Monday, June 08, 2009

A British Constitution?

Your humble Devil has always been mildly sceptical of the calls for a "written Constitution": as far as he is concerned, our Constitution was written with Magna Carta Libertatum, the 1689 Bill of Rights and legal innumerable precedents decided in a court of law in front of a jury of Englishmen.

Indeed, I find it slightly shameful that we should even need to talk about having such a document: surely the point is that our Common Law legal system and our Parliament's dedication to freedom rendered such amateurish scribblings unnecessary. A hard-written Constitution, surely, was only required for the colonies.

Of course, it has become rather obvious, over the last century or so, that a US-style Constitution might not have been a bad idea—although the enemy of freedom has not so much been our judges or our Parliament, but the people who elected the latter cunts to office.

It has been the people of Britain who have failed the cause of liberty, as greed has provided the motive—and democracy the means—to pick the pockets of their fellow countrymen.

That being said, your humble Devil does not believe that a written Constitution would be a good idea—there are many reasons for this, but the most pertinent is the character of those who would be writing it.

I was going to write a long and detailed post on said reasons, but Bella Gerens has pretty much covered everything that I wanted to say, and I do recommend that you go and read her post on the subject—being an American and quite bright, she does have some inkling of what she's talking about.

But, in regards to those who would be constructing this Constitution, Bella has precisely the same qualms as I.
Then, naturally, one must consider who would be writing the British constitution. The organisation of the British polity would seem to demand that this be undertaken by the Government, which undertakes all other matters generally, whether by use of executive privilege or its majority in the House of Commons. A Government-composed constitution would naturally result in a highly-politicised, fad-filled document reminiscent of the European Charter of Human Rights, which includes absurdities like the right to an education and the right to healthcare. Many of the ‘rights’ described therein can only be guaranteed and provided by a collective entity – the state – at the expense of others. What it would come down to is a pitting of right against right, liberty against liberty, entitlement against entitlement, wherein your right to your property is overridden by my right to healthcare, just to name an example. A true constitution would include as rights or liberties only those things which are universal to all people at all times, and thus do not conflict with one another. Call me sceptical, but I doubt that any British Government of whatever party would produce anything of the sort.

Quite. This was something that I more than hinted at when I wrote this post (please forgive me quoting myself so extensively, but I remain quite proud of it).
The crux of the argument is this: once upon a time, our rights were only those which did not need to be defined—what some would call "negative rights"—and which were centred around the human right, basically, to be left the fuck alone.

Now, our rights are described and circumscribed by the state—so-called "positive rights"—and it is the state that defines what our rights are, and the state, therefore, can also remove those rights.

For example, when the state defines that citizens have "the right to an education", what it actually means is "the right to an education provided by the state and funded through the extortion of money from other citizens".

"Surely, Devil," some will cry, "this is a bit of a leap of imagination?" No, not really: let me amplify.

There is no such thing as free education and if someone cannot afford to pay for an education for their child, then the money must come from someone else. And the only way that you can absolutely guarantee that this money can be obtained—as opposed to, for instance, soliticiting charity—is to know that it can be stolen from someone else.

And the money must be stolen from someone else because the state has said that the right to an education is a fundamental "human right": therefore, not only must the right to an education be delivered upon, but it morally supercedes the right not to have the product of one's hard work stolen by force (because being allowed to keep one's own property is not, you see, a "human right").

And the only organisation that can be allowed to steal people's property by force is the state. This is not only to allow the state to keep order, but also because any other agency which was allowed to steal from people would be a competitor to the state—a challenger to its power—and thus absolutely cannot be allowed.

(There are agencies in the UK other than the central government who are allowed to steal to fund their programmes, of course; these include the Scottish government and local councils. However, they depend upon the central government for their power, much of their money and, indeed, their very existence; they are thus part of the collective entity known as "the state".)

And since the state is the only entity that can legitimately steal from people, the state is the only entity that can guarantee "the right to an education" and, by extension, all of those other "positive rights" that are now defined.

