Welcome to Ordered Liberty
For Edmund Burke, liberty was the distinguishing feature of the British constitution. He did not, however, mean liberty in some vacuous, hopeychangey sense. “The only liberty I mean,” he wrote, “is a liberty connected with order; and that not only exists with order and virtue, but cannot exist at all without them.”
When we hear the term “ordered liberty” nowadays, it is generally in a legal context. It has become famous — we might better say “infamous” — in the Supreme Court’s jurisprudence of “incorporation”: the doctrine holding that Bill of Rights protections that restrict the federal government are also validly asserted against the state governments, through the Fourteenth Amendment. The doctrine’s premise is dubious: state sovereignty is the foundation of our form of constitutional governance; if it had been the purpose of the Fourteenth Amendment to undo that basic assumption, one might have expected that incorporation would be clearly prescribed — and that it might have taken less than sixty years for the Supreme Court to start enforcing it.
That said, though, the real infamy lies in the doctrine’s inconsistency. It does not apply all of the Bill of Rights against the states; only those rights that the judges, in their wisdom, determined to be “implicit in the concept of ordered liberty,” as Justice Benjamin Cardozo put it in Palko v. Connecticut (1937). That is to say, there is an arbitrariness to “ordered liberty” as judicially manufactured. Caprice, even if it piously flies under the “rule of law” banner, undermines the very idea of order.
Still, it would be foolish to insist that liberty is not a dynamic concept or that our perceptions about it do not evolve. To take two powerful examples, our notions of equality and cruelty have dramatically changed in just the last three centuries. Both are now attuned as never before to the dignity of each human being — at least, once a person is born.
We can argue, and do and will argue, over the sufficiency of our evolution and over the means of achieving it — I happen to think we are a body politic not a body legal, and that change brought about by the consensus of the community is far to be preferred to change imposed by law, and especially by unaccountable judges. Plainly, however, our expectations about liberty, and thus about ordered liberty, do not stand still. Not all change is progress, and lots of it has been downright destructive. But no one strives to be … the same. We want to be better, and when we are, change can be healthy.
Interesting and level-headed article, with some good points. While it’s good to point out the hypocrisy of totalitarian ideologies which demand that you’re “free” to do as they tell you, it’s equally important to recognize that concepts such as liberty and freedom are not external, actually-existing objective standards — they are ways of expressing social priorities.
For example, what is “freedom of speech” nowadays? Most Americans love the idea of “freedom of speech”, but we all put up with (and most of us tacitly support) the idea of regulating “time, space and manner” — that is, say what you want, but we get to decide when and how you say it, and who hears it. This can be a good thing, like preventing people from displaying obscene images in public, or it can be bad, like “free speech zones” (http://en.wikipedia.org/wiki/Free_speech_zone) that shut out and crush legitimate protest. According to the Supreme Court, giving unlimited amounts of cash to influence elections (and politicians) is now Free Speech too.
And what does “economic freedom” mean? Does that mean I get do whatever I want with my money (that I may have inherited, not earned), have lots of choices in the products I buy and low taxes? Or is “economic freedom” the freedom to have a level playing field where what I earn is genuinely the result of my own work ethic and creativity, the freedom of my children not to die without medical care, and so on?
Is the liberty of factory owner from regulations (OSHA, EPA dumping rules, etc) more important than a worker’s liberty from being negligently injured or poisoned?
“Virtue” is another concept that is good to discuss, but so vague as to be rather impractical as a standard. What Jesus considered virtuous, Ayn Rand and her followers would consider utterly evil.
So, liberty, yes, but WHOSE liberty FROM WHAT?
“but WHOSE liberty FROM WHAT?”
This is an easy one. It is freedom from the tyranny of each other.
You have the right to free speech. The government cannot interfere with that. However, that does not mean you may disrupt my life with your speech. You may not bully me with your speech.
The role of government is to decide where your rights end and mine begin, and vice-versa. Good fences make good neighbors.
However, the government is not some separate entity in a free society, some benevolent ruler. The government is of us. We have to decide as a society where the lines are drawn.
This is where virtue comes in. A decent, moral man has no desire to order his neighbor’s affairs. “To what end?”, he rightly asks. Nor does he seek to abuse his neighbors in their pursuit of their own lives. He is careful to not trespass upon them, and he properly expects the same courtesy in return. Such good men need no laws to order their affairs. Social custom and human decency suffice.
It is when folks will not play nice, that the customs must be codified to restrain them. Then it becomes a legal battle, a confrontation, rather than a coming together. A society of moral men can readily codify those few things necessary. Hair-splitting of a concept is not necessary. “I know pornography, when I see it.”
When the vast majority of society are moral, decent people, then those relatively few immoral can be readily constrained. It falls apart, though, when too many are the immoral. The laws get enacted. The hair-splitting begins. Freedom is eroded.
The thieves, the opportunists, the confidence men, then swarm to the top of society, as befits a nation of immoral people. Immoral people have immoral leaders. Then laws have no meaning, for those charged with administering the laws are themselves lawless.
Then, do you have no freedom. Whatever you have, your property, even your life and liberty, can be taken from you. It does not belong to you, but to those who rule you through quixotic application of laws. The laws cease to be a shield, and are instead, wielded as bludgeons.
We have the most insidious of evil people over us. We are not free, and we do not even know it. We think we are free, and we are fat, dumb, and happy about it… until we find out the hard way that, no, we are not free at all. That happens when the bureaucrat wields his power over you, and your life is destroyed by his whim of the day.
No, we are not free. The police can gun you down in the street, and the machinery will white wash the whole thing, calling it a “good shoot”. They may kick down your door in the middle of the night with some rubber-stamp court order, and if some fool trips over his shoelaces and fires his weapon by accident, they will fill you and your house with lead. They will deny you medical care, so as to eliminate you as a witness. There will be no repercussions to them for it.
