It’s widely believed–even by Nolan Chart libertarians–that the left and liberals in America are better on civil liberties than are conservatives. I’ve long believed that this is false: that both are terrible, and that if anything, the left is as bad as, or even worse than, modern American conservatives on civil liberties. (See my posts Everything you need to know about Judge Alito — Or, Good and Bad Judicial Activism; Left Socialists vs. Right Socialists; Liberals vs. Conservatives; Conservatives and Liberals; Liberals and Free Speech.) This is borne out again in a recent Supreme Court decision striking down campaign finance laws as being censorship in violation of the First Amendment. Predictably, the four left-liberal members of the Court dissented.
A better decision would have struck the federal McCain-Feingold law down without reference to the First Amendment, on the grounds that there is no power authorized in the Constitution to enact the law in the first place–after all, such a law would have been as unconstitutional in 1790 (before the Bill of Rights was ratified) as in 1791 [see The Unique American Federal Government and the work of Professor McAffee discussed in The Great Gun Decision: Dissent and in On States' "Rights"].This is not to praise the right, of course, or buy into the notion that we can rely on the judiciary to protect our rights from invasion from their fellow state actors (see the quote from J.H. Huebert in Is Gay Marriage a Constitutional Rights?]. In fact, “The decision threatens similar limits imposed by 24 states.” This is because of the Court’s ridiculous “incorporation” of selected parts of the Bill of Rights (which applied only to the federal government) into the 14th Amendment’s Due Process clause (which limits the states) (see The Libertarian Case Against the Fourteenth Amendment). If the Bill of Rights were absent, and the Court had struck down McCain-Feingold on the grounds that it is ultra vires–beyond the power of Congressional legislation absent an enumerated power in the Constitution–it would be hard to argue that this “lack of power” grounds could somehow apply to the States–unlike the unique federal government, the states have plenary legislative power (see The Unique American Federal Government). For example, a federal law banning murder would also be unconstitutional since it is not authorized in the Constitution, but a state law banning murder violates neither its own nor the federal Constitution. The Bill of Rights, like the Constitution itself, has served primarily as a basis for expansion of federal power (see Rockwell on Hoppe on the Constitution as Expansion of Government Power). The Bill of Rights was a mistake (as was the one proposed in Iraq). The Constitution was a mistake. Secession from England was a mistake. Down with the criminal American state and its self-hagiographical “history”! (See Happy We-Should-Restore-The-Monarchy-And-Rejoin-Britain Day!; ‘Untold Truths About the American Revolution’; The Murdering, Thieving, Enslaving, Unlibertarian Continental Army; Goodbye 1776, 1789, Tom.)
Update: Glenn Greenwald has an excellent piece on this case here.
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I agree that the Constitution was a mistake. There shouldn’t be any campaign finance laws. (There really shouldn’t be any political campaigns either, etc.) But you wrote, “Secession from England was a mistake.”
Secession from England was a mistake? Do you mean that the inhabitants of these territories over here don’t have the inherent right of self-determination and independence? I hope that’s not what you’re saying.
The independence and self-determination of any inhabitant was an issue.
I was with you, more or less, right up until:
The Bill of Rights was a mistake (as was the one proposed in Iraq). The Constitution was a mistake. Secession from England was a mistake. Down with the criminal American state and its self-hagiographical “history”!
?? wt??
I have the feeling that a two dimensional representation is not appropriate. You might want to turn down the top to the bottom as in a cylinder to explain …. Haiti. And the French revolution(s) and countless other events.
Hello Stephen,
I just finished listening to a lecture by you about IP…
I do believe you to be a brilliant man, but all do respect, though I agree with you about the Bill of Rights and the Constitution, even the Articles of Confederation is violating the inherent rights of individuals, I do not agree that secession was in error. I believe secession to autonomy would be just, I am curious if you would agree with this?
Ludwig von Mises is rolling in his grave everytime Stephan Kinsella is littering this site with his anti-freedom message. May he be kicked back to England where he belongs, and the same goes for the president, but in another direction, namely in the direction of the Vatican. You do not represent Ludwig von Mises’ ideas. You are a bunch of low life religious parasites feeding on ideas you do not comprehend.
For those who read Stephan Kinsella’s rejection of IP law, try also to read this great piece by Greg Perkins.
http://www.dianahsieh.com/blog/2006/05/dont-steal-this-article.html
Harry, I don’t know what ‘secession to autonomy” means. If you mean individual secession, of course it’s just. it’s just not permitted.
