The Corruption of Civil Rights

and Civil Law

The effects of the late civil strife have been to free the slave and make him a citizen. Yet he is not possessed of the civil rights which citizenship should carry with it. This is wrong, and should be corrected. To this correction I stand committed, so far as Executive influence can avail. Social equality is not a subject to be legislated upon, nor shall I ask that anything be done to advance the social status of the colored man, except to give him a fair chance to develop what there is good in him, give him access to the schools, and when he travels let him feel assured that his conduct will regulate the treatment and fare he will receive. President Ulysses S. Grant, Second Inaugural Address, 1873 Within the framework of traditional justice, where constitutional rights are essentially exemptions from the power of the state, rights to equal treatment or to freedom of speech or religion apply where there is "state action" but not when only private individuals or organizations are involved. Thomas Sowell, The Quest for Cosmic Justice

[The Free Press, 1999], p. 154 The Constitution has no more to do with the [Supreme] Court's opinions than the Book of Revelation has to do with the Unitarian Church. Joseph Sobran

The concepts of "civil rights" and of "civil law" are both functions of the concept of "civil society": Civil society is that sphere of private action free of government control. It is not free of government action, because government action secures the nature of civil society by the protection of persons against criminal wrongs.

This idea was well and famously stated by Thomas Jefferson in his First Inaugural Address in 1801:

Still one thing more, fellow citizens -- a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.

The essence of civil society is thus that people are left by government to "regulate their own pursuits of industry and improvement," while the government protects the citizens from criminal wrongs of violence, theft, fraud, etc. Civil rights and civil law exist in relation to such a scheme of civil society.

Civil rights actually define civil society by delimiting the areas of private action into which government power cannot go. Civil rights thus define the barrier between government action and private action. In line with this, the entire Bill of Rights begins with the significant phrase, "Congress shall make no law...," thus indicating actions that the federal government was prohibited from undertaking. The Constitution itself employs a dual strategy: the principle of civil rights and the delegation of limited powers. The Tenth Amendment therefore denies to the federal government any powers that have not been delegated to it or denied to the States by the Constitution, while the Ninth Amendment affirms that the federal government is limited, not only by the specific powers that it may exercise, but by all civil rights, whether or not these happen to be specified in the Constitution. What the government could do is therefore supposed to be clear and limited, while what the government cannot do is supposed to be left with an indefinite and open ended interpretation.

The result of the Civil War was the extension of federal civil rights principles to the States. To protect freed slaves, the Fourteenth Amendment required that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

The kinds of things this was intended to protect is clear from the Civil Rights Act of 1866, which was originally declared unconstitutional but then upheld when reenacted in 1870, after the ratification of the Fourteenth Amendment. All citizens, the act declared, "have the right to make and enforce contracts, to sue, be parties and give evidence; to inherit, purchase, lease, sell, hold, and convey real property, and to full and equal benefit of all laws and proceedings for the security of person and property." All governments then, state and federal, are required to protect the rights of person, property, and contract, without interfering with rights of inheritance, property, judicial action, etc.

Complementing civil rights is the conception of civil law. Civil actions consist of legal actions by private citizens against private citizens: Civil wrongs are breaches of contract or torts, wrongs specified in common law and case law but not, originally, by statute law. Civil wrongs are remedied by monetary damages paid to the plaintiff. Typically, the criterion of judgment in civil cases is less stringent than in criminal cases, that a verdict is to be based on the "preponderance of the evidence" rather than "beyond a reasonable doubt." In colonial America, civil cases were often decided by judges, without trial by jury. That was troubling to Jefferson and others, who wished to establish the right to trial by jury in civil as well as criminal cases. This was accomplished in the Seventh Amendment, which extended the protection of trial by jury, recognized by the Sixth Amendment in criminal cases, to civil cases "where the value in controversy shall exceed twenty dollars." In 1990 dollars, that would be at least three hundred dollars.

