Blogs > Liberty and Power > The Strange Jurisprudence of Ward Churchill

Feb 13, 2005

The Strange Jurisprudence of Ward Churchill

[cross-posted at Austro-Athenian Empire]

Last night I watched the embattled Ward Churchill on C-span. I give his performance a mixed review. His speech was a rousing blend of insight and obfuscation; he made many points that desperately needed making, yet his tone often savoured overmuch of Richard Mitchell's bewildered priest, justly condemning his opponents for selective outrage while engaging in complementary selective outrage of his own. Churchill also did a fair job of rebutting some of the more hysterical interpretations of his original article (though even on a charitable reading he's still guilty of collectivist confusion), and I was pleased to hear Native American libertarian activist Russell Means get a name check. But Churchill quickly lost credibility during Q&A, thanks to his bullying attitude toward dissenting audience members.

The most interesting point in the evening, however, came when one audience member asked Churchill how he could reconcile his claim to First Amendment protection for his controversial views with his position that Columbus Day celebrations should be banned. Part of Churchill's answer was that no one has a right to celebrate or downplay something as evil as the North American genocide that Columbus inaugurated.

The extent to which this response plays into the hands of Churchill's own critics is ironic, but not my present concern; the fact that Churchill's support for free speech is selective, while regrettable, isn't especially surprising or unusual either. (As for his take on Columbus, he has a point -- though, characteristically, an exaggerated one.)

What is unusual (or new to me, anyway) is the Constitutional argument Churchill offered for his position. He claimed that the First Amendment right to march in commemoration of Columbus Day is overridden by the Ninth Amendment right of Native Americans not to be subjected to celebrations of their ancestors' subjugation.

Now I'm always happy to see the oft-neglected Ninth Amendment actually getting remembered. (Churchill asked the audience whether anyone could recall what the Ninth Amendment says. Nobody could. One audience member gave it a stab but ended up paraphrasing the Tenth Amendment instead. For the record, the Ninth Amendment reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." It was included to meet the concerns of those like Alexander Hamilton who worried, presciently in the event, that a Bill of Rights might encourage future interpreters to suppose that any rights not specifically listed as protected has been surrendered.) But Churchill's invocation of the Ninth Amendment embodies a novel twist.

Churchill evidently reads the Ninth Amendment as acknowledging not merely rights in addition to those enumerated, but rights contradicting and overriding those enumerated. This is the looniest interpretation of the Bill of Rights since the Clinton administration's claim that the Second Amendment protects only the Federal government's right to bear arms (an interpretation so ludicrous that even the most extreme gun-control advocates were seemingly embarrassed to embrace it). It would appear that for Churchill the Ninth Amendment means:"The enumeration in the Constitution of certain rights shall not be construed as actually endorsing any of the rights enumerated."

Does Churchill really find his bizarre interpretation plausible, or is he simply employing a cynical stratagem of power politics? Either way, it doesn't speak much in his favour. Still, given the mass-murderers who currently run our country I can't get too excited about Ward Churchill’s sins. Plus he was more entertaining than Bill O'Reilly, and probably uttered a higher percentage of true statements; if he had a regular show I reckon I'd watch it. No danger of that in Bush's America though.

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Roderick T. Long - 2/17/2005

I wonder if Lysander Spooner counts as an Anti-Slavery Constitutionalist. He did argue in The Unconstitutionality of Slavery that the constitutional guarantee to the states of a "republican form of government" meant the states had to get rid of slavery, because rule of slaveowners over slaves made those states aristocracies rather than republics. Hence he may be one of the few people in history to defend all three of the following principles:

a) The federal govt. has no right to prevent the southern states from seceding.
b) So long as the southern states have not seceded, the federal govt. has the right to force those states to abolish slavery.
c) Whether or not the southern states secede, individuals in the northern states have the right to help organize armed insurrections of slaves within the southern states.

But I suspect most of the "Anti-Slavery Constitutionalists" would have disagreed with him about (a). And Spooner never claimed there were constitutional rights that conflicted with or could override the Bill of Rights.

Kevin Carson - 2/16/2005

Sounds a lot like the bizarre theories of the pre-Civil War "Anti-Slavery Constitutionalists" (I call them Shiite Republicans). Central to their approach was a tendency to treat the Bill of Rights, not as a negative restraint on the federal government, but as a positive grant to be enforced by the federal government.

Many of their doctrines have been resurrected, more recently, by Straussians and crypto-Straussians of the Right. For example, Howard Phillips has argued that the Fifth Amendment guarantee against deprivation of life without due process requires the President to shut down abortion clinics.

So it seems Ward Churchill and the Straussian neocon/theocon alliance have some common roots in the "burnt-out district" of the 1830s.

William Marina - 2/14/2005

I think the evidence is considerable, Madriaga, Carmichael, etc., that Columbus was a converted Marrano whose family had fled Barcelona for Genoa. Certainly the bankers around Ferdinand, also partly of Jewish background, were of that religion. KK kept his log in the Jewish calendar and began it in March at the time of the Expulsion. Parrt of his mission was to find a place for them to emigrate to, hardly the picture painted by the M-C types. He succeeded in the sense that many Spanish Jews came to the New World.