Volatility

February 25, 2012

The Bill of Rights vs. “the Constitution”

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It’s an error to assimilate what’s in the Bill of Rights to “the Constitution”, i.e. to the foundation of the central government.
 
The drafters of the 1788 Constitution, the so-called “Federalists”, heaped scorn and contempt upon the notion of a “bill of rights”. Only filthy hippies and anarchists were licentious and paranoid enough to want such a thing. The promulgators of the plan for an imperial central government grudgingly agreed to include a bill of rights only when it looked like the Constitution, lacking this, would fail to be ratified.
 
So it’s wrong, both historically and conceptually, to amalgamate the centralized government plan with the guarantees of various individual, community, and truly federalist rights, and call it by one name, “the Constitution”. The intent of the planners of the central government, and the sense of their document (the main Articles), run directly counter to the spirit of this Bill of Rights. The promulgators despised it, and everyone who has followed in their stead, all who support central government and empire, have regarded it as nothing but a fig leaf to be used, abused, most of all disregarded except for propaganda purposes.
 
So those who today cite the Bill of Rights and “the Constitution” as something being abused and affronted by the actions of government and corporations are mistaking the fundamental nature of this Constitution, by helping dress it in the nimbus of a Bill of Rights which is fundamentally alien to it.
 
I can appreciate constitutional arguments as a political weapon. I make many such arguments myself. But if one lets oneself see, for example, freedom of assembly* and electing a president as two parts of an integral whole, then one has fallen for a scam meant to keep us mired in fruitless notions of “reforming” a fundamentally evil system.
 
“The Constitution”, as an undifferentiated, unexamined holistic notion, is nothing but propaganda. It’s not organic, in principle or practice.
 
*Freedom of assembly is an excellent example. The natural right can only mean bottom-up citizen assembly for direct democracy and direct action. But the 1st Amendment carefully limits it “to assemble, and to petition the Government for a redress of grievances”.
 
Thus many aspects of the Occupy movement are, by the technicality of the central Constitution, outside our “recognized” rights.
 
Add 2/27:
 
My point isn’t to disparage the argument for Freedom of Assembly and constitutional claims. But we must claim these only from and for ourselves. We can demand them only of ourselves, through direct action and movement building.
 
But to rely upon the government and the courts to agree is to misunderstand what the courts are for, and to misunderstand the difference between our sovereign constitution and the system’s “Constitution”.
 
 
 
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6 Comments

  1. It’s not at all clear to me that liberal rhetoric about rights or bourgeois rhetoric about freedom is really the place to contest these things, anyway. The liberal conception of legal rights is pretty perverse taking into consideration its origin in Roman slave law. I think acknowledging legal pluralism and alternative regimes of jurisprudence and of reason would create space for better alternative conceptions of rights etc but the nation state will never let go of its monopoly on law.

    Comment by paper mac — February 26, 2012 @ 1:05 am

    • Yes, too much of it involves the fetishization of negative freedom, which fetish is the core of the bourgeois ideology. (That’s what’s meant when people call freedom a “bourgeois prejudice”.) We see this in the very wording of the Bill of Rights.

      Liberal ideology (including “classical” liberalism) always wanted to uphold this obsession with negative freedom, neglect of positive freedom, and the cult of individualism. It was always the servant of rising capitalism.

      On this blog I’ve often supported rights and negative freedom, but never as “the goal” in themselves. Rather, I always place them in the context of struggling for positive freedom, and on the vector of action toward the goals of positive democracy.

      So my constitutionalism, if I was to continue developing it, would enshrine this positive freedom as the goal, with negative rights and liberties as tools and weapons toward it.

      Comment by Russ — February 26, 2012 @ 3:50 am

  2. Some comments and questions :

    Do you see a continuity between Magna Carta and the Bill of Rights ? Like the majority of Americans, I am very ignorant of the Constitution, and Bill of Rights. “We”…. do not learn them in mass (market) school, now, do we ? Not most of us, in any case. And if we do read them in school, the main purpose of school being to create a nation state identity in the people, we do not read them critically.

    I think it is very important and interesting that you highlight the heterogenous nature of the Constitution and the Bill of Rights, and our current prejudice that they are homogenous. Since most of us have no direct, personal experience of these documents (we have not read them critically), they exist in our minds as federating myths to which we refer to create community, and belonging…they are hearsay. They are not rooted in any defining, historical context for us either. For many of us, at least.

    To what extent is the federal government NECESSARILY.. a CENTRALIZED government, and isn’t the link between federal and state government always evolving, and always in need of redefinition, in a state of permanent tension ? (Since I spent some time working against the death penalty, I got a peek at the relationship between federal/state government in the Supreme Court decisions which, under Republican influence, backed off from a strong centralist vision of the Union, in this domain, at least.) At this time in the European Union, the pressure to federalize has taken an extremely undemocratic, centralized form, but… Europe is NOT the U.S., and ITS HISTORY is not the same, either.