The principles of both civil rights and civil law have now been corrupted as part of the process by which, as Jefferson said, the power of government is expanded and liberty is attacked. In both cases, the corruption is effected with specious principles that confuse the role of government with that of private individuals: In the one case that private individuals may be identified instead of government as adversaries of civil rights, and in the other that government may be considered to stand in the place of a private individual as a party to civil actions.

The corruption of civil rights was effected by the New Deal, especially by a New Deal court decision that required property owners to tolerate trespassers who were exercising their First Amendment "right of free speech." Such property owners were those who otherwise allowed public access to their property for commercial purposes. Thus, owners of shopping malls or residential properties might not be able to exclude persons whose only business on the property was to demonstrate or solicit for political or other causes. Such a decision, in effect, puts the private property at the disposal of the public and renders the commercial enterprise of the private individual into a branch of government, so that the owner can no longer exercise his customary discretion over the use of the property -- all this despite the explicit statement of the Fifth Amendment: "Nor shall private property be taken for public use without just compensation."

This was of a piece with other New Deal court decisions which established "relaxed review" of laws that only dealt with "ordinary commercial relations" (the infamous 4th footnote to United States v. Carolene Products Co., 1938), and that dictatorially decided, without precedent, that "commercial speech" was not covered by the First Amendment prohibition that "Congress shall make no law....abridging the freedom of speech" (Valentine v. Chrestensen, 1942). The dishonesty, bias, and purpose of the New Deal court is obvious in these precedents: Basic civil rights can be arbitrarily suspended where the government decides to increase its power, as over economic life, or can be used as a weapon to destroy other rights, like property rights, when the court decides that civil rights can be construed as limitations on previously private action. It is revealing that the same right, to free speech, could be involved in both maneuvers: suspended to increase government power on the one hand, but magnified when it diminishes private property rights on the other. As Thomas Sowell said recently:

Constitutional rights that are essentially exemptions from government power under traditional concepts of justice become reasons for the further extension of government power under cosmic concepts of justice. [The Quest for Cosmic Justice, The Free Press, 1999, p. 155]

In the case of free speech, the cosmic conception is that one should be able to exercise it anywhere, whether the property be private or public -- though advocates of "progressive" ideology have recently become famous for preventing or interfering with speeches by political conservatives on university campuses, usually with the justification that reactionary or fascist advocacy (e.g. views sometimes expressed by even majorities of voters) does not need to be tolerated as part of honest political debate. Indeed, the urge to silence opposition, nakedly displayed by campus radicals, is more subtly evident in attacks on the First Amendment rationalized by economic justification (that business must be regulated) or by other considerations of monetary power (as in the Trojan Horse of "campaign finance reform," which will, as planned, prohibit individuals or organizations from using their own money for political advocacy).

Given the dual strategy of using some rights to attack others, or just to excuse direct suppression, it was only a matter of time before it could be expanded without limit. The Civil Rights Act of 1964 not only abolished official segregation mandated by governments, the source of a previous century of civil rights violations in the South, but also prohibited discrimination in private commercial transactions, with the flimsy justification that all commercial transactions "affected" Interstate Commerce, which the federal government had the power to regulate under the Commerce Clause. Thus, a private restaurant refusing to serve a customer because of their "race, sex, or national origin" became a federal "civil rights offense," vastly expanding the power not just of government, but of the federal government in particular, over private relations of property, association, and contract. Segregation laws themselves had violated the freedom of those relations; but rather than merely striking down those laws and freeing people to mind their own business, the power of the federal government was vastly magnified, not to enforce private discrimination, as in previous segregation laws, but to prohibit it. The need to regulate such private relationships could be justified, not by any honest reading of the Constitution, but by clearly Marxist postulates about the helplessness and powerlessness of people in the capitalist free market and the relative meaningless of "freedom" where people are at the mercy of capital, business, and "bosses."

