen’s case raises an important normative question. Should Canada’s laws be amended, as Immigration Minister Jason Kenney recently mused, to protect this sort of citizen’s arrest from prosecution? I, for one, believe so, for I see nothing in Chen’s action that should be considered worthy of punishment under the law.

Did Chen and his employees truly “assault” Mr. Bennett in any meaningful sense of the word? I think not. They applied perfectly reasonable force in stopping him; they did not beat the stuffing out of him, as others would have done. Did they “take the law into their own hands”, as some have alleged? Hardly. They did not try to punish Bennett themselves, as real vigilantes do. They trussed him up—strictly to stop him from escaping—and turned him over to Toronto’s Finest at the first opportunity.

Some argue, as the Globe and Mail columnist Marcus Gee did last month, that Mr. Chen endangered himself in pursuing the larcenous Mr. Bennett. What if the perp had pulled a knife or a gun on him? This flimsy argument, however, is annoyingly paternalistic in its implications. If an individual is willing to risk life and limb to catch a fleeing thief, that is his business. The government should not punish him for doing so in order to shield him from the potential consequences of his own actions. Eyewitnesses who report violent crimes or rescue their victims, or who testify against criminals in court, potentially make themselves targets for the perpetrators’ reprisal as well. Are they to be prosecuted for that?

“In such an encounter, anything can happen,” wrote Mr. Gee. “That’s why we reserve the right of arrest mainly to police…Passions run high when people think they have right on their side, and things can easily get out of hand.” This, of course, overlooks the countless incidents in which things have spun far further out of control than they did in David Chen’s case, despite—and sometimes because of—police involvement. It also ignores the judiciousness Chen exercised by merely restraining Bennett until the police’s arrival. What’s more, since Bennett might have escaped had he not been caught, Mr. Chen, if anything, did the police a favor. Had he handled this situation by the book, calling 911 when he caught the thief without giving chase, Bennett could have made a clean getaway before the police arrived.

Can law-abiding citizens afford to depend so heavily on law enforcement for their safety? In a perfect world, in which cops are irreproachable angels who always arrive in time to collar the crooks, this would be the perfect approach. In the world we actually inhabit, however, that is too often not the case. To require citizens to wait for police to rescue them, even when the latter are unable to do so until it is too late, is nothing short of unjust. In some situations, that could cost a victim his or her life. This is one major reason why the law permits, for example, the use of violence in self-defense: because police are not always well positioned to take care of business. Case in point: as Chen and countless fellow shopkeepers—who have rallied to his defence—have pointed out, Toronto police generally give shoplifting cases short shrift. Store owners’ tax dollars, it would seem, are not so hard at work.

This case relates to the larger issue of whether restricting individuals’ ability to help stop crime discourages them from acting in cases where such courageous intervention could save lives. In the 1989 École Polytechnique massacre in Montreal, the men in a room commandeered by gunman Marc Lépine meekly obeyed his order to leave, allowing him to slaughter fourteen women left behind. Two summers ago, travelers in Western Canada fled a bus after one psychotic passenger savagely butchered another. (The RCMP, for their part, left the murderer alone on the bus for hours before boarding and arresting him, allowing him to decapitate and cannibalize his victim’s body.)

A little retaliation on bystanders’ part might have at least mitigated these tragedies. Consider, for instance, the shooting at Virginia’s Appalachian School of Law in 2002, when a disgruntled student shot six people, killing three, including a school dean. Two other students ran to their cars to retrieve handguns from their glove compartments and confronted and disarmed the shooter. Such bravery need not be expected of all citizens—most of us are not cut out for such impromptu combat—but it is not to be punished either. It is easy to imagine how laws that discourage that kind of intervention could infantilize and enfeeble the citizenry, enabling or exacerbating such crimes in the future.

The case of David Chen revives the age-old question of the proper relationship between the citizen and the state. Free men and women should not have to entrust any aspect of their destinies—their health, safety, prosperity etc.—to the agents of government so slavishly. In most cases, yes, the boys (and girls) in blue should be the ones to bring the bad guys to justice. Yet there are times when John Q. Citizen must do his part—beyond cooperating with investigations, serving on juries or testifying in court—to take a bite out of crime. This includes cases in which John Q.’s livelihood is violated by someone whom he can apprehend with minimal violence and without usurping the legitimate role of the police. Citizen Chen does not deserve to be put on trial. If anything, the rest of us should consider taking a page from his book.