    “The Constitution as an unexamined, undifferentiated holistic notion is nothing but propaganda”. I submit that your definition of propaganda could equally be applied to prejudice in any domain, for that matter. But… what and where is the origin of propaganda/prejudice ? And where does the responsibility for exiting “unexamined” and “undifferentiated” lie ? In the State itself, or in the individual ? For me, reason is the domain of the individual. No social institution in any form can make it exist IN THE SOCIAL BODY.

    We are not victims of a scam. We are, to the extent that WE do not make the effort to differentiate and examine our prejudices, the willing participants in, and to a certain extent, the instigators of our own mystification… And I definitely do not feel that I am bourgeois in making this remark…

    Comment by Debra — February 26, 2012 @ 4:40 am

    • Do you see a continuity between Magna Carta and the Bill of Rights ?

      I do, although I believe some elements of the Magna Carta are actually found in the body of the Constitution as originally ratified, as well.

      I think it is very important and interesting that you highlight the heterogenous nature of the Constitution and the Bill of Rights, and our current prejudice that they are homogenous.

      Technially, it is fair to treat the Consitution and the Bill of Rights as one and the same because the Bill of Rights is styled as a set of amendments to the Constitution and is incorporated therein. As an historical and political matter, I agree with you and Russ.

      To what extent is the federal government NECESSARILY.. a CENTRALIZED government, and isn’t the link between federal and state government always evolving, and always in need of redefinition, in a state of permanent tension ?

      The Constitution does not place a limit on the amount of centralization, but it certainly established a substantial amount of centralization, primarily with the provisions regading tariffs, slavery and interstate commerce. The evolution is unidirectional towards more centralization.

      We are not victims of a scam. We are, to the extent that WE do not make the effort to differentiate and examine our prejudices, the willing participants in, and to a certain extent, the instigators of our own mystification… And I definitely do not feel that I am bourgeois in making this remark…

      Scam is another word for fraud. Fraud arises whenever one person induces another to act based on materially false information (or the omission of material information). The problem with reason is that you can only operate with the facts you have (and any prejudices that might apply), and if you don’t have all the facts, and those facts are material and are kept from you, you can be scammed. Some abolitionists certainly felt that way when Madison’s minutes of the Constitutional Convention were released decades later, showing the Constitution to be what they viewed as a “pro-slavery compact.” See here:

      http://books.google.com/books?id=yhu09hOUdOYC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

      Comment by Tao Jonesing — February 27, 2012 @ 3:37 pm

  3. Russ: It is interesting that, in creating the structure that has become the US empire, the government was given structure first (Constitution) and the rights of the People (Bill of Rights) was a grudging afterthought and political compromise. Some may argue that the Constitution’s purpose has been to limit government. I say, if that is so, it has been an abject failure. One easy example: torture is not only tolerated and condoned but is openly practiced and even bragged about with no apprehension by the perpetrators of being held accountable.
    I submit that as new social systems are being proposed and created (there is no need to wait until the current US empire disintegrates) that the preeminence of the Individual and all the Individuals collectively (the People) should be formally recognized first and then a structure decided upon to guarantee the ACCOUNTABILITY of both the People’s government to the People and the People to each other individually and collectively.
    Here are few basic concepts:
    1. The People are and always shall be the sole sovereign.
    2. The People are free and independent human beings and have the absolute right to maximum freedom of action individually and collectively.
    3. The People’s government, at any level, has no inherent rights or authority.
    4. …..

    I also recommend that whatever structure is decided upon, having a President or any single person representing the People is the seed to authoritarianism.

    Comment by jm51 — February 29, 2012 @ 12:32 am

    • The Federalist papers prove that the goal was never to limit government. On the contrary, the framers were very clear that the goal was empire, and therefore the goal of the Constitution was to centralize power and render it aggressive in order to carry out this imperial project.

      Those precepts are good. I’d stress that collective freedom must never be formalized in a way to remove accountability for individual and collective crimes. That’s one of the main purposes of the corporate form, to allow the gangster 1% to break the law (legal and moral) with impunity while maintaining laws and moral strictures for individual members of the 99% (that is, for actual human beings).

      So a human democracy would abolish all formal corporatism and coercive hierarchy.

      As for whatever kind of community self-rule (“government”, if one wants to use that term) would succeed formal hierarchies, I agree that one thing we never need or want is a unitary executive, even as a figurehead.

      Comment by Russ — February 29, 2012 @ 5:29 am


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