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Bill of Rights Day festivities

I’ve been thinking for a while that I ought to start a feature leading up to the (upcoming) 5th anniversary of Geekery Today, called Dumb Things I’ve Said. The basic idea being that anyone who spends five years writing regularly on controversial topics is likely to change their views over time, and it’s better to spend your commemorative anniversary posts hammering out your own errors than clapping yourself on the back, because you’ve probably said things you later ended up thinking were pretty dumb. I’m no exception, and what I wrote a couple years ago in belated recognition of Bill of Rights Day is a case in point. I doubt that I’ll actually start the feature, but that won’t keep me from ragging on myself for today, at least.

It’s been 214 years today — December 15th — since the first ten amendments, commonly known as the Bill of Rights, were scribbled onto the end of the United States Constitution by order of the several states and the Congress of the United States. Folks with too much time on their hands have dubbed it Bill of Rights Day and think you ought to celebrate the grand legacy of those ten amendments. A couple years ago, I took the opportunity of the 212th anniversary to sing the praises of the Bill of Rights, to bemoan the erosion of some of their traditional protections, and hope that a brighter day would dawn soon. It was a bunch of nonsense, and I should have known that it was at the time, but it took me a while to really see through the dust that the canonical fairy-tales about legal history kick up.

Not surprisingly, I had started doubting the usefulness of leaning on the Constitution when I became an anarchist. But old cognitive habits die hard, and it wasn’t until last year, when I really started reading about William Lloyd Garrison and the rest of the disunionist abolitionists, that I began to feel anti-constitutionalism in any serious way, and it was largely through the Garrisonians that I came to realize the importance of making your arguments from moral basics rather than from legal hermeneutics. Voting abolitionists, and even Lysander Spooner, insisted on twisting the Constitution every which way they could to avoid the conclusion that it was (1) a pro-slavery alliance, and thus (2) an objective force for evil, the covenant with Death and agreement with Hell that Garrison denounced. But as interesting as Spooner’s argument was, it was really Garrison that was right about the Constitution (as I think Spooner came to realize later in his career); the important thing wasn’t constitutionality, but justice, which is not subject to legislative fiat. The Garrisonians, because so many of them were fervently religious, talked about a higher law than the Constitution; that’s partly right, but in a sense it’s also a matter of a lower, more human law; any serious theory of justice has to start from our ordinary claims to justice and dignity, the kind of demands that we ordinarily address to our fellow human beings (don’t attack me without reason, don’t trash my stuff, mind your own business if it’s not hurting you) rather than the ritual incantations that you might utter before a Court (Eighth Amendment, Public Use Clause, penumbral right to privacy, blah blah blah).

But as of a couple years ago my recognition of all this was nowhere near complete, and so my half-complete anti-statism didn’t stop me from singing the Bill of Rights’ praises, piously hoping that other branches of government would force the Bush administration to stick more closely to it, and absurdly describing it as that good old parchment barricade against tyranny.

Well, the thing about parchment barricades is that they don’t hold up very well against pressure. (That’s why you usually want to make barricades out of mud or bricks, at a minimum.) Constitutions don’t protect liberty; people do. Or don’t, which is the legacy the Constitution of the United States leaves us with today. Whatever protections the Bill of Rights was supposed afford white male citizens from the federal government, and whoever those protections were supposed to be extended to in the present day, we have (just to pick a few arbitrarily-selected examples) the FBI spying on us in secret, increasingly arrogant and militant paramilitary police ([1], [2], [3], [4], [5]) occupying our cities, a rampaging global war machine, deliberate and systematic gutting of habeas corpus, and a Justice Department that seems to believe that it can threaten and arrest people for failing to comply with secret laws whose terms they refuse to disclose. Either the Bill of Rights permits this kind of abuse, in which case it does not deserve the praise of rational people, or it forbids it but is incapable of stopping it, in which case it is useless.

In either case, my whining that this sort of thing oversteps this or that clause is bloody well irrelevant; the problem with invading people’s lives with unwarranted searches and seizures, government-sponsored religious persecution, seizing guns, maintaining a standing war machine, inflicting cruel and unusual punishment, or rounding people up and throwing them in prison forever without charges, is not that they’re unconstitutional; it’s that they’re evil. There may be cases where something is wrong just because it violates some bit of positive law — respect for human life demands that you drive on the side of the road other people drive on, but it’s a matter of arbitrary convention which side that should be — but these are certainly not that sort of case. The right to your own body, to self-defense, to your conscience, to peace and freedom, are prior to any law or compact, the only possible foundation for any just law or legitimate authority at all, and therefore not dependent on the Constitution saying one mumbling word about them.

