Claire Berlinski is suffering a little cognitive dissonance.
My brief response, without a lot of deep thought. I can’t speak for Europe, which never had anything resembling our Constitution and Bill of Rights, but I think that the biggest flaw of the Founders was in failing to recognize the apparently ductility of the Commerce Clause, which has basically rendered the 9th and 10th amendments moot. They also perhaps didn’t anticipate the degree to which the courts might come to aid and abet to that end. But at bottom, it is not a failure of freedom, but a failure to adhere to the original intent of the Constitution to limit government.
I can’t speak for Europe, which never had anything resembling our Constitution and Bill of Rights
Huh?
But I am certainly asking myself how it came to be that in a society with so many guarantees of press freedom, our key press organs now churn out coverage of the news to which I react much as Soviet citizens did to Pravda–by laughing darkly, endeavoring to read between the lines, and then trying to figure out what’s really happening by word-of-mouth.
Who predicted that? Chomsky.
Yeah. In 1997. The availability of news and information (and the labor involved in “reading between the lines”) that completely bypasses “key press organs” is an order of magnitude greater today, and will be that much greater in another 15 years.
Moore ends his piece with a note of optimism that I think nails it:
One must always pray that conservatism will be saved, as has so often been the case in the past, by the stupidity of the Left. The Left’s blind faith in the state makes its remedies worse than useless.
Conservatism seems to be as inappropriate a term as liberal, at least in a US context. Liberal != statist and conservative != free market. Gladstone was a liberal and Louis XVIII was a conservative.
But at bottom, it is not a failure of freedom, but a failure to adhere to the original intent of the Constitution to limit government.
Was it really the intent to limit government in general or just to limit the powers of a federal government? Are there any limitations on the powers of state governments to interfere in their economies, other than through the Commerce Clause?
MPM,
You took the words right out of my mouth (I just wrote a comment which made the same point – and fortunately saw yours in another window before hitting submit).
To answer your first question, Rand probably meant that countries in Europe don’t have the equivalent of a 9th 10th amendment. I don’t know if this even true for most countries regarding the 9th amendement, and regarding the 10th amendement, I don’t know if it is true for Federal countries such as Germany and Switzerland. However, even if it is true, Rand is wrong about the 10th amendment vis a vis Europe. The 10th amendment stands as a firewall which was taken down by the Commerce Clause. Europe as a whole has even stronger firewalls, as each state is sovereign. And the EU project is akin to the Commerce Clause in that it is taking down European firewalls. (I’m not getting into the benefits and drawbacks – I’m just pointing out the analogous process.)
Bob-1, we wound up with the Constitution we have largely because our Articles of Confederation, which left each State about as sovereign as the member nations of the EU, was falling apart.
Whatever firewall exists in Europe now, don’t expect it to carry over into an EU 2.0 after the current crisis.
If there is an EU 2.0, that is
One more thing MPM: if you are confused about the meaning of the 9th amendment, don’t feel bad, as everyone else is too! Judge Robert Bork (a favorite of the rightwing) described the 9th amendment as an inkblot — it could mean almost anything. But unlike a psychologist’s inkblot, Bork cautions us to not read whatever we want into it!
McGehee, I’m not sure if you are predicting a stronger EU or a weaker one (or no EU at all).
Years ago I came to the conclusion that was not that The Constitution was failing to protect us, but that we, as a people, had failed to protect it. If the people do not care to protect their own rights – or even understand them – then all our constitution is, is paper. Yes, the courts will continue to protect our rights for a time, in a sort of legal Law of Motion, and politicians will still speak out about rights that are still popular, but without the backing and understanding of the electorate, Constitutional Law is in a losing battle.
Instead of wasting a lot of time and oxygen railing about the meaning and intent of The Constitution, we are better served trying to make people understand the basis and moral underpinnings of (very) limited government. Most Americans in de Tocqueville’s time could explain it over a cup of coffee and all prospered because of it.
Liberal != statist
Berlinski didn’t use the word Liberal, and neither did Moore. You did. What Moore said was “The Left’s blind faith in the state”. One who has blind faith in the state is a “statist”.
Sure, I was merely alluding to Rand’s frequent criticism that the Left has misappropriated the word liberal in the US and pointing out that something similar happened to the word conservative, as evidenced by Moore’s use of the word.
Bork described the 9th amendment as an inkblot
Not exactly. He said if an inkblot covered it… Then went on to suggest it had no meaning or force of law. Just because he’s on the right doesn’t mean he’s always right. The ninth amendment is the most fundamental expression of american exceptionalism (a concept Obama has no clue about) ever written into law. We are exceptional because power is derived from the citizens and not their ‘leaders.’ All governments are tyrannies, even ours. Our constitution tries to limit that tyrannical behavior through checks and balances. Over the years those checks and balances have eroded.
Neither the right or the left understand this these days although the right is generally closer and admires the founders rather than disdains them.
Elite thinking (both right and left) tends to fall in love with it’s own ideas so that contrary evidence is ignored. Even science, the land of scepticism, has fallen into this.
As far as the Commerce Clause and the role of the courts–the Founders *did* put in a safeguard that worked for a long time. It was the Senate, with the state legislatures electing the Senators. When that safeguard was taken out via the 17th amendment, Federalism suffered a blow it has not recovered from.
We have a winner.
I’ve never understood the “Right’s” fondness for Bork, specifically because of his utterances on the Ninth Amendment. He was as statist as any of the court Lefties at the time; his only distinguishing feature was that his state would emphasize control over another part of human existence than the Left wanted to control.
Yes.
The only thing I’m sure of is, whatever the EU looks like in ten years (up to and including “something that no longer exists) will not at all resemble what it looks like now.
I will also say that a stronger EU doesn’t strike me as a good idea. The things that made a stronger U.S. work (for as long as it has) are not present in Europe.
Mfk- spot on. We dodged a bullet when Bork got “borked.” The man was no friend to liberty. Ronnie screwed up occasionally (regarding gun control in CA for instance), and Bork was a screw up of a choice.
17th Amendment? Repeal it.
Commerce clause powers overgrown with the connivance of the courts? Yep. How to turn that around? Beats me. Good question. Suggestions?
The things that made a stronger U.S. work (for as long as it has) are not present in Europe.
Now you’ve made me curious. Which particular things do you have in mind?
Incidentally, the EU does have its equivalent of the tenth amendment, the subsidiarity principle, on top of the fact that the member states retain sovereignty and the right to withdraw from the EU.
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
As for the US Senate before the 17th amenment, this is more or less how the Council of the European Union works. It is the highest legislative body in the EU and it is composed of ministers from the member states, one for each state. Its powers are clearly defined by treaties.
In addition, EU legislation takes the form of Directives, which set bounds within which member states are obliged (by treaty) to legislate in their own jurisdictions, not laws that directly apply to EU citizens and organisations.