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  • We the Serfs

    Posted by David McFadden on January 31st, 2013 (All posts by )

    The Preamble is one of the few parts of the Constitution that President Obama did not abuse in his first term. He corrected that omission in his second inaugural address by using “We the People” as a refrain. Democratic politicians love to use refrains in their speeches. At Democratic National Conventions the rabble gleefully and robotically chants the refrain with the speaker. The particular refrain Obama used reminded me of a fascinating talk Professor Richard Epstein gave during a panel discussion at the November 2010 Federalist Society Convention. At the time, I was surprised to hear Professor Epstein characterize “We the People” as the “most dangerous words in the American Constitution.” Now I understand that he explained exactly what Obama was up to:

    We have a deep ambiguity in our own minds when we start to evoke the image of “the people” in dealing with American constitutional law or indeed with any system of governance. . . . Sometimes we treat it as a celebration: “The American people have spoken and have decided x, y, and z ought to be president,” and what they really mean is that 54% of the voters happen to agree with one side and only 46 with the other, and what we do is we create a kind of an illusion of collective unanimity by taking a term like “people” and turning a majority into a total number. And in fact our Constitution does that in one place where I think it’s most misleading and most dangerous. I think the single most dangerous words in the American Constitution in one sense are the words “We the People,” which begin the Preamble. Now you would ask, now why is it that I would take such a negative view with respect to our document, particularly on this occasion? . . . You have to go back and see what the original draft of this particular provision was, and it said, “We the undersigned delegates of the following states,” and then you go through the rest of the thing. What it does in effect in one way is to kind of create this image of sort of coercive unanimity, and that’s the kind of language that you see also when you’re talking about the People’s Republic of China or the People’s Republic of East Germany–or closer to home, the People’s Republic of Cambridge, the People’s Republic of Berkeley–in which what you’re looking at is the notion that if you can get a majority, what you can do is to design and to organize the preferences of everybody. So the aggressive application of “the people” in terms of its ability to create and make law is in my mind a real open invitation to totalitarianism.

    Well, then you look at the other uses of the word people in the Constitution, and by detailed and sophisticated empirical techniques I was able to identify four such uses in the Constitution, all of which are contained in the Bill of Rights, one of them having to do with the right of assembly, one of them having to do with the various issues on searches and seizures, and one having to do with the Ninth and Tenth Amendments on reverse power. [The Second Amendment has another.] Well, this is what I call the benign use of the term people . . . because what you are doing is you are saying every individual within the society is going to be protected against the impositions of government so that the people can be secure in their homes. We do not mean by that sentence that all of us live in one giant tepee in which we have various separate rooms and they are going to be protected. What we mean is that each of us have private and individual rights and that each and every one of them should be protected against government. So the defensive use of the term people in the Bill of Rights has a completely different resonance and a completely different tone than the rather offensive use, i.e., attacking use, of the term when it starts to go into the Preamble. And this, of course, had real consequences with the design of the original Constitution because every time you start hearing the term people in the Preamble being invoked, it’s to sort of indicate the direct relationship of individuals to the central government, which necessarily is meant to sort of underplay and degrade the role of the states in the original system. So it’s not as though this is simply a rhetorical flourish without institutional consequences. It surely has those kinds of institutional consequences.

    As if to illustrate Professor Epstein’s point, Obama uses the phrase “We the People” five times to create an illusion of collective unanimity about (1) redistributionism, (2) the welfare state, (3) climate change (formerly known as global warming), (4) something opaque and equivocal about the war formerly known as the War on Terror, and (5) certain civil rights movements guided by equality “just as it guided all those men and women, sung and unsung, who left footprints along this great Mall.”

    Regarding that last one, he probably did not have in mind the men and women, or their predecessors, who would leave footprints along the Mall a few days later in the fortieth March for Life. And in addressing the illusory collective unanimity on the welfare state, Obama used another of his favorite rhetorical devices, the false choice. Those who say we have to choose between having our cake and eating it too are presenting a false choice, Obama argues. We can have our cake, preserving it for our children, and eat it too, he insists. (Actually, he said, “we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future,” but it’s the same thing).

    The inaugural address refers to “collective action” and shows Obama eager to use it to turn the illusory collective unanimity he claims into coercive unanimity. From the perspective of Obama and his infatuates, the Senate, with its advice and consent duty and its tradition of unlimited debate, is a problem to be “fixed,” for it stands in the way of the will of the people. Happily, that effort was checked on both fronts last week.

    It was to be expected, I suppose, that a demagogue par excellence would eventually find the Constitution’s “most misleading and most dangerous” phrase and exploit it to lend legitimacy to his program of undermining liberty and the constitutional structure.