Human rights don’t need to be written on scraps of paper to be worth defending, and wasting your time and energy wrangling over the right enchantments to invoke The Law on your side is a distraction and a sucker’s bet. I’ll take my rights. You can keep the bill.

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5 replies to Bill of Rights Day festivities Use a feed to Follow replies to this article · TrackBack URI

  1. Labyrus

    To me, documents such as the Bill of Rights or the French declaration of the Rights of Man represent a certain laudable spirit. While the idea that they represent, in and of themselves, safeguards against tyranny is absurd, they do provide a strong expression of the values of (the wealthy 16th century liberal conception of) freedom. The fact is, the America envisioned in the American constitution was never, ever a reality, but it’s a nice vision, and I think it’s important to remind patriotic thugs that personal autonomy has as much grounds to be called an American value as theocracy or militarism – it may not be a very good argument, but it is how a lot of statists think.

    I’m also not convinced that using the constitution in a real case of oppression is entirely a sucker’s bet (not to say that it isn’t in a great deal of cases). The court system can sometimes be used to restrain governments effectively. The institutions that comprise the state are not a monolith, and some can be used to accomplish good things (or at least, to some degree, restrain bad ones). In the long run, yes, it’s just a stopgap, but it’s better than no restraint on the government at all.

    You’re certainly justified in feeling a little sheepish about praising the Bill of Rights in the way you did, but I don’t think it’s entirely useless as something to lean on, until we have alternative social institutions to support us. Nonetheless, this post is good reminder that we can’t think of stopgap tactics as real solutions to problems.

  2. Discussed at greengabbro.net

    green gabbro:

    All I Haven’t Said

    Now that I’m safely curled up in my old room, time to take a whack at the ol’ pile of provocations: One Rad Geek on the Bill of Rights:

    The Garrisonians, because so many of them were fervently religious, talked about a higher law than the Constitu…

— 2006 —

  1. Rad Geek

    Labyrus:

    To me, documents such as the Bill of Rights or the French declaration of the Rights of Man represent a certain laudable spirit. While the idea that they represent, in and of themselves, safeguards against tyranny is absurd, they do provide a strong expression of the values of (the wealthy 16th century liberal conception of) freedom.

    I think that you need to pay attention to the details of what is being done with the text here. I agree with you about the Declaration of the Rights of Man, and the Declaration of Independence, but I don’t think that it extends to the Bill of Rights. Roughly, that’s because when people appeal to the American Declaration of Independence or the French Declaration of the Rights of Man they typically are appealing to them as expressions of independent truths. It’s not that these documents legislate the equality of all people or the rights to life, liberty, the pursuit of happiness, property, security, or resistance to oppression; it’s that they admirably recognize and proclaim rights that were already there. But when people appeal to the Bill of Rights they typically are appealing to it as a part of the effective U.S. Constitution, and thus as something that supposedly brings into existence certain limitations on the rightful powers of government. The first kind of speech act is indeed a noble expression. I think the second kind is little better than an ineffectual conjuring trick.

    (I think, incidentally, that this is connected with Garrison’s reasons for praising the Declaration of Independence while denouncing the Constitution in the most violent terms; the Declaration proclaimed what he thought of as the higher law of love and justice, whereas the Constitution aimed to supplant it.)

    I’m also not convinced that using the constitution in a real case of oppression is entirely a sucker’s bet (not to say that it isn’t in a great deal of cases). The court system can sometimes be used to restrain governments effectively.

    That’s fine. I have no beef with making tactical use of ritual incantations of the Bill of Rights (or anything else that might work) when you are defending yourself in court in a particular case.

    But we’re not in a court-room now, and most of the time that the Bill of Rights comes up in conversation, it’s not anywhere near an active case before the court. What I’m denying here is the relevance, or usefulness, of Constitutional hermeneutics in public debate (outside the courtroom), or in broader political strategy.

— 2007 —

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