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.

Why did 'racist' achieve what 'bourgeois' never could?

Out of the things that distinguish neoreactionaries from conservatives, perhaps the most striking is the following: both are interested in what's wrong with the modern world, but the neoreactionaries are more interested in how exactly we got here. Conservatives, by contrast, seems to just assume that the answer is to fight harder against the things you don't like. Moreover, fighting is assumed instinctively to just involve the standard methods of protesting, voting, writing letters to the editor, buying the right bumper stickers etc. Conservatives do not seem to notice that they've been trying those things for quite a long time now, and that's how we got to the present world.

It is this, perhaps more than anything else, that turned me away from mainstream conservatism. They keep losing, they don't know why they keep losing, and they're not devoting much thought to trying to figure out the answer.

So in the spirit of understanding losses, here's something I've been pondering:

Cultural Marxism has proven far more effective at taking over the west than Economic Marxism ever was.

Put simply, it is very hard to think of a slur that the left had at its disposal with anything like the power of 'racist'.

It is a widely mocked term by the right, of course, and justly so.

But that's not really the point, is it? The point rather is that any borderline credible accusation of racism (or most of the other -isms and -phobias) is likely to be career-ending, and everyone knows it. The people doing the mocking tend not to use their real names, or not to have careers in corporate America. By contrast, in 1950 it was being a communist that was liable to get you fired. Being a Nazi probably would have been dicey too, but it seems unlikely that just casually throwing around accusations of nazism in 1950 would have had anything like the same effect as accusations of racism today. Being accused of being 'bourgeois' or 'a capitalist' would have just been laughed at.

It's not just jobs either. The desire to show that one isn't racist seems to have captured the zeitgeist almost completely. Europe is in the process of allowing a flash mob invasion by millions of hostile third world young men just to prove how non-racist they are. There is resistance, of course, which gets beaten down with water cannon and prison cell. But popular resistance is not the puzzling bit. The non-resisters are almost sui generis in human history - wanting to give away their own country to prove how generous they are.

As an organising principle, racism seems to be considered these days to be the worst, if not the only sin. Rather striking for a term that was only coined in the mid 1930's.

And so the neoreactionary question poses itself - why did Cultural Marxism win where Economic Marxism failed?

I don't know for sure, but I can think of a few possible contributing causes.

Firstly, Economic Marxism was always liable to generate reasonably firm opposition from big business, because it directly threatened their existence. Old school Marxists were openly hostile to capitalism, and that meant that corporate America knew which side of the fight they would prosper more under. So they were willing to go along with things like the Hollywood blacklists of communists. Economic Marxism was an existential threat to a publicly listed company, so they were more willing to fight it.

By contrast, the costs that seem to be imposed by cultural Marxism are just a few diversity seminars, some wasted money on sinecures for bogus jobs like 'director of outreach' or 'diversity officer' and the like, and the occasional donation to shakedown artists like Al Sharpton. This is a pain, but is just viewed as the costs of doing business. Corporate America probably doesn't like those costs, but it's less important than staying on the right side of those in power, so they do it.

Secondly, cultural Marxism picked a set of traits that better aligned with tribal identity. All Marxism was about inciting group conflict in order to produce a big enough coalition to overthrow the existing order. But economic Marxism wanted people to unite based on their level of wealth. A poor factory worker in Detroit was meant to truly feel a bond of struggle with a peasant in Bolivia. And this simply isn't how people think of identity. Cultural Marxism appealed most strongly to things that people always  identified with, namely race, nationality and religion. It was much easier to get blacks to unite their opposition, or Muslims, or Hispanics, than the world's peasants.

But this leaves a puzzle - wouldn't this evoke a strong response by the antagonised classes, such as middle class whites?

I think this leads to the third reason - the carving up of multiple overlapping identity groups, most notably gender and sexuality. This is a way of letting white women or white gay men get in on the winning grievance team, all the better to increase the alliance against the hated white straight Christian males. Intersectionality was always a ridiculous premise, designed purely to paper over the fact that lots of the groups in the diversity coalition don't actually  like each other very much. But this only becomes a problem after the existing order is overthrown.

Even with all this, it's still an unsatisfying explanation. It's an obviously incomplete list, and I think it's important to understand it better.

"Cthulu always swims left" may be a good starting observation, but eventually you want to figure out how, if not why.

The Eternal Present Tense of the Liberal Mind

Out of all the critiques that Neoreaction makes of modernity, one of the most compelling is the sheer lack of historical knowledge (let alone perspective) that most people today have. The modern world is incredibly left-wing over any perspective longer than about 50 years, but how many people even know that? Liberalism is an ideology that exists only in the eternal twilight of the present tense. The past, to the extent that it exists at all, is merely a collection of evil ignorant attitudes and actions occasionally brought up in order to emphasise the righteousness of modern attitudes (that is to say, the righteousness of our liberal interlocutor).

But as I pointed out here in the context of colonialism, the actual level of knowledge about these matters is usually sparse to the point of being nugatory. Figures in the past are never actual people who might have had serious reasons for their views, no matter how far outside today's Overton Window they sit. There is no examination of why they thought the things they did, other than that they were deluded or evil or both. And because the signalling spiral must continue, even yesterday's liberal heroes are currently at risk of being thrown under the bus for being insufficiently progressive. Witness, for instance, the portrayal of LBJ in the movie 'Selma' about Martin Luther King.