And you will take it and like it. You are powerless to fight it. We have already lost this fight, because too many of us have no regard for our fellow man and his prerogatives. We care only about our own Rights, our own prerogatives.
With no sense of community and no goodwill towards men, no freedom is possible. We must guard our neighbor’s freedom as jealously as our own, in order for society to be free.
Do you care for your fellow man as much as for yourself? Do you love thy neighbor as thyself? What does the word ‘neighbor’ mean to you? Does it have any emotional impact at all? Anything?
Oops. Long post. Got on a roll.
It was a good roll, describing very well, IMO, the nature of the predicament in which we find ourselves. Again, Charles Murray’s Prole Models is a fabulous piece that explains to a T just what is behind our societal decay. I cannot imagine what it’s going to take to bring us back to a decent level of “virtue” under which we can enjoy the freedom we don’t quite deserve at this point in time.
Good rant. Patrick Henry would’ve been proud!
And…you’re entirely in the right, of course.
Excellent article and post. In my opinion, the progressive loss of freedom in this country is directly attributable to the successful leftist assault on the social institutions that assured a moral society. The statists and marxists understood better than their opponents that the road to control over the populace lay in eliminating the effective presence of social and moral institutions in our society. They understood that in the absence of voluntary social and moral adherence to a common and agreed set of interpersonal behaviors, there was only the law. And the law was no more or no less than the what the people charged with enforcing it said it was.
This is an easy one. It is freedom from the tyranny of each other.
If we do not want “the tyranny of each other” then we ought not to be one country. That’s wherer you logic leads.
A decent, moral man has no desire to order his neighbor’s affairs. “To what end?”, he rightly asks. Nor does he seek to abuse his neighbors in their pursuit of their own lives. He is careful to not trespass upon them, and he properly expects the same courtesy in return. Such good men need no laws to order their affairs. Social custom and human decency suffice.
Better to say that the underlying assumption behind America (and the republican form of government in general) is that the people are fairly homogenous. People who think alike and operate off of the same basic assumptions do not need a big and intrusive government. JS Mill made this point in his book On Representative Government.
The comments are correct in demanding precise definitions of virtue and order. We are so polarized around the meaning of key words. I tried to sort them out here. http://clarespark.com/2009/12/16/perceptions-of-the-enemy-the-left-looks-at-the-right-and-vice-versa/.
For instance, what exactly did virtue mean to the authors of the Constitution, who were not always in agreement among themselves? From my readings in 18th century studies, the issue was power to be lodged in a national state that would rectify the deficiencies in the Articles of Confederation. But Hamilton, et al, would be horrified by the statism that was evidenced in Roosevelt’s protofascist New Deal.
Can you take down Eric the bigot Holder?
Andy, I’ve enjoyed reading your columns elsewhere. You’ve shown me a tremendous amount about the workings of the federal justice system.
>>What is it that makes us virtuous? What slides us toward corruption and viciousness?
Sounds interesting!
I have much respect for Andrew C. McCarthy. We can probably take it for granted that Mitt Romney will pick him for an important position immediately after he enters the White House.
That said, though, the real infamy lies in the doctrine’s inconsistency.
Almost any Constitution suffers from a this-statement-is-false effect from its outset. “Liberty is God’s gift- now here is a ‘Bill of Rights’ from the government!” Note how many faiths have mastered this trick.
Burke’s was an order of a very different kind: an order rooted not in autocratic power but in the power of virtue… It was the society’s inherent virtue — the people’s perception of right and wrong, their character, their sense of honor and shame.
The environment feeds back upon vices and virtue. It’s a powerful cycle, and most people caught in it can scarcely affect things.
The ninth Amendment stipulates that individual rights are to be respected by government, and that individual rights are not limited to only those listed in the Constitution. The fifth Amendment stipulates that the only condition under which the Constitution allows government to infringe, deny, or prohibit individual rights is to first accord “due process” to the individual. But some specific rights are protected without qualification. Our Constitution differs from most others, Baobo, in that it DOESN’T say “Liberty is God’s gift- now here is a ‘Bill of Rights’ from the government!” It instead says, “Liberty is God’s gift- now here is a ‘Bill of Rights’ that are unconditionally protected from the government!”
“Protection” is mafia-speak. God’s gifts don’t need framing or restatement in any form. What is agreement but the equating of copies to an original? Hence no careful wording can escape the cheap power-grab that is a government charter. If something is self-evident, then there is naturally nothing to say about it.
Our founders are still worshiped like gods these centuries later. The scam worked.
There is a scam and it is from the polititians and liberals of today. They gladly tell us they know better than the Founders. After all they have all that the founders never had! Now they have the wisdom of Marx and Engels and Lenin and Mao and Pol Pot and Castro and Chavez. Now THERE is a basis on which to build a society.
The liberals see the Founders as actual terrorist that impeded our modern nirvana of socialism by putting in those pesky Bill of Rights that limit government. Damn them! Damn them! They have held the elite from telling everyone how they must live!
“If something is self-evident, then there is naturally nothing to say about it.”
The Declaration, as it’s title descibes, declares “self-evident” rights because, at the time it was written, rights were apparently not self-evident to the King of England. The Constitution, contrary to your assertion, indeed says nothing further about them; the right to Life, Liberty, and the Pursuit of Happiness go unmentioned in the founding charter entirely because, having been “declared”, they ARE evident. You accuse the founders falsely, because your pompous accusations are not just somewhat false, but completely opposite from the truth.
