What's the value of a Bill of Rights?

The standard mythology of the right is that the constitution established separation of powers and limited government. By restricting the power of the federal government through the enumerated powers and the bill of rights, the constitution thus restricts the ability of the government to tyrannise its citizens.

Well, that's the theory. The first clue that something has gone awry in this theory is that nobody talks any more about the enumerated powers as an obstacle to tyranny. Hey, wasn't the federal government only supposed to be able to legislate on a small number of specific topics? Like, for instance, the following (courtesy of the excellent A Crime A Day)

Okay, so the Federal Government now can legislate on absolutely anything that isn't explicitly prohibited by the Bill of Rights. This may seem to violate the text of the constitution, but that's just because you haven't paid enough attention to the penumbras and emanations.

Part of what we're running into is the problem Moldbug described quite aptly - limited government is a fiction because sovereignty is conserved. Who is doing the limiting? If it's the judiciary, then the judiciary is sovereign.

There are no governments by pieces of paper, only governments by men. If the judges choose to follow what's on the paper, then the paper wins the day. If they don't, then it doesn't.

But to bring the matter full circle, are the judges really sovereign? Can they decide anything they want?

Well, maybe. Judges didn't used to be so sovereign. Back in 1832, Andrew Jackson (apocryphally) said of a Supreme Court decision "John Marshall has made his decision; now let him enforce it!". This was the Presidential equivalent of 'How many divisions has the Pope?'. Indeed, the similarities between the Pope vis a viz Stalin and the Supreme Court vis a viz the President are striking. There are relatively few federal officers directly answerable to the court across the land, which means that the courts are reliant on other people and branches of government to enforce their decisions. If everyone else chooses to obey, it is partly out of a) convention, and b) a quasi-religious reverence that got attached to Supreme Court decisions after Brown v. Board of Education. 

In other words, if the Supreme Court is sovereign, then it resembles the messy reality of what being King was actually like, rather than the textbook theory of absolute power. To wit, a large part of the skill of being king was knowing what orders would actually be obeyed and carried out, and limiting one's instructions to those. A king who goes too far in his estimation of his subjects' obedience and starts getting openly disobeyed won't stay as king very long.

At the moment, the Supreme Court just gets obeyed, out of a sense of duty. But if they pushed things too far in one go, that sense of duty might evaporate, and with it the whole prestige of the court.

And at last we see where written constitutions, or Bills of Rights specifically, might finally have some effect.

In particular, a statement on a piece of paper can serve as a strong coordination device- these things are disallowed under our system of government. Now, the sovereign is he who decides the exception, and a sovereign supreme court can decide when a particular constitutional provision doesn't apply.

But unlike the medieval kings (who obtained their right to be king by virtue of birth), the Supreme Court is in a bind. A substantial amount of its influence comes from the belief, even if deluded, that the court is actually following the piece of paper. Overrule that too explicitly, and the masses might lose their will to obey.

In order for this to work, however, the issue has to be something that a) people care about enough to challenge the nobility of the Supreme Court, and b) that people can agree on widely when the provision has been breached.

So which provisions might actually have a shot at forcing the court to do something that its individual members might not prefer to be done?

In this regard, 'Equal Protection' will be almost completely nugatory as a restriction on the court's personal preferences. What the hell does it guarantee? What needs to be equal with what? In fact,the very ambiguity lets it get used as a sword, to apply whatever leftist idea is the order of the day.

So what are the two areas that the Supreme Court has blinked on, at least relative to the view that Cthulu only swims left?

The big one was DC v Heller, when the Supreme Court unusually rejected the opportunity to gut the 2nd Amendment by claiming that it only allowed people the right to join a militia. 

This would have quite likely risked a total shitstorm, because gun owners really, really care about their guns, and every single one of them would have gone insane over this. I suspect some justices recognised this, and stepped back from the precipice. 

(Incidentally, this seems to be exactly what John Roberts did with Obamacare, changing his decision at the last minute rather than risking the court suddenly becoming public enemy number one with leftists, the court's natural constituency at the moment).

The other case, curiously, is the First Amendment.

Now, on the face of it, you may think that America has all sorts of restrictions on free speech, and you'd be right.

But you can rest assured that there is nothing on the books as repulsive as Section 18C of the Racial Discrimination Act in Australia, or the loathsome Human Rights Commissions in Canada that Mark Steyn had to battle with for years, or the repugnant British prosecutions of people for racist tweets.