And so, because our rights are now defined by the state, we have become subjects—vassals of the state—and have simultaneously entrenched the rights of the state to continue to steal off us.

For, if human rights (as they are now legally defined) are an absolute moral good and the state is the only entity that can deliver those rights, then the very existence of the state itself must be an absolute moral good.

And if the state is an absolute moral good, then the state's right to steal off individuals must also be an absolute moral good. As such, the state-defined "positive human rights" must trump—both practically and morally—any individual rights at all.

As such, the state is now the most important entity in the country; it is far more important than any individual or collection of individuals.

And that is why we are treated with such contempt by our rulers: because they are an absolute moral good and we are merely aphids to their ants—aphids to be farmed for our sweet sap—so that the state can deliver to us our "human rights".

And that is why our freedoms have never been so clearly defined and yet so clearly non-existent.

Bella also raises another problem—one that conflicts with the idea of Parliamentary sovereignty in what currently passes for our Constitution: that no government may bind a future administration.
One must also consider the issue of parliamentary sovereignty. Even if such a document were to be produced and ratified, one parliament cannot bind future parliaments – unless that traditional convention were to be specifically negated in the new constitution. Given the current disagreement about the Lisbon Treaty, I’m not sure that the binding of future parliaments is a precedent that ought to be set, let alone codified in a constitution. It is a distinct advantage and disadvantage of the British system that change in laws and institutions can occur quickly and without warning; take away that ability to institute the good and eliminate the bad, and one ends up with a petrified, moribund system like the US has, where even necessary change is slow to take place and the checks and balances on each and every branch of government mean that very little growth and evolution are possible. This works in the US because we’re used to it – it’s always been that way – and because the original system was conceived of and implemented by men who were steeped in Enlightenment thought and truly wished to create a polity whose values and operation would be acceptable to all people at all times. So far, they have been more or less successful. But I consider it very unlikely that any constitution the British government produces would have this aim in mind, much less achieve it, and thus I think it very unwise of the British people to bind themselves to a document of the times and the prevailing political and social mentality.

We have seen what a Labour government's idea of a British Constitution would look like, for Jack Straw was eagerly trying to push it upon us. It had, if you remember, an awful lot about the duties of the people to the state, and not an awful lot about freedom, about liberty or, indeed, the right to be left the fuck alone to get on with one's life.

No, any Constitution written in this day and age would be very much like the much-mentioned Social Contract: something you never signed or agreed to, which allows the state absolute licence to pinch your pocket whilst constantly changing what it is obliged to deliver.

I already feel like Lando fucking Calrissian; indeed, your humble Devil can often be found striding around, muttering "this deal just keeps getting worse".

Do you really think that a British Constitution written in this day and age would look more like the US version than the Lisbon Treaty? I think not.

Those of you who yell for a written Constitution—seriously, just consider what you are asking for. Do you think that libertarians will be writing this document? Or do you think that the hideous mores of so-called Social Democracy will be set, near enough, in legal stone—almost unchangeable—for the next few centuries?

In the words of one comedy character, "is that what you want? 'Cos that's what'll 'appen". And, believe me, that would be no laughing matter.

Another point that utterly fails to amuse me is the near-mythical power that some people—mainly libertarians—ascribe to such a document. Somehow, this would secure our freedoms and bring peace and order to the galaxy, or something.


If we accept that the US Constitution is one of the better documents produced, how has that fared? Here's Bella again...
If one uses the US constitution as a basis for judgment, one runs into problems immediately. The first, and most obvious, is that the existence of such a document does not in any way guarantee against its infringement or selective interpretation. There are many schools of thought in the US about the purpose, place, and meaning of the constitution, ranging from the strict constructionist, the Founders’ intent, all the way to the ‘living document.’ The fact that there is a document – a particularly clear and well-composed one, I might add – has not stopped anybody from reading his or her own wishes, intentions, and prejudices into its text.

It is also the case in the US that the provisions of the constitution are routinely, one might even say ritually, infringed. There has never been a point in history at which the liberties outlined therein have been available to all Americans at all times. Politicians are very good at coming up with reasons and justifications, however spurious and transparent, for circumventing, withdrawing, or otherwise ignoring the protections set out in the constitution.

