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Source link: http://archive.mises.org/6099/the-problem-with-government-the-rejection-of-federalism-by-libertarian-centralists/

The problem with “government”: The rejection of federalism by libertarian centralists

January 5, 2007 by

As I’ve noted before, many libertarians display disregard for or ignorance of the federalist aspect of our Constitution, often manifested as references to federal constitutional limits on “government,” where “government” is used to mean state and federal government. Including both state and fed governments in the term “government” is a subtle way to put forward the centralist idea that the Fourteenth Amendment gives all kinds of power to the feds to police state actions. Only if you believe the feds have the constitutional power to strike down any “bad” state law they don’t like, would you even think to say that the feds are “allowing” the states to do something when the fed courts, say, decide not to strike down a given law.

Case in point, in the latest Liberty, Tim Sandefur argues that “On June 23, 2005 [in the Kelo case], the United States Supreme Court held 5–4 that government can seize private property and transfer it to developers to boost local economies [italics added].” Notice this use of “government” here in a manner that implies that the feds have the right and obligation to oversee all levels of “government.” In the mind of these libertarian centralists, our entire national legal system is like a big pyramid, with the feds and its Supreme Court at the “top”. This view is sensible for a normal sovereign state, such as, say, France; or for one of the US States. But this view is utterly wrongheaded when it comes to the federal US system, in which, if anything, the states are supposed to be supreme over and above the feds, as the parties to the compact that created that unique entity. (See, on this, my post on Kilpatrick; 2.)A more accurate way of wording what Sandefur wants to say would be something like: “the United States Supreme Court refused to interfere with state governments’ takings laws.” Such a wording would take much of the huffing and puffing, the tone of moral superiority out of the assertion. It would sound little different than saying, “Today, the US Supreme Court declined to take up a lawsuit by a Ugandan man against Uganda challenging Uganda’s non-compensated taking of his family home, on the grounds that it lacks jurisdiction over the sovereign country of Uganda.” But I imagine centralist libertarians would describe it thusly: “Today, the United States Supreme Court held that governments can seize property without compensation. It is a dark day for property rights. Run for your lives. The world is about to end. Let’s get a grassroots campaign going to seize the property of the Justices without compensation, to teach them a lesson.”


josh January 5, 2007 at 3:42 pm

Great subject; I’ve often wondered about this.

I hope this isn’t a stupid question.

Let’s say an overzealous city police officer decided to do a search of your car even though he didn’t have probable cause.

Many would argue that this was a violation of the 4th Amendment.

But I have often suspected that the Bill of Rights does not apply in this situation, since this situation doesn’t involve the actions of the Federal Government. Is that correct?

T.G.G.P January 5, 2007 at 4:27 pm

I can’t believe Ann Althouse’s hysterical reaction to libertarian federalists. She’s a law professor for goodness sake!

Stephan Kinsella January 5, 2007 at 5:13 pm

Tim Sandefur has a case of the vapors due to my little comment–he replied hysterically here. First, he gets indigant that I called him ignorant of federalism. But I did not: I said “many libertarians display disregard for or ignorance of the federalist aspect of our Constitution….” Sandefur is obviously not ignorant of federalism. I think he mistakenly disregards or dismisses it, however. And he thinks I give it too much import. Wow, two libertarians disagreeing! Alert the media.

He also completely ignores my Uganda analogy. The Uganda analogy shows that choosing how to word the description of the Supreme Court’s ruling reveals one’s agenda or biases.

Anyway, Sandefur does not even deny that he uses the word “government” in this context as is quite often done by people who are not even aware that the Constitution used to have a federalist structure, where the bill of rights really limited only the feds. In 1795, for example, it would have been inaccurate and misleading to say that “The First Amendment prevents government from infringing your right to free speech.” Rather, it prevents the *federal government* from doing so–this makes perfect sense, because it’s a provision of the federal constitution. A corporate charter or articles that is used to define the corporation’s rights and powers might have a provision saying that *it* cannot do certain things; it woudl be absurd if this charter purported to limit what other corporations can do. Likewise, the federal Constitution is primarily concerned with placing limits on the powers granted to this newly-established, sui-generis entity.

And because the Constitution was like a compact between States, the original parties on the international sphere that created this sui generis entity, there are a few provisions specifying what the States may not do–so long as they are party to this compact and union, that is. None of this is really hard to grasp; I believe Sandefur does grasp it, he just rejects it in favor of libertarian centralism and naive utopianism. I respect his disagreement, but a disagreement it is.

