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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Monday, February 09, 2004

Steven Den Beste on treason and dissent.

First, elaborating further on "enemies": The term, as used in Article III, has a specific meaning; it does not mean "who- or whatever the Federal government chooses to call an 'enemy.' " For a thing to qualify as an "enemy" under Article III, there must be an actual war on between us and it. The U.S. citizen giving aid and comfort to Jacques Chirac, say, is no traitor, no matter how hostile Chirac may be to our National purposes.

Second, elaborating upon the common-law idea of "treason": There were other reasons to define treason explicitly in the Constitution, besides its use throughout English history as a particularly gruesome weapon between rival factions. The common law of England defined many other things to be treason. Some of them were simply inapplicable to our republic, as, for example, "if a man do imagine or compass the death of our lord the King": murder still being murder, and the President, as the Framers emphasized, merely one among all us other civilians, requiring no special legal eminence in the matter of his death. Some were repugnant: An attempt on the chastity of the Queen, or of the King's eldest daughter, or of his eldest son's wife, was treason; such concerns, whatever their merits in an hereditary monarchy, do not apply when an office is elective. Some were and are crimes, though the Constitution forbids that they be treason: Counterfeiting, for example, was treason under English law; it is, at least for those familiar with 25 Edw. III c. 2, conspicuously excluded from the definition in Article III, but placed squarely within the authority of Congress in Article I, Section 8. A large part, also, of what motivated the Article III definition was the impulse that later expressed itself more clearly in the Eighth Amendment: No one with his head on straight would say that filing coins ought to be punished like that. This is not to ignore the more inventive constructive treasons as part of the Framers' motivation, but they do not tell the whole story.

Third, a reservation as to "dissent." As anyone who has raised small children knows, there is no value to be had in dissent per se. The value of any thought, or of any expression of thought, is in its content, and not in its accord with, conflict with, or indifference to any prevailing orthodoxy. Certainly dissent is nothing to tout for its own sake; if we set aside any consideration of the actual content of thought, we ought rather to prefer harmony to discord. We have, for example, the "prevailing orthodoxy," if you will, that the Earth is round; the man who insists on its flatness is a fool with nothing of value to contribute, his "dissent" earns nothing but contempt from me. We've seen a lot of this, especially, in the last two years: Utter ass-aches screaming at everyone they can force to listen: "Pay attention, I'm dissenting!": the subject under dispute, whatever it is, a mere detail to them; the magic word "dissent," on the other hand, all-important. The rejoinder comes, it is the freedom to dissent that is of such tremendous importance: to which I answer, that doesn't improve my opinion of the man who makes nothing more of his life than a chronic, dreary, obnoxious proof that, hey, it's still there.

Finally, as to wholly repugnant ideas: We forbid our government to interfere, not because all thoughts are deserving of protection, but because no one has ever found a way to empower the government drawing a line here without its eventually growing into the power to draw lines everywhere. If a clear principle were possible, such that decent society stood on the one side and NAMBLA (to use Steven's pet example) on the other, I would not at all mind watching every last squidgy bit of NAMBLA being crushed out of existence. Note, however, that phrase, "drawing a line." It is only recently under the Supreme Court's "expression" jurisprudence (insisting on the explicit drawing of all lines) that NAMBLA's advocacy has been protected; for most of this country's history such advocacy would have been criminal, not because anyone could point to a definite line crossed, but from the general common-sense view that the line, wherever it was, would have been crossed long since. And freedom, somehow, was not imperilled thereby.

Here's something for you to mull over, Steven: The fact that common sense is subject to the occasional pitfall does not invalidate it; it is still, in many contexts, far more valuable than any substitute rationalism can hope to provide. And if this is not the case, then there is no special value to be had in government by the people, and no reason to prefer it to, say, the new Byzantium erecting itself in Brussels.

-- posted by Clayton 2/09/2004 10:43:00 PM

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