“I come from a different place than you do. I respect your view; I ask you to respect my views.”
Sen. Diane Feinstein, D-CA
“The senator [Ted Cruz, R-TX] knows, having attended law school, and professes to have some experience in the Constitution: None of these rights are absolute, none of them.”
Sen. Dick Durbin, D-IL
In every speech whose thrust is false, there are direct falsehoods. It is the primary skill of the speaker of lies and errors to make these as seemingly-minor as possible. When Diane Feinstein says in the discussion of a piece of legislation that she respects another view, she means only that she is capable of forming the words “I respect your view,” and not that she has the slightest reservation about substituting, by force, her view for everyone else’s. It is clearly contrary to the respect of an opposing view to use the force of law to abolish its practice, to the favor of your view. It is like saying “I respect your property” in the very act of burning down your house.
The force of a legislative action is so great and so definite that one should emphatically not legislate where one truly respects the opposing view; if you respect another man’s view your respect must (at minimum!) restrain you from interfering in his practice of his own view. Diane Feinstein’s “respect,” in this case consists of a verbal reassurance to those who believe in the force of the Second Amendment, followed by a law which undoes its entire effect. She is using the language of a civil debate where people may agree to disagree, in order to advance a cause which, once victorious, will admit no practice of dissent. It is a mere pretense of discussion, obscuring her clear intention to override the wills and opinions of all others, with a unilateral act of legal coercion.
This is one of the dangers of legislation itself, especially collaborative legislation, that is, that the mere forms of discourse may lull us into acceptance of acts of peculiar violence and interference, by couching confiscations, confinements, executions, prohibitions, censorships, and compulsions in the trappings of an agreeable compromise. Taken on its own merits, from funding to enforcement, almost any piece of modern legislation is a shocking piece of coercion, but it is born and raised in an environment of absolute consensus that, “We certainly do have the business of doing such and such.” And the mere fact that the citizens are given a sliver of a chance to oppose it through the indirect and haphazard method of voting up representatives who must speak for them on all issues, in itself serves as an endorsement of any law; it is regarded as having passed “the Democratic test,” merely by being heard in a legislature before its compulsions are foisted on the populace.
For does Senator Feinstein speak for the constituents of her state on the topic of gun control? It is her duty to do so, and certainly there are millions of Californians on the same side of the fence as she is, though few as far. The difficulty is first of all that though she, as a complete legislator, won a majority of the votes, she could have won these on any basis whatsoever. Perhaps the citizens of California were stirred into a blood frenzy against the unborn, and wanted a strong advocate for their wholesale slaughter. Perhaps a successful PR campaign against the dangers of wealth brought them to the voting booth in desperation to increase the taxes on their paychecks and so escape the nightmare of prosperity. Perhaps even the democratic process is not practiced with enough efficacy in my home state to produce representative government at all, but is instead a mask for government by clique, if I dare suggest such a thing. In any case, the voters must select a single legislator to speak for them on all points, and if she has a particular fetish for gun control legislation, that is the price we have to pay for all her aforementioned contributions to the lives of her constituents. That is, that a representative need not represent at all on any issue not part of the campaign. And this is a real problem, because it means that any law passed by a representative body does not necessarily have any democratic quality to it whatsoever; we have left a wide margin open for the type of law that distinguishes the enlightened despot: Against your will, for your own good. One would hope that in surveying the body of law produced by Congress, one would in a general way be able to consider it all or mainly the product of representative institutions; that even where it failed to accurately reflect the will of the public that failure was accidental—that it fails to represent when it fails to fully be itself. But the opposite is the case; Congress’s laws systematically, by the nature of the body itself, detach from the popular will and instead represent the distinctly different will of the political elite.
It is almost outside the scope of thought for these type of legislators to say “This is none of our business.” As Diane Feinstein said, “Congress is in the business of making laws.” Neither rain nor snow nor sleet nor Jefferson will stop Congress from its rightful duty of interference. The American public’s need for oversight is so perpetual that no body of law may ever be considered to fulfill its needs; legislation must go forward without pause and without limit. The mass of law, that is, the restrictions and compulsions which the government contributes to our lives, must increase forever. There is no conceivable situation in which the further activities of Congress shall be judged (by Congress) to be even temporarily unnecessary. The need for laws is in this mindset equivalent to the need for bread; the required quantity is forever answered “More.” Feinstein will stand by her machine and keep it running til she collapses or her hand is pried from the controls; for the American people suffer from a devouring shortage of laws, and she intends to make sure they are supplied in full.
I am perversely reminded of what GK Chesterton wrote of the German emperor during the Great War:
So strongly do all the instincts of the Prussian drive against liberty, that he would rather oppress other people’s subjects than think of anybody going without the benefits of oppression.