It’s nothing short of sophmoric to suggest that the Constitution “frames or restates” our God given rights, Baobo. Instead it charters, restates, and frames, the powers and limitations of government. Rather than a “power grab”, the founding document is in fact the “limits of our consent”. Those specific rights mentioned are only listed to delineate absolute “unconditional” limits to government power. They in no way limit the rights themselves. You arrogantly mistake “reverence for their accomplishment” as “worship of the founders”, because you are too conceited to understand it, and too provincial to comprehend it. Which leaves you with only the option to misrepresent it. The only “scam” here is your comment.
Protection by hooligans. It’s all yours, keep it.
Virtues are a sliding scale and while perfectly acceptable and normal at the time and within a particular region, will be viewed with horror by another, or even grounds for invasion, war and occupation.
These words ; Liberty, Freedom, Virtue, Order…mean nothing, or anything, without a context to place them within.
for example in Mayan society it was quite virtuous to behead losers of sports games, or tear out the hearts of individuals selected to predict the future. This was normal and accepted by society and provided their ordered liberty.
One of the reasons our Constitution is written in fluid and general terms is to provide elasticity of changing virtues and changing society. The writers understood change will come regardless how hard anyone fight against it.
Its when we don’t question our virtues, or moral compass that change can become dangerous.
I think not! If you read their writings you would know, change was not on their minds. They veiwed change, from what they set out, would lead to what we are experiencing today: direct taxation, redistribution of wealth and land, murder of the unborn, death panels for the elderly and infirm, what you can, cannot, or must buy, the list is too long to continue. The virtues of which we speak are those handed down by God to the Israelite nation. They are echoed in Christian society; the Protestant society in which the Founders lived.
“Their writings” aren’t law. If it’s not in the Constitution, it’s just an opinion.
Nowhere in his reply does DN assert that their writings are law, JustAl, and
they are considerably more than “just opinion”. As DN points out, their opinions have proved to be prophetic.
The Spainiards were appalled the Aztecs cut out the living hearts of victims to appease their gods. But Cortes yelled “For St. James” in battle and came from a very naughty culture of much feared inquisitions.
There are no hard, fast rules for cultural relativism. That’s the whole point of why it should be viewed with mistrust, without at the same time throwing the idea out the window. Fear, terror and murder cut across all cultures, so we can agree Cortes was the opposite of a saint. Two sad empires met, one sad empire won.
Change in the Constitution is by way of amendment. Any other manipulation “living document” crap is just a device to circumvent the wisdom of the founders. Have no doubt that the founders showed far more wisdom than any gaggle of Harvard, Yale, Stanford credentialed idiots that we have now.
Great move by PJ Media. He is akin to a breath of fresh air, shedding untold light, as well as disinfectant, on the malfeasance of the misnamed ‘justice’ department.
Best of luck. Or, as is said in Israel, mazal tov!
Moslem activism is one of the biggest issues confronting the nation. 9/11 and the ensuing fear and very high costs and inconvenience of adapting to Jihad war terror violence is a huge factor in our lives now.
Looking at the presidential election, one can see that “terrorism” (the euphemism we use for Islamic activism) has apparently been solved. We know this cuz not a peep has been said on the unpleasant subject, so it must no longer be a problem and therefore is an issue.
Perhaps Mr. McCarthy can give us a review of how this miracle took place.
Men and women who enable sanctuary policies and the demographic suicide of the culture that enables the Constitution might be virtuous, but they are plainly morons.
If 2,000 Aztecs had march into Spain in 1520 and brought an empire of millions crashing down and enslaved it, the politically correct today would look at that and say: Spanish, totally equal.
The Spanish didn’t do it alone.
The neighbors, sick of being sacrificed to Aztec virtues, saw Spaniards as liberators.
Smallpox did the rest!
Welcome…I look forward to many more articles, enjoyed this one.
Where does it stop? States and cities trample on the 2nd amendment and the federal government does nothing. What happens when a muslim majority in a place like Detroit declares islam the official religion?
Welcome on board, Andrew!
I’ve long been bothered by the incorporation doctrine – which perverted the rights specifically reserved to the states to be forbidden to the states. For example, several states had a state religion at the time of the Bill of Rights, which expressly forbid a FEDERAL religion. There was no “separation of church and state” at the time. Now, mind you I’m no fan of state religions but one should have expressly amended the constitution to forbid states from having a state religion, not invented this “doctrine” which served to eviscerate the whole point of states rights. Because now something forbidden to the federal government and reserved to the states is no longer reserved to the states – which means that in a vacuum, the Federal Government steps in to fill the void they’ve just creating.
The only thing more pernicious than the incorporation doctrine is the perversion of the interstate commerce clause to justify a Brobdingnagian and all-intrusive government.
As Dr. Voegelin pointed out the loss of virtue precedes the collapse of the polis.
Then to complicate the matter a bit, any good Christian might argue that since Calvary we’ve existed in an apocalyptic era long at odds with those nasty secularist’s ‘second’ realities that so confuse us. Hell, its a wonder we’ve only devolved as much as we have.
But Mr. McCarthy nails it with his comments on ‘virtue.’ I should hope he might, someday, delve deeper into the question. One cannot restore the republican ‘virtues’ with the mindset of a socially progressive Democrat.
Less Burke, more Paine. Privileges and Immunities over substantive due process. Mill’s libertarian principle. No income or wealth redistribution. Constitution and Bill of Rights as contract benefiting only citizens. Problem solved.
Spoken like a man who needed a little more Andrew McCarthy in his life all along! Proof that A.McC.’s advent here is not only welcome, but timely.
Andrew McCarthy represents a solid, sober point of view not often expressed as well as he presents it. I read his book on Islamic terrorism and believe that PJ media is a better place because of his point of view. I look forward to his enlightening pieces in the future
welcome to PJ !!