He wants to insist over and over that I and others are “dishonest” for not accepting his radical, innovative, and agenda-driven Jaffa-ite construction of our founding and the Fourteenth Amendment. There can be no doubt whatsoever that it is at least *debatable* whether his view, or the more decentralist view of, say, Kilpatrick, is correct. To imply that the case is open and shut, as Sandefur does, is what is dishonest.

To elaborate further: Sandefur writes:

“In the mind of these libertarian centralists, our entire national legal system is like a big pyramid, with the feds and its Supreme Court at the ‘top.’” … This is absolutely absurd.

But it is *not* absurd: I do believe this is how Sandefur views things. He and other libertarians, and most Objectivists, want things all nice and neat and tidy. They want there to be a “single, final decisionmaker”; the thought of 50 sovereigns loosely confederated only partly governed by a weak central state that is also governed by the states (vertical checks and balances, not just horizontal) bugs them; it’s just too messy and anarchic and all–there’s no guarantee, you see, of a final, or correct, decision. Heavens, there might be different results in each state! Of course, the centralists for some reason are not bothered by the idea that the uniform, final decision issued by the 9 men in black in DC has no guarantee of being right either. Sandefur likes aspects of federalism, sure–the fact that the central, national super-state overlord of the mere geographic provinces or divisions that it generously and quaintly still refers to as “states” allows these states to experiment, and to provide even “greater” rights than the central state decrees as a floor. Wow. We should be so grateful.

The thing is, I really believe most libertarian centralists would much prefer a normal government like in the rest of the world where there is a hierarchical “pyramid” like structure, with the central state at top, and various local governments below. Sure, they might want decentralized decisions where possible; but they ultimately want the central authority to be able to make national legislation and have centralized judicial review of all local laws. It’s so much more efficient and easy that way to have the feds just impose libertarian laws on the nation as a whole, rather than having to do it one state at a time–on that day just around the corner when we libertarians will start being asked what laws we would like passed next. Yeah. Right.

The truth is these libertarian centralists OCD-like desire for uniformity and central command and control and “nice, neat, final” decisions in the case of disputes and appeals implies they have to favor one-world government–as indeed they admit, when pressed–see, e.g., the comments of Objectivist Bidinotto here.

And how can these centralists deny they really would love to see a one-world libertarian government. These are people who generally favor the US as the world’s policeman, basically assuming overlord status over other states; these are the people who favored the attack by Lincoln on a separation nation. How much easier all this would be if the US took over the UN completely and just asserted ultimate domination over the world, and could just pass a law directly imposing control on countries or localities, instead of having to go to war–once the law is passed, it’s just a police action, like the feds marching on Selma. And we see the initial beginnings of this in the US resolutions on Iraq (like world authoirty laws), which it then enforced itself against the defiant locality (Iraq).

Sandefur goes on:

The Supreme Court in did hold that government—all government, local, state, and federal—can seize private property through eminent domain and give it to developers.

Sure. And it would also fail to prevent Canada from doing this too. So?

The Court made no distinction between different levels of government in the case, and so my reference to the case also makes no such distinction.

Sure. My point is that “government” is used quite often by libertarians who simply do not care about the distinction between the feds and states, for purposes of limitations in the Constitution, in a way that does not distinguish between them. Sure, the S. Ct didn’t distingish–it has obliterated federalism! That is my point. And Sandefur and the centralists are perfectly fine with this. It does not bother him. In fact he and others of his ilk are driven to apoplexy and accusations of dishonesty when other libertarians like me simply point out the federalist nature of our Constitution implies that limits in that document are generally limits on the federal government but not state governments. That is why careless statements like “The Constitution prevents government from violating your rights” etc. are often misleading.

What’s more, I go on in my article to detail how states can prevent the abuse of eminent domain thanks to our federalist structure. How can Kinsella accuse me of ignorance about the subject when the entire subject of my article is the way states are dealing with the Kelo decision by passing (or not passing) state-level eminent domain reform?

