...Teach a Man to Revolt
Dreams of the Dark Bill of Rights
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In a recent discussion, a friend lamented the Bill of Rights’ effect on American and larger Anglo-culture.
He pointed to Hamilton’s argument in the Federalist Papers that by enshrining certain rights in the constitution it’d have the effect after a generation or two of establishing that any right not explicitly laid out in the constitution did not exist.
Indeed the 9th Amendment even lays out:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
And yet the 9th Amendment has never served as the basis for a supreme court decision asserting an individual right, even many with solid case law going back into the English common law era, often clearly established for 100s of years before the constitution was adopted.
Indeed far from asserting the full set of enumerated and unenumerated rights an 18th-century Aristocratic English man would have considered his right, such as the right to duel another man to the death for an insult, as Hamilton was willing to assert even unto his death…
Hamilton’s warning appears to have come true, one can tune into hundreds of supreme court cases and see lawyer after lawyer, commentator after commentator, not only treat any right not explicitly written down as non-existent before the fickle will of whatever regulator… But indeed even the enumerated rights are picked over with a fine tooth comb for any possible vagueness, the slightest grammatical wiggle room from which a hungry administrative state might slip in and steal another vast portion of American liberty.
Hamilton, it would seem had been FAR too cautious in his prescience. He should have been screaming from the rooftops “FOR GOD’S SAKE! DON’T WRITE YOUR FREEDOMS DOWN! NOT WHERE LAWYERS CAN INTERPRET THEM!”
My friend and Hamilton it would seem have a resounding case.
Too bad they’re completely wrong.
On the Importance of Enumerated Rights
Have you ever watched The Man in the High Castle?
I could never get into it.
There have been, perhaps literally, thousands of books written on the question of "if the Nazis had won the war” or “if Germany had invaded America” and I’m not particularly interested in watching woke film producers butcher Phillip K. Dick’s version.
But what few know is this is a VASTLY older genre than people imagine… indeed it predates 1945 and even Hitler.
Invasion novels and Alt histories go back to the immediate aftermath of the Napoleonic War. You get many stories of “If France invaded Britain” or “If the Spanish Armada had won” etc.
But the genre really exploded at the turn of the 20th century when many writers, assessing the increasing geostrategic tensions before WW1, wrote stories about a hypothetical German occupation of Britain… not by Hitler, but by the Kaiser.
These are incredible artifacts there are nearly a dozen books on the subject, most notably When William Came (Guttenberg), that gives us a real window into the late 19th and early 20th-century imagination, showing us what they value most by imagining the outrage of having them taken away by the Tyrannical hun.
Under Kaiserist occupation, the various authors imagine, the no longer free people of Britain: may be fined on the spot by police officers for ordinary infractions, no jury trial, a simple matter of notebook paperwork, and as such the police are encouraged to fine a variety of things seemingly as a form of taxation: property infractions, momentary traffic violations, jaywalking. Beyond this, the formerly free people of Britain are heavily restricted in what firearms they can own and many of those they do own are subject to registration with the state. They require extensive permitting and government approval to modify their own homes on their own private property. The now slave British are now taxed an inordinate amount directly out of their income, sometimes into the double-digit percentages of their annual earnings, and what is more horrifying it is left to them to report it, THEY ARE MANDATED TO ACT AS THEIR OWN TAX COLLECTOR AND SELF INCRIMINATE, with terrible consequences if they are caught under-reporting or merely mistaken.
One reads these well-selling invasion novels from ~1900 or so… and every indignity they thought an unthinkable horror and tyranny that could only be enacted upon a conquered people —slavery at the societal level!— is simply the common “Price we pay for civilization” that every 21st-century westerner has had it beaten into them to just accept.
One need not stretch a libertarian’s imagination steeped in political theory to say “The Victorians would have thought of modern life as slavery” They wrote books explicitly calling it slavery.
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But there is a more curious element to all of this… this is what THE BRITISH thought of as inalienable rights.
These weren’t rebellious Americans who had thrown off a king. These were English gentlemen loyal to Crown and Country, and English people who had an “Unwritten constitution” and whose parliament reigned supreme (the United Kingdom’s supreme court only came into existence in the 2000s).
