Liberty is them telling you, what you can do

[Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!)]

Liberalism and its battle with that pesky Constitution

Future tense, VIII: Enter totalitarian democracy

by Andrew C. McCarthy

On the difficulties of making law in the modern world.

"I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” The speaker was Associate Justice Ruth Bader Ginsburg of the United States Supreme Court. These, therefore, were astonishing words.

The authority over American law enjoyed by Justice Ginsburg and her colleagues on the Court owes solely to the existence of the U.S. Constitution, complemented by the high court’s proclamation that it has the last word on how that Constitution is to be construed. That latter power grab traces its roots back to Chief Justice John Marshall’s legendary 1803 opinion in Marbury v. Madison. Marshall “emphatically” declared it “the duty of the Judicial Department to say what the law is.” Despite naysayers from Jefferson to Lincoln, who thought that judicial supremacy would eviscerate popular sovereignty, Marshall’s assertion paved the way for the modern Court to claim even more boldly, in Cooper v. Aaron (1959) for instance, that judicial control over the Constitution’s meaning is a “permanent and indispensable feature of our constitutional system.”

In short, were there no Constitution, there would be precious little interest in Justice Ginsburg’s views. Yet, when she looks at this venerable source of her power—ratified in 1788 and, thus, as she explained, “the oldest written constitution still in force in the world”—she sees obsolescence. In its place, the Court’s senior progressive ideologue advised the assemblage of university students whom she was addressing to “look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, [and] had an independent judiciary.”

But wait. Let’s put aside the fact that no jurists in the world are more autonomous than the federal judges of the United States. Does not America’s fundamental law, with its robust Bill of Rights addendum, embrace basic human rights? Well, no. It embraces basic human freedoms. That makes all the difference.

Freedom is of minimal interest to progressives, certainly not freedom as is commonly understood: namely, the bedrock conceit that we are our own governors, autonomous over our own lives. To be clear, we are talking about freedom in a democracy, not an anarchy. In a rational social compact, freedom requires that we surrender a quantum of our independence to secure the nation and to honor the rudimentary norms of respect for life and property. If a free society is to flourish, nothing less than ordered liberty will do.

Alas, the “liberty” part of ordered liberty is not the concern of Justice Ginsburg and her fellow travelers. For them, the individual’s freedom is a relic of a bygone time, when life was simpler and dominated by sexist, slave-holding white men of a colonialist bent. The modern Left’s métier is rights, in the contemporary connotation: i.e., what you must give to me, with government handling both the confiscation and redistribution ends of the arrangement. In contrast to the traditional rights Justice Ginsburg finds so unrefined—to wit, the right to be free from government demands and the right to have government restricted to its expressly enumerated powers—the new rights cover everything from the mortgage arrears of spendthrifts for houses they could not afford to contraceptives for the sexual recreation of young women at nominally Catholic law schools.

On those sorts of “rights,” the U.S. Constitution never was much good. Better to go with South Africa or, as Ginsburg further recommended, the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights, and “all the constitution writing that has gone on since the end of World War II.”

What has actually gone on since the end of World War II is the rise of “totalitarian democracy,” to borrow the lapidary descriptor of the political scientist Jacob Leib Talmon. This is a form of “political Messianism” (another Talmon coinage) that must be distinguished from quaint old liberal democracy. Indeed, while the burden of this essay is to consider the place of the rule of law in an age of upheaval, it would be as apt to speak of the role of law. For what we will experience as “law” will be very different depending on which variety of democracy remains when the upheaval’s dust has settled.

The totalitarian democratic school, Talmon instructed, “is based upon the assumption of a sole and exclusive truth in politics.” Liberal democracy, by contrast, “assumes politics to be a matter of trial and error.” It takes human beings as basically good but incorrigibly fallible, and sees their political systems as just another pragmatic contrivance in lives that for the most part are lived “altogether outside the sphere of politics.” To the contrary, the avatars of totalitarian democracy maintain that they have arrived at a sole and exclusive truth. Consequently, the personal becomes the political. The car you drive, the clothes you wear, and the movies you watch—it all becomes, as President Barack Obama is fond of saying, a “teachable moment.” Politics is not on the sideline; it is the juggernaut that perfects mankind in accordance with the totalitarian truth. Law is the principal instrument by which this overwhelming force is wielded.

As such, law manifests the central contradiction of political Messianism. Totalitarian democrats, also known as “progressives,” have feigned homage to the centrality of freedom since the French Revolution. But whereas the conservative (i.e., the classic, Burkean “liberal”) finds the essence of freedom in what Talmon described as “spontaneity and the absence of coercion,” progressives like Justice Ginsburg and President Barack Obama “believe it to be realized only in the pursuit and attainment of an absolute collective purpose.”

