Wednesday, February 08, 2012

So there

Mark Steyn, responding to some lover of the Canadian Charter of Rights and Freedoms and all the rights it grants....
“Rights” are not those things granted by the sovereign and enumerated in statute, but the precise opposite: They’re restraints upon the sovereign. They’re not about what the state allows you to do, but about what the state is not allowed to do to you.
Liberals like FDR, and statists everywhere, like Barry Hussein O. want constitutions to give people all sorts of benefits as entitlements. They say that the negative rights of the cranky hoary hard-to-read US Constitution do you no good if you can't properly feed, clothe, house yourself, get an education and a good job. My reply is that even if you have those things and you don't have the negative rights ...freedom from the state's controlling hands all over your life...then all you are is a well-treated slave.


Anonymous said...

Yeah, that's a re-emergence of the old Marxist including Nehruist dismissal of individual freedoms as meaningless "bourgeois rights."

The NYT seems to consider it right and good that the world's nations write new constitutions replacing their old ones every nineteen years. Like wow! That's a lot of freedom, eh?/huh?

The argument that bourgeois freedoms are meaningless if you're destitute maybe would have had some validity if central planning etc had provided the population with adequate food, clean water, clothing, medical care (immunizations vs childhood disease; clean hospitals for giving birth), etc.

But the abolition of individual freedoms for the sake of providing basic needs does not correlate with providing material prosperity or even basic needs. Abolishers of "bourgeois rights" don't treat their slaves well at all!

Sheer fancy that a paper charter can somehow coerce the economy into providing basic needs. That is a task of the economy, and the people working the economy, e.g. John Galt, whose reward is to be profits and the right to donate money to colleges in order to have buildings named in their honour, and to get invited to Davos etc.

Even crazier that a written charter can guarantee a rich cultural life, as by increased funding for the arts plus tourism -- even Ferdinand Céline didn't devise "ministries of culture and tourism"!

Politics and law can help the economy. (Some have allow'd that politics and law are superstructure socially constructed by the workers!) But in fact the tough work of legislation and executive function democracy's legislators and executives always wish to evade. For example, having un-elected judges impose busing for desegregation and the abolition of neighbourhood schools, so that anyone black or white who can afford to send their children and grandchildren to private schools wil do so.

But why should unelected judges have to bear the karma that belongs rightly to legislators and executives? Surely a written charter that dictates how stuff has to be imposed would be preferable for judges. The karma should be borne not by judges in their judicial review or discretion ("legislating from the bench") but by a set of written rules somehow entrench'd by the cunning of anonymous elites. Paper charters and anonymous elites should be the karmic fall guys!

Anonymous said...

I was reminded of this evasiveness when Supreme Court Justice Ginsburg was reported to have dismiss'd in a recent interview on Egypt's Arab Springtime television the long-standing American Constitution -- in preference for the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

But the Canadian Charter mentions God: »Whereas Canada is founded upon principles that recognize the supremacy of God and the rue of law« »Attendu que le Canada est fondé sur des principles qui reconnaissent la suprématie de Dieu et law primauté du droit«.

God and right -- Dieu et mon droit -- the ultimate karma bearers. The American Founders avoided bringing into the Constitution substantive considerations of that sort (as Jefferson discourses on in the Declaration).

Would Justice Ginsburg like the Supreme Court to decide matters of substantive right? I assume in contrast to "The Substance of Law: A Critique of Robert Bork’s Legal Theory” vol. 27#1 The Intercollegiate Review (Fall 1991), she was among the jurists, journalists and clergy who condemn'd Bork's proposal to limit courts to formalist or positivist considerations as if that is possible. (And it isn't: Bork never says "formalist" or "positivist" -- which are terms that like any terms must be substantively defined, and then we must hear what they substantive considerations are. He says he "can't think" what rights could derive from if not from "paper" which admittedly is susceptible of many pickwickian meanings, but he doesn't indicate any, and argues substantively for formalism -- using the Dred Scott decision, which was indeed legislating from the bench, to assert that thus all legislating from the bench is {substantively) unjust. But he couldn't have has such plausibleness arguing in the same way against the Miranda decision, which was also legislating from the bench but which has had results that "we" deem substantively just.

European law codes always wish to specify a formal rule for every conceivable situation -- wherefore the Codes become vast complexities. And even then they never succeed in abolishing the necessity of judicial consideration of substance -- an inevitability recognized by the ostensibly contemptible Anglo-Saxon system which requires judges to "find the law" via a consideration of substantive principles whenever case matter isn't sufficiently described by extant formal rules and statutes.

Anonymous said...

America has always had its formalists, who let on that because America has a "written" Constitution therefore it is an implicitly formalist, in contrast to the British Constitution, of which the Canadian Charter of Rights and Freedoms is part. (No federal, provincial or municipal government could use the famous notwithstanding clause to shut down newspapers for instance, or deny someone religious free exercise. Because of the broader Right of which the Charter is part.)

But if the Constitution is so sufficient for Right in America, why have all those judges and justices had to write explanations of their decisions? Nina Totenberg and Daniel Shorr taught all right-thinking Americans to have panic attacks during the Bork hearings at any imagined threat to stare decisis. (Except when stare decisis is overturn'd in the direction of better justice for all.)

And American amour-propre has never wish'd to insist that grand items such as the Magna Carta are not integral to American Right. ... In contast to the Code Napoléon, the Constitution did not set aside the standing tradition of English law in the new Republic.

Nehru's dictum that freedom of the press is meaningful only to the millionaire who owns a newspaper would have been useful, if at all believeable, for the authorities who wish'd to shut down the various arab springs, occupy wall street actions etc. Social media freedom is meaningful only for the owners of the social media, right? Therefore, government control of social media, as in China, would be a step in the direction of more real freedom for the world's destitute.

Yes, how meaningless freedom is when you're a member of the 99%! We may as well walk to northern Saskatchewan and volunteer for re-education by forced labour right now. Let's show some initiative and set up forced-labour agricultural collectives on our own! Why show internalized failure to understand the Frankfurt Skoo and just wait around until Justice Ginsburg issues a ukase directing us thither?

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