If there was ever a natural experiment in enumerated vs. unenumerated rights the cases of the US and the UK are surely it… With maybe Canada (though not the penal colony of Australia) acting as a third data point.
in 1900 all Anglos thought of what would now be considered the most extreme libertarianism as simply the basic rights of a free people… and within 50-100 years all of them had become what previous generations would consider little better than slaves.
It would seem neither law, nor culture, nor a supreme court, nor a supreme parliament can maintain basic liberties or even a culture in which liberty is valued.
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Maybe it’s hopeless. Maybe nothing, not laws, not norms, not values, not even dystopian novels about Kaiser Wilhelm, can stop the corrosive effects of “Progress”, the inevitable drift of values, the unceasing sands of time, and hypocrisy…
but then one need merely look around, and see this is not the case.
The Koran is not a “Living Text”
on January 7th, 2015 two brothers, Saïd and Chérif Kouachi, attacked the offices of Charlie Hebdo, killing 12 and injuring 11. Their motivation was a series of cartoons Charlie Hebdo had published depicting and mocking the Prophet Mohammed.
Islam like most religions has restrictions on what can be depicted and under what circumstances… Christianity and Judaism both have their restrictions on graven images, which in light of the addictive quality of pornography, boy bands, and Twitter Memes seems to have been gesturing at something important… but no religion has taken this restriction as seriously as many sects of Islam, where (depending on the sect) even depicting people… at all! is considered a sin.
This obviously escalates when it comes to not just depicting man, god’s creation, but God’s chosen messenger Mohammed.
And of course to depict him in mockery is blasphemy… which indeed many scholars would argue any depiction necessarily is, even unwittingly… but Knowingly and intentionally, Well…
There are many schools of Sharia Jurisprudence, all of which interpret the words and actions of the Prophet… who in his life was a warrior ruler, ordered many executions, and further allowed many more killings, not directly ordered by him in the specific instance, but which he judged were well committed and reflective of duty, faith, and initiative well acted upon.
Of these schools of Sharia Jurisprudence many of the most prominent demand death for blasphemy some allowing for repentance… and several allowing an unbeliever to only be forgiven for blasphemy if they convert to Islam… death if they don’t convert, and death on a subsequent offense of the same.
This is still the law in many Muslim countries.
Islam you see does not “Advance” it does not “progress” it does not “evolve”.
Per my good friend
:There are no Amendments in Islam… How the Prophet’s followers conducted themselves in his presence, when they were carrying out his will, and immediately after he died… is how all true believers are supposed to conduct themselves… always.
The works of the Hadith relaying the deeds of the prophets and how he governed his warrior theocracy don’t all arrive codified, a lot of things are just individual acts… Stories of the Prophet telling one follower to do one thing, in one particular circumstance, or merely approving of a follower’s initiative or judgment in a case of dealing with a crime, or disapproving and giving a recorded reason… or maybe not.
From this, the early Islamic Judicial scholars developed generalized laws, which have become the rival schools of Sharia.
From their interpretation, of these legal scholars’ interpretations of the actions of Mohammed… combined with their own interpretations, Saïd and Chérif resolved on their attack on Charlie Hebdo… Many scholarly moderates denounced the attacks as not reflective of the Prophet’s teachings, whilst many conservatives Muslims refused to denounce them (just as many Western journalists refused to rhetorically defend Charlie Hebdo nor republish their cartoons in solidarity)… Meanwhile, radical conservative Muslims and Western Atheists and activists opposed to Islam, both responded “What are you talking about!? This is exactly what Sharia and the Teachings of the Muhammed mandate for blasphemy. the Koran and Hadith are very clear about what can and should be done to blasphemers, and the entire tradition of Jihad blesses true believers taking up the defense of the Prophet on their own initiative. 1400 years of Islamic scholarship practically DEMANDED these attacks.”
It is a debate you can get into the comments, I and I think my friend Yassine shares an interpretation… but I want to ask a different question:
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HOW THE HELL ARE MUSLIMS THIS CULTURALLY CONSISTENT!?
200 years, within the same nation, and at least nominally no break in culture or Judicial continuity, and Americans can’t agree that “The right of the people to keep and bear arms shall not be infringed” refers to a “right”, that “people” have, to “keep”, or “bear”, “Arms”, or that there’s even a meaningful sense in which such right could be said to be “infringed”.