Kinsella has run off the rails.
It’s one thing to adopt an extreme position, and stick to your guns, but at least try to transend pure logic, and acknowledge most of the people he addresses are human.
When you reduce your world to black and white, then you’ve missed the rest of the spectrum and intensity of the rest of it.
Should we advocate for hunger to weed out the weak? Is everything a threat and non-threat?
If our child expresses some belief or behavior that doesn’t jive with our own belief, do we blow his head off and eliminate the threat.
Kinsella is a jackass. This bit about fitting everything into a box gets tiring. How stupid do you have to be?
No bill of rights… honestly, how stupid do you have to be to trust this fool?
@ Anonymous
“Ludwig von Mises is rolling in his grave everytime Stephan Kinsella is littering this site with his anti-freedom message. May he be kicked back to England where he belongs, and the same goes for the president, but in another direction, namely in the direction of the Vatican. You do not represent Ludwig von Mises’ ideas. You are a bunch of low life religious parasites feeding on ideas you do not comprehend.”
Wow! You nailed it!!! Exactly!
Ackermann,
I don’t think all the insults are necessary to make a point.
In Kinsella’s defense (although, I do not endorse the idea that “we should return to England”, although I’m not sure if that is Kinsella being facetious), the U.S. Constitution and the Bill of Rights are flawed. The Bill of Rights was a means of limiting the size of government. This contract between the people and government has been blatantly breached time and time again.
And another thing: why muddle up a disastrous SCOTUS decision with left and right.
This is an issue that will bring left and right together… at least for this issue.
Today’s ruling couldn’t have been more wrong even if Donald Rumsfeld sat on the bench.
Does anyone really think this will reduce the size of the government, or make politicians better… or irrelevant?
If Kinsella had any actual courage and brains, he’d be thinking through the implications of the ruling, and writing a long piece on how this will unfold.
The following equation needs to be legislated out of existence:
money=free speech
@jonathan – you are, or course, correct about the insults. My emotions got the best of me and I spoke what I think.
There are a lot of things that are flawed, but that doesn’t mean they don’t have value.
perfection=utopia=disaster
The “Hillary” decision today was clearly correct both from the standpoint of Constitutional law and of freedom/natural law. Even without the 1st amendment, which strongly protects all political speech, nothing in the Constitution or natural law suggests that the parasites in Washington can censor the speech of selected groups, or any groups for that matter. If Kinsella is suggesting otherwise, he is just another mouthpiece for the repressive beltway gang.
We should settle for half-solutions, though…
Secession was a great idea, now we can have our very own thuggish gang to rob us even more then the British gang.
Since this, constitution, bill of rights and secession from England is all issues of a statist paradigm, one has to abandon the libertarian theory and speculate a bit regarding the possible outcomes that effect real liberties of the people. If you are going got be pragmatist, you need to be pragmatist.
In that context deciding not to secede might have been a good idea.
We are assuming there will be state either way. One is close home an independent US, the other is far away the Queen.
From a pragmatist point of view, a far away authority might have less actual power to coerce its citizens.
But if we are going to be pragmatist we must think of the passage of time. Bill of rights and the constitution were almost perfect, but there were problems of enforcement and these problems grew bigger by time. Today after more than 200 years no one hardly, at least no politician, care about the constitution or the bill of rights.
But in the case of non seceding how long would the practical independence from a far away ruler last?
But one must also think about the fact that bill of rights still have some meaning thought it is not practicaly the law of the land anymore.
For people living in the US it may be hard to see this, but I would be grateful if my country had the first amendment. Maybe the first amendment isn’t followed to the letter over there today but none can dare speak against it openly and ordinary people know and cherish that right.
Many places in the world don’t even have that kind of ancient relic that they can turn to. As Ron Paul said I think, liberty is a new thing in humanity as opposed to tyranny and it is a very big and unique luxury to have liberty in your past.
Since this, constitution, bill of rights and secession from England is all issues of a statist paradigm, one has to abandon the libertarian theory and speculate a bit regarding the possible outcomes that effect real liberties of the people. If you are going got be pragmatist, you need to be pragmatist.
In that context deciding not to secede might have been a good idea.
We are assuming there will be state either way. One is close home an independent US, the other is far away the Queen.
From a pragmatist point of view, a far away authority might have less actual power to coerce its citizens.
But if we are going to be pragmatist we must think of the passage of time. Bill of rights and the constitution were almost perfect, but there were problems of enforcement and these problems grew bigger by time. Today after more than 200 years no one hardly, at least no politician, care about the constitution or the bill of rights.