Thus, the circle that cannot be squared: Even if we assume for the sake of argument that totalitarian democrats are well-intentioned—that their quest for social justice, their “absolute collective purpose,” is not merely a thin veneer for the pursuit of raw power—human freedom is not compatible with an exclusive pattern of social existence. Thinking that it is leads to cognitive dissonance of the Jean-Jacques Rousseau variety. Rousseau was the seminal totalitarian democrat who thought that man must “be forced to be free” because liberty “tacitly includes the undertaking, which alone can give force to [the social compact], that whoever refuses to obey the general will shall be compelled to do so by the whole body” of society.

How fitting, then that Justice Ginsburg chose Cairo, ground-zero of the “Arab Spring,” as the setting for her speech. Even as she uttered words to consign America’s fundamental law to the ash heap, Egypt’s triumphant Islamic supremacists were in the process of winning 80 percent of the seats in the new parliament. Their first major task will be the drafting of a new constitution—which is why Justice Ginsburg was asked to ruminate about America’s in the first place. Only one thing is certain about the constitution the Muslim Brotherhood and its Islamist coalition partners will establish: Section Two of the current constitution, which makes Islam’s repressive sharia supreme, will remain sacrosanct and be given real teeth. Ginsburg thinks our two-hundred-and-thirty-years-old Constitution is outdated, but at fourteen-hundred years old and counting, Islam’s totalitarian legal code is practically primeval—and yet, here it is born anew. After all, it serves precisely the function that law serves in totalitarian democracy: It suppresses free expression, free will, and volition. Conformity eventually becomes “free choice” because it is the only available alternative. As Talmon put it, addressing the tension between freedom and the progressive vision:

    This difficulty could only be resolved by thinking not in terms of men as they are, but as they were meant to be, and would be, given the proper conditions. In so far as they are at variance with the absolute ideal they can be ignored, coerced or intimidated into conforming without any real violation of the democratic principle being involved. In the proper conditions, it is held, the conflict between spontaneity and duty would disappear, and with it the need for coercion. The practical question is, of course, whether constraint will disappear because all have learned to act in harmony, or because all opponents have been eliminated.

For the framers, government was a necessary evil. It was required for a free people’s collective security but, if insufficiently checked, it was guaranteed to devour liberty. The purpose of the Constitution was not to make the positive case for government. The case for government is the case for submission—submission to, as Talmon put it, the “sole and exclusive truth,” the progressives’ “absolute collective purpose,” their “proper conditions” for making men not what they are but what “they were meant to be.”

In stark contrast, the Constitution is the positive case for freedom—real freedom, not freedom in the sense (actually, the nonsense) of Rousseau, the Islamists, and totalitarian democracy, in which the individual complies because a coercive environment leaves him with no other options. Freedom cannot exist without order, and thus implies some measure of government. It is, however, a limited government, vested with only the powers expressly enumerated in the law of the land, our Constitution. As the framers knew, a government that strays beyond those powers is necessarily treading on freedom’s territory. It is certain to erode the very “Blessings of Liberty” the Constitution was designed to secure. Freedom is our protection from that kind of government.

There is a positive argument to be made for government, and the Constitution does not ignore it. It is eloquently stated in the document’s opening lines, which enjoin government to establish justice and protect national security. These injunctions are vital: there is no liberty without them. But they do not involve social engineering or the picking of winners and losers. These guarantees, instead, are for everyone, uniformly: Government must “provide for the common defense” and “promote the general welfare.” The Blessings of Liberty are to be secured “to ourselves and to our posterity”—not to yourself at the expense of my posterity.

We are in an age of upheaval, and what becomes of our law will go a long way toward determining how it ends. In a free society such as ours, grounded in a culture of ordered liberty, law should not be a didactic force. It undergirds economic and social life as it is already lived, reflecting the society’s values rather than instructing the society on what to think and how to live. But today’s progressive legal elites would have it another way. To them, the “rule of law” is code for a “social justice” crusade in which the courts, government bureaucracies, and international tribunals replace democratic self-determination with their sole and exclusive truth. If the progressives get their way, upheaval will not yield utopia. It will yield totalitarianism.

http://www.newcriterion.com/articles.cfm/Future-tense--VIII--Enter-totalitarian-democracy-7329

[SdK]

Liberalism and its battle with that pesky Constitution

Future tense, VIII: Enter totalitarian democracy

by Andrew C. McCarthy

On the difficulties of making law in the modern world.

"I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” The speaker was Associate Justice Ruth Bader Ginsburg of the United States Supreme Court. These, therefore, were astonishing words.