On the issues that the left cares about, America still has fewer governmental prohibitions than nearly all comparable western countries. 

Now, it may be that America is just more conservative on this stuff. But if you look at how rabidly leftists at American colleges treat these issues, or how radioactive accusations of racism are, it's hard to countenance that.

Rather, I think that Congress and the Courts haven't yet had the gumption to make a big push to overturn this, because unlike equal protection, it would be pretty indisputable that the provision had been ignored.

In the case of free speech, I am sadly pessimistic about its long term prospects. At some point, when the hysteria over racism becomes sufficiently widespread, expect the Supreme Court to carve out some unprincipled exception that 'hate speech is different from free speech'.

But they're not there yet, because it would still be a risky move. 

In the rest of the world, however, it wasn't. Without the coordination mechanism of a long-standing bright red line, people just sat there and took it.

In the US, they'll probably end up taking it too, but the piece of paper maybe bought us 20 years or so.

That may not be much in the long run, but it's something.

Making the human race better

Let me ask you, dear reader, a fairly straightforward question.

Suppose that you and your wife or husband are about to have a child. All else equal, would you like your child to be smarter, or dumber? You will love your child either way, of course, so that's not the issue. But if you could take a vitamin supplement during pregnancy that would give them an extra 10 IQ points, would you do it? Let's assume it's a wholly natural supplement. There's a risk of childhood malnutrition without it, which will permanently harm their intelligence.

Taking the supplement would certainly make their life somewhat easier, and increase the chances that they could come up with important business and scientific advances that could benefit society. Lord knows parents spend hundreds of thousands of dollars on education after the fact to try to achieve exactly the same goal.

So to ask a slightly weaker question - does the prospect of such a vitamin supplement shock, horrify and disgust you? Is it repugnant, equivalent to the Holocaust, for parents to love their children so much that they wish them to be slightly smarter? Is it wrong to wish for these benefits for your neighbour's children, or your friends' children? If you're not an IQ booster, substitute in adjectives like 'taller', 'more attractive' or 'healthier' - the logic is exactly the same.

I am pretty sure the answer to this is 'of course not'.

So now, question number two.

Would society as a whole be better off if all prospective mothers took this pill? If you could make all the children in society smarter, healthier and more attractive, would that be a net benefit to society, or not? Would that be a project that we should undertake?

As it turns out, that project already has a name.

That name is eugenics.

Eugenics is, of course, in the popular discussion on the subject, literally Hitler.

And I personally find this the most unfathomably braindead attitude I can imagine.

In the case of eugenics, the objections to it are especially vague, and seem to descend into Godwin's Law territory even faster than most political issues, because eugenics is often explicitly presented as a motivation for the Holocaust. This is of course yet one more example in a long list that support the claim that "Hitler makes everybody stupid". Hitler butchered 6 million Jews in a horribly cruel manner. Therefore, we should be entirely unconcerned with whether the human race is on net getting smarter or dumber, or whether the prevalence of genetic health disorders is becoming more common or less common. Not quite so compelling when you spell it out now, is it? That's The Magic of Hitler™, that you never bothered to notice this before now.

To begin with a quibble - it's pretty bizarre to claim that the Holocaust discredits eugenics, because the Holocaust seems about the least eugenic policy I can imagine. Ashkenzi Jews have a mean IQ of 113-116 for crying out loud! I can scarcely imagine a more disgenic policy than killing them off wholesale. If Hitler was a eugenicist, he was the worst one in history, save perhaps Pol Pot, who deliberately killed anyone who seemed even vaguely smart. I don't think his monstrous actions teach us anything about eugenics.

Part of the reason for all this nonsense is that the term eugenics came to conflate two quite different concepts. The first is the general aim of improving the genetic stock of the human race. The second was a specific set of policies that got applied to do this.

If you can't change the genes of a population directly, you can still change their frequency. In terms of the existing population, we can't instantly clone adults, but we can kill them. In terms of children, we can either have policies designed to encourage more children from the people we want, or policies designed to discourage having children by the people we don't want.

Now, to give opponents their (very limited) due, a number of the policies implemented to achieve eugenic aims were in fact quite horrible. Killing entire populations is of course repugnant. Forced sterilisations of the disabled, the retarded or the mentally ill are something that we find very troubling and immoral.

Because this is a touchy subject, let me emphasise that I share the above concerns.

