Have you ever heard of something called specialization? Modern economies depend on it. Now, if you’re the type of anarchist who likes growing all your own food, and isn’t bothered by the prospect of not being able to bathe more than once a month, doing without specialization is OK. If you’re the type of anarchist that prefers laptops and lattes, specialization is required.

Besides, do you really think that having a “local community decide justice” will involve less politics?

The 14th Amendment did not intend to extend the Supreme Court’s authority to negate legislation, mainly because no such authority exists in the first place. The only binding aspect of the privileges and immunities clause is through the Constitutional oath of office that every government official takes; It was intended that each government official must be held accountable through his reputation.

The 14th Amendment does, however, establish the power for Congress to make laws necessary to carry out its stipulations, which are essentially a restatement of the privileges and immunities and due process clauses. This establishes Congress — not the courts — as a check on tyrannical state laws!

Stephen, I do not share your view of the Bill of Rights as an enumeration of rights. Were that the case, the rights retained by the people referred to in the Ninth Amendment would be a vacuum, because by your definition the only rights that legally exist are those in the Bill of Rights. But the Ninth Amendment reaches outside the Bill of Rights by design. In my opinion, it reaches to the Magna Carta and the Declaration of Independence, i.e., Life, Liberty, and the Pursuit of Happiness.

Just because the Ninth Amendment was excluded when “incorporation” by the 14th Amendment was established by judicial fiat doesn’t make the Ninth irrelevant. To the contrary, it means that we have a job to educate and point out this error in thinking.

We should argue that the Constitution provides two mechanisms through which state tyranny can be mitigated, first by holding officials accountable through their reputations as in the privileges and immunities clause, and finally through Congressional action as in the 14th Amendment.

We should encourage the rejection of judicial fiat as a solution to tyrannical law, and move away from thinking of the Supreme Court as having some sort of spiritual link to the Framers’ intent. Placing this power in the hands of those to whom it does not belong leads to arbitrary and capricious decisions, and the enrichment of the legal establishment.

If Canada’s federal court (and I don’t know much about Canada’s actual federal system) strikes down a provincial law that is harming people, or if the US Supreme Court strikes down a Texas sodomy law, then I can as a libertarian say that the result is good for the victims, and it’s good that an unlibertarian law was nullified. But I would not be dishonest and claim that the reasoning behind the decision was really in line with the Constition. For example I believe that the US Constitution was not intended to permit the sodomy law to be striken. So I would prefer to be honest about this–to say, who cares about the Constitution, I prefer the libertarian result. But you have these libertarian legal scholars who not only like the result but who try to justify it based on the Constitution. I think that effort is futile.

Moreover, you have the more general question about what kind of institutional or structural system we ought to favor. Let’s take an example. Suppose the UN is organizing a world court. That court either will, or will not, be given jurisdiction to review municipal (which means national or local) laws of the UN’s member states. If it is given this jurisdiction, in principle it could review a Californian or US federal law and strike it down. However, if it has this jurisdiction, it might strike down both unlibertarian laws, and libertarian ones. And if it is given this jurisdiction, it would also very probably be used to decree things, to legislate from the bench, just as our own fed judges do, when they decree that states will raise taxes to equalize school quality, or to implement a busing scheme to integrate schools. Therefore, in my view it is quite obvious that the libertarian would NOT be in favor of this new World Supreme Court having the power of judicial review of municipal law. To grant them this power is to in effect grant the power to a more remote, more centralized, less accountable entity, to regulate the lives of everyone in the world.

Now some optimist types might say no, we can tinker with the new court’s constitution and require that it only overturn laws–and only bad ones, at that, not good ones; and not engage in judicail activism. Anyone who thinks this is possible is hopeless naive. Our own Constitution was a decent attempt to limit the congresscritters and judges, but it has failed. The logic of government is that such paper limits will be disregarded.

Therefore, a libertarian would of course oppose a wide grant of jurisdiction to this new, more centralized world supreme court. Even though that means that at some time in the future, this new court will be powerless to overturn unlibertarian state laws.

As I pointed out in the post to which this post links and branches from, it would have been desirable for the dissent to have had its way, and for the state marijuana laws to have been upheld, because (a) the federal law is unconstitutional, and (b) there is nothing wrong with one branch of the feds overruling another branch of the feds. It does not violate federalist principles.