And yet Muslims across 1400 years, numerous crusades, the rise and fall of countless states and colonial occupations be they Ottoman, European, or American… have retained a culture and set of norms so closely and tightly that the argument isn’t Whether how Muhamad ruled 1400 years ago is relevant to whether or not Muslims should kill people for what in any other religion would be a common blasphemy… but whether his conduct demands it in all circumstances and whether or not a Muslim minority in a foreign country should take it so seriously they enforce it extrajudicially through terrorist violence.
France had a religious cultural norm! Lacite! A uniquely French conception of secularism that amounted to state-mandated Atheism in public…a norm that in many instances forbid displays of faith, and often expressed itself as a republican celebration of blasphemy in political satire such as that produced by Charlie Hebdo… If you recall the sort of celebration of South Park’s irreverent satire from liberals and civil libertarians as a marker of healthy free speech norms and the health of democratic discussion, that was sort of a lesser version of the pride the French take in Lacite.
That’s gone.
No Western newspaper will publish satire like this now and many states are soft-criminalizing similar cartoons and statements as hate speech.
Muslim cultural consistency was so strong that not only did their norms survive 1400 years unchanged, but even where Muslims were in the minority, in a foreign country, with its own incompatible norms, Islam overpowered the native norms and enforced itself!
People wring their hands, but I’m simply in awe!
I feel as if I were Thulsa Doom having learnt the riddle of steel.
Islam’s 2 Mimetic Technologies
Islam has 2 very key factors that make it so consistent and culturally unassailable:
An Unalterable Core Text
THE FIRST, per Yassine, is it doesn’t change. Muhammad was the last revelation and every part of its founding and institutions are based on the norm that nothing will change… all Muslims are supposed to learn Arabic so all discussion can happen in the original language, the language of texts don’t update, translations are frowned upon, and as a result, a religious interpretation from 800 ad is considered as much if not more authoritative than a modern one since it is closer in time and culture to Muhammad and his followers.
In the US by contrast the existence of amendments means that every time the US has a political tumult like the civil war or the Progressive era, suddenly every right and rule must be reinterpreted in light of the new “rights” created. Sure the 10th Amendment says all powers not explicitly given to the federal government are retained by the states, but it’s a dead letter because the 14th Amendment empowers the federal government to wage war (literal, legal, or something in between) on the states so as to protect the rights, immunities, and privileges of citizens… whatever the federal government may judge them to be.
Likewise, you’d think the 4th Amendment’s right to be secure in your papers or the 5th Amendment’s right to not self-incriminate would preclude being forced to report your income or its source and being forced to provide documentary proof of it… you’re being mandated to self-incriminate and compromise your privacy, and any 19th-century Jurist would be outraged! But their opinions don’t matter because the 16th amendment was passed and now every constitutional right has to be reassessed and subjected to “Modern interpretation” because it has to be presumed to not contradict whatever they want the new amendment to say.
Every time an Amendment is passed the whole of the rest of the constitution is voided, and judges and bureaucrats are empowered to create new “interpretations”.
Islam by contrast has no such mechanism. Islam’s first legal scholars and thinkers will be authorities, perhaps the most important authorities, until the end of time or until Islam ceases to exist. Islam might be killed or die out, but it will not evolve away.
An Individual Mandate for Violence
THE SECOND, as we have seen, is that the edicts of Islam, at least to its most faithful conservatives (though the idea of a “non-conservative” Islam seems farcical in light of the above), is enforceable by ad hoc, individual violence.
Indeed much of the politics of Muslim countries are only understandable if you understand this.
The members of the House of Saud spend an inordinate amount of time in the West. The Princesses of Arabia drive cars, in London and Paris. By and large most of the elite of the Arab world would be keen to liberalize and westernize… but if they were to stop executing blasphemers, apostates, witches, and homosexuals, the populace would take it into their own hands and it would inevitably result in some form of armed rebellion if/when the government tried to stop them.
The plain and historical reading of Sharia enforces itself.
In contrast to the Anglo world where a class of “legal scholars” can interpret their way out of their historic limitations, and values, the second some “secular” authorities in Islamic countries veer too far, the self-enforcing logic of vigilante violence takes hold.
