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.
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.