He characterizes the Prussian state as a leader in the drive to subjugate the populaces of Europe, a drive it lead from the front, by first establishing the greatest shining edifice of Statism, then attempting to absorb all the other peoples of the continent. It is a point of irony that the wars of Germany against All, were first and foremost attacks by a state against citizens outside it. The collision between the German Empire (and the Third Reich) and the French Republic was incidental the German state’s ambition to own the free people who happened to live within the borders of the opposing state. The Statist seeks to subjugate people to his god, caring little whether they currently serve another state or are (even more irritatingly) free from such compulsion. By an odd little historical coincidence, the fight between a mighty state and the nearest masses of men it hoped to consume, has been assigned a series of names as if it were truly a conflict of states; that is, the interests of one state against the interests of another. “The Battle of Britain” should far more fairly be called “The Battle of Those Persons Who Happened to be Situated in the British Isles in the Days of The Third Reich.” I will not campaign for the change, I merely say that the aggressor was a state, the victims were human beings. The salvation of the state of Great Britain would be less than nothing if the citizens had been consumed in trying to defeat Germany. However, the victory of Statist Germany would have been the absolute epitome of success if it had destroyed all its own people in bringing the citizens of Britain under its rule; for the very meaning of Statist victory is the authority to consume human beings for the aims of the state.
Returning to our own situation, let us take Dick Durbin’s fallacy, which he infers is the opinion of anyone who has been to law school or has “some experience in the Constitution”. When the Senator says of constitutional rights, particularly those of the First, Second, and Fourth Amendments which were under discussion at the time, “None of these rights are absolute,” one may actually be tempted to infer that he is in an odd way making a case for limited government. After all, Jefferson declared, rightly, that governments are instituted among men solely to secure their individual rights. If the whole activity of the government is to be (as Jefferson clearly intended) the defense of rights, which Mr. Durbin emphatically asserts are not absolute, then the government’s authority must actually be more limited than even Jefferson intended! The government may only carry out activities which preserve the natural rights of individuals, but even in that it does not have unlimited scope, for those rights are not absolute.
Of course this is not Durbin’s intention at all, his intention is quite the opposite. He actually means to say that government’s scope is to be less limited, because the rights of individuals are less than absolute. The shocking implication is that any reduction of the rights of the citizens is an automatic expansion of the duties of an institution which has no purpose except to protect these same rights. He considers any gap in the rights of the people an actual mandate for the government to work against its specified purpose. Of course he has precedent on his side, as he said, even Republican appointee judges have routinely struck down the protections which would be granted by the plain and literal interpretation of the Constitution, clearing the way for government interference. This blackmail is entirely fair; the Republican party’s stomach for Vigilance and Liberty has not been iron-strong, and is not to this day. But fairness to your opponent (and his weaknesses) is a different matter from rightness, and though the obvious answer would embarrass many Republicans who voted for torture or for censorship, it is still the obvious and right answer. If Durbin is right, and the rights conferred by the Constitution are not absolute, he has not created a case for further government interference, though he may well think he has. He has created a strike against the very existence of his government. If the right to Freedom of Speech is not absolute, this does not constitute a reason to begin censorship! It, at best, creates a reason to leave off the defense of people’s freedoms. It creates a cause for neglect, and nothing else. If the right to Self Defense is not absolute, this does not create the necessary impetus for a campaign of confiscation and disarmament; it creates a justification to relax the police forces and let loose the oppressions of crime that the government was instituted to restrain. The reason for this is so simple I would think it unthinkably obvious, but the thought has not penetrated Congress, evidently. If the government is instituted to protect our rights, and actually created by our Constitution, then any relaxation of our rights or watering-down of the Constitution must actually shrink the government’s mandate. When Durbin says that the rights in the Bill of Rights are less than absolute, are trivial, modifiable, subject to convenient adaptation, he seems to forget that he strikes at the very root of his own authority. If we accept the view that the Constitution is not absolute, then how can the acts of Congress, its subservient creation, be actually more absolute? Durbin would be talking at least logically if he were asserting that some other, presumably higher law, had the authority to modify and adapt the Constitution, but he is asserting that a legislative body may actually exercise authority superior to the original law which gave it life.
Of course his error is actually even simpler than this. To use his own form: These rights are absolute, all of them. The original rights of natural law which Jefferson ascribed to the Creator pre-date and pre-empt any act of thief or king or legislature; they are in the nature of the Universe and Man and alone do they serve as justification for the existence of any restrictions of law. It is as immoral for a government to transgress against a man’s rights by legislative action as it is for one man to do so to another through more direct violence; no other “good” is higher than a natural right, and as such none can outweigh it. The transgression of rights is the primary earthly evil, and as such there is no possible justification. If a right is not absolute, it is not a right at all. The statement “None of these rights are absolute,” should be the sort of thing that the speaker is ruined over; the softening and undermining of our rights by the government is the original sin which ruined King George’s rule in America, and not long after sent reeling the tyranny of Monarchic Statism all over Europe until its great Prussian comeback tours. Senator Dick Durbin has pronounced the most direct of all treasons against Jefferson’s America, voluntarily before Congress and the televised world, and heard not a murmur of objection—God help us all.