Given these principles, things have proceeded on the obvious course: The prohibition of sexual discrimination came to mean the prohibition of a discriminatory "hostile environment" in the workplace, where a hostile environment was anything that a "reasonable woman" might find offensive by way of sexual references or representations (even extending, it seems, to works of art like Goya's Naked Maja). Thus, what for most of history would be considered matters of boorishness or bad manners, remedied by a sharp word, a slap in the face, or quitting (or, in some case, the retaliation of male relatives), suddenly becomes a federal "civil rights" offense with perhaps millions of dollars in damages hanging on the judgment. It could be claimed, in turn, that "hostile" sexual references could even extend to well meaning complements about dress or appearance, the use of "sexist language" (e.g. "he" instead of "they" as a pronoun), or the making of "sexist" statements like "A woman's place is in the home." Thus, the process again comes full circle to another attack on the First Amendment, now on grotesque political grounds, since the identification of "sexist" statements or language as a "hostile environment" depends on the acceptance of certain feminist political principles. The "civil right" not to be discriminated against by private business thus becomes the means to judicially attack the free expression of the good faith social, political, and religious beliefs of private individuals. This allows for the establishment of truly totalitarian legal principles.

One justification of anti-discrimination laws was that, by prohibiting acts of irrational bigotry, they would actually force employers to behave more rationally, thereby actually improving their businesses and making them more profitable. Thus, anti-discrimination laws were for employers' own good. This approach actually did not last long, since the courts soon decided to micromanage business decisions, which they were in no position to do, and the principle of the Civil Rights Act of 1964 that mere numerical differences in employment could not be used all by itself as evidence of discrimination was soon completely ignored. Affirmative action "goals and timetables," i.e. quotas, soon became matters of executive and judicial mandate, all on the completely fantastic and irrational assumption that all ethnic groups, and soon even both sexes, have the innate equal ability to do anything just as well. Unequal "representation" could therefore only be the result of illegal discrimination. Thomas Sowell now has written many books (e.g. Ethnic America, Basic Books, 1981) on the universal way in which cultural differences make for varying economic success. Thus, the ability of Chinese immigrants to rise from poverty to economic domination in Malaya, Thailand, Indonesia, Vietnam, or the Philippines had nothing to do with political power or majority status, neither of which they had in those places. The majority populations were poorer because, culturally, they weren't very good at starting or running businesses. In American politics, the assumption is always that minorities are poor because they are minorities and without majoritarian political power. This is obviously not even true in the United States, where minorities like Chinese, Japanese, and Jews, although historically discriminated against, are economically among the most successful groups in the population.

A step beyond this "for their own good" kind of argument came with the "Americans with Disabilities Act," signed into law by President Bush. The principle of this law was not that employers must be forced into better business practices by the prohibition of irrational conduct, but that businesses were to be forced to make "reasonable accommodations" to provide for employees and customers with disabilities. So, even if a business does not have any wheelchair-bound employees or customers, it still must provide for them -- and not just in a practically effective way (i.e. have employees lift a wheelchair customer up a step), but in a way that the government thinks, with urging from "civil rights" organizations for the disabled, is appropriate (i.e. a ramp, suitably constructed and placed, for wheelchairs). "Reasonable" cost is not left up to the judgment of the business, but to the "compassion" of distant, hostile, and politically driven bureaucrats. The danger to their very existence that this poses to small businesses, of which half of new ones fail every year, is of little concern to the bureaucrats, who probably would agree with Hillary Clinton that "We can't be responsible for every undercapitalized business" [said by her in the context of imposing new minimum wage laws].

This principle is now leading to extraordinary rulings that, for instance, because alcoholism is a disease and so a "disability," "reasonable accommodations" must be made for the absenteeism or job related incapacities, even the hostility or violence, of alcoholic employees. There is certainly no limit to the irrationalities that can be mined from such avenues of reasoning; but more importantly is how the Fifth Amendment requirement that private property shall not "be taken for public use without just compensation" is completely voided: If the government thinks that someone "deserves" some benefit, then it can simply order private businesses to provide it for them. Someone who is politically regarded as needy or worthy has a "civil rights" claim to the substance of others so that they are able to live in the style that they regard as appropriate.

