A First Fisking of the 2020 Constitution movement

Saturday, 09 April 2005

A First Fisking of the 2020 Constitution movement

Treason is defined as "a crime that undermines the offender's government." (Princeton)

The erection of a "constitution" which would annihilate the restrictions on government enshrined in our Constitution, in fact embracing the totalitarian control of a complete welfare state, oppressing the individual through the same parasitic burdens applied by tyrannies since time immemorial, is clearly an attempt to undermine the Government of the United States of America. It is the very epitome of treason.

Powerline posted the notes of a Yale Law School student present at the weekend's conference dedicated to the formation of a "progressive" constitution to topple our current one.

I will post the notes ad serratum with my fisking:

Sunstein:

--last time US NationalSecurity was threatened, Roosevelt gave greatest speech of 20th century

Roosevelt's speech came at the end of a three decade-long (The 1913 Federal Reserve act to his speech) failed experiment in Keynesian economics and government intervention which created a depression over 4 times longer than any in our nation's history. He had a communist spy (Alger Hiss) in his top cabinet, propounded an "economic bill of rights" that claimed people had a "right" to recreation, and gave Stalin millions of slaves as war reparations in the Yalta Agreements. Roosevelt only looks good because the evil he was fighting was the epitome of evil.

--with growth and change, political rights enshrined in Constitution are inadequate

Our Constitution limits the power of the government within a permitted sphere bounded by the equal freedom of all individuals. My right to life is synonymous with your restriction on killing me. My right to property is synonymous with your inability to rob me. Humans cannot survive under the threat of violence. It is by means of these restrictions on violence both within and outside the government, that humans may produce, plan, and enjoy what happiness they earn. As Bastiat said in Economic Harmonies, (I will garble him), "once the use of force is accepted, there are an infinite number of ways to apply it to mold the society to your image." What is the trend in political violence one era, will become obsolete by a new trend in political violence in another era. Only a government limited in its use of force will withstand the varied pressures tempting new (and not so new) attempts to mold society into the image of its would-be saviours.

In all of human history, not a single act of government force beyond the protection of life, liberty, and property, has achieved the results sought without negative results. In theory and in history, there is no justification for government intervention as a means of achieving the universally sought ends of peace and prosperity.

--need economic support to make personal freedom possible. Need economic bill of rights.

All rights depend on the right to life, and that is inextricably bound to the right of private property. The protection of private property by police, courts, and the military is the only basis of government which will achieve peace and prosperity. Every attempted alternative has led to famine, oppression, and pestilence.

Freedom is the absence of coercion. The only support I or anyone needs to be free, is a gun held to the head of the man who tries to rob or murder me and my family.

--ingredients of Second Bill of Rights-only with these rights will we have security. Link experience of nation in Great Depression with experience at the hands of fascist powers

Curious. John Maynard Keynes, the man who codified the spurious economics of prodigality which our government had embraced since the 1913 Federal Reserve act through Herbert Hoover's government intervention, said in 1936 that his economics could most efficiently be practiced in Nazi Germany. The practices embraced by Keynes and Roosevelt, price-controls, wage controls, limits on interest rates, inflation, subsidies, tariffs, etc, are all key features of fascism. Roosevelt's attempts to replace the plans of each individual with his own plans, may have been a small-scale form of fascism compared to his contemporaries, but the suffering produced is evidence that even a mini-fascist will drastically impact the well-being of a nation.

There are 24 hours in a day. Every minute a government spends on debating the proper curvature of bananas, the cubic capacity of toilets, and the amount of money taken from some to give to others, is one minute not spent protecting the rights to life, liberty, and property. A government limited as ours by the Constitution is forced to spend its time protecting rights, i.e. security.

--four footnotes: Roosevelt's emphasis on opportunity and security-long tradition of American political thought (back to Montesquieu)-states owe to every citizen a degree of subsistence

Montesquieu has been fisked enough by Bastiat in The Law. I will only point out that despite Roosevelt's intentions, his ideas led to a decade of poverty and suffering.

--Mont. aligned with John Locke, Lockean Proviso, James Madison, Thomas Jefferson, 40 acres and a mule, FDR

The juxtaposition of James Madison with FDR is sacrilegious and in a just society grounds for deportation to North Korea.

--2nd BoR made possible by attack on distinction between negative and positive rights-effort to separate them is unfit for the American legal framework --property is a creation of law-a positive right-creates affirmative guarantees. This is a matter of fact, not normative of value statement. Capitalist economy necessarily requires positive rights

The existence of "positive rights" destroys "negative rights." Freedom is the absence of coercion, and cannot be gained by selectively privileging some with the ability to coerce others.