Whereas Americans merely complain about the loss of their liberties and self-governance whilst hoping their griping will move the courts, populated by the same legal scholars trained in the same 2-3 universities (see Scalia’s dissent from Obergefell), to somehow give back the rights and powers they have so joyously taken.
In Islam, such a variance from the inalterable original intention of the Prophet, which 1400 years of religious scholars have faithfully studied and codified, would justify (and has justified) armed rebellion. No Liberal imams can pass an Amendment or Bill and then argue all the precedents of 1400 years are irrelevant and now the will of the Prophet must be interpreted in accordance with the 19th or 21st amendment. The ancient rights and duties of Muslims cannot be fundamentally restructured at the most foundational level with a 16th amendment, nor their ancient prohibitions and licentious allowances cannot be altered with an 18th or a 21st amendment. And the faithful are not merely called upon to gripe about this variance from their founding father’s intent… they’re called upon to Jihad against such apostasy.
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The Strange Magic in the Constitution
Much of the Bill of Rights is a dead letter. For all intents and purposes, amendments 9 and 10 are completely dead. amendment 9 being stillborn, and amendment 10 having been slaughtered by the reading of the interstate commerce clause to apply to literally everything, everywhere, at all times (Wickard v. Filburn having decided that feeding your own animals with your own grain, grown on your own land, qualifies as interstate commerce).
Amendments 4 and 5 have been half killed by Amendment 16 and all the subsequent case law around the Income Tax, you have the right to be secure in your private papers and you have the right not to self-incriminate…. right up until the point where you spend or receive a single dollar in which case you MUST hand over documentary evidence of your every activity and you MUST openly DECLARE any criminal activity for which you have received a single dollar. You have the right not to self-incriminate…. unless the IRS thinks you might have made a dime of money, in which case it’s a crime for you not to immediately confess to them.
And then of course there is the 3rd Amendment… sad orphan child of the constitution…. it should have been great.
The 3rd Amendment contrary to what you’ve been taught is not an historical oddity relating to obscure military lodging practices.
The 3rd Amendment is an Anti-Surveillance Amendment.
The British Military would force lodge soldiers in the homes of suspected revolutionaries and key persons of colonial America so as to observe all their private interactions and cripple their ability to interact and organize. NSA data centers didn’t exist in Colonial America, so instead of putting Amazon Alexa in your living room, they put Corporal Alexander in your guest room.
Any honest observation of the intentions and history of the 3rd Amendment would have to allow that its spirit and intent would forbid ALL federal security state mass preemptive warrantless spying on the population. That the NSA placing their spyware on your devices is just as much a violation as the British placing their agents in your kitchen.
But the founding fathers figured spying on papers in transit was a 4th amendment issue, and they didn’t mention military spying (as opposed to the necessity of warrants for legal discovery) in the 4th… nor did they think to include a broad additional reading which could be properly stretched to restrict other modes of military spying on the civilian population in times of peace… so for lack of imagination, redundancy, and better wording, American’s must live in a totalitarian surveillance state.
There’s a meme of the 2nd amendment of a time traveling gun-loving American, going back to the constitutional convention, pointing to the 2nd Amendment, and saying “Rewrite this assuming idiots will read it”… it is so much worse than that.
A time traveler going back in time would have to tell them to rewrite the entire thing as if an army of the Devil’s lawyers will be ripping it apart for anything with which to enslave people. And if you had to explain why this was necessary, and what had been done to the Constitution and under its name… figures like Thomas Jefferson and Patrick Henry probably would have started another revolution instead of letting the post-constitutional federal government come into existence.
AND YET….
America is the only country in the Western world that has anything resembling the freedom of speech described in the constitution… the politicians and legal scholars of Britain and Germany and Canada and Australia and Ireland all take a perverse glee in the fact that they can jail dissidents for their “Hate Speech” or “Misinformation”.
Likewise, America is the only country that has anything resembling a Second Amendment or its culture. English Canada, being so close culturally to the US is the country with the closest gun culture, the next highest country, after Switzerland and former warzones, that has a fraction of the guns per capita… And of course, the Canadian governing elite treat this part of Canadian culture with the utmost contempt, a spiritual treason against what it means to be a good Canadian, and a dangerous encroachment of “American Values”… whilst of course the average gun-loving American looks at Canada as a socialist police state.
There is no equivalent to either the First or Second Amendment, anywhere!