An insightful article.
>> What is it that makes us virtuous? What slides us toward corruption and viciousness? <<
Sounds like a great topic. I hope at some point it will lead to a question I've been struggling with: Why are liberals and totalitarians such happy bed-fellows?
Good luck, looking forward to reading your articles,
Orit
What words mean depends on who uses them. To our present crop of leaders, “ordered liberty” means “we give orders, and you have the liberty to follow them”. The unspoken corollary being “And we have the liberty to punish you if you do not do as you are told”.
Similarly, “social justice” means “We shall inflict injustice upon you to punish you for something done several hundred years ago, by somebody who you are in no way related to. But you look a good bit like them, and for us, that’s close enough.”
Both are effects of the “root cause”, namely the overall mindset of our ruling class;
“We are not like you, nor do we want to be like you. We insist you become like us, BUT never question our fitness to rule you. Do not presume to think that you have a voice; you do not, because you are too (stupid/bigoted/violent/etc.) to deserve it. We are inherently superior to you, and you can never begin to approach our perfection. But we demand that you keep trying- according to our dictates as to how.
“Furthermore, we intend to continue hurting you until Hell freezes over, mainly because we can. You foolishly gave us the power to hurt you, and we will continue to use it, both because we enjoy doing it, and because it reminds us, and you, who’s the boss.
“And we don’t really like you very much, anyway.”
As Codevilla states, the relationship between the rulers, and the ruled, is broken. And those who broke it did so because their goal was forcing everyone else to be exactly like them. Failing that, they intend to force everyone else to serve them.
What never happens in this equation is the ruling class asking themselves if they really are as perfect as they believe themselves to be. Any who do are swiftly cast into the outer darkness, even if their query is a minor one. (Cf. Lawrence Tribe.)
Any group this hostile to analysis, even self-analysis, will never change by itself. If change is to come, it will have to be forced.
The place to start is at the ballot box.
clear ether
eon
Mr. McCartht – Welcome to PJM. I used to read you on NRO until I stopped reading NRO because of the rush to judgment on Zimmerman and because of the firing of John Derbyshire. I enjoyed your wisdom there, and I looked forward to enjoying your wisdom here.
I let my NR subscription lapse ten years ago or so and have come to only rarely visit NRO. What drove me away was their incessant attempts to be considered “respectable” in the BoWash axis of evil by always tempering conservative positions and seeking to “calm” conservative actors. Now, obviously I can be pretty critical of self-styled “true conservatives,” especially those of them who’ve never run for anything, held a political position, or taken an active position in the Party, but my criticisms aren’t based on wanting to be accepted by anyone but enough of the electorate to hold office. Republicans/conservatives need to stay out of the BoWash Axis except as is necessary to perform an elected or appointed job and seeking the approval of the denizens of the BoWash or of the Left Coast Ecotopia is a fool’s errand.
Excellent start!!! I look forward to more stimulating pieces!
Mr. McCarthy – You wrote: ” It has become famous … in the Supreme Court’s jurisprudence of “incorporation”: the doctrine holding that Bill of Rights protections that restrict the federal government are also validly asserted against the state governments, through the Fourteenth Amendment.”
I thought incorporation was a consequence of the wording of the Fourteenth Amendment which copies the wording of Article IV Sect. 2 of the Constitution. That section in the Constitution reads: ” The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The Amendment, in it second line, reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
The impetus for the Amendment was that the states of the former Confederacy were preventing their blacks citizens from owning guns. A Supreme Court decision in the ante-bellum period said that the Second Amendment (and I suppose others as well) did not apply to the states. Based on that decision the states could deprive some citizens of the right to keep and bear arms. The effect of the Amendment was to overturn that Supreme Court decision and extend all the privilege of immunities Americans had as citizens of the US, thereby overriding state laws depriving them of such privileges and immunities, in effect forcing the Bill of Rights onto the states. (Unfortunately, the Supreme Court in the Slaughterhouse case rendered that meaning nugatory and ever since it has been looking for ways to enforce the 14th Amendment through other strained meanings of it. To get a flavor of that, see Associate Justice Clarence Thomas’ concurring opinion in the Heller case.)
In any event, I do think that the 14th Amendment does extend the Bill of Rights to the states, whether the states like it or not.
Another outlet for Andrew McCarthy’s wise thoughts! Super!
Right! If freedom requires virtue, we are Babylon on the road to Sodom.
Congratulations on finding an alternative respectable news outlet, Mr. McCarthy-now all PJ Media has to do is add John Derbyshire, Peter Brimelow, and John O’Sullivan to its roster and the clean break from NRO’s tyranny can begin.
Andrew, have you really left NR?
“Only a virtuous people are capable of freedom,” Benjamin Franklin observed. “As nations become more corrupt and vicious, they have more need of masters.” What is it that makes us virtuous? What slides us toward corruption and viciousness?
Welcome Andy. What wonderful gifts Roger keeps bringing to this humble commenter, a place to read and even occasionally respond to some of the thought leaders of this land of ours. Very powerful when great minds assemble, even more powerful when they help disseminate the truth as a cure for the disease of propaganda.
And, that’s my response to the question above.
What makes us virtuous in my analysis, is an adherence to the notion that the people of any great nation deserve the right to know the truth and that they respect their own rules.
When a nation becomes vicious and corrupt is when one element decides that the people deserve only to know their “narrative” and that the actual truth doesn’t matter and that following their own rules don’t matter.
When one side pollutes and poisons the information stream to the extent that it serves only as a Propaganda and Lies Ministry.
When they decided that their own Senate need not follow rules, need not formulate a budget and present it to the people for review, pass massive legislation unread and unpresented to its people with an arrogance and dismissiveness of totalitarians and despots.
