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A deficient, legalistic analysis
on January 1, 2004
This is a useful catalog of the increasingly repressive nature of American society. As the Left has gradually gained control of institutions, including academia, it has imposed its "compassionate" agenda through myriad totalitarian regulations. As always, the Left uses power to remake people -- to force them to behave -- in ways considered "progressive." Those who disobey the rules are crushed like beetles. And in America, too. Many examples of this possibly irreversible regime are provided by Bernstein.
Despite being published a leading libertarian think tank, this analysis is deficient in key respects. The author doesn't seem to grasp that intellectual rights -- and their protection -- are, as James Madison so clearly stated, grounded in property rights. The gradual and unabated erosion of property rights in the United States has destablized the foundation for intellectual rights. If you do not own yourself and your ideas, you certainly have no justifiction for asserting a right to free speech. The author does not clearly explain whether he thinks rights are "unalienable," as Jefferson said, or given to us by the Constitution. But we are left with the impression that Bernstein relies too heavily on the Constitution to justify our rights. It must go deeper.
Because the author slights property rights, he does a less than stellar job of handling issues that relate to government institutions. How do we sort out what powers and rights can be exercised at, say, public universities? When an institution is private we know who should be able to make the rules: the owners. But if the "public," which is to say the government, owns a college, how, aside from mere force, can it be determined which policy should prevail? If the Left gains control, can it not do what it want and with the full amoral justification that power offers? Why should a student or professor have "rights" in a government setting? How do we know which rights are to be had and which ways are acceptable to express those rights? Unfortunately, there are no satisfactory answers. All matters relating to the "commons" (property controlled by government) are solved by force. Bernstein fudges the issue: he implies that there are certain norms, customs, and constitutional protections in a liberal society that should protect us. But, in the wake of the destruction of the idea of rights obtained at birth, those norms, customs, and legalized protections, are dying. Bernstein's analysis fails because he approaches the issues as a lawyer rather than a political philosopher. He seems to think we can turn back the clock (and regain freedoms) by refiddling the rules.
In one respect, the author actually suggests we have too much freedom of speech. He says that "current First Amendment doctrine...probably protects implicitely threatening speech more than it should." This reveals that he is no principled libertarian, and that he thinks are rights are to be created and protected (or eliminated) by politicians and courts.
There is too much of the lawyer in this book and not enough of the sweeping libertarian analysis that permeated the thinking of the American founders.