The authority over American law enjoyed by Justice Ginsburg and her colleagues on the Court owes solely to the existence of the U.S. Constitution, complemented by the high court’s proclamation that it has the last word on how that Constitution is to be construed. That latter power grab traces its roots back to Chief Justice John Marshall’s legendary 1803 opinion in Marbury v. Madison. Marshall “emphatically” declared it “the duty of the Judicial Department to say what the law is.” Despite naysayers from Jefferson to Lincoln, who thought that judicial supremacy would eviscerate popular sovereignty, Marshall’s assertion paved the way for the modern Court to claim even more boldly, in Cooper v. Aaron (1959) for instance, that judicial control over the Constitution’s meaning is a “permanent and indispensable feature of our constitutional system.”

In short, were there no Constitution, there would be precious little interest in Justice Ginsburg’s views. Yet, when she looks at this venerable source of her power—ratified in 1788 and, thus, as she explained, “the oldest written constitution still in force in the world”—she sees obsolescence. In its place, the Court’s senior progressive ideologue advised the assemblage of university students whom she was addressing to “look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, [and] had an independent judiciary.”

But wait. Let’s put aside the fact that no jurists in the world are more autonomous than the federal judges of the United States. Does not America’s fundamental law, with its robust Bill of Rights addendum, embrace basic human rights? Well, no. It embraces basic human freedoms. That makes all the difference.

Freedom is of minimal interest to progressives, certainly not freedom as is commonly understood: namely, the bedrock conceit that we are our own governors, autonomous over our own lives. To be clear, we are talking about freedom in a democracy, not an anarchy. In a rational social compact, freedom requires that we surrender a quantum of our independence to secure the nation and to honor the rudimentary norms of respect for life and property. If a free society is to flourish, nothing less than ordered liberty will do.

Alas, the “liberty” part of ordered liberty is not the concern of Justice Ginsburg and her fellow travelers. For them, the individual’s freedom is a relic of a bygone time, when life was simpler and dominated by sexist, slave-holding white men of a colonialist bent. The modern Left’s métier is rights, in the contemporary connotation: i.e., what you must give to me, with government handling both the confiscation and redistribution ends of the arrangement. In contrast to the traditional rights Justice Ginsburg finds so unrefined—to wit, the right to be free from government demands and the right to have government restricted to its expressly enumerated powers—the new rights cover everything from the mortgage arrears of spendthrifts for houses they could not afford to contraceptives for the sexual recreation of young women at nominally Catholic law schools.

On those sorts of “rights,” the U.S. Constitution never was much good. Better to go with South Africa or, as Ginsburg further recommended, the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights, and “all the constitution writing that has gone on since the end of World War II.”

What has actually gone on since the end of World War II is the rise of “totalitarian democracy,” to borrow the lapidary descriptor of the political scientist Jacob Leib Talmon. This is a form of “political Messianism” (another Talmon coinage) that must be distinguished from quaint old liberal democracy. Indeed, while the burden of this essay is to consider the place of the rule of law in an age of upheaval, it would be as apt to speak of the role of law. For what we will experience as “law” will be very different depending on which variety of democracy remains when the upheaval’s dust has settled.

The totalitarian democratic school, Talmon instructed, “is based upon the assumption of a sole and exclusive truth in politics.” Liberal democracy, by contrast, “assumes politics to be a matter of trial and error.” It takes human beings as basically good but incorrigibly fallible, and sees their political systems as just another pragmatic contrivance in lives that for the most part are lived “altogether outside the sphere of politics.” To the contrary, the avatars of totalitarian democracy maintain that they have arrived at a sole and exclusive truth. Consequently, the personal becomes the political. The car you drive, the clothes you wear, and the movies you watch—it all becomes, as President Barack Obama is fond of saying, a “teachable moment.” Politics is not on the sideline; it is the juggernaut that perfects mankind in accordance with the totalitarian truth. Law is the principal instrument by which this overwhelming force is wielded.

As such, law manifests the central contradiction of political Messianism. Totalitarian democrats, also known as “progressives,” have feigned homage to the centrality of freedom since the French Revolution. But whereas the conservative (i.e., the classic, Burkean “liberal”) finds the essence of freedom in what Talmon described as “spontaneity and the absence of coercion,” progressives like Justice Ginsburg and President Barack Obama “believe it to be realized only in the pursuit and attainment of an absolute collective purpose.”

Thus, the circle that cannot be squared: Even if we assume for the sake of argument that totalitarian democrats are well-intentioned—that their quest for social justice, their “absolute collective purpose,” is not merely a thin veneer for the pursuit of raw power—human freedom is not compatible with an exclusive pattern of social existence. Thinking that it is leads to cognitive dissonance of the Jean-Jacques Rousseau variety. Rousseau was the seminal totalitarian democrat who thought that man must “be forced to be free” because liberty “tacitly includes the undertaking, which alone can give force to [the social compact], that whoever refuses to obey the general will shall be compelled to do so by the whole body” of society.