“YOU…will find out what’s in it when YOU read it”.
When the very founding documents of that land are trampled upon and dismissed with haughty and pedantic insults. When the Supreme arbiters of that very document suggest that other countries not follow its tenets.
When those who swear an oath to preserve and protect it, scoff at its age and wrinkles, suggesting that it promotes not wisdom, but doddering foolishness.
Creeping totalitarianism starts first with the shredding of the loyalty to the symbols of a great nation. The flag becomes the “wrong kind” of patriotism.
The assault on freedom of religion, freedom of dissent, (being kicked off the plane for disagreeing or given less access than those who grovel and shill), freedom of choice to purchase or pray.
A nation becomes corrupt and vicious when its institutions of higher learning are no longer beacons of light for critical thinking, but rather, become indoctrination farms with a cult-like adherence to the totalitarian narrative.
A nation becomes corrupt and vicious when its cultural watering holes are filled with intolerance for multiple views and promote only the totalitarian narrative.
As humans, the need to congregate and communicate is paramount to freedom from iron-fisted tyranny. When a nation forbids and forestalls those freedoms, it need not worry that it won’t be free one day in the future. It is not free now.
Resistance to the soft sell tyranny of small c communism is not merely a goal. It is an imperative. Freedom is not just another word for nothing left to lose, surrender is just another word for nothing left to lose.
A great nation recognizes the covenant we give to each other, that we will stand together, shoulder to shoulder, against any enemy of our freedoms, foreign or domestic, and preserve what those before gifted us. To do less, would be our everlasting shame. Because our children and grandchildren do not deserve less than that freedom. They do not deserve to be ruled by tyrants, liars and propagandists.
The price for doing nothing will be paid by them, not us.
Wish it were the Derb you picked up from the Craven National Review.
Dan Kurt
…our notions of equality and cruelty have dramatically changed in just the last three centuries. Both are now attuned as never before to the dignity of each human being — at least, once a person is born…Plainly, however, our expectations about liberty, and thus about ordered liberty, do not stand still.
In my view, inalienable (or unalienable) rights is an absolute not subject to human interpretation over time.
Calvin Coolidge
July 5, 1926
Philadelphia, Pennsylvania
“About the Declaration there is a finality that is exceedingly restful.
It is often asserted that the world has made a great deal of progress
since 1776, that we have had new thoughts and new experiences which have
given us a great advance over the people of that day, and that we may
therefore very well discard their conclusions for something more modern.
But that reasoning can not be applied to this great charter. If all men
are created equal, that is final. If they are endowed with inalienable
rights, that is final. If governments derive their just powers from the
consent of the governed, that is final. No advance, no progress can be
made beyond these propositions. If anyone wishes to deny their truth or
their soundness, the only direction in which he can proceed historically
is not forward, but backward toward the time when there was no equality,
no rights of the individual, no rule of the people. Those who wish to
proceed in that direction can not lay claim to progress. They are
reactionary. Their ideas are not more modern, but more ancient, than
those of the Revolutionary fathers.”
Still, it would be foolish to insist that liberty is not a dynamic concept or that our perceptions about it do not evolve…Plainly, however, our expectations about liberty, and thus about ordered liberty, do not stand still.
Nothing of my perception of liberty has changed throughout my lifetime.
“The need of expansion is as genuine an instinct in man as the need in a
plant for the light, or the need in man himself for going upright. The
love of liberty is simply the instinct in man for expansion.”
~Matthew Arnold
“Only a virtuous people are capable of freedom,” Benjamin Franklin observed.
Yes, and our virtue, our statesmanship and our leaders’ character, have shot craps.
It is a privilege to be able to explore them here at PJ Media, among friends and colleagues I so admire, and readers I feel like I already know — after all, I’ve been one for a long time!
I’ve been reading you for a long time, especially appreciating your writing on stealth jihad in America.
One of the great conundrums going all the way back to the ratification of the Constitution, was whether an individual state had the right to violate the liberty and rights of its people. Or could the Federal Government force that state to change its ways?
Various states used to have laws that: Legalized slavery; required racial segregation; forbade intermarriage between people of different races; made “sodomy” a crime even for married couples in the privacy of one’s own bedroom; etc. (In some states, it was even a crime for even a married couple to engage in oral sex, though the law was rarely enforced.)
The failure of states to change, led to the Federal Government intervening more and more to safeguard individual rights, starting with the Emancipation Proclamation. And gradually it became accepted by not just liberals but others, that the Federal Government could intervene in the individual business of states for whatever reason it wished, no questions asked.
I’m no legal expert, so I don’t know where you draw the line between states’ rights and individual citizens’ liberty. But an absolute enforcement of the Tenth Amendment might have left black Americans as second-class citizens in Southern states for a whole lot longer.
One of the great conundrums going all the way back to the ratification of the Constitution, was whether an individual state had the right to violate the liberty and rights of its people. Or could the Federal Government force that state to change its ways?
Who or what will force the federal government to “change its ways” when it violates the liberty and rights of “its people”, as it is already doing?
Virtue resides in the people as a body or not at all. It cannot reside in the federal government.
PJ Media readers welcome you Andy. Another insightful article and we all look forward to more.
VOTE FOR OUR FUTURE, VOTE RON PAUL!
WE STAND WITH ISRAEL!
SPEAK OUT AGAINST TYRANNY!
The American spirit lives! Congratulations to PJmedia, Andrew McCarthy, and the thoughtful commenters here.
I am prouder each day to write for PJ Media; the site’s prestige has arguably nearly just doubled now that Andy McCarthy has signed on.
PJ Media is my “go to” site every day. The quality of the writers and the comments are top notch. Welcome, Andrew McCarthy. You are entering a great forum to publish your ideas.