Property is protected by law. It is created by Man.

--property rights could not exist without government protection. Individualism bolstered, not destroyed, by gov't intervention

A government is a small group of people to whom the rest of the population delegates the ability to use force in protecting their rights. Rather than us all going to Karate classes, buying guns and mace, we maximize our time and effort by letting a small group of people continually protect us. I could just as easily keep you from killing me with my own gun, but I'd rather have someone trained and prepared holding the gun.

"Individualism" can only have the meaning that the plans of individuals, so long as they do not coerce others, are expressed in a society, as opposed to "collectivism" in which the plans of one or a few are imposed by force on all. It is severe cognitive dissonance to claim that my plans are bolstered by a bureaucrat deciding for me.

--international impact of R's speech-influence universal declaration of human rights, constitutions throughout the world (including Iraq)

Roosevelt did not define Human Rights as the restrictions against coercion enforced against both governments and other individuals. His concept of rights was one of "positive rights," or the idea that my right to property must be "gained" at the expense of your own property. In the 19th century, you'd be gutted like a catfish for saying something that evil.

--Roosevelt attacking Constitution of 1910, 1920, 1930-thought this was terrible constitutional law. Did not favor return to narrowly construed judgments of those who drafted the Constitution

The Constitution by then had already been perverted by the purposely vague Sherman Antitrust law, the Federal Reserve Act, the 16th Amendment, and the Prohibition. Roosevelt did not attack the basis of these perversions, but the very principle that they rejected.

--Also eschewed perfectionism embodied by the Warren Court-seizing on ambiguous clauses to enumerate rights

Do I need to remind people that a poorly written law is an invitation for one's worst enemies to use it against you? If the law reads, "Don't kill," it doesn't matter if your worst enemy is in charge of that law. If the law has the word "fair" in it, then is it not obvious that it admits of interpretations that could express the worst intentions of your worst enemy? Even children understand that a badly worded command can be used against oneself!

--time for a Frankfurter revival-general deference to political process, evolutionary character of constitutional law, has a common law element to it --punchline: by 2020, it's going to be about time for the second bill of rights to be reclaimed in its nation of origin

Constitutional Law is not evolutionary. The principle that man requires freedom to survive has always been true, and will always be true. It is a fact of nature, and no amount of subjective "evolution" will permit a contrary law to work.

Ackerman:

--task of every generation is to create institutional structures which express fundamental liberal commitments

Wrong. The task of every generation is to adhere to the only order of society which can yield peace and prosperity, and that is one founded on individual rights, equal freedom, and private property. The idea of "creating new institutions" to enforce "new principles" is as ludicrous as if one said the task of every generation of mathematicians is to create new integers which express fundamental mathematical theorems.

--question is whether we should simply have our vision monopolized by second BoR or whether we have something new to add

No. The question is whether the will of each individual, bounded by the equal freedom of others, is expressed, or if the will of those writing the "second bill of rights" will be imposed on everyone else. Come near me with that and I will maul you.

--add "citizenship agenda" to Roosevelt's vision. Roosevelt concerned with vulnerability. Can we build liberalism for the active/dynamic in our society? How to do that? How to recreate notion of democratic citizenship that we have in common?

Which is more hospitable to change: a man who has a gun held against his head, or a man who is free to make mistakes and discover?

--first: idea of political citizenship. Has eroded (the draft, the political party)-design institutions that will allow us to assert interactive citizenship

The draft, the idea that one's life is the property of the government to dispose, does indeed decay the concept of government as the protector of the right to life. And historically, it is the liberals who overwhelmingly support this idea.

The political party in a society bounded by a Constitution defending individual rights, is literally unable to exert a tyrannical influence. Contrast that with any political party in a socialist nation.

--idea: $ for voting-give $ to whichever candidate people choose-this would encourage people to talk. We would have block parties to discuss this. "Patriot Dollars"

Every dollar the government gives must first be taken from someone else by taxes or inflation. What the hell is this guy talking about?

--people really are ignorant but are tremendously good learners-one day's discussion motivates ppl to find out things-causes 10 percentage point shift in opinion-national holiday called "Deliberation Day" two weeks before the election. This would force pols to redistribute sound bites-creates an interest for politicians to offer more.

"People really are ignorant." I will repeat that: this man said "people really are ignorant." Who, pray tell, will raise the people out of their "ignorance?" Their ignorance means they cannot be trusted to run their lives, what wise statesman will run their lives for them?

