07/29/2013 12:13 EDT | Updated 09/28/2013 05:12 EDT

You Don't Fight Nazis by Becoming a Nazi Yourself

Why is it so difficult for people to understand that you don't fight Nazism by becoming a Nazi yourself?

One of the crimes that the Nazis committed against European Jews in the 1930s and '40s was to legalize, or at least facilitate, the theft of Jewish property, merely because it was owned by people whom the Nazis despised for their religious beliefs.

Now, a Canadian court is being asked to adopt Nazi-like tactics: namely, to authorize the theft of property merely because it is slated to be delivered to an owner who is despised on the basis of ideology.

The property at stake is a collection of rare coins and artifacts belonging to the estate of Robert McCorkell (sometimes written McCorkill). He died in Saint John, New Brunswick in 2004 leaving a will which still has not been implemented. He bequeathed the coin collection -- with a likely net worth of $161,000 after debts of the estate are paid -- to a U.S. organization called the National Alliance.

Wikipedia describes the National Alliance as a "white nationalist, anti-semitic, and white separatist political organization." In short, they are neo-Nazis. As a Jew, I have no sympathy whatsoever with the National Alliance. They sound vile and loathsome to me.

However, they do not seem to have ever been designated by Canada a terrorist organization (here is Canada's current list), so it's perfectly legal for Canadians to give them gifts. The late Mr. McCorkell could certainly have given his coin collection to them without interference from anyone if he had done so while he was still alive.

And if that's the case, then he should be perfectly entitled to give a bequest to them upon his death.

But now that he's not around to defend his right to dispose of his private property as he sees fit, various interlopers have started circling, trying to wrest it away from its repugnant new (but legitimate) owner.

Recently, the deceased's sister Isabelle McCorkill applied for and received an ex parte injunction from a New Brunswick court preventing the coin collection from being sent out of the province. ("Ex parte" means that she didn't take the normal step of serving notice of her injunction request on the estate executor, so he was not able to come to court and oppose her request. Nice strategy, Isabelle.) However, the judge fixed July 31 for the case to return to court and no doubt the executor Fred Streed -- reportedly a U.S. resident -- has heard about the injunction by now and will send someone to court to uphold the will.

Meanwhile, others are planning to take action. The Centre for Israel and Jewish Affairs announced via an op-ed by their lawyer Richard Marceau in the National Post that they would seek intervener status and try to stop the gift, claiming that to allow money to flow into the coffers of the National Alliance would be "contrary to the principles of public policy."

A group called the Southern Poverty Law Center, located in Alabama, has hired an Ottawa lawyer to find out whether it can somehow stop the gift.

And even the Attorney General of New Brunswick has pondered whether it should do something to prevent the assets from leaving the province, although it recently announced that it will take a back seat now that the deceased's sister has stepped up to the plate.

But the Attorney General's spokesman, Dave MacLean, expressed the province's dilemma in a curious way: "The Attorney General has two fundamental constitutional obligations. The first is to uphold the rule of law, but the second, which is a little less clear to the public, is that the Attorney General must act in the public interest."

But there's no contradiction between the two. Surely upholding the rule of law is in the public interest. And how can it conceivably be in the public interest for the state -- or the court, which is an agent of the state -- to determine, based solely on the repugnance of an entity's views, that its legally acquired assets should be withheld from it? That's exactly what the Nazis did to European Jews in the 1930s and '40s. The Nazis reviled the Jews and their religion, and felt that their revulsion justified them in depriving Jews of their property.

This slope is as slippery as it gets. If the court can deprive the National Alliance of its bequest because it is "public policy" for loathsome groups not to get legacies, then why not allow the courts to intervene and prevent gifts from the living, too? And who gets to decide whether a group's ideology is sufficiently loathsome for the state to intervene? I suspect that there are many groups in Canada who detest the mission and values of my employer, the Canadian Constitution Foundation -- as, incidentally, I detest the mission and values of various other Canadian groups -- so would we each get to veto all gifts to the other? If not, who prevails?

This is the age-old dilemma of censorship. Once you grant the state the moral authority -- and the power -- to stamp out particular ideologies or beliefs, nobody is safe and nobody is free. Elections happen, different people take power, and suddenly the new regime is using the so-called "public interest" rationale to prevent people from sending money to the very groups (for instance, the Center for Israel and Jewish Affairs) that used the "public interest" argument against others under the old regime.

Nazism was evil not merely because it was anti-semitic, but also because it did not respect private property rights. A state that does not respect private property rights is evil like the Nazi state was, even though it may not be motivated by anti-semitism.