Welcome Andy! Congratulation PJM! *does Snoopy happy dance*
“…the Supreme Court’s jurisprudence of “incorporation”
Having been fascinated with the Law for 40 years, esp. Constitutional Law, I was dismayed and disappointed that I wasn’t familiar with the problem, and wish Mr. McCarthy would have given some examples, in his short article. Fortunately, readers Replies were very helpful to me, and I praise their great efforts to enlighten and engage those of us also a bit puzzled.
The discussion of “virtue” was inspiring, but if freedom depends on such a nebulous thing, it will not survive. “Virtue” cannot be enforced; the lack of virtue or its excesses can only be criticized, since the word means too many things within different ideologies. True “virtue” is highest in martyrdom, in slavery, in suffering, in poverty. Pick your poison. The “virtue” we demand must be “nailed-down” in the Law.
Regards,
Virtue is no more nebulous a thing than “freedom”. In the abstract both words are almost meaningless, but understood in the context of late 18th century America they come into sharp and complimentary focus. For instance the phrase “the pursuit of happiness” did not, in 1776, mean “everyone do you own thing”.
“The Constitution is not an instrument for the government to restrain the poeple: it is an instrument for the people to restrain the government-lest it come to dominate our lives and interests.” Patrick Henry
The short form for that is that the government is the hired referees not the players.
Virtue is taught by good example and positive results. Pain, the unrelenting teacher of woe, demonstrates bad example. ‘Man given rights’ are blasphemy in motion.
I look forward to reading more about virtues. What is most interesting about virtues in this day and age is that all people in a society can accept them–religious believers as well as atheists and agnostics. Because of this availability of virtues to all kinds of people, even a highly secularized society can use them as the basis for striving towards goodness. Striving towards goodness is preferable to mere utilitarianism–striving towards mere usefulness–because it avoids the dangers of utilitarianism. In a society based on virtues, we all–no matter what our belief system–can ask, “Is this proposed policy good?”
Welcome Andrew!
Big fan of yours for most of the oughties!
Happy to have AMcC aboard. Good piece and he’s sparked some insightful commentary.
My thoughts, from the piece and the comments:
Excellent work coming up with “hopeychangey”!
My main concern is how you derive the absolutely essential Order of “ordered liberty”. I think it requires both the self-ordering of a self that has mastered (or is always working toward mastering) the three Platonic aspects of human capabilities: Logos (reason), Thumos (spiritedness), and Epithumia (desire).
But it also means an Order which constitutes the anchoring ground – the baseline foundational template – by which such otherwise free-floating terms as ‘liberty’, ‘freedom’, ‘virtue’, and such are either solidly anchored or else left to float like loose electrons (I’m dating myself with my concept of subatomic particles, I know).
The Framers, in my view of it, worked at a moment in Western history when they could have their cake and eat it too: they could a) formally separate Church and State because they could b) rely on the Afterglow (my term) of the cultural, religious and to some extent still-existing philosophical unity in which all Citizens were grounded (even Grounded) as a result of the Afterglow of the Medieval Synthesis of Christendom (derived from the Greeks and Romans, added-to by Aquinas’s synthesis with Christian revelation). Aquinas contributed a vital foundational element: he didn’t simply ‘ground’ the definitions of all the necessary ‘virtues’ and characteristics; he Grounded them in the Beyond of (the Christian) God.
God provides the utterly essential Reality, much like a compass is reliable precisely because it itself is attuned to the geomagnetic givens of the planet’s magnetic field. Without being so attuned, a compass is a whimsical thing and fundamentally unreliable.
You can try to eliminate the Beyond and go for some purely philosophical ‘ground’, but reasonable people can differ about philosophy and you lose the foundational reliability of the ‘ground’ straight-away. Like an orchestra, if there’s no Score then no matter how competent the players, they are each going to start going off on their own. (We could take this analogy further with a Composer and a Conductor – which is the Christian and especially Roman Catholic approach of Aquinas – but let’s not do that here.)
Ditto if you try to create some reliability with a term such as “social priorities”: they can and do change or – much more ominously – they can be changed and perhaps by the government itself. Look how the Third Reich changed the ‘social priorities’ of the German Volk and people. The same with political and legal positivism: once a duly elected government issues laws, then those laws are inarguable, since the government itself is made into the ‘ground’ and there is no Higher Law (think of Mussolini who put it most succinctly: nothing outside the state, nothing against the state, nothing above the state).
Ditto those definitions of the vital terms like ‘liberty’ and ‘virtue’ and ‘freedom’: if you don’t have some ground or Ground that anchors those definitions then you have nothing more than free-floating variables and loose electrons. We’ve seen a lot of toying around with ‘definitions’ around here recently.
Think of an airplane pilot: being in command, s/he has ‘complete freedom and authority’. And yet if s/he subscribes to the idea, say, that an aircraft can be flown in reverse (backwards, that is to say) then that pilot is going to be exercising command-freedom lethally. The rules of aerodynamics constitute a baseline reality to which even the pilot’s command-freedom must be attuned.
(Taking that a little further: there are different levels of rules: a) what color the aircraft will be painted and what logo the airline will paint on the tail; b) the FAA regulations about what altitude and track a pilot must keep when flying through busy airspace; c) what action might be taken by the pilot in an emergency; d) the fundamental rules and laws of aerodynamics. While (a) is up to the airline, (b) is up to the government and (c) is up to the pilot but (d) can be changed by no human authority.
)
Lastly, I still can’t get my head around the incorporation clause of the XIV Amendment, but I most certainly agree that the Commerce Clause authority has been hugely distorted if not even deranged by its assorted extensions.