I didn’t; I believe Sandefur *disregards* the federalist distinctions in the Constitution, when he adopts the state’s view of the Fourteenth Amendment and Lincoln’s vie of the original nature of the union. This is a legitimate debate; but Sandefur won’t see it this way. Why? Probably because of what motivates him to so zealously and easily –for a libertarian–accept the state’s views, the views that endorse central power. It is a type of political correctness combined with the OCD desire for finality and neatness and order: it is the buying into the state’s version of the bad, racist states and the “need” of the feds to step in, like a wise father, and change things, say, with civil rights laws, etc. In Sandefur’s mind you have to be racist to dislike the civil rights laws or the Civil War; you have to be a “defender” of the Confederacy’s cause in order to object to the legality, morality, or constitutionality of Lincoln’s War. It is a view utterly bereft of charity or sincerity, since his own view is so intertwined with the PC views of the “respectable” cocktail party incrementalist, pragmatic set.

In any event, for whatever reason, Sandefur does disregard federalism. He disagrees with our view of it. Why is this insulting, or even false, of me to say? If I were Sandefur, I’d happily agree–”Yes, I disregard federalism, because it largely ended in 1865″ or whatever.

My comments were pointing to Sandefur’s genericized use of “government” as yet another example of the consolidationist mindset, the centralizing opposition to the idea of the US as a true federation. As Sandefur really does hold these views–he admits as much here–I fail to see why he launches into vilification and apoplexy when this is mentioned. I’m not ashamed of my views; I’m happy to stand up and admit them, when challenged. Yes, I’m an anarchist. Yes, I think the Civil War was immoral and unconstitutional. Yes, I think there was a constitutional right to secede. No, I don’t “support” the CSA, nor am I neo-confederate; in fact I personally dislike the rebel-flag waving yahoos and the worship of civil war memorabilia and the like. But hey, that’s just me. The cocktail party set sees someone from Louisiana not toeing the line so they naturally assume he’s a good ole’ boy redneck neoconfederate or something. Whatever.

But he’s led into this embarrassing display of ignorance by his belief—utterly without constitutional justification—that “the states are supposed to be supreme over and above the feds” and that they are “the parties to the compact that created that unique entity.”

I’d be curious as to Sandefur’s response to Kilpatrick, or the Kentucy and Virgina Resolves. Even if he disagrees, calling the adoption of this view “dishonest” is itself dishonest. It is in fact a reasonable view of matters, even if it is not uncontroversial–as is Sandefur’s Jaffaism.

As I’ve explained many times in the past, states are not parties to the constitutional compact, and states are not supreme over the federal government.

Wow, Sandefur has explained it–that settles it, I guess! No one bother to read Kilpatrick or the Kentucky Resolution–it’s been “proved” to be irrelevant now! Nobody look–!

Josh January 5, 2007 at 5:45 pm

I asked a question above. Did you overlook it? Thanks–J.M.

Mark Brabson January 5, 2007 at 6:23 pm

Stephen Kinsella:

I am a staunch “decentralist”. The Constitution may have been a workable document at one point. Unfortunately the 14th and 16th and 17th Amendments have pretty much rendered a unitary state. Federalism died, between Lincoln’s tyranny and the 14th amendment.

I have spoken of my own preferred model for government, based on the original Articles of Confederation. I have taken the original text of the Articles and updated and modernized it, fixing the weaknesses and eliminating archaic language. I have found the the primary weakness was that the central government lacked control of the ports of entry and lacked a reliable method of collecting revenue. These I have fixed.

The structure of the government would be essentially that of the original Confederation. A unicarmal Congress, consisting of delegations of from 2 to 5 members from each state, with each state having 1 and only 1 vote in Congress. The delegates would be selected by the state legislature for a 1 year term and freely recallable by the legislature. The concurrence of 3/4 of the states would be required for major decisions. There would be no judiciary at all, save Admiralty Courts. More importantly, there would be no central executive. Department heads would be selected by Congress and would answer directly to Congress. A figurehead President, selected by Congress and serving at the pleasure of Congress would handled the diplomatic niceties, under the strict direction of Congress. Congress’s total powers would be few and far between and states would retain an explicit right of secession.

That is my vision of what the central government “should” look like. Power, if it must exist at all, should be localized as much as possible. Centralization and liberty are just not compatible.

Manuel Lora January 5, 2007 at 7:09 pm

Why even have a fed anyway? Down with the Confederation too.

