Shut Up About the 'Bill of Rights' and Play the Ace

by Thomas Van Wyk

Exclusive to STR

January 2, 2007

It will undoubtedly seem odd for somebody who is concerned about political rights and their importance to freedom to pen an article with the above title.  After all, somebody who supports “rights” should support something called the “Bill of Rights,” right?   

The answer to this query is a reluctant “no.”  Clinging to rights enumerated by some crusty old landed gentry on a now centuries old piece of paper is not conducive to the goal of the free society or to a consistent anarchist or libertarian ethic of rights.  

It is abundantly clear that despite the ostensible “good intentions” of The Sacred Founders we are conditioned to fawn over, the “Bill of Rights” hasn’t really protected the rights it was allegedly drafted to secure.  Of course, it is true (at least last time I checked) that none of the first ten amendments have been “officially” repealed as a matter of “law.”  That is, the Federal Government of the United States still claims to protect these rights because it is bound by the Constitution to defend these rights (at least as we are told in high school and college Civics courses).  

With regard to The Sacred Founders’ good intentions I might submit, somewhat tangentially, that a stronger historical case can be made that the Constitution was made because most of its drafters didn’t find The Articles of Confederation amenable enough to the construction of a slave-supported, state-corporatist complex friendly to the interests of the well-connected and well-to-do.  “ America ,” it might be said, was conceived of a bloodless coup d'etat by a bunch of spoiled, landed gentry.  The fact that many well-connected, prominent American politicians and businessmen came to publicly favor “The American System,” powerful patent departments, state-bank alliances, corporate welfare and subsidies, and the remainder of the gamut of statist monstrosities, is not surprising in the least.   

The Bill of Rights implies similar interpretations of “intentions.”  Is it not conceivable that the 10 carrots were offered up as a means of mollifying Everyman, to allow the statesmen to build their state-corporatist complex without harassment from the hoi polloi?  

Even though Americans still “theoretically” possess de jure legal rights as “enshrined” in The Holy Bill of Rights and the Constitution, the de facto situation is much more sinister.  This is not particularly surprising.  Thinkers as diverse as Murray Rothbard, Lysander Spooner, Voltairine de Cleyre, and Mikhail Bakunin have pointed out in their own ways that the State really does not protect rights or safeguard common-sense morality, but is indeed predicated on violating and tearing asunder both.  As Bakunin wrote:  

[W]hat constitutes [the Statist] morality? Only State interests. From this point of view, which, with very few exceptions, has been the point of view of statesmen, of strong men of all times and all countries, all that is instrumental in conserving, exalting, and consolidating the power of the State is good – sacrilegious though it might be from a religious point of view and revolting as it might appear from the point of view of human morality - and vice versa, whatever militates against the interests of the State is bad, even if it be in other respects the most holy and humanely just thing. Such is the true morality and secular practice of all States.  

In such a light, then, we see that it is conceivable that those who debated and penned the “Bill of Rights” probably didn’t do so out of some selfless concern for liberty and an ethical political structure in and of itself.  This furthermore gives insight into the present condition: that the continued de facto erosion of rights continues apace is simply more proof that politicians do not and never really have been concerned per se with the rights of “citizens.”  

Many institutions exist which are ostensibly concerned with preservation of rights: The American Civil Liberties Union (ACLU), the National Rifle Association (NRA), and Jews for the Preservation of Firearms Ownership (JPFO) come to mind as examples.  But all these institutions and lobbying groups make the same mistake – their arguments turn on appeals to The Sacred Founders’ Intentions and on incessant appeals to the Bill of Rights.  Their strategy hinges on arguing rights and the law within the context of the Bill of Rights and precedents in law.  In the case of “freedom of speech,” for instance, New York Times Co. v. United States is used as a buttress for legal arguments that the State may not abridge freedom to publish even the secrets of federal officials and statesmen.   

But can’t this be a good thing?  Shouldn’t friends of liberty get in their licks where possible?  In a sense, yes; if some abridgment of property rights (after all, “human rights” are really subsets of property rights) can be stopped by appealing to some amendment or another, this is probably a superficially “good” thing, in a vaguely teleological sense.   

But, don’t bet that there will arise very often or very many situations in which this is possible.  It is doubtful that much ground can be gained, speaking purely from a strategically prescriptive, realistic, or pragmatic standpoint, by arguing about rights within the framework of the “Bill of Rights” or through grappling to historical “legal” precedent of old State decisions.  The problem with arguing matters of rights within the context of Bills of Rights is that arguing on the statists’ own terms does nothing less than concede the very legitimacy of the statist context of the debate!  This is intellectual cowardice that waters down the elegant essence of the radical position.  

“Partyarchy” – as Konkin called the phenomenon of anarchists who seek the libertarian goal through political means – is not conducive to the abolition of the state or to the reacquisition of rights.  Entertaining discussion of rights from the evil perspective of the Bill of Rights might send an improper message to those not familiar with radical libertarianism; namely, it is all too likely that cleaving to the Bill of Rights – rather than pure principle and common-sense moral arguments – will lead others to a false view of anarchist ethics.   

Anarchists view rights as ethical truths that transcend states, statesmen, and time, and that exist independent of historical circumstance; and anarchists must present this view unabashedly, clearly, and without equivocation, to critics and would-be converts alike.  If we appeal to “Bills of Rights,” it will look like we don’t truly believe in the natural, transcendent status of rights and liberty.  Perhaps most importantly, without a cogent theory of rights, anarchism is deprived of its core ethical and intellectual thrust.  

Furthermore, anarchists must remain poised to point out that the State is founded not on protection of rights but on their very usurpation.  From this viewpoint, does it not seem like madness to appeal to the “Bill of Rights” and state “protections” of rights, thus condemning anarchism to a blinding internal contradiction?  To ask the usurper to act as the caretaker is a bald affront to good sense.  

If rights are immutable, eternal, and natural – that is to say, not “granted” by some father-figure like the State (or, for that matter, God) – then clinging to the Bill of Rights only makes anarchists look like bewildered hypocrites.  Appealing to the Bill of Rights will ultimately work against the imperative of revealing to the mass of humanity anarchism’s ace-in-the-hole: its true radical moral ethic and conception of rights.  Anarchists must continue insisting that rights do not come from evil concepts like States, “democratic” “deliberation,” pieces of paper, and fictions like “social contracts.”   

It is thus a clear imperative that anarchists strip away the anti-intellectual trappings of appeals to Bills of Rights along with the sick, implicit underpinnings of those appeals.  Playing the Ace will hasten the goal of freedom far more than winning an occasional court case by appealing to the Sacred Bill of Rights.