Thus the original principle that civil rights are protections from the power of government is completely turned around, becoming an open ended claim against the substance, the freedom, and even the sincere opinions of others, enforced by a government that consequently must grow to totalitarian dimensions. The irony and cleverness of this, as a strategy for tyranny, is as noteworthy as its effect is terrifying.

But the architects of absolute power have not been content with this grotesque corruption of the constitutional means of protecting freedom. Elsewhere I have described how an entire new category of law, "Administrative Law", has been invented out of whole cloth in order to make possible the dishonest exercise of unlimited power by administrative agencies. But, not satisfied with thus circumventing the protections of criminal jurisprudence, an additional strategy has been hit upon, to use civil law, as well as criminal law and "administrative" law, to expand the power of government: If the government can pursue individuals in the guise of a private individual itself, through civil actions, then it can use real courts, and not just kangaroo "administrative" courts, without worrying about all the limits upon it in criminal cases: A civil defendant does not have protections against self-incrimination, double jeopardy, the stringent standard of guilt "beyond a reasonable doubt," etc. A "civil penalty" instead of a criminal fine can be much more easily proven and collected. This charade hardly seems necessary given the other powers improperly seized or created by government, but it does help reveal the extent of the insatiable hunger, ruthlessness, sophistry, and dishonesty with which the partisans of government implement their quest for power. By every conceivable device the goal will be pursued, which is why Jefferson wrote from Paris in 1787:

If once [our people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves.

The wolves have certainly gotten our scent, though the worst thing is how perhaps most Americans have bought into the self-serving idea that predatory political actions can be taken for their benefit against others who are presumably unworthy. These are the problems of Rent-Seeking, Public Choice, and The Prisoner's Dilemma. Americans will continue to approve of vast public theft as long as they think they benefit from it. It is unutterably sad that a truth so well known to the Founders of the Nation, that public theft ultimately only benefits the holders of public power, must be learned all over again. As Jefferson, again, said, in his Notes on Virginia, 1784:

Mankind soon learn to make interested uses of every right and power which they possess, or may assume. The public money and public liberty....will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished, too, by this tempting circumstance, that they are the instrument, as well as the object of acquisition. With money we will get men, said Caesar, and with men we will get money. Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes. The time to guard against corruption and tyranny, is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and claws after he shall have entered.

It is now too late. The wolves are in the fold, with ravening teeth and claws. The grievous struggle of drawing them must now be effected.

Adopting the following principles can undo some of the damage:

No private citizens or corporations can be defendants in civil rights cases, unless they are exercising a police power (e.g. making a citizen's arrest). Only private citizens or corporations can be plaintiffs in civil suits or actions.

The first principle does not prevent bad civil rights law from being translated into criminal law, but it preserves the meaning of civil rights. Also, it would prohibit the bizarre existing situation that private bounty hunters, working for bail bondsmen, are able to ignore all civil rights protections in the course of their searches and arrests -- in cases of mistaken identity, this has resulted in innocent citizens essentially being kidnapped and transported in bondage to distant States. The second principle, together with the abolition of "administrative" law, returns government to its properly restricted and limited place in the prosecution of only criminal cases.

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Note on Civil Society

Note on Alan Dershowitz

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Note on Civil Society

The distinction between "civil society" and "political society" is the difference between voluntary relationships and exchanges and those relationships and exchanges that are effected by the force or coercion of government. A regime in which only civil society existed would be a state of anarchy. There would be no legitimate exercise of force or coercion. However, this ideal, the "state of nature" absence of government, has been long observed to be impossible, since there are those who will resort to force in order to compel those whom they can, the weaker, to do their bidding and serve only their interests (a relationship endorsed by Nietzsche). Thus, an appeal is made to others for aid, and associations are formed for the common defense and the adjudication of disputes and grievances. These associations in that way assume the powers of government. If the purpose of government, as John Locke (1632-1704) and Thomas Jefferson claimed, was merely to remedy the wrongs allowed by the state of nature, and so to secure the rights naturally held by all, then this is the conception of a liberal society, where the voluntary relationships of civil society are protected and force is only used to prevent the wrongful use of force by some citizens against others. Political society, which possesses the monopoly of force, thus can be imagined as surrounding and protecting civil society -- though all citizens retain their natural (default) right to self-defense in the absence of effective protection from government.