However, here we have Canada’s federal government overturning a law of one of its provinces, which is objectionable at least insofar as this depends on a top-down, centralized state structure.

States are bad because they are monopolies, not because they provide protection and arbitration services. Remove monopoly and then you get competition between different providers of these services – and voluntary membership instead of coercion and nighmarish bureaucratic barriers to migration. That’s the whole reason for “floating governments” (or, rather, insurance/security companies).

Because nobody likes his liberties being restricted and unreasonably high fees being charged, the cometitive system of protection is bound to make protection fees and insurance premiums (taxes, in statist speak) lower while providing both better protection and more individual liberties, including liberty of choosing what level of protection (and from which “enemies”) is desired by each consumer.

As such a consumer, I am in need of help with formulating discourse with non-libertarians (most of the people I talk to every day) that is persuasive and which effectively problematizes the usual frames for discussion. I need to see the libertarian intelligentsia hammering out the issues like adults.

“Rothbard, however, wasn’t your ordinary anarchist, one who rejects all law and government.”

Nor am I or any other libertarian anarchists of which I’m aware.

“He advocated what he called defense agencies or something along those lines that are, in fact, governments committed to nothing more than defending individual rights.”

If you want to define “government” to mean whatever institutions administer law and justice, but which are not necessarily *states*–that is, entities that claim a coercive monopoly on justice in a given area, require forced membership and tribute (taxes)–then we anarchists are not opposed to government. We are opposed to states–that is, any entity that outlaws competition, and that compels membership and taxes. We oppose these things because they are necessarily aggressive. I have written on this here: What It Means To Be an Anarcho-Capitalist.

“One area of difference between Rothbardian—or anarcho—libertarians and others is not what so many of the former think, namely, anarchism, but the idea of floating governments. By this view governments need not have jurisdiction within some contiguous geographical region but can, a bit like pizza delivery or plumbing service providers, float about, adjudicating disputes in any region that would hire them to help uphold justice.”

Tibor, to me this is just a technical question. I have no firm position on it. In my view, what is crucial is the belief that a given “government” may not outlaw competition. It may not forcibly prevent someone in “its” territory from opting out or hiring another PDA. If such rules were followed and a given PDA still came to dominate an area, fine.

To me it is rather simple: does a libertarian oppose aggression in all its forms, or not? I think he has to. So then the question is, what actions that are typically or necessarily taken by “governments” constitution aggression? I think it is pretty clear, or at least reasonably arguable in line with reasonable libertarian principles, that if a government compels taxes, or membership/citizenship, or outlaws competing agencies, then this is aggression.

“Instead, the issue is whether these so called anarcho-libertarians have some kind of higher moral ground than those who hold that there needs to be some kind of adjudication system in place for a free society to function.”

But anarchists to believe there needs to be a justice system, of course.

“Most defenders of the classical liberal idea of limited government include as one of their premises that human beings sometimes do not conduct themselves in a civilized fashion and find themselves, thus, in conflict with others. Even when they do their utmost best to act in a civilized fashion and respect the rights of everyone, they can make innocent mistakes that can lead to disputes among them. And it is important, in such instances, to have in place a forum and process that will enable them to reach some sort of decisive settlement of the dispute.”

Sure, just as it is important to have in place an industry that will make automobiles. This does not mean there needs to be coercion used to “put in place” such an industry or institution.

“This is where the institution called “government” comes in for even the most libertarian of us. Any idea of doing away with government—and renaming it something like “defense agency” or “justice agency” or the like isn’t the same as doing away with it—is a myth, an idle dream for anyone interested in justice throughout human communities.”

Well let’s forget the semantics then. Whether you call it PDA or government, the anarchist opposes the use of aggression by both private individuals and these entities. Minarchists and certainly mainstream people have no qualms with the state employing some aggression. Anarchists oppose the aggression.

“Governments, of course, can have many forms and most have been corrupt versions in most of human history, there is no disputing this among libertarians.”

Most? Have there been ANY that have not been corrupt?

“But anarcho-libertarian have the penchant for elevating their Rothbardian version of libertarianism as holier than though—as if they were pure, while all the rest, such as Nozickians, Randians, and those who follow the likes of von Mises and von Hayek, were all a corrupt, compromised version.”

