Since John J. Miller got the ball rolling at dawn, the NR bigwigs have spent the day weighing in on that New York Times story about how the U.S. Constitution is now as pitifully déclassé as a 2006 Blackberry:
In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
As it happens, I have been on the receiving end of the “Canadian Charter of Rights and Freedoms,” a characteristically modish piece of Trudeaupiana foisted on the country in the early Eighties. As I wrote here:
Since this magazine and I were ensnared in the “human rights” machinery, I’ve come to regard Canada’s Charter of Rights and Freedoms as—what’s the legal term?—oh, yeah, a worthless piece of crap.
If that’s insufficiently legalistic, I’ve also described it as “a worthless piece of junk.” By design, it excludes property rights, which Locke, Montesquieu, and other irrelevant dead guys all saw as an indispensable condition for liberty. It embeds identity-group preferences as a constitutional principle. And it empowers hack bureaucrats to determine the appropriate balance between genuine rights such as free speech and the pseudo-“rights” doled out by the state’s social engineers. It represents, as do many of the more fashionable constitutions admired in the Times piece, a precise inversion of the definition of “rights.” As I put it to one of the Charter’s many admirers:
“Rights” are not those things granted by the sovereign and enumerated in statute, but the precise opposite: They’re restraints upon the sovereign. They’re not about what the state allows you to do, but about what the state is not allowed to do to you.
It seems pretty clear from today’s Ninth Circuit decision that Americans increasingly live in, if not quite yet a post-constitutional republic, at any rate a post-modern one. But the fancies preferred by the Times are not the answer. A constitution that guarantees your right to affordable housing and a climate-change-free eco-system and the other innovations of more recent documents is not a charter of liberty but one of massive, coercive state power.