What caused the gradual slide from a federal government of limited powers to the Leviathan we experience today? The answer is complicated and complex, though easily set forth. While the Founders and their generation believed that the federal government’s powers only came from the people via the Constitution, in an expressed and explicit grant of authority, they also believed that the states were possessed of a plenary and unspecified – hence, unlimited – grant of authority as governments. While a number of different explanations were advanced for that, the essence of all such arguments was (and is) that the states are “sovereign”. Which definition of “sovereign” was meant was left unexpressed, so we have today’s unbounded federal government. A bit more.
To be “sovereign”, per Black’s Law Dictionary, is either (1) to be independent from other things of a similar or identical character and nature, e.g., Texas is independent of Virginia; (2) to be the person, office or group of people or of offices to which obedience is habitually given, e.g. “the King”, “the Assembly”; (3) to be the self-sufficient source of political authority. Only the third definition is one which would give states – or indeed any political entity – inherent plenary authority such as was claimed for the states and which is now claimed for the federal government. Unfortunately for the argument, the political theory implicit – if not explicit – in America is that the people are the self-sufficient source of political authority and only in their delegation of powers to any government is to be found the basis of lawful government authority.
“So what?”, you ask. So, where do (and have) our politicians received their practical basic training in government and political ideas? From the political arena of their states and localities. What is the predominant theory of from where the states’ authority arise? The notion of states, being “sovereign”, are possessed of inherent and plenary authority. You don’t believe? Read the Supreme Court cases on the police power of the state governments – which they may lawfully pass on to their local governments – which is inherent in them without the necessity for an explicit or even implicit delegation of powers, over their people on subjects such as health, education, public welfare and morality.
Given that 200+ year history, why are we suprised, then, when Nancy Peolsi’s answer to the question, “Is Obamacare consitutional?”, comes out to be “Are you serious?” When many and another member of the House and Senate laugh out loud when asked that question, why are we – some of us at least – outraged? The professional politicians learned their civics and political science lessons in the “laboratory of the states”, not from a textbook, and in that laboratory they learned that if they use and subtly misuse key words, they can do anything – literally anything – their little ole hearts desire, no matter how tyrannical it may sound, and be upheld in their acts by the U.S. Supreme Court. Why? How? Huh? Because no one has bothered to notice the basic switch that occurred at the Founding of the nation, the use of definition (3) to characterize the states, instead of definition (1). Longer than I really wanted to write, but that’s my take on it.
I agree with the Sovereignty ideas indeed.
I would add that the sitting political (and legal and professorial) class has learned not only from its experience with the States but also from Marxist-Leninist ‘revolutionary’ first principles from that Alien anti-Universe which Gramsci sought to insinuate into the developed polities of the West (vs. the Russian ‘East’ of October, 1917) and which was bought (with our tax monies and political heritage) by the Beltway when it embraced that radical-feminism of such bright-lights as Catharine MacKinnon (substituting ‘women’ for ‘proletariat’ and ‘masses’, and patriarchy for capitalism) and Chantal Mouffe (‘radical democracy’ has no need for any “deliberative democratic politics”).
After the Dems learned the hard-way (49 states to 1 in the 1972 presidential elections, after they had gone and declared themselves “the party of women” that year), they decided that ‘deliberative democratic politics’ was not the way forward for them and hence embraced what would be Leviatha from the Left. Meanwhile the corporatist and jingoist Right realized that in birthing Leviatha the Beltway had also set the stage to un-cage Leviathan.
After all, in the vanguard-elitism of the Marxist-Radical Feminist far Left, there always existed an authoritarianism hostile to democratic process: if most of the masses ‘just don’t get it’, then why bother engaging in debate or deliberation with such benighted, oppressive, hegemonic and marginalized donkeys (formerly known as The People)?
Readers of a certain age will recall the great elite and ‘progressive’ joke made of Archie Bunker, trundling off every day to his job and his union-meetings with his lunchbox to provide for his family. And we can see now how much such progress has regressed us all.
But costs and consequences were not to be considered. When you are making a revolution, to ask such Questions is nothing more than a clear indication that you are a backlashing enemy of the revolution. And everybody knows what happens to those types, courtesy of the youthfully robust history compiled by the USSR before it aged rather prematurely (compared to its eschatalogical expectations and presumptions) and finally took itself off to the dustbin of History.
But by that time – 1991 – the first principles of its brutally Alien political and legal Universe were poised to make it big all over again, here. And perhaps, in the baggage it brought with it (deliberately unexamined at the entry-port and eagerly waved-through by the Beltway guards) it also brought its own dustbin, so we’d have it handy when the time came.
And has that time come for us?
Good on ya PJ Media, Andrew McCarthy the best of a few top level writers left @ NR! hy not add a column by Derbyshire next?
I am really happy to see Andy here. Particularly his insight into what conservatives need to be aware of to win the battle with the leftist.
I have only one regret, and that is that Andy, like majority of the conservatives think that our government should have the license to interfere with what a woman chooses to do with her womb including terminating unwanted pregnancy.
In a wide sense, I’d like to say, if the American conservatives would just keep their social conservativism to themselves, to live according to it and shine it as an example to others, we would be running both the Congress, Senate and the White House.
Tragically we lose the battle because so many conservatives like to impose their personal values on others: Abortion, religion, drugs, etc.
Small government and personal responsibility means staying out of personal lives of other people.
National security, opposition to Islamic take over of our country and the world, financial conservatism, English as national language, honest emigration policy, all of this would draw 70% of votes if we could just stay away from imposing our personal values on others.
This is (mainly) OK as theory, but as always it needs to be tied to objects in the real world, often not the natural instinct of the modern lawyer.