As to the shape these rights have been given by the Constitution, the case is only in the slightest degree different: The forms of the rights described in the Bill of Rights are merely the concrete forms, the outlines or preserves if you will, of the more abstract rights about which we theorized in the Declaration of Independence. A Jefferson may well say “Life, Liberty, and the Pursuit of Happiness!” without specifying at that moment what actual actions will be covered, what will be specifically preserved as a freedom and what opposing actions will be emphatically forbidden as violators of the freedoms of others. That has been left to the Constitution, which some people seem to insist is as abstract and poetic as the Declaration, even as it goes about specifying the rules of order, the number of seats in each legislative house, and the mundane, day to day details of public administration. Somehow the phrase “Freedom of Speech and of the Press…” has come to be treated as if it were the sort of heavenly abstraction “Freedom of Conscience” self-evidently is. This is a fundamental error; Freedom of Conscience is an abstraction that nobody can precisely outline, Freedom of Speech is a literal, concrete, earthly concept that nobody but a modern politician can get wrong. Its most obvious, most clear, and most useful interpretation is the absolute and literal interpretation with which we treat the provisions of the Constitution that, for instance, declare that there shall be two senators from each state. If the administrative aspects of the Constitution were treated with the same “interpretation” as are the provisions of the Bill of Rights, we would see states multiplying their number of senators or lengthening their terms, insisting that the age requirements were part of a “living document,” and could not be taken as literal numbers. In short, it would be obvious that by treating clear provisions as figurative or metaphorical, we are merely treating them contemptuously, as subject to our whims. And this is the fate that has befallen the most obvious translation of abstract principle into law; “Freedom of Speech” has been transformed from an absolute veto on censorship of spoken or printed word into a general, but inconsistent, protection of anything which anyone chooses to label “self-expression.” The removal of the literal limitation (that is, that Freedom of Speech and the Press comes to protect things which are obviously neither literal speech nor literal press) has necessitated the adoption of restraints on all forms of expression including those which were clearly intended to be totally beyond the reach of law. A liberalizing expansion of the protections has become an excuse for a practical reduction of them, and the clear-thinking Founders of our country have had their prohibition against censorship undone by the softness of the modern mind.
In short, if rights are not absolute, what are they? The only possible answer is “nothing.” If a right is to be reinvented and adapted by the very body which desires to violate it, it is inevitable that the activity of reinvention and adaptation will merely be the method by which the right is entirely destroyed. The only purpose of a right specified in law is to defeat the efforts of those who would seek to violate it; if it is admitted (as Jefferson and Paine asserted) that a government has a temptation towards the violation of the rights of citizens, then it is unthinkable that the Framers had in mind any power of any branch of government to undo these restraints. The Bill of Rights was not meant to be suitable to Congress’s Statist ambitions, it was meant to be decidedly inconvenient, recalcitrant, even painful, but emphatically unalterable. “Why then is there an amendment process?” someone will no doubt ask. To add to the protections of the people, so that as the government or other oppressors invent new ways to trample the citizens, these may be met with the same intractable vigilance which was intended to thwart censorship and disarmament. Furthermore, can Durbin’s vision of undermining the Bill of Rights be justified on the basis of an amendment process which he leaves entirely unused? He may undo the Second Amendment with the mere wave of his hand before his collaborators, without the burden of careful adherence to the Constitution’s internal procedure for alteration, a procedure which anyone can see has the potential to be abused to undo our protections. Does this potential for abuse somehow serve as a justification for its worst possible abuse? How much less then does it serve as a justification for practicing the same abuse without even employing the legally required method!
Feinstein and Durbin consider their duty neglected, if you are so deprived of the supervision of Congress that you must make a decision without their guidance—their guidance by mandate. Their guidance enforced at the point of that same weapon which they seek to confiscate from you. “Do they need a bazooka?” asks Senator Feinstein, ignoring the fact that she is actually answering the question of what the citizens need, from a position of supreme ignorance. If somebody did have legitimate need of a bazooka (a possibility so remote that almost no citizens will or would actually demand this protection) he would know of his need long before Senator Feinstein would. But hilariously, she is ready to answer all questions about necessary armament on behalf of all citizens, and her position is actually quite as extreme (in the opposite direction) as that of anyone who demands that the protections of the Second Amendment apply to a bazooka. For she has called for absolute and complete disarmament. She has stated, unequivocally, that if she could obtain 51 senate votes to pass a universal confiscation bill, she would do it. So strong is her drive against liberty, that she would rather, well, do exactly what she does, than think of anybody going without the benefits of oppression.