--economic citizenship-stakeholder society in which every young adult gets a form of citizen inheritance of $80,000 funded by a wealth tax of 2% over $450,000-every American citizen would have $80,000. This has been adopted by Tony Blair-every baby born in England now has this.

Every dollar the government gives must first have been taken away from someone else through either taxes or inflation. You figure out what that means.

--vision here is a citizenship agenda which crates a context in which people think of themselves as American citizens who have a real role shaping the agenda, talking about it, have a stake in America as a citizen-preliminary to rehabilitation of privileges of 14th Amendment which has never been redeemed.

As opposed to the current representative republic?

Note: the 14th Amendment defends rights. This little slip of the tongue indicates what this person thinks of "rights." They are "privileges" to be redeemed, and what is redeemed must first be given and can be revoked. Who will do that, do you think?

--fundamental task is to generate institutional structures to fortify the Progressive tradition.

The "Progressive tradition" as followed by Stalin, Mao, and Hitler, killed over 170 million humans in the last century. Keep that tradition to yourself, you neanderthal.

Sunstein:

--distinguish Constitution of 2020 as elaborated by Supreme Court from the nation's commitments in 2020 (social security, deliberation day, etc) from what would be good in 2020 which is less fundamental (more funding for Head Start)-helps to keep in mind these three different categories.

Three different categories? I must be stupid. All I see is three different implementations of the idea that one man has a right to my life.

--greatest moral failure of Bush administration was its neglect of multiple sides of insecurity-opportunity it really had post-9/11

"Multiple sides of insecurity" is meaningless. Unless Sunstein means our president's refusal to ground the terrorists into the ground meat they so richly deserve to become.

--opposing idea: citizenship. On the one hand, citizenship is inimical to personal security/private property

Let me get this straight. Possessing the protection of my life and property under a government is inimical to the protection of my life and property? Low-life camel sucking ingrate. Go live in North Korea.

--citizenship agenda contradicts security agenda --Earned income tax credit is great (as opposed to minimum wage)

This is also meaningless. What does "security agenda" mean if it involves violating the rights of everyone for the sake of "progressive ideas"?

--between now and 2020 emphasize security rather than citizenship

The Constitution protects my security against both people like you and terrorists. Get out of my face.

--another disagreement: no ambitious judicial elaboration of privileges and immunities clause-would be bad for people who need help, good for people who really don't.

Oh, privileges and immunities! The very essence of a society based on individual rights. Go live in Turkmenistan.

Ackerman:

--opportunity idea vs. safetynet idea-of course he's in favor of safety nets

One man's safety net is the dying opportunity of another man.

--wants REAL opportunity-that's what stakeholding is about

I assume he's the one holding the stakes.

--appeals to everybody as an American citizen-that's what Bush's ownership rhetoric suggests but we know the reality of it

I know that to the degree a society rejects private property, its "progressive" agenda can be measured by its number of mass graves.

--fundamental weakness of a market economy is the effort by the rich to pass on wealth to next generation-1% of people own 40% of wealth in this country --not against private inheritance, but for citizenship inheritance

Booga booga! You can take the money I will leave to my children from their cold dead hands, you neanderthal. So long as humans care for their children, they will provide for them. Notice that in "progressive nations," only the Party members have the ability to pass down money to their children.

--we need tools for citizenship-need common sites for conversation integrated into system

As opposed to frequent elections? Get fucked, ingrate.

--these are just exemplary proposals -
-idea of recapturing concept that national citizenship has privileges-we need to make this a reality-cure disenfranchisement for felons --court's elaboration of national citizenship will produce good policies

There can be no "privileges" in a society based on equal freedom as expressed in the Constitution. One man's privilege is another man's burden.

Sunstein:

--inexplicable power of Obama's speech at DNC Convention-why? Conception of common citizenship

"Inexplicable" is a good word. Obama's intentions may be noble, but his results are guaranteed to be the opposite of what he seeks. Why would sane people support policies which would lead to the exact opposite results sought? Oh...

--when an Arab-American's freedom is attack our liberty is under attacked-not red and blue states but United States --gives automatic identification to people we are tempted to think of as "others"

When those "others" believe they have religious justification for killing me and oppressing the women I know, I will classify them according to those criminal beliefs. I don't give a shit why a man wishes to kill me, and only in a society ordered on equal freedom is his motivation irrelevant.

--Justice Jackson: when we invoke the EP clause we broaden the class of people to whom barrier applies, political classes kick in-Lawrence is not about others, but about everyone.

I don't get the meaning of this.