In political thought subsequent to Locke and Jefferson, contempt and hostility has been turned against the conception of civil society. The idea of merely private concerns and activities has been regarded as selfish, anti-social, and also unfulfilling. This reflects a strain of Greek political thought, in which the idiotês, the merely private person, was not properly a citizen. The modern "negative" conception of freedom is thus taken as unfulfilling. Only the "positive" freedom of political power makes one a true member of society, sharing in the achievements and identity of the whole, caught up into something larger and grander than private life.

As a purely secular conception, this was introduced in modern thought by Jean Jacques Rousseau (1712-1778), who thought that such purely political society, the exercise of the "General Will," would redeem the natural freedom that was lost when the, for him, idyllic state of nature was left behind. Unfortunately, a regime in which even the most intimate matters can be dictated by political authority and compelled even by deadly force is the monstrous and tyrannical conception of totalitarianism. The experience of this was bad enough in the Terror of the French Revolution, directly inspired by Rousseau, but its horrors and toll in lives were only really displayed in its Fascist and Communist versions in the 20th century. The political moralism of a totalitarian regime can leave virtually nothing to the private choice and preference of individuals, and the idea that even murderous political authority is only expressing the "will of the people" has time and time again only become the cruelest and most horribly ironic of jokes.

The argument of some that the Soviet regime was not "really" Marxism, and that a democratic Marxism is possible, avoiding the terror and murder of 20th century Communism, founders on Marx's clear rejection of civil society as a "bourgeois" conception. Indeed, Marxist economics is a general condemnation of voluntary economic exchanges, not to mention private property, which means that every way in which one must act to earn a living is exempted from civil society. The notion that this could be effected while preserving non-economic privacy and liberty is now contradicted by, among many things, the use of "sexual harassment" and other "labor" law to overturn the First Amendment and "abridge" or even prohibit freedom of speech in the workplace. The truth is that Marxism is based on the ideal of the French Revolution, with all its Rousseau-inspired totalitarianism, and no later Marxists, however desperate to put a liberal happy face on it, are any different.

Now, the idea that economic exchanges should be entirely governed by political society is socialism or, with provision for some civil liberties, "social democracy" or "democratic socialism." It is clear from the practice of its partisans, however, that "social democrats" have only the very weakest commitment to privacy and civil society, and they are often driven by more radical activists whose totalitarian sympathies, as in the "the personal is political" slogan of feminism, and distain for all civil liberties are obvious. There is nothing about the notion of "democratic socialism" that would prevent the version of "democracy" in just the way it was conducted in the Sovietized regimes, where the "people" are always on the tongues of the tyrants, while individual persons are always enslaved or murdered. As Jefferson had already noted, that it is the tendency of government to increase and liberty to decrease, it has been the experience of liberal societies that socialist and totalitarian criticism has led to a constant assault on voluntary relationships and exchanges and a steady growth in law and authority to invade and govern civil society. The attack on free speech and association, both in the speech codes of radicalized universities and in labor and "civil rights" law, betrays the ultimate, totalitarian goal of "democratic socialism."