And the thing is… it’s not the Amendments.
Certainly not their legal power.
Both the First and Second Amendments have been completely if not entirely dead at various points in American history. Lincoln’s men confiscated and smashed the presses of northern newspapers that spoke out against the civil war. In WW1 the Schenck case held one could not “Shout fire in a crowded theatre”— of course, the case was not in any way about fire or crowds or theatres, but rather advocating resistance to the draft and opposition to the war! This anti-speech standard held throughout WW1 and WW2 and Korea, and even after Oliver Wendell Holmes had walked back and expressed regret about the decision, was only overturned in 1969 in the midst of Vietnam with Brandenburg v. Ohio.
Likewise, the passage of the National Firearms Act and subsequent gun regulations occurred without pushback in the 30s, and subsequent gun regulations and restrictions that were passed likewise received little to no constitutional scrutiny. The first meaningful gun rights organization in America was the Black Panthers in the 1960s whose protests and demonstrations brought on an entire new wave of gun restrictions.
It was only in reaction to these 3rd generation restrictions that a coup was Launched within the NRA to turn it from an Olympics-focused sports shooting organization… to a national advocacy and gun rights group.
HOW DID THESE DEAD RIGHTS REVIVE THEMSELVES!? These ideas from the 18th century had almost completely died out legally and culturally… it seems as improbable as if gentlemanly dueling reemerged in the 1970s.
What magic is there in the Constitution, that despite being so completely butchered it can pull off turnarounds like this?
Inalienable Rights
Americans, as so many right-wing commentators are keen to remind everyone, are not “Subjects” they are “Citizens”: their rights are not privileges that come from the government, but rather precede the government, whose power comes from them.
Now this all sounds like wordplay and philosophical hogwash— the kind of “Angels dancing on the head of a pin” distinctions and debates the less faithful think of when they look at Renaissance Christians killing each other over whether the Eucharist is a physical transubstantiation into the literal blood and body of Christ or merely a “spiritual” transformation.
But this misses the important dynamic. The cultural relationship of power.
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In the 13th century, When the lords of England successfully rebelled against King John and forced him to sign the Magna Carta they fundamentally changed the power relations of all of England. The power of the lords was no longer merely something they got as an extension of the king’s will, but rather in proven fact (of their successful rebellion) and in matter of law (the treaty they made him sign), they were the semi-sovereign rulers of their individual domains, with rights and claims enforceable against even the king— by force of their own judgment and arms.
In some respect, England has been a constitutional monarchy ever since, and at least its gentlemanly elite: free people! Or at least they had been… before Suez and Labour and the EU made them again a slave people like the Norman conquest had 900 years before.
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What this official position of American revolutionary myth-making and constitutional ethos is saying, is that all Americans, every free man in the US, are the equivalent of those English lords. That the lowest and meanest American is fundamentally and unalterably a member of the Titled Gentry. With unsurrenderable ancient rights and claims which can never be taken, and an unlimited duty to assert and defend those rights so that they may not be lost to future generations.
This Republican Mythos States plainly: The Lowest and Meanest American is a member of a Gentry Elite (citizens), whereas even the most august and celebrated subject of Britain is fundamentally a Serf (subject).
And if this seems absurd to you merely note: If Bubba from Alabama stepped out of the trailer walked up to a waiting news crew and shouted the N-word on LIVE TV… he would not need to appear in court, he’d be called before no congressional hearings, the entire American culture, and the vast majority of the legal profession, would think it an outrage if a rogue prosecutor or congressman even tried.
King Charles himself could not do the same stepping out of Buckingham Palace. Parliament would convene, prosecutors would circle, and the various Human “Rights” Commissions would begin to froth at the mouth at such a choice victim appearing in their sights…
Which girl-boss upstart member of the diversity commissariat would not love to be the one to take down this whitest, oldest, and most privileged of men; the last decaying avatar of Western civilization itself? Could you imagine her nigh orgasmic anticipation, as she, on repeat, watched him utter the forbidden word that must make him her slave?
Bubba of Alabama Trailer is a free lord of his domain, Charles of Buckingham Palace is not.
Because Bubba and his ilk believe in and defend their noble rights in a way even the King of England does not.
