In “The Value of the US Constitution“, The Politics of Writing quotes judge Richard A. Posner as saying “the … Constitution, the Bill of Rights, and the … amendments (including the 14th), do not speak to today.” The article goes on to say that “the constitution … represents the consensus of political philosophy at the time [it was written]… I would like to see more leeway to changes based upon the contemporary philosophical opinions.”
Prosecutor’s Opening Remarks
I agree that the constitution was created in a different time, but these documents capture a moral philosophy that is timeless. The idea of limited government enshrined in the constitution has already been thoroughly trodden on by today’s corporatist governments. This is not progress.
Cross Examination of the Defense’s Arguments
The Politics of Writing then holds up FDR’s proposal, made after the great depression, for a “Second Bill of Rights” to secure economic rights as an example of possible amendments that should be made. Let’s examine them:
The right to a useful and remunerative job in the industries or shops or farms or mines of the nation
What about people who are unqualified to hold any such job? Do they hold this right? What if there are not enough jobs for all the people who want them? What happens? Will the state somehow create jobs? If given as a mandate to the state, this would cause a growth in non-productive government jobs, leading to lower overall productivity, which in turn would decrease the tax base. Government workers are paid with taxes, so having more of them doesn’t help pay for more of them.
The right to earn enough to provide adequate food and clothing and recreation
This is merely a minimum wage turned into a fundamental right. Increases in the minimum wage can be absorbed by companies that have sufficient profit margins. Those that don’t (and some of those that do) will take one of several paths:
- Move their work to a location where labor is cheaper (e.g. Apple)
- Decrease the number of workers by increasing productivity, for example by increasing automation (e.g. MacDonalds)
- Pay the higher wages, become unprofitable, and eventually, shut down
In all three of these scenarios, jobs are lost. If the first right stands, the state will then have to create even more “negative productivity” government jobs, doing further damage.
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living
Does this apply to incompetent farmers? How are farmers who aren’t able to earn a decent living compensated? Does the state bail them out? Where does the money come from? Is it taken in taxes from individuals who had the foresight to invest in techniques and technologies that allow them to be profitable? How is that fair?
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad
OK, here’s one I like and see few problems with (at least domestically). Yeah, FDR! Not sure how this right would be enforced abroad, unless FDR was thinking new world order.
The right of every family to a decent home
I like this right, but see some problems with it: Where do families who can’t afford a decent home get one? Is it provided by the state? Where does the state get the money? By increasing taxation, thereby pushing even more families across the line into poverty, creating a vicious cycle of ever increasing housing project ghettos? This is exactly what has happened in many places. Homelessness is one of our greatest problems.
The right to adequate medical care and the opportunity to achieve and enjoy good health
Here’s another one I like and agree is doable (we have decent medical care here in Canada). There are, however, problems with health care being provided by the state. Costs go up, since there is less competitive incentive to keep them down. In Canada, one in ten dollars we make is taken by the state to cover the cost of universal medicare. Meanwhile, the bureaucracy and red tape grows, meaning costs go up. To combat this, services are cut to the bone, leading to ridiculous waiting times for so called “elective” surgeries, which often leads to terrible quality of life for those waiting.
Here are some hard to decipher Metrics on Medical Wait Times in Canada. For example, 53% of people in British Columbia, my home province, waited more that six months for knee replacement surgery. A close relative of mine was given a four year estimated wait on a surgery that, although technically “elective”, was essential if she were to prevent further damage to her health, including reduced life expectancy. For those who can afford it, the surgery is available from private clinics. In her case, the surgery gave a immense and nearly immediate improvement in quality of life.
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment
Again, I like these, but see some real problems with them. Canada Pension, for example, is a pittance, meaning people who work in the private sector must make provision for themselves. Yet government worker are given lavish pensions, paid for by taxes. Similarly, EI (employment insurance) premiums are taken by the state whether or not you will ever use them. But the system is then abused by people who game it to work long enough to collect benefits before “losing” their job to someone else, who will do the same for them after the required amount of time to qualify.
The right to a good education
How will this “right” be enforced? Will the state run the education system? This leads to poor quality, due to lack of competition. Over time, children will become indoctrinated by the system. For example, in Canada in the 1970’s, Social Studies classes were intensely pro labor union.
The constitution, its amendments, and the bill of rights are a fantastic framework, in that in most cases, they succeed in saying what the state should not do, rather than what it should do. Once you come to believe that the state is a necessary evil, you’ll see the genius of them. Any judge who claims their irrelevance is either an idiot (which is highly unlikely; judges have fairly high IQs) or an ideologue. Judges who allow their ideology to overrule their morals are, IMO, bad judges.
The evidence before the court is… incontrovertible, there’s no need for the jury to retire. In all my years of judging, I have never heard before, of someone more deserving the full penalty of law!”
— The Judge
Judge Posner (who is a sitting appellate court judge) has apologized for his statement, as well he should. The influence of partisan politics on the US Supreme Court justices has been blatantly obvious for some time, and is highlighted by the current war over who will appoint the next SCJ to replace Justice Scalia. If people don’t respect the law, the entire edifice will collapse (tear down the wall!).
All of FDR’s ideas are good, but putting them in the hands of state bureaucrats is unwise. Both parties have shown again and again that their interests are themselves and their corporate donors, with the people coming a distant third. That’s why Bernie Sanders and Donald Trump have done so well, even though they are nothing alike: they are both (at least in word) populists.