But opposing aggression in principle does make one necessarily believe all those minarchist type libertarians are endorsing a form of aggression. Are we not permitted to be principled anarcho-capitalists because it is impolite?

“More importantly, though, the alleged purism of the anarcho-libertarian rests on semantics—renaming the institution that is to adjudicate disputes and thus gaining some supposedly moral high ground for denouncing all government. Rothbard, for example, defined government in terms of taxation—it isn’t one if it doesn’t tax. Rand, who had no problem using the term “government,” defined it without this element. So, which is the better definition?”

I don’t konw. But what we libertarians oppose is aggression–including of course institutionalized aggression. Some of us libertarians recognize that states necessarily employ aggression. We oppose this. If someone advocates some institution or arrangement that has or will or probably will nor necessarily will commit aggression, we oppose it. What is so complicated about this?

Well, historically most governments have taxed but does that settle the matter? After all, one may define “marriage” as the exclusive and committed romantic relationship between two people and protest, well, since adultery and philandering is rife among these so called married people, so understood marriages have never existed. Those, then, who want what they might and out to be would them insist on renaming it, but to what point? None that I can see.

Semantics is confusing the issue. Some libertarians who oppose aggression notice that certain institutions are inherently unlibertarian, because they are inherently aggressive. By their nature. Agencies that tax. Agencies that war. Agencies that compel membership and loyalty. Agencies that monopolize the business of justice, and who corrupt it and provide such a poor product. The names and labels used are irrelevant.

There is another thing going on here. Much of this, in my view, is turf fighting. By now libertarianism is not just a movement but a sort of industry, seeking clients all over the place—e.g., donors to foundations, institutes, centers and such. (This is even evident in the way they treat one another’s organizations and the people associated with them—often with out and out contempt.) And aside from the good feeling people may enjoy from thinking themselves to be the pure at heart among all the rest who are, well, not so pure, willing to bend a bit here or there, the title to being the holiest libertarian of them all can gain one some coins, too.

I think the main issue is for people to try to sort out fundamental libertarian principles and their application.

There is, finally, the proclivity of many people who chime in on what a certain religious, political, ethical, artistic or philosophical movement really is all about to wish to have their way of understanding it to be the superior, even the only, way. This one-size-fits-all mentality isn’t confined to libertarians but they, perhaps more than others, may feel more at home with such a motive since it fits the silly version of individualism: Doing it my way, just because, well, it’s my way. This view comes to such folks, I believe, more comfortably, since they aren’t bound by various notions of duty to the team or the like. (Yet a little prudence might inform them that hanging in there together, a friendly fashion, may fend off being hanged individually.)

A call for civility and caution and humility is to be welcome; but there is nothing at all wrong with having principles, with proclaiming them, with debating them.

In my humble view these acrimonious, pseudo-moralistic, name-calling fights among defenders of human liberty do more damage then service to the central purpose, namely, to make headway and to contain the statists everywhere.

Well, Tibor, this could be, though i don’t agree w/ your premise. In some disputes you have holier-than-thou beltway types who yell “racist” at the slightest provocation; the others defend themselves. I would never equate them. I woudl also not ever blame the victim–us victims of statism–for how we respond to it. If we have more statism it is not our fault, it is the fault of statists and those who advocate statism.

Tibor R. Machan

To be sure there are those who insistently call themselves anarcho-libertarians, following mainly in the footsteps of the late Murray N. Rothbard and writing, most often, for blogs and other forums at the Mises Institute in Auburn, Alabama. Rothbard, however, wasn’t your ordinary anarchist, one who rejects all law and government. He advocated what he called defense agencies or something along those lines that are, in fact, governments committed to nothing more than defending individual rights. Yes, these would be governments but they would govern in terms of principles that would restrain their power severely, limited to the function of securing our rights (as the Founder’s put it in the Declaration of Independence).

One area of difference between Rothbardian—or anarcho—libertarians and others is not what so many of the former think, namely, anarchism, but the idea of floating governments. By this view governments need not have jurisdiction within some contiguous geographical region but can, a bit like pizza delivery or plumbing service providers, float about, adjudicating disputes in any region that would hire them to help uphold justice.

Could such floating governments function? Perhaps, in times when location doesn’t have a lot to do with movement—as in a Star Trek like world where people can travel from one place to another without having to occupy solid space as they do. Or maybe sooner. But this isn’t the point I wish to focus upon here.