To come full circle, it is noteworthy that modern anarchists, from Bakunin (1814-1876) to the Seattle vandals of 1999, tend to see the state of nature rather differently from Locke or Jefferson. If "property is theft," then taking things from others is not necessarily a wrong, in either the presence or absence of government. This converts the state of nature into the equivalent of a socialist or totalitarian regime, where rights to voluntary exchange and other immunities of property or person may be denied. This is the other defect of the "state of nature," for it leaves indeterminate just what rights are supposed to exist in the absence of government. Thus, Locke's conception could lead to a sort of liberal anarchism, like contemporary libertarian anarchists (e.g. Murray Rothbard), while Bakunin's indicates a totalitarian anarchism, like the typical "black" leftist anarchists of today. Hobbes avoided this by denying that there were any rights in the state of nature -- they were all positive grants by government, at the discretion of the sovereign. This indeterminacy does certainly make it easy to imagine, not just that the state of nature allows the strong to victimize the weak, but that conflict would also be inevitable between those maintaining their right to their property and those others who believe they also have a right to it. Government as the means of adjudicating conflict must then make explicit which principles of property and privacy will be honored.

The United States as a liberal society is now endangered in great measure by the phenomenon of lefists who seek a totalitarian regime concealing their intentions behind the rhetoric of freedom, while tirelessly working to destroy the reality of it. Thus, the Constitution and basic laws of the United States are now commonly subverted by interpretations and policies aimed at their opposites, as in the noted attacks on free speech. This strategy was conspicuous with the Communists of the late 40's and 50's who sought to conceal their loyalties, views, and intentions behind the principles of free speech that they would not have allowed themselves had they been in power. And it is obvious in the popular Marxist Herbert Marcuse (1898-1979), who damned liberal society for the "repressive tolerance" that actually did tolerate non-leftist opinion and activity -- "liberating tolerance" means to crush dissent. Such sophistry is no less than the practice of modern "progressives" in academia and the intelligentsia, whose hostility to civil society and civil liberties is thereby exposed to all who bother to look.

Some leftists and "progressives" have recently discovered civil society, after a fashion. At the United Nations, Non-Governmental Organizations (NGO's) are called representatives of civil society. However, the most cursory examination of these organizations reveals that they rarely have any genuine interest in civil society. They are largely political advocacy groups, whose goals are government action, not private action. They get called representatives of "civil society" just because they are themselves private -- although many only exist, and possess the influence they do, because of government grants or subsidies. As in the case of civil rights, the purpose of this, perhaps deliberate, is to confuse the unwary and to appropriate liberal concepts and liberal institutions for illiberal or totaliarian purposes. Just as few are aware that "civil rights" no longer means what it once it, but its opposite, "civil society," with whose very name most are unfamiliar, may be doomed to go in the same direction.



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Note on Alan Dershowitz

Several points similar to those in the essay "The Corruption of Civil Rights and Civil Law," above, are made by Harvard Law School professor and civil libertarian Alan Dershowitz in an "Advise & Dissent" column in the September 1998 issue of Penthouse magazine [pp. 122-123, 198, 201-202]. While Dershowitz is a classic social democrat, with little interest or respect for property rights or the free market (characterizing the libertarian Cato Institute as "conservative" [note]), he does have a true consistent, liberal respect for personal freedom and the non-economic parts of the Bill of Rights. This puts Dershowitz in a bind when it comes to the policies of Bill Clinton. Speaking of Clinton's 1998 State of the Union speech, Dershowitz says,

When Clinton talked brilliantly about education reform, Social Security, and the budget, I knew why I had supported him for president. When he talked passionately about better child care for working parents, I knew why I liked him as a friend. But then he said something that made me explode with anger toward the man I voted for, admired, and liked. He talked about saving our "disintegrating American treasures," like the Bill of Rights. The President was referring, as it happens, to the physical preservation of the original document of 1793. But the ambivalence of this phrase was grating. Here was Mr. Clinton, who had done more to destroy the values reflected in the Bill of Rights than any president in recent memory, piously worrying about an old piece of paper. Talk about elevating form over substance. [boldface added]

Here, Dershowitz clearly finds no fault, only virtue, in unconstitutional, Prussian, and totalitarian federal involvement in education, "social security," and child care. This is the leftist agenda to render American citizens economic peons of the government, dumbed down with offical "educational" propaganda from government schools. But Dershowitz, much as he likes this, can find no virtue in the federal assault, warmly endorsed by Clinton, on the First Amendment, on privacy and the Fourth Amendment, and on habeas corpus.