So if you have time:
http://www.nationalreview.com/articles/299725/spirit-geert-wilders-mark-steyn
…among Steyn’s very best. The stakes are higher than most realise. Armchair abstractions about ordered liberty need to be harnessed to a mailed fist if you want to get anywhere. The legal profession is not close to having all the answers and never will be.
Ron Paul on his campaign moving forward: “I will be right there with you” Angel Clark Wilmington Elections 2012 Examiner
http://www.examiner.com/article/ron-paul-on-his-campaign-moving-forward-i-will-be-right-there-with-you
Excellent kickoff. And quite a series of replies so far. Some have already mentioned the problem of a precise definition of virtue. Liberal simply can’t do it and it they have given up a finding the meaning. It’s easier for them to make it up as they go, so long as it advances their utopian agenda, which is virtuous, and is also not definable.
Franklin was right. If people set as their first objective to be virtuous, the rest does fall in to place. Burke and those who follow his writings understand this. We also understand that some do not and will not ever lead a virtuous life, and so we do understand the need for government to protect inalienable rights, anything beyond that, as the article suggests, should be and can be handled by community interaction, among people whose goal is to improve their quality of life.
My blog-list order just changed.
VDH and Andrew McCarthy !!!
Thanks, PJM
Why does the First Amendment begin with “Congress shall make no law”?
Was it because those Rights of the People listed the First Amendment were specifically prohibited from infringement by the National Government, but the States could infringe upon them? Indeed at the time of drafting and ratification some States did have established religions, and continued to have them well into the 1800′s.
I think that the other Rights of the People protected in the Bill of Rights applied as prohibitions upon BOTH States and National legislatures, that such was the intent of the founders. That a State agreed to such prohibition upon its actions by be incorporated in the original nation and later upon entry into the “more perfect Union”.
It is clear that by the term of the Second Supreme Court that a potent group of national justices were set on defanging the restrictions on States, leading in the course of history to the dismal anti-Bill of Rights logic necessary to uphold the various incarnations of fugitive slave laws, and finally to the tragic ruling in Dred Scott.
The greatest evidence based threat to the USA is
Mexico
Mexican drug gangs have slaughtered 50,000 people in the last 5 years.
Yesterday another 50 mutilated bodies were found within 100 miles of the US border.
These same drug gangs are in Texas, Arizona and especially California.
These narco-terrorists now deal drugs- but they follow the money
-human trafficking
-biological, chemical and nuclear weapons
–whatever the money is linked to these gangs will smuggle.
Another irrelevant post from the foreign Islamist.
It’s good to see Mr McCarthy here. National Review having discarded the conservative banner, perhaps PJM can pick it up.
one might have expected that incorporation would be clearly prescribed — and that it might have taken less than sixty years for the Supreme Court to start enforcing it.
The fact that the 14th Amendment was never legally ratified might have something to do with the SCOTUS largely ignoring it for sixty years after it was “passed”.
SteveM – Could you expand a bit on your statement about the 14th Amendments’s never having been legally ratified?
Look up the history, it’s all there in the public record.
I wrote a paper on it in a Crim Proc class and the prof’s head almost exploded. They kidnapped the actual legislators and substituted two “ringers” in the Oregon Legislature to get the ratification. They refused to seat the NJ senator who was opposed to senate ratification. They refused to accept Ohio’s recission of their ratification. There’s more but I’m working off the top of my head. It came up to the USSC in the ’30s, Coleman v. somebody, IIRC, and they said “the political branches had accepted it as ratified.” As late as the ’90s an Alaska tax protester was fined by the 9th Soviet for trying to argue that it was improperly ratified. I’m certain that it was never properly ratified or properly transmitted to the Secretary of State, but it’s water under the bridge now and the most important part, repudiating Confederate debt and guaranteeing US debt in gold has long been satisfied; now we just play with penumbras and emanations using it.
Until it was discovered to have penumbras and emanations after Justice Douglass married a much younger and presumably fertile women, it was mostly used to thwart state regulation of corporations chartered in other states and was the instrument of choice for opposing unions and for thwarting attempts to break up trusts and monopolies. It did also get the US’ Civil War debt paid to the holders in gold, the proximate cause of most late 19th Century populism and Bryan’s famous “Cross of Gold” speech.
Andy, Welcome to PJ Media. I have been a fan of yours for quite some time now and I consider you a very, very brave man for your work standing up to the Islamo-fascists. I look forward to reading your future contributions and also the excellent comments that your writings are going to illicit — some of which I have already read above. Good Luck!!
Choose a life despot-free, yet restrained by rule of law.
-Aeschylus, The Oresteia
Welcome
A lawyer who is steeped in virtue. There are many who would maintain your newest columnist is is a rarity,if not an outright anomaly. Not without justification, in the light of the damage to our legislative system wrought by lawyers over the past two centuries. I look forward to becoming better informed on matters of virtue in politics and and of its absence in the primitive faith of Islam. Those who are gracious to those who are dedicated to their extermination are fools.
Welcome, Andrew. I look forward to becoming a staunch McCarthyite.
‘What slides us toward corruption and viciousness?’
The concept of precedent in court.
That single concept has turned the constituition 180 degrees from its intention.
One cannot build upon ground that can be formed by whichever presses against it.
Droughts AND rain a plenty cause cracks.
Adding Andy McCarthy to your conservative site is like adding Josh Hamilton to your lineup, one of the hottest players in baseball. My short list of great conservatives doesn’t include Andrew McCarthy. But my short short list does.
Wow. What a pickup. And regarding ordered liberty, I always use the road analogy. Imagine if you could drive your car in any lane, in any direction, at any speed. No one would be free to drive the country.
Welcome Andy.
PJ is great and growing greater all the time!!
McCarthy’s addition is a marvelous step forward.
Keep it up!
castaldo mitchell