But in the case of non seceding how long would the practical independence from a far away ruler last?
But one must also think about the fact that bill of rights still have some meaning thought it is not practicaly the law of the land anymore.
For people living in the US it may be hard to see this, but I would be grateful if my country had the first amendment. Maybe the first amendment isn’t followed to the letter over there today but none can dare speak against it openly and ordinary people know and cherish that right.
Many places in the world don’t even have that kind of ancient relic that they can turn to. As Ron Paul said I think, liberty is a new thing in humanity as opposed to tyranny and it is a very big and unique luxury to have liberty in your past.
“Post an intelligent and civil comment.”
I shall attempt the first.
Kinsella again takes an issue where most people have knee-jerk reactions and illustrates it from an enlightening and truly libertarian perspective.
The case at hand went to court because a conservative group produced a 90-minute video against the candidacy of Hillary Clinton. They were prohibited from airing it at their own expense.
Kinsella makes the simple, yet plainly correct observation here that the Federal Government is not granted the power to limit (‘regulate’ in newspeak) speech – from anyone. All those clamoring for such regulation are effectively advocatiing a a central State unlimited by the bounds of the covenant that created it.
The ‘Bill Of Rights’ is a problematic document since it has long been abused by federal courts as a means to exercise unconstitutional power over us. Our rights are natural and self-evident, and not created by some legislative fiat.
Quote from K Ackermann: “Does anyone really think this will reduce the size of the government, or make politicians better… or irrelevant?”
Maybe you could explain how McCain-Feingold was doing anything except entrenching the encumbant power already making the government bigger.
The problem isn’t money buying power, it’s money buying government power. Money will always buy power, but government power is absolute. The only real solution is to take the power away from government. McCain-Feingold does exactly the opposite.
This decision takes power away from government, and that is a good thing.
“…the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize… But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” – Lysander Spooner
Anyone who doesn’t know this Ackerman here, an insight from his previous screeds: he wants everyone’s money confiscated and the Feds in his fantasy will equally apportion the funds to all the candidates for their campaigns. Extreme indeed.
mpolzkill, this is not so extreme if you believe in “benevolent dictatorship”!!!
Also, Greenwald mentioned in his blog this morning that he would comment on this decision in a subsequent post. It will be interesting to see whether his “progressive” half or his “civil libertarian” half comes out on top.
Daniel,
Quite. “Extremeness” (Extremenicity, Extremiosity?) is in the eye of the beholder isn’t it? “Moderation”, that’s a good one too. Millions always giving themselves a little shot of self-satisfaction as they strive to get to the middle of the Titanic.
I will agree with Stephan on the “it was a mistake to secede” comment, but only insofar as we ended up with what we now have. I will grant the point that we are likely now much worse off than the colonists were under the British monarchy.
Kinsella should have focused on one narrow point. Failing to do so, the piece is scatter-shot, flimsy, and as disappointingly shallow as it is contentious.
To me, the crucial point to make here is that a government of fewer laws is not a sufficient condition for greater freedom, even if the ideal is anarchocapitalism. As a thought experiment, imagine that there were only one law: that all people should obey a single man in all that they do. That single law grants absolute power and strips away all freedom. Now, say that there is only one law, but instead it prohibits violations of the laws of nature. Some may argue that, in principle, the society governed by the first law is no less free than the society governed by the second. However, the vast majority would say otherwise–the second law clearly imposes no restrictions at all. In other words, laws are not created equal in their impact on freedom. Further thought will necessarily lead to the conclusion that it is the collection of laws as a whole, and not any single law, which is relevant to improving freedom. It would not improve freedom to, for example, permit the buying and selling of laws and their enforcement, or to free the speech of corporations that enjoy the fruits of government interventions while restricting the speech of the citizens who are harmed by those interventions (If money is speech, we can’t ignore that the citizens are impoverished by the state).
I confess I do not quite understand some of the criticisms above, or what they are saying or disagreeing with.
Some of these posts seem to exemplify typical libertarian characteristics: such as the inability to distinguish positive law from libertarian principles, and so on. All the jabber by mainstreamers about whether this is a good decision or not, how it “affects” democracy, etc., are all irrelevant to the constitutional question: the Court was right, in my view, in their striking down the law, since it’s not authorized by the Constitution. But this does not mean the result is libertarian. It means it’s constitutional. Whether it’s good or bad from the libertarian point of view is another question altogether.