Clinton supported and signed a law restricting habeas corpus even more than anything reactionary Chief Justice William Rhenquist has advocated. Under the Clinton statute, a defendant will have difficulty challenging his or her conviction in federal court even if it can be demonstrated that the conviction was based on unconstitutional procedures or insufficient evidence... Under the Clinton law, "mere innocence" is not enough to secure a writ of habeas corpus.

Most damning, Dershowitz says that "Clinton has turned out to be the presidential equivalent" of Bush Supreme Court nominee Robert Bork ("Judge Dread"). Dershowitz concludes that Clinton is an opportunist, who ignores the principles of the Bill of Rights for political expediency, but also, more significantly in the long run, is part of a movement of opinion through which the very meaning of civil rights has been corrupted. Thus, the left, once it has power, as on university campuses, becomes impatient with dissent. Politically "incorrect" speech comes to be viewed as a crime, indeed, as a "civil rights" offense against its "victims."

Dershowitz recognizes the collectivist thrust of recent "communitarianism, a fuzzy philosophy that elevates responsibility over rights," as described here in "Rights, Responsibilities, and Communitarianism." Dershowitz continues,

These communitarians have introduced a new vocabulary of "rights" calculated to confuse. The classic definition of rights is negative -- a denial of government power to intrude on certain basic liberties. Individuals have rights in relation to the government. ...This new vocabulary of affirmative "rights" turns on its head the classic concept of negative rights in relation to the government, and shows how easy it is to confuse governmental power with individual rights. Every modern tyrant has talked about the "right of the people" as he put dissenters in prison or worse.

No kidding. This is precisely the point of "The Corruption of Civil Rights and Civil Law," but Dershowitz doesn't realize he himself has sanctioned the corrupt actions, the "takings" of private property in New Deal jurisprudence, that opened the door to the extension of the civil rights turnabout into "takings" of personal civil liberties as well. Dershowitz himelf may believe in "affirmative rights" to employment, medical care, housing, etc., all of which imply assaults on the freedom and property of others. But now Dershowitz is alarmed when the rights of the accused are limited or free speech restricted,

The reality, therefore, is that Clinton is not being hypocritical at all. It is much worse. He really believes this stuff.

Dershowitz doesn't see much hope. Al Gore and his wife Tipper have less interest in civil liberties than Clinton, the Republicans are hot for censorship, and even the ACLU will often not defend the free speech of those who don't agree with its own social political agenda (which is no longer "civil liberties" but welfare rights/powers). Al Gore is quoted by David Kelley (1 October 1998) as actually saying:

We have tilted so far toward individual rights and so far away from any sense of obligation that it is now difficult to muster an adequate defense of any rights vested in the community at large or in the nation -- much less rights properly vested in all humankind or in posterity.

Perhaps Gore has never read the statement of the Declaration of Independence that "to secure these Rights," i.e. individual rights of "Life, Liberty, and the Pursuit of Happiness," "Governments are instituted among Men." What we have "tilted" away from, to get to someone like Al Gore, is the purpose of the American Revolution.

Dershowitz's only hope is that Clinton will be radicalized by the investigations and impeachment proceedings against him. However, Dershowitz misreads Clinton's personality and the hypocrisy of Democratic Party politics. Clinton will never want to change the laws. He only wants to be exempt from them. Laws are weapons to get enemies, not standards to be applied impartially to everyone. Clinton and most Democrats believe that the end justifies the means and that Clinton should therefore be free, whatever he has done, to "complete," as Dershowitz says himself, "his generally excellent presidency."

If only Dershowitz believed in the full application of the "takings" clause of the Fifth Amendment, in the Second Amendment as a wise provision against a police state, or in any honest application of the Tenth Amendment, he would see the falseness at the core of Clinton's so-called "generally excellent presidency," not to mention the corruption and tyranny of those who pursue their agenda while "trampling on," as Dershowitz says, the Bill of Rights. Dershowitz doesn't notice the parts he has already been trampling on all along.

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