Mark Brabson January 5, 2007 at 7:26 pm

Manuel Lora:

I have studied the idea of total independence versus confederation and chose confederation primarily because there is some utility to a confederation versus a collection of 50+ independent republics. Trade would likely be degraded if we have a multitude of different customs systems spring up with different rules and different rates. Also, it spares the states from having to maintain individual diplomatic services and the general overall complexities that would come about as a result of total independence.

While, I fully support a states right to secede and become fully independent, utility would dictate a confederation with an extremely limited governing structure.

Manuel Lora January 5, 2007 at 8:17 pm

I don’t quite agree on the comment regarding rules about trade and rates. This is true between companies. They have different systems yet it’s easy for them to sign contracts and do business.

Furthermore, today we have hundreds of states, and while yes they set up barriers to trade, the elimination of these barriers would make it so that those who actually trade can establish their own systems.

I believe that you are confusing genuine trade with state-regulated trade (mercantilism).

Mark Brabson January 5, 2007 at 9:27 pm

Manuel Lora:

Actually, one of my motivations in supporting a Confederation is to try to squash a possible outbreak of mercantilist trade behavior by states, such as did happen during the original confederation. The temptation to protect favored state industries would be immense. This helped to bring down the original confederation. My model Confederation requires 3/4 of the total number of states to enact tariff regulations. The smaller states without manufacturing or little manufacturing would tend to want low tariffs all around. The other states would tend to only want to protect THEIR industries. With 3/4 states required, a strong pressure would exist to keep tariffs low. This Confederation would be stripped of pretty much all regulatory power. Of course, it can’t do anything against INTRA state mercantilism, that is a problem that can only be dealt with state by state.

On the other hand, in a fully independent state scenario, you would see high protective tariffs in the large manufacturing states and lack of such tariffs in other states, creating much distortion in trade.

My goal is to keep tariffs all around low as possible.

T.G.G.P January 6, 2007 at 12:43 pm

Actually, it was very difficult for the confederated states to enact high tariffs because there were so many other states they had to compete with and trade would simply shift to states with lower tariffs.

Joshua Katz January 6, 2007 at 1:06 pm

I understand the federalist point, although I am undecided as to whether or not it is relevant in a world in which, de facto, the federal government is in fact supreme. Nonetheless, I have a question – even if one agrees with Kelo, what is wrong with taking away the property of a Supreme Court justice through eminent domain? If the decision is right, so much the better – it means there’s no issue there. Furthermore, SCJs have likely lived most of their lives on the dole, you’re just taking back stolen property.

Reactionary January 7, 2007 at 10:37 am


To answer your question, yes, it’s a violation of your rights under the 4th Amendment. If there was ever any question about that, it was resolved in the centralists’ favor by the War Between The States and the 14th Amendment.

Quite frankly, the Constitutional scheme was illogical from the start and the current mess is just the fruits of the original mistake.

Michael A. Clem January 7, 2007 at 11:52 am

I have to admit that I’ve fallen into the “centralist” trap in the past, too. Being an Ancap doesn’t make one immune. I think libertarians, especially newer libertarians, get into the mode of “government bad” without distinguishing between levels of government, and thus, a bad decision at any level comes to be considered a bad decision, period.
But if one truly wants to make pragmatic progress, given the current situation, then the decentralizing effect of federalism is preferable to a top-down, one-size-fits-all decision by the federal government that state and local governments cannot deviate from.

Keith Preston January 7, 2007 at 8:13 pm

Decentralized particularism is the only kind of libertarianism that can work in the real world. Individual liberty is best upheld when the exit costs from a political community one finds intolerable are kept to a minimum. The problem with a having a centralist, nationalist regime to impose ideological uniformity (libertarian or otherwise) on every community and at every level is that there is no way to control acts of usurpation by such a government, so libertarian centralism soon becomes simply statism.

Stephan Kinsella January 21, 2007 at 12:00 pm

Related, followup post here.

Jimmay! October 30, 2011 at 5:39 pm

decentralization is better than centralization for libertarian ideas but even then power can be boiled down into something that doesnt have a say in what alot of people can do but has alot of say in what a few people can do.

The question of centralization is a big one for libertarians and were behooved to move towards decentralization– its certanly better than the federalism we have now– but even then if we look at what the “state’s rights” position has been used to argue for in the past we see a fair amount of smaller governments complaining that they don’t have ENOUGH power. It rarely has any more to do with keeping federal power out than securing state power.

Jimmay! October 30, 2011 at 5:33 pm

… sigh… trolls.

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