For the left, this process of only focusing on the present views and preoccupations has the useful effect (for liberalism) of keeping people from noticing just how recent many of these ideas are. Despite being ardent cultural relativists in theory, the left's devotion to the absolute humorless eradication of the world's -isms is fanatical. These are deadly serious issues, you understand, and it would be inconvenient to note that it's only very recently that anybody even bothered to notice them.

Don't believe me? Consider the following.

Listen to the song 'Bourgeois Blues'. It was written in 1937 by Lead Belly, aka Huddie William Ledbetter, an American Folk Singer. It chronicles some of the treatment that Lead Belly received when on a trip to Washington DC. It's a great song - personally I like the Pete Seeger version, but I've given you the original. Pay attention to the story, and how he chooses to describe it.

Listen here people, listen to me 
Don't try to buy no home down in Washington DC 
Cause it's a Bourgeois Town, 
Ooh, it's a Bourgeois Town. 
I got the Bourgeois Blues, 
I'm gonna spread the news all around.

Me and my sweet wife Miss Martha,
We run all over that town 
Everywhere we go the people would turn us down 
Lord, in a bourgeois town 
Ooh, it's a bourgeois town. 
I got the bourgeois blues, 
I'm gonna spread the news all around. 

Some white folks in Washington, 
They know just how 
Call a colored man a nigger just to see him bow. 
Lord, in a bourgeois town. 
It's a bourgeois town. 
I got the bourgeois blues, 
I'm gonna spread the news all around. 

Me and my sweet wife Miss Martha, 
We were standing upstairs 
I heard a white man say we don't want no Negroes up there, 
He was a bourgeois man 
Living in a bourgeois town. 
I got the bourgeois blues, 
I'm gonna spread the news all around.

The home of the brave, 
The land of the free, 
I don't want to be mistreated by no bourgeoisie, 
In a bourgeois town, 
Lord, it's a bourgeois town. 
I got the bourgeois blues, 
I'm gonna spread the news all around.

Okay, got it?

So what strikes you about the song? Not about the story - that's obvious. What seems out of place in how Lead Belly describes the mistreatment he receives?

I'll give you a hint - what is the one word that you would use to describe the actions of the people here?

It's obvious - the word is 'racist'.

Now go back and look at the lyrics again - the word 'racism' is (along with its derivations) conspicuously absent. It's possible that this is a rhetorical or lyrical choice, and maybe he just decided not to use it. But the rest of the song doesn't feel that way. Consider again - you have a white man who calls at a married black couple 'we don't want no Negroes up there' (in other versions of the song, the man uses the word 'nigger' instead, suggesting extra malice in the nature of the demand). Now, faced with such a man, think of the list of words you might use to describe him, starting with racist, then bigoted, then ignorant, then whatever synonyms you want. Would you have thought of him as a 'bourgeois man'? Would this have even made top 20? It's inconceivable.

So what the hell is going on here?

The first point, which is the more obvious one, is that as late as 1937, the word 'racist' simply did not exist in the popular lexicon. This mirrors the history of the word racism - some attribute the first use to Leon Trotsky in 1930, and the first use in English to Lawrence Dennis in 1936. What seems hard to refute is that in 1937, it had not filtered down to Lead Belly when he was describing a situation where it pretty clearly applied.

And as George Orwell noticed, language tends to shape thoughts. It's not only that the word didn't exist. The concept simply didn't exist as an organising principle with which to critique various actions and views. Lead Belly knows what he doesn't like about the behaviour, but doesn't have a clear way of describing it. The most deathly important social injustice in the modern world, the worst sin and stain on character possible in today's society, the most important concept ever, dates all the way back to... some time after 1937. It's not only that people tolerated racism. It's that people didn't even have a clear concept of racism as a thing to be condemned.

There are many fascinating aspects to this worth pondering. One might wonder how it was that millennia of humans managed to live and die without even noticing the most important crime one can ever commit. Seems odd, no? If modernity is right, and all of history is wrong, racism is the worst injustice one can commit, and is evident in everything from requiring voter ID to banks failing to issue home mortgages at the same rate for all neighbourhoods. So how come nobody even noticed until the middle of the 20th Century? Don't hold your breath waiting for an answer from today's progressives.

But the song actually does give us a partial answer. It's not just that Lead Belly doesn't describe the behavior as racist, it's that he describes it as 'bourgeois'. Google tells me this means 'of or characteristic of the middle class, typically with reference to its perceived materialistic values or conventional attitudes'.

What's going on, in other words, is that in 1937 the left was preoccupied with class, not race. 'Bourgeois' was an all-purpose slur for behaviour that the left disapproved of. Hence, it gets slung around in the same way when other words might be more appropriate.

These days, class is on wane as an organising principle of critique. The Cultural Marxists have displaced the Economic Marxists as the leaders of the left, and in the process 'materialism' and 'capitalism' have been shunted to the back of the '-ism' bus, elbowed out by racism, sexism, homophobia, Islamophobia etc etc.

In 1937, the worst possible sin you could commit was to be a capitalist who was exploiting the poor. But times change. While being a capitalist exploiting the poor is still not ideal, in 2015 it pales into utter insignificance next to the currently unthinkable prospect of a hotel proprietor casually telling someone 'we don't want no Negros up there'.

Of course, if you think about this too long, you might begin to wonder whether in 2087, racism will have lost its place as the Worst Possible Thing Ever, and something else that today we don't even have a word for will have taken its place. This may also cause you to second guess whether the current emphasis is in fact misplaced.

Better to not think too much about it, you might end up too far down the rabbit hole, reading Moldbug and scorning modernity.