--Obama was doing this psychologically by singling out bracketable others-we're all hurt when they're hurt

I am hurt when Zarqawi and other terrorists are hurt? Then I am a masochist. Tell the guys at Gitmo I really feel like having some salt pressed into the terrorists' wounds.

--national citizenship could have untoward results-forbids minimum wage law or maximum hour law-presence of a powerful view that has reached the White House that the real constitution has been lost-the pre-Roosevelt constitution. Roosevelt's conception is considered constitutionally troubling by the Bush administration

No. Equal freedom and the nature of reality forbids minimum wage and maximum hour laws. Interesting choice of words- Roosevelt did do more to pervert the Constitution than any other president.

--beauty of R's 2nd BR is its concreteness-right to education, etc

Only gotten at the expense of a poor teacher, and the even sorrier sap who is forced to pay him.

Ackerman:

--one great advantage of citizenship strategy is that it is national

Glittering generality. This is meaningless.

--idea of a national citizenship is powerful and underdeveloped legal resource

The Constitution's provisions for the equal freedom of all those who become citizen is an "underdeveloped legal resource"? What the hell is a legal resource?

--liberals-"we"-are at the Barry Goldwater point. Trying to figure out what progressive constitutionalism should mean for our time. Best we can hope for from SC in the short term is not an adventurous spirit. What constitutional vocabularies can be used/abused? Which ones really say something that is important for us?

I will suggest that your progressive constitutionalism be exported along with you to countries more hospitable to it. Go help the "ignorant people" of North Korea.

--all visions have dark sides as well. Obvious disadvantage of citizenship is non-citizens.

My vision of equal freedom only has a dark side for those who would violate my right to live my life as I wish so long as I hurt no other. What the hell does that second sentence mean?

--concrete stuff-well, public housing has failed. It's a mistake to declare the right to a home. Better way to do it is special purpose monies. Wallet of the future is a set of different monies-patriot dollars, health dollars-each with a different distributional value. Housing dollars is not good though. Too much black markets-people should be able to decide how much they'll allocate to housing, education, etc.

"It is a mistake to declare the right to a home." And then he goes on to advocate the "right" to the money of other people.

--social security is money too.

"Social security" is money taken from A to give to B, while B's child C is stuck with paying for both A and B when he gets a job.

--need to give each American a piece of the commonwealth

He is for private property? Oh, he just means "equal distribution"

--subsidizing students is to the disadvantage of people who are capable of operating without two degrees-these are the people we have lost to Republicans. Not the very poor, but the middle class, ordinary people

Subsidizing anyone is to the disadvantage of all those who must be leached in order to see the Law of Supply and Demand work to cause the exact opposite of the results sought by those who advocated the subsidies.

Sunstein:

--notion that every child should get $80,000 should not be part of literal constitution-judicially elaborated constitution --should also not be part our national commitments. Open to possibility that it might be good, but it has a bit of a Rube-Goldberg contraption-y quality to it

No. It has a bit of a Marxist-Stalinist quality to it. Go live in France.

--on the common cause, Sunstein is trying to say Roe should not be the symbol for progressive. They should think about Katzenbach v. Morgan, West Coast Hotel, awfulness of the ADA, Age Discrimination Act, SC should not have struck down VAWA or any affirmative action without giving thought to the 14th Amendment

Really? I thought the symbol of "progressive" was the monstrous pile of 170 million corpses accumulated in the attempt to achieve their goals.

--1st Amendment is becoming the place where laissez faire views are being constitutionalized-Justice Thomas says that commercial advertising should be treated as political speech. That is an astounding development.

Huh? The first amendment is open to no "evolution." You want a heirarchy of speech? Go live in North Korea.

--campaign finance is in constitutional jeopardy

As well it should be, if by "campaign finance" you mean laws which contradict the constitution.

--FCC is under constitutional assault by dozens of think-tanks and organizations. Want constitutional renovation in the image of the extreme wing of the Republican Party.

The FCC imposes regulations on speech. The First Amendment says "Congress shall make no law.." Case closed.

--1st Amendment should be seen historically and evaluatively, not as an embodiment of the University of Chicago's economics department

Odd. I always saw the First Amendment as the premier achievement of humans to recognize that survival relies on the freedom to think and to communicate. I did not know there were people who thought it was written for the sole benefit of Milt Friedman. Why, that would tickle any man!

Ackerman:

--we share the thought that the progressive vision of frameworks centers on the economy-needs to be constitutionalized in frameworks to make real the notion of a common citizenship.

Constitutionalize it! Meaningless.