Thursday, September 10, 2009

Constitutions - Unreliable Allies

American state-libertarians really enjoy talking about the Constitution. The Constitution needs to be respected, they say, for it is the founding document of this country and the source of our liberty! Constitutions are seen by these people as a means to shackle the state and protect individual liberty. That's a batshit insane idea.

First of all, the source of one's liberty is not a constitution, but the fact that the dominant powers in one's territory have so far refrained from infringing upon it. It is successful defense (in whatever way) against the spread of the state or any oppressing groups, not "the Constitution" that enables you to live with more choices than a poor serf in North Korea. One might argue that since the Constitution gives a resemblance of legitimacy to the state and, in the case of the United States, has a strong libertarian bent, institutionalized violence needs to adhere to some extent to these principles. That may be temporarily true, but as soon as a state is given power to interpret your Constitution, it will gradually dismantle its original message and replace it with whatever is in fashion. Just look at the Second Amendment mess.

Essentially, constitutions are words printed on paper. They keep a state from becoming tyrannical as much as a written contract keeps one of the signatories from breaching it, even much less so if you consider that while contract signatories tend to be of somewhat equal legal status, the state is in any case above you, either financially or militarily or legally or according to public approval or, most likely, by all of those criteria. Words on paper mean nothing to men with guns, determined to enforce authority. Your "guaranteed rights" are a claim based on the notion that the state works just as it was intended or promised to work, as a guarantor of certain claims called "rights", but it has no answer as to what happens when the state abandons this role and becomes an aggressive exploiter instead. All it does is convey a false sense of security, a last resort justification along the lines of "If policemen with submachine guns ever break into my house, I'll still have the Constitution!" And please don't pretend that "it couldn't happen here" because Mr. Jefferson had some good ideas 250 years ago.

Even worse, constitutionalism has long abandoned its function as a limit to state power. Today's constitutions are full of entitlement mentality, guaranteeing everything to everyone and making sure that legally, no effort can ever change the founding principles of social democracy. Take a look at the German constitution's section of "unalterable, foundational rights". That's as liberty-oriented as a congregation of postmillenial bigots:

Article 2, (1):
Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

Now, what is "the moral law"? Sounds like an ambiguous clause, doesn't it? Right there, in article 2 of your list of "guaranteed rights", it says that you cannot break "the moral law". Didn't I mention postmillenialism?

Article 3, (3):
No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.

That's your affirmative action paragraph right there. You thought AA was unconstitutional? Not in progressive Europe!

Article 5, (1):
Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures [...]
These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.

Do I have to say anything more?

Article 7, (1):
The entire school system shall be under the supervision of the state.
The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to state schools shall require the approval of the state and shall be subject to the laws of the Länder.

Yay, a completely state-run school system with no homeschooling options! What a beautiful "right" !

Article 14, (2):
Property entails obligations. Its use shall also serve the public good.

That sounds like straight out of an Ayn Rand novel.

Love your freedom more than your constitution, or else you're most likely bound to lose it.

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