When you go to commoners and you tell them, in no uncertain terms, that they are in fact titled nobility with ancient inalienable rights and claims not just against each other, but against the elite and government itself… Those commoners listen. There’s maybe nothing else they listen more keenly to.
Indeed there’s a dynamic where the lower down the American totem pole you go, the less educated, less wealthy, less distinguished, and often, less fit an American becomes, the more viciously he asserts his liberties, the keener he is to assert his Rights and Americanness, the more readily he is to remind you of his nobility, Arms, and semi-sovereign distinctions, not unlike the decayed and exiled Jacobean Nobility of the 17th and 18th century.
It is no coincidence the modern assertion of American Gun Rights began with a poor black Huey P. Newton stumbling upon the history of the Second Amendment and its use to arm freed blacks during Reconstruction, as he studied in the 1960s at San Francisco Law School. From him came the Black Panthers, and from them the modern Gun Rights debate…
Free Men have no Reasonable Limits
Of all things, this might be the one thing the American Constitution got right, the one cultural force it actually locked in. The division of powers has completely failed to constrain the growth of the government, the rivaled ambitions have simply worked together to predate on all the ambitions not present or immediately represented in the government (look up “Public Choice Theory”), likewise, the Rights of the Individual States which were supposed to constrain the government have been completely crushed… and the few powerful interests that remain at the state level have been bought off… What governor will pick national-level fights to assert his state’s interests against those of the federal government and other states… when he can simply make a limp and impotent showing, then run to become the avatar of federal power as an “outsider” Presidential candidate?
But the assertion of Individual rights, the enumeration of inalienable rights held by the lowest of the low? That has constrained the federal government. This is why it is so rarely replicated.
Every Commonwealth and European “Charter of Rights” includes very prominently some sort of “Reasonable Limits” clause, stating in no uncertain terms that their rights are completely void the second the legal profession wants them to be or any filthy prole tries to assert the plain meaning of the Charter against the actual governing elite of the country.
All these amount to a plain fraud on the people… The second any populist or anti-establishment wants to do something that can just barely be interpreted as violating some symbolic vaguery about indigenous peoples or division of powers or language rights, the legal and administrative professions can scream outrage, and unelected judges can rule it violates the Charter! But as soon as it is the Professional-Managerial Class and their factions in the legal and administrative profession that want to… say… BAN THE IN-PERSON PRACTICE OF CHRISTIANITY! Or public protest. Or start stripping civil liberties on medical status as Canada saw during lockdowns… Well, then suddenly every legal challenge and appeal; simply to the plain reading of the core sections of the Charter, has no traction at all! Suddenly every fundamental right is subject to an unlimited, indefinite, and un-contestable “Reasonable limit”…
Thus any “Reasonable Limits” clause becomes a declaration of the unlimited totalitarian power of those who define what is ““““Reasonable””””
And yet Canadians rebelled! The trucker convey asserted their Charter Rights, and their earlier “Canadian Bill of Rights” (superseded in law, but not in spirit) not in the courts but in the streets and eardrums of the Ottawa elite. On those cold February mornings, they made them drown in the incontinence of the panicking miniature dogs the administrators bought for their miniature apartments (a recurring complaint during the trucker convoy).
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Simply put, even when the legal profession and “civil servants” openly state, within the founding documents, that they have no intention whatsoever of honoring the enumerated liberties of the slaves citizens they pretend to serve… The mere enumeration has a shocking power to rally and organize the people, that The Canadian Charter, a document roundly despised by most Canadian conservatives and viewed as an unconstitutional usurpation of the rights of the Canadian people as English men entitled to the ancient liberties of common law… that that poisoned pill, purposefully undermined even in its original 1982 writing could serve as the basis of a people’s rebellion, shows the shocking power enumerated rights hold, even when absolutely no one anywhere in the legal profession respects a word of them.
All it would take is the fall of the government, and the rise of a new set of founding fathers, and in the writing of their new founding documents, they could produce:
The Dark Bill of Rights
We have identified 3 tested, capable, meaningful, realizable ways to constrain the government and culture, ways to actually secure liberty going forth in any new declaration of rights:
1. An Unalterable, UnAmendable, Non-Interpretable Core Text
A free people’s Declaration of Rights must be like the Islamic faith, unchanging. More rights may be added in lesser works, other texts may be added as part of the culture, and the rest of the constitutional document might be amendable, but like the teachings of the Prophet, this most core of texts: the declared ancient rights of a free people, must be unchangeable. The people and their identities may die, but they will not be chained.