Instead, the issue is whether these so called anarcho-libertarians have some kind of higher moral ground than those who hold that there needs to be some kind of adjudication system in place for a free society to function.

Most defenders of the classical liberal idea of limited government include as one of their premises that human beings sometimes do not conduct themselves in a civilized fashion and find themselves, thus, in conflict with others. Even when they do their utmost best to act in a civilized fashion and respect the rights of everyone, they can make innocent mistakes that can lead to disputes among them. And it is important, in such instances, to have in place a forum and process that will enable them to reach some sort of decisive settlement of the dispute.

This is where the institution called “government” comes in for even the most libertarian of us. Any idea of doing away with government—and renaming it something like “defense agency” or “justice agency” or the like isn’t the same as doing away with it—is a myth, an idle dream for anyone interested in justice throughout human communities.

Governments, of course, can have many forms and most have been corrupt versions in most of human history, there is no disputing this among libertarians. But anarcho-libertarian have the penchant for elevating their Rothbardian version of libertarianism as holier than though—as if they were pure, while all the rest, such as Nozickians, Randians, and those who follow the likes of von Mises and von Hayek, were all a corrupt, compromised version.

Not so fast. First of all, there is an ongoing and unfinished philosophical dispute about whether the anarcho-libertarian position is any more libertarian than the rest, and in my view, at least, it isn’t at all. As I noted above, the only substantive difference is that the Rothbardians believe governments can move about, float in space, and need not be anchored to terra firma. This is interesting but not a moral issue at all. It is a technical one.

More importantly, though, the alleged purism of the anarcho-libertarian rests on semantics—renaming the institution that is to adjudicate disputes and thus gaining some supposedly moral high ground for denouncing all government. Rothbard, for example, defined government in terms of taxation—it isn’t one if it doesn’t tax. Rand, who had no problem using the term “government,” defined it without this element. So, which is the better definition?

Well, historically most governments have taxed but does that settle the matter? After all, one may define “marriage” as the exclusive and committed romantic relationship between two people and protest, well, since adultery and philandering is rife among these so called married people, so understood marriages have never existed. Those, then, who want what they might and out to be would them insist on renaming it, but to what point? None that I can see.

There is another thing going on here. Much of this, in my view, is turf fighting. By now libertarianism is not just a movement but a sort of industry, seeking clients all over the place—e.g., donors to foundations, institutes, centers and such. (This is even evident in the way they treat one another’s organizations and the people associated with them—often with out and out contempt.) And aside from the good feeling people may enjoy from thinking themselves to be the pure at heart among all the rest who are, well, not so pure, willing to bend a bit here or there, the title to being the holiest libertarian of them all can gain one some coins, too. I will not make the mistake, as some economists might, of construing this the prime reason for much of the acrimony—for, yes, much of the disputation is sadly very acrimonious—but it is one of a collage of reasons, I think, that so much ink is spilt on who is the most libertarian of them all.

There is, finally, the proclivity of many people who chime in on what a certain religious, political, ethical, artistic or philosophical movement really is all about to wish to have their way of understanding it to be the superior, even the only, way. This one-size-fits-all mentality isn’t confined to libertarians but they, perhaps more than others, may feel more at home with such a motive since it fits the silly version of individualism: Doing it my way, just because, well, it’s my way. This view comes to such folks, I believe, more comfortably, since they aren’t bound by various notions of duty to the team or the like. (Yet a little prudence might inform them that hanging in there together, a friendly fashion, may fend off being hanged individually.)

Anyway, libertarianism is the political idea that a society is best that abides most consistently, most fully by principles of individual rights to life, liberty, and property—at least this is one good way of identifying it. The best institutional arrangements for getting such a society in play and maintaining it are what can be called the problems of libertarian political science—should there be such bodies of specialists as courts, police, military, legislatures, etc.—and because the viewpoint is rather radical, just exactly what that political science will ultimately yield hasn’t been adequately explored, as far as I can tell. (Most well funded political science and public policy centers at universities, don’t even pay attention to the libertarian alternative, so scholarship and research on that issue is rather scarce.)

In my humble view these acrimonious, pseudo-moralistic, name-calling fights among defenders of human liberty do more damage then service to the central purpose, namely, to make headway and to contain the statists everywhere.