How fitting, then that Justice Ginsburg chose Cairo, ground-zero of the “Arab Spring,” as the setting for her speech. Even as she uttered words to consign America’s fundamental law to the ash heap, Egypt’s triumphant Islamic supremacists were in the process of winning 80 percent of the seats in the new parliament. Their first major task will be the drafting of a new constitution—which is why Justice Ginsburg was asked to ruminate about America’s in the first place. Only one thing is certain about the constitution the Muslim Brotherhood and its Islamist coalition partners will establish: Section Two of the current constitution, which makes Islam’s repressive sharia supreme, will remain sacrosanct and be given real teeth. Ginsburg thinks our two-hundred-and-thirty-years-old Constitution is outdated, but at fourteen-hundred years old and counting, Islam’s totalitarian legal code is practically primeval—and yet, here it is born anew. After all, it serves precisely the function that law serves in totalitarian democracy: It suppresses free expression, free will, and volition. Conformity eventually becomes “free choice” because it is the only available alternative. As Talmon put it, addressing the tension between freedom and the progressive vision:

    This difficulty could only be resolved by thinking not in terms of men as they are, but as they were meant to be, and would be, given the proper conditions. In so far as they are at variance with the absolute ideal they can be ignored, coerced or intimidated into conforming without any real violation of the democratic principle being involved. In the proper conditions, it is held, the conflict between spontaneity and duty would disappear, and with it the need for coercion. The practical question is, of course, whether constraint will disappear because all have learned to act in harmony, or because all opponents have been eliminated.

For the framers, government was a necessary evil. It was required for a free people’s collective security but, if insufficiently checked, it was guaranteed to devour liberty. The purpose of the Constitution was not to make the positive case for government. The case for government is the case for submission—submission to, as Talmon put it, the “sole and exclusive truth,” the progressives’ “absolute collective purpose,” their “proper conditions” for making men not what they are but what “they were meant to be.”

In stark contrast, the Constitution is the positive case for freedom—real freedom, not freedom in the sense (actually, the nonsense) of Rousseau, the Islamists, and totalitarian democracy, in which the individual complies because a coercive environment leaves him with no other options. Freedom cannot exist without order, and thus implies some measure of government. It is, however, a limited government, vested with only the powers expressly enumerated in the law of the land, our Constitution. As the framers knew, a government that strays beyond those powers is necessarily treading on freedom’s territory. It is certain to erode the very “Blessings of Liberty” the Constitution was designed to secure. Freedom is our protection from that kind of government.

There is a positive argument to be made for government, and the Constitution does not ignore it. It is eloquently stated in the document’s opening lines, which enjoin government to establish justice and protect national security. These injunctions are vital: there is no liberty without them. But they do not involve social engineering or the picking of winners and losers. These guarantees, instead, are for everyone, uniformly: Government must “provide for the common defense” and “promote the general welfare.” The Blessings of Liberty are to be secured “to ourselves and to our posterity”—not to yourself at the expense of my posterity.

We are in an age of upheaval, and what becomes of our law will go a long way toward determining how it ends. In a free society such as ours, grounded in a culture of ordered liberty, law should not be a didactic force. It undergirds economic and social life as it is already lived, reflecting the society’s values rather than instructing the society on what to think and how to live. But today’s progressive legal elites would have it another way. To them, the “rule of law” is code for a “social justice” crusade in which the courts, government bureaucracies, and international tribunals replace democratic self-determination with their sole and exclusive truth. If the progressives get their way, upheaval will not yield utopia. It will yield totalitarianism.

http://www.newcriterion.com/articles.cfm/Future-tense--VIII--Enter-totalitarian-democracy-7329

[kstatefreak42]

[Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!)]

Wasn't this the mongoloid who pretended to be open-minded about politics?  What a f*cking fraud, just like all of them.

[SdK]

I have a hard time taking anything you post seriously or subscribing any merit to anything you submit. Create a sock and post from that, then I'll be tricked into reading.

[steve dave]

Strange comma

[ednksu]

did you mean liberalism and Liberalism?  Did not read.

[SdK]

Strange comma

Punctuation is not my strong suit. Spades, there's one where I excel.

[steve dave]

Strange comma

Punctuation is not my strong suit. Spades, there's one where I excel.

not yours

[SdK]

 

[Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!)]

 

What a collection of wilfully ignorant tards. The anti-intellectual left to a T.