Many are deluded into believing money buys political power. Money buys airspace or other resources to distribute a message. Only the public’s complicity with government power creates government power. Money might increase the motives of the elected to increase state power, and it may increase the propaganda fed to the masses to get them to buy into it, but neither money nor information alone can create public complicity. More money doesn’t necessarily mean more state. It means more information. And as mentioned already, under McCain-Feingold, reelection rates were at all time highs; yet there was no lack of corruption – in fact, it was advanced rapidly.
As far as the Constitution…obviously the Constitution was an attempt to ordain a national government. So it’s bad. The limitation of powers and checks and balances are dysfunctional – all the enforcement power resides inside the government. The Constitution could hardly be considered near perfect – it isn’t even a legal document, filled with vague language. If anything, it was not much different from campaign rhetoric.
I agree with Rothbard that the Bill of Rights have been interpreted to grant government more power, rarely limiting it. And that the Supreme Court is a show trial designed to validate the government’s power grabs. If the Bill of Rights was so important, why didn’t they spend more time specifically detailing things the government cannot do? Because it was supposed to be a living document? Well, you got your wish. It’s alive, and it hates freedom.
Secession from Britain – if you followed Stephan’s links, you’d understand his libertarian logic. Secession in itself is surely libertarian. The way that specific secession was conducted, however, was not. It involved the normal state practices of taxation, inflation (accompanied with price controls and legal tender laws), and conscription. The rallying cry of the revolution was “No taxation without representation”. I’m sure a significant number of American chickenhawks were singing a different tune – “Great taxation WITH representation!!!”
With the luxury of retrospect we can easily point out all the flaws in the Constitution, and even the concept of constitutionally limited government.
But viewed in it’s historical context, the Constitution was no more of a “mistake” than Newtonian physics was “wrong.”
It was an important and vital step toward an as yet unattained ideal, was far superior to every other political system at the time, and cannot be faulted for failing to take into account everything we have come to understand since (and as a result of) its drafting.
The US was an invaluable experiment in limited government. It’s history is the most decisive empirical evidence in favor of the abolition of the State, as such.
Is anybody going to approve the long message I posted on 21 January?
Best,
Alex Peak
Sorry, Alex. Unless you saved your comment on your hard drive, that sucker is gone. It’s not that it had to be approved, it’s some bug that’s been here forever.
Jesse said
“…was far superior to every other political system at the time…”
It wasn’t superior to the Articles of Confederation. Like nearly everyone, you unconciously give credit where it is not due. The main cause of America’s former and rapidly fading success was a culture of respect for private property. The Constitution in part was a tool of Monarchists to subvert that. It has been wildly successful for these D.C. parasites.
mpolzkill,
The page said it was awaiting approval. I’ve noticed that that message appears when one’s comment contains a bunch of links. I assume it’s a method by which to prevent spam.
Sincerely,
Alex Peak
mpolzkill,
While you might be right about the superiority of the Articles of Confederation to the Constitution, it’s really irrelevant to my point, which is that while neither document created a perfectly free anarcho-capitalist society, they were, in the broader scope of history, experimental attempts to create a free country by creating a more limited government than had existed so far.
Of course there were ulterior motives and corruption on the part of people involved, and of course there’s a lot more to the story. But it would be absurd to say that, in terms of how civilization has been organized since it’s beginning, the US was not a step in the right direction.
The fact that they failed serves the same purpose that every failed experiment does: showing what doesn’t work, and hopefully, why it doesn’t.
The parasites in Washington have certainly taken full advantage of the classical liberals’ trust in limited government. But they also expose the untenability of such doctrines.
I apologize, Jesse, I missed your last sentence. I see now (I think) that you were saying the Constitution was only good as an example of a failed but mainly noble experiment. I still disagree. Those rich white guys didn’t “organize”* a society in 1789. There already was a remarkably free society (for that era) and these land barons set up its destruction (unwittingly and not). When he clearly foresaw that the Constitution would always mean exactly what nine political appointments in black costumes said it would mean, and that would always mean D.C. aggrandizement; when he walked out of the Convention George Mason was the one taking the right steps.
* In French, the words ‘organize’ and ‘organizer’ were unknown before the end of the eighteenth century or the beginning of the nineteenth century. With regard to the term “organize,†Balzac observed ‘This is a new-fangled Napoleonic term. This means you alone are the dictator and you deal with the individual as the builder deals with stones.’
-Ludwig von Mises
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