     

    8 Responses to “We the Serfs”

    1. VSSC Says:

      I think worse than demagoguery …Statecraft. Obama speaks to America with Statecraft.

      Obama is an American Bismarck.

      The America he serves are Prussian minded statists, and he means to unify the American polis and country under it..remember Bismarck was a consummate diplomat. He only fought two wars – one in 1866 to get Prussia’s chief rival Austria out, the Franco-Prussian war in 1870 to unify Germany under Prussia. He succeeded.

      And Obama’s Prussian Bureaucracy is certainly organized and in it’s own way marching forth.

      Certainly they view the Federal State with the same affections and vest in it the same powers and abilities granted the Kaiser. Also of course as a de facto Aristocracy the same interests are vested.

      However unlike the Prussian state it is NOT invested in Honor, Virtue [defined narrowly as the opposite of corrupt], or with efficiency. Unlike Bismarck’s Prussia their Paternalism is anything but benign [no one in the Kingdom shall be Hungry]. And it’s not socialism either – it’s El Dorado-ism, aka Rubinomics.

    2. veryretired Says:

      The current regime, from its leadership on down to its lowliest banner waver, is composed of collectivist ideologues, always has been, always will be.

      Even the apologists who kept proclaiming their policies were pragmatic centrism have given up that ridiculous pose, and are now openly proclaiming the triumph of the progressive vision.

      As Prof Mead has explained in his series of essays on the end of the blue state model, even as the ship approaches the rocks, the progressives continue to believe endlessly and blindly that history is finally theirs.

      When the crash comes, as there is no “if” involved, priority number one for the progs will be, as always, to find a way to pin the blame on anything non-collectivist, and advance more collectivism as the only possible solution.

      If they are allowed to get away with their usual scapegoating, then the downward spiral will truly have been established as the only possible path for the Republic.

      If they are made to shoulder the responsibility for their policies and actions, then the recovery of our liberties and econommic prosperity can begin.

      It’s up to us. Choose.

    3. VSSC Says:

      Shoulder??

      Why indeed…

      Shoulder.

      This would of course be the 1st shouldering or responsibility ever for most of them. I feel the strain might be more than they could bear…

    4. Jonathan Says:

      Obama’s intentions have long been clear to anyone who pays attention to what he says. Regrettably, Americans are handicapped in their ability to do this. Our schools do not teach rhetoric or critical thinking, and we have a cultural disposition to dismiss the words of leaders as window dressing or spin that conceals rather than explains what is really going on. (Americans often use the word “rhetoric” to label statements which they see as false or misleading.) Thus many of us ignore the words of domestic and foreign demagogues and are later surprised to learn that the demagogues meant what they said.

    5. IGotBupkis, Legally Defined Cyberbully in All 57 States and Certifiable Movie Factologist Says:

      }}} I think worse than demagoguery …Statecraft. Obama speaks to America with Statecraft.

      No, there’s nothing inherently wrong about statecraft.

      What The One deals in isn’t mere demagoguery — it’s charlatanism.

      char·la·tan [shahr-luh-tn] noun
      a person who pretends or claims to have more knowledge or skill than he or she possesses; quack.

      On almost every level, The One displays the arrogance of someone Who Knows Better Than You.

      That is the essence of tyranny.

      http://dilbert.com/strips/comic/1998-11-12/

    6. grey eagle Says:

      ‘Climate Change’ is a message to Obama and to the world from God that He intends to support Israel keeping the land He gave the Jews.

      This is not the first time that God has used ‘nature’ to express Himself. Also, He mislikes Obama’s War on Religion.

    7. VSSC Says:

      I mean – Sir Bupkis of the Very Long Title – that he is NOT a national leader addressing his people.

      He is rather like a neighboring prince with a protectorate relationship to nominally sovereign bordering States he intends to conquer.

      This man is Bismarck addressing the Diet in Frankfurt – a free city of Greater Germany when he came there – certainly if you are in flyover country you should understand this man is not speaking to you as the First Citizen. Not until control by the enterprise he does lead Commands us all unified under their Control. That Sir is their attitude towards us..the Attitude of Prussia towards Greater Germany. For to him and his..we bitter clingers are indeed somewhat foreign, but far more importantly they have designs on us.

      So by Statecraft I mean as a Diplomat, Soldier or Commander addresses those of a foreign nation. A very similar nation in language, culture, institutions and government..but not YOURS. YET.

    8. VSSC Says:

      A leader of a peculiarly American form of socialism – collectivists who seem to collect the national wealth around themselves, with their capital having the 3 richest counties in America and the 7 richest Zip Codes. For Socialists there are certainly a lot of Maserati Dealers around this commune. A peculiar institution altogether.