So for the purposes of argument, let us specify in advance, to allay any possible fears, that we shall rule out any policy whatsoever designed to specifically discourage anyone from having children, let alone killing anyone.

But what about the last category? What about just encouraging high-functioning, good people to have more children?

What in God's name is wrong with that? Why shouldn't that be something to be celebrated? Trying to bring more happy, healthy capable children into the world is about as far from the Holocaust as I can possibly imagine. So why on earth does it still get tarred with the same brush? Is it really so repugnant to increase tax breaks for rich parents? Is it appalling to run ad campaigns in low-crime-rate areas encouraging people to have more children?

Marketing and associations being what they are, I think we need a new term to describe the specific set of policies that encourage higher birth rates by well-adjusted people. I humbly submit 'progenetic policy' (a play on both genetics and progeny). But any new term would be helpful to sever people's inane association with things like forced sterilisations.

By this point in time, we have an overwhelming body of evidence from behavioral genetics that large amounts of personality traits and behaviors are significantly heritable, and have sizable genetic components. As a result, if you have more children being born with good genes, you will get more good outcomes. Isn't this something you'd want? This would seem obvious to me, but apparently it's not to a lot of people.

And the thing that is most perplexing to me about the current antipathy towards thinking about these questions is that not thinking about these issues doesn't make them go away.

Because the broader side of eugenics goes on whether you think about it or not.

There is no opt-out here. There is only eugenics, disgenics, or stasis.

Either the genetic traits associated with pro-social behavior, or IQ, or anything else, are becoming more prevalent in the population, less prevalent in the population, or they are staying at the same rate. So which is it? Which would you like it to be? When you design a new policy, it will either cause those frequencies to go up, or go down. This seems like something worth thinking about in advance.

You may not be interested in progenetics.

Progenetics, unlike Trotsky's quip about war, is not interested in you either.

But it is very interested in your children.

OMG, did you hear what Trump said yesterday?

Why, exactly, do people spend so much time talking about the US election?

There is an argument that this election is particularly important, that the contrast between the candidates is large, and that the consequences for the US will be important. It's natural, therefore, that people should care.

There is definitely an element of truth to this. The only question is magnitude - how much does this actually explain? In the case of Americans, it's hard to say for sure.

So let's try a related question - why do foreigners spend so much time talking about the US election?

Being back in the old country, conversation over here turns to the subject of Trump with about the same regularity as it did in America. Which is to say, frequently. I have heard far more conversations about Trump than about Malcolm Turnbull, Australia's Prime Minister.

It's hard to argue that the consequences for Australia of the election are particularly far-reaching. Defense links will continue. Trade links will continue. It is certainly hard to argue that the consequences are farther reaching, in the short term, than the actions of Australia's own government.

This is the placebo test. If you take out the factor you think  is really important and get pretty much the same result, it suggests that the factor wasn't as important as you thought  it was.

So why do Australians care about American elections? Well, for the same reason that Australians listen to American music more than Australian music (see here if you don't believe me). Because it's mostly just entertainment, and the US is the cultural hegemon.

In other words, a substantial amount of the interest in politics seems to fill the role of gossip. Nobody knows their neighbours much any more, so we need to find some common ground of people to share titillating stories about what someone-or-other said the other day.

And for this purpose, anyone will do the trick. More importantly, co-ordinating on the same set of gossip topics is useful for facilitating conversation with strangers from lots of places. It's the reason why local politics made way for state politics, and state politics mostly made way for federal politics. Partly this is because of the shift in power, but partly it's just a usefully agreed-on topic to talk about.

And in the case of foreigners, it also fills another useful aspect of gossip - feeling superior to the subject being discussed. Gossip is the revenge of the powerless against the powerful, taking vicarious pleasure in their misfortunes and mishaps. Is it thus surprising that countries which are smaller and subordinate enjoy mocking the leaders of Leviathan, especially those of a conservative bent?

I think that this is one of the aspects of democratic systems that  helps explain why it's been useful to keep the form of democracy even as substantive power gets transferred to the judiciary and the bureaucracy. The Romans knew that you needed bread and circuses to keep the people occupied and in check.

Trump may or may not be a circus you enjoy per se, but that never really mattered, as long as he kept you engaged. Like all gossip, only the unusually honest will admit that they like it as gossip. Mostly it has to get dressed up in more important excuses to not feel tawdry.

The fate of the country depends on it, after all.