Indeed as opposed to a “living constitution” or “Living document” they should look upon their declaration of rights as an unalterable contract with the dead, nay even with death himself. A black ritual seared into the flesh and soul of them and all of their descendants unto the end of time. That it shall always make them free, but likewise they will never be free of it.
2. Inalienable Enumerated Lordly Rights
The free people must be proud of their liberties and feel, in no uncertain terms, that those rights and liberties make them better than other people, a different category entirely. A superior breed, a superior class, and (after a few thousand years of ethnogenesis) a superior race.
A beggar of the free people must be able to look on the aristocrats, courtesans, plutocrats, military leaders, and other palace eunuchs of foreign bureaucracies as nothing more than the pampered slaves and house pets they are.
A Free People must look upon their rights as lordly titles to be held in the dearest pride drilled into their children, and cherished above their wealth and even life… that if ever they should let those rights slip they and their descendants shall be accursed.
Indeed it should be an ethos so potent that their stories and films often feature the ghosts of ancestors rising up to drag their descendants to hell, that having disgraced themselves not even their parted parents shall spare them damnation…
Indeed the audience will know they themselves would receive no mercy, as their own fathers and mothers will have told them since a child to expect none.
3. Enforceability via Ad Hoc Vigilante Violence
Just as the British were defeated not via the courts, but via the vigilante actions of militias, and often mere gangs of men (think of the crowd that engaged the redcoats resulting in the Boston Massacre), and just as Islam depends not on the faith of secular authorities to defend their ancient codes and laws, but rather the pressure which the dull roar of Islamic vigilante action exerts, so too must every Right, every duty, every value, of the Dark Bill of Rights be backed up with an explicit call to violence.
Like Islam’s edicts against blasphemy, or the Royal Navy’s Articles of War (see my earlier piece here), the Dark Bill of Rights must explicitly demand death or other violent punishments (maiming, flogging, tongue removal, blinding) for crimes against life and property, of which the most egregious must be Tyranny, and which even amongst the lesser crimes it must be so enforceable, so that if ever the state ceases to enforce it, vigilantes may enforce it instead (vigilantes having little means to imprison someone 7 years, or enforce a fine).
Several US states currently enshrine a “Right of Rebellion” however none of them have an enforcement mechanism to protect that right. None of them hold a right of a terrorist or murderer to plead constitutional rebellion to a jury and thrust it on the judgment of 12 ordinary Americans whether or not the murder was not murder, but praiseworthy, heroic, nationally celebrateable Tyrannicide. The state flag of Virginia depicts a murder, the Assassination of Julius Caesar, and is adorned with the words: “Sic Semper Tyrannous”, Thus always to Tyrants…
But there is no entry mandating death to any government official charged and convicted of tyranny, nor any protections for citizens who might commit Tyrannicide. A Virginian citizen, John Wilkes Booth, upon assassinating Abraham Lincoln, even shouting the words “Sic Semper Tyrannous” as he did so, was in no way protected via Virginia law, there was no mechanism for him to plead Tyrannicide, there was no mechanism whereby the state of Virginia was mandated by its internal codes, to hold Booth, and refuse to hand him over to any higher level of government whilst 12 Virginians determined whether or not Lincoln was a Tyrant and Booth a murderer or simply the only American who did his duty…
In a Dark Bill of Rights, no Right would be without its attended threat should it be violated, no Forbidden Tyranny without its punishment, to be realized in the courts, or outside them.
In modern Fallen America, police officers have Qualified immunity for their abuses. Judges and Prosecutors, even worse, (and obscenely for people with legal degrees) have absolute immunity for any abuse or denial of liberty they commit
In Post Revolutionary Dark America, these agents of the government shall have Unlimited Liability for any Tyranny they commit. The judiciary must either enforce the edicts of the Dark Bill of Rights within the judicial system, even against their own or endure their enforcement outside them. Some judges might defy the “Backwards outdated stupidity” of the Dark Bill of Rights, they might attempt to judge by more modern, rational, “reasonable” standards of justice, but as they dawn their body armour and check their magazines before heading into the courthouse, they’ll be hard pressed to say the Bill does not limit them.