The anti-Federalists were worried that, in setting out the rights of individuals, a constitution would limit individuals only to those rights, and prevent people from claiming those traditional liberties which had never been legally stated but had always been understood to exist. Their worry turns out to have been true: as the constitution is interpreted in the US today, an American citizen possesses only those rights which are detailed in the first ten amendments to the constitution, and no others. Right to property is conspicuously absent.

What does all of this mean? Well, to put it succinctly, that the US (as I have been learning over the last few months) is very far from being the low-tax paradise "Land of the Free" that many libertarians and Conservatives would like to believe. (Just try getting into the damn country, for starters.)

To put it even more bluntly, the US Constitution will delay the onset of full-blown Social Democracy—of the type that we so bountifully "enjoy" in this country—by only a few decades.

Even now, the US is moving ever more rapidly towards socialised healthcare, towards more and more Federal—that is, central government—control, towards greater and deeper central state interference, pocket-picking, nanny-statism and protectionism. President Barack "fucking idiot" Obama may well complete the destruction within a few years.

No, I have come to the conclusion that one of the few things that would make me seriously consider leaving this country—and all of its beautiful ale (and it would take an awful lot for me to leave that)—is a written Constitution.

Because that Constitution would be written by cunts: it is already bad enough that we are ruled by cunts, but at least we can choose a different set of cunts after five years and we can hope—if a little forlornly—for a set of decent people eventually.

With a Constitution written in this day and age, we would be stuck with a legal document that would force us all to be cunts ruled by cunts, and adhere to the principles of cunts for many a long year.

UPDATE: regarding the ECHR, Bella has provided a correction. She was, it seems, thinking of the Universal Declaration of Human Rights which does, in fact, contain such sentences as...
Article 26
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages Elementary education shall be compulsory Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

Mea culpa, etc.


thefrollickingmole said...

We have the same problem here in Oz. A bunck of arseholes who know they could never get their policies through in a vote are pushing as hard as they can for a written constitution.

Its quite simply because they are to intellecualy poor, or their policies are to on the nose that they cant be arsed to convince the people or a political party to embrace them.
They see democracy and government as "to slow" to impliment the changes they want.
For fucks sake the biggest single strength of a Parlimentary system is it takes ages to change things in a meaningful way. So a policy must be implimented, but generaly (unless it costs are to high politicaly) it can be removed or modified by the next government. So it can take 3 or 4 terms of a government to really cement a policy in place.
Its no coincidence that the worst legislation is passed when the government is being "efficent" and ramming through the most legislation/laws.

Any cry for "an increase in the efficency of government" (its running not its delivery of services) is in reality a cry for less liberty.

Can anyone name me one specific "bad" thing that would happen if the government failed to pass a new law for the next 5 years?

Chris said...

I actually agree with you on something. What is written down in a constitution is just some guy or girl's idea at that specific time in history. To say that the constitution will represent universal rights is an illusion - as circumstances and the enviroment are always changing. The U.S's current argument on gun control is the most obvious example. The British system of "muddling through" or "making-things-up-as-you-go-along" gives us a flexibility that arguably makes us more liberal, as we're more free from the choking dogma of a constitution.

Angry Exile said...

frollickingmole, we do have a written Constitution here in Oz, and I think the states all have their own Constitutions as well - Victoria certainly does. Where they differ from the US versions is that they just establish the structure of the government and have virtually nothing about any rights or liberties, and what there is is often "implied" rather than explicit. I'm not sure this is better or worse than a Constitution with a Bill of Rights but I'd certainly agree with the Devil that I'd no more want an Australian BoR written by the ALP (or the Lib/Nats for that matter) than a UK one written by Brown's Labour or Cameron's Tories. For all its faults the US one was written by people who seemed anti-state and pro-individual liberty, and if we want anything remotely as good for either country, let alone better, then it won't come from the usual suspects.