Closing thoughts
In the Video Game Cyberpunk 2077 you encounter advertisements referring to the 2nd amendment, and even a chain of gun stores named for the Constitutional artifact.
Here’s the thing though, Cyberpunk 2077 isn’t set in the USA.
2077 is set in, well… 2077. After the USA has collapsed into several different states, and all of the action takes place in a small independent Californian city-state called Night City.
This is what happens when you’re based on a tabletop game from the 80s, your core setting becomes an obscure William Gibson reference.
Night City doesn’t have the US Constitution, it could have incorporated the Bill of Rights, but probably not… it is a corporate oligarchy.
And yet the Second Amendment is so strong culturally that it survived the death of the constitution and the American state around it, and now is a civil-religious/cultural force… such that even though there is no legal enforcement mechanism, the culture alone enforces, Gun companies proudly emblaze it upon across all their branding and challenge anyone who’d oppose them as un-American. Post-American citizens, refugees, and illegals in Night City, all think of gun ownership and “the Second Amendment” as an inalienable right they have… even as they all agree it would be laughable to ever assert a “right” in the corrupt court system.
Even as it ceases to be a legal possibility, it becomes a metaphysical cultural reality.
Mouhammed’s caliphate is long dead, the successor caliphates are long dead, the successors to those successors are long dead… And yet, in majority Muslim states, even in nominally secular states like Sudan or Indonesia the pretty clear effects of Islamic law can be noted, and many states that once had been secular (Egypt, Baathist Iraq, Iran) have felt the unstoppable cultural pull of Islam gaining the control of the state again.
A muscular, “Dark”, form of American liberty could be such a force. All it would take is a new founding document, a new Bill of Rights, one which is almost 100% guaranteed to be written at some point. All it would take is for the writers of that new Bill of Rights to realize that they are not just writing a law, they are writing a culture, and, realizing this, to go as hard as possible.
This successor state will fail, all states fail, but if you could create such a vicious document; if you could weave darkness and violence into that core mythos of American Liberty; if you could weave something horrifying and brutal into this new foundational cultural artifact, incorporating all or most of the core old rights and amendments, and not a few of the even older ones that have slipped into the ether of past English rights and historical common law curiosities…
If you could do that it won’t just be the Second Amendment that outlasts this government and the next, it will be the most muscular, aggressive, and uncompromising conception of American liberty ever penned.
1000 years from now people would still be carrying themselves vicious and proud as Free Americans, and Tyrants would still be falling to their knives… even as the name “America” has long ago stopped appearing on maps, just as Persia and Byzantium no longer grace ours.
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For the Light of Reason fades, the Beacon of Democracy burns out, the City on the Hill will eventually fall to ruins, the monument’s names will wear away in the sand... but the darkness, the fury of commandment, the foul deed done with fanatical righteousness, these things stand the test of time. These are the things remembered even by those who would rather not. These are the dark deeds that motivate politics and culture, even as politics and culture motivate them.
Free Virginians did not put an aqueduct on their flag.
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Awesome piece that makes a strong argument. I'm sold.
A friend was once called to jury duty and mentioned jury nullification. She was booted immediately. Everyone should be taught about jury nullification and told to keep mum about it during voir dire. We can always overturn a ruling in any instant case by simply claiming justification and that the law is a nullity if the jury decides it so. It's not enough but it's a start.
Great write-up! One of the comments to my piece was particularly spot-on when it said that Islam's strict adherence makes it "strong but brittle". The corralling around what is persuasively (to many) heralded as an infallible source of guidance definitely raises zealotry, but the inflexibility also makes it vulnerable to flanking attacks. I mean, I myself am a case study in this for having abandoned my faith completely and since there's no "living Koran" as you put it, I can't even try and pretend to rejigger it.
When it comes to mimetic warfare between ideologies, it's tough to strike a balance between spread and potency, just like with real viruses that kill their hosts too early to spread. As awkwardly written the Bill of Rights is, there's something remarkable about the enduring resilience of 1A and 2A ideals, particularly when compared to other supposedly developed countries. For example, besides the US I'm aware only of Czechia in recognizing a fundamental right to possess firearms: https://en.wikipedia.org/wiki/Gun_law_in_the_Czech_Republic