Alternatively, if we want to do without a BoR altogether then what protects individual liberty? As far as I can tell it pretty much comes down to the people wanting it strongly enough that governments can't do anything about it. But I worry that desire for liberty is a bit inconsistent and too easily bribed or bullied away by the government. Those who care most will scream that they can't do that, and the government will simply turn round and say "Oh yeah? Show us where it says so. Go on, where's it say we can't?" Those who don't care that much or who actually support the bullying or bribing, not to mention the large numbers on the receiving end of it, will just shrug and let it happen. How many people happily took their $900 cheques without wondering why the government didn't simply tax them less in the first place? Fucking millions!

I feel that a BoR can have value but it needs to be worded in such a way that rather than granting positive rights it recognises that there are negative ones. It ought to be pretty bloody unambiguous too so that some dickhead court can't easily pervert the meaning in the future. Look at how the Americans have got into trouble with the Second Amendment because of lawyers and politicians arguing over the meaning of "militia" and the placement of a comma. If it had simply said that guns are fine and anyone who objects can fuck off and live elsewhere there'd be no argument.

Stan J said...

If the right to an education and healthcare were written within the same context as the right to bear arms then it wouldn't be a problem ie. you have a right to those services if you can find them, and the government cannot interfere with your choice or deny you access to them.

So none of these attacks on homeschoolers like in California, where the state basically said they have a right to indocrinate the children.

And none of this garbage about forcing kids on chemo, telling people what they can and can't plant in their garden, and telling people what they can and can't eat.

Roger Thornhill said...

My first aim is to re-state/assert/affirm the existing documents and our long-fought-for hard-won freedoms.

Once people have those back, IF a document is then produced people may spot and reject the Fabian more easily.

Jock Coats said...

I was listening to some Hans-Hermann Hoppe the other day, who made the observation that in his opinion the US Constitution was, almost the moment it was written, "unconstitutional" in terms of the freedoms from government demanded by the Declaration of Independence and Bill of Rights.

Paul Lockett said...

One thing I would disagree with is the idea that the ECHR gives positive rights to education and healthcare. The wording says that the government can't deny people access to education. It is purely a negative right. I could be wrong when it comes to healthcare, but I don't remember any mention of it in the ECHR at all.

John B said...

It's one of the most wrong-headed comments on the ECHR ever made. I fucking hate the way that, because the European Commission are corrupt and the CAP is a terrible idea, anti-EU people tend to tar the ECHR (which came before the EEC even existed, and has nothing to do with the EU) with the same brush.

The ECHR, drafted by British lawyers to reflect the liberties we enjoyed and that we felt ought to be shared with Continentals, is a fine statement of negative liberties. There aren't any wanky 'rights to healthcare' or 'rights to be given fuckloads of money by government' - simply:

Article 1 - Obligation [solely for the governments who've signed the treaty] to respect human rights
Article 2 – Right to life
Article 3 – Prohibition of torture
Article 4 – Prohibition of slavery and forced labour
Article 5 – Right to liberty and security
Article 6 – Right to a fair trial
Article 7 – No punishment without law
Article 8 – Right to respect for private and family life
Article 9 – Freedom of thought, conscience and religion
Article 10 – Freedom of expression
Article 11 – Freedom of assembly and association
Article 12 – Right to marry
Article 13 – Right to an effective remedy [against violation of the rights above]
Article 14 – Prohibition of discrimination [only w.r.t the enforcement of the rights above]

It's a document that solely limits the state's power, in all the ways in which the state's power should be limited. If it didn't have that 'E' on the front, you'd love it.

Mole said...

Angry Exile

Whoops my mistake, I was somhow thinking of our push for a bill of rights rather than the consitution.
My mistake.

fewqwer said...

John B

Interesting that you stopped at Article 14, when there are 59 Articles in the ECHR. I wonder why that could be?

Articles 1 - 18 are the 'negative rights' you cite, each with a caveat rendering it essentially vacuous.

Articles 19 - 59, the bulk of the document, set out the establishment of the trans-national 'European Court of Human Rights', which is of course the true purpose of the enterprise.