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Source link: http://archive.mises.org/6166/re-the-problem-with-government-the-rejection-of-federalism-by-libertarian-centralists/

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

January 21, 2007 by

I noted recently how many libertarians ignore or disregard the federalist aspect of our Constitution–e.g., when they use the term “government” 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. I gave as an illustration the use by Tim Sandefur saying 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.”

Sandefur got a case of the vapors over this on his blog; but as I noted in the comments to this thread, I did not imply he was ignorant, which he gets so indignant about; and I think his use of the term was a good illustration of his point.

Now Sandefur’s co-blogger Ed Brayton provides another example. He writes:

Even where the language appears to be unequivocal, we all recognize inherent limitations on them; for example, though the first amendment clearly says that Congress shall make no law abridging freedom of speech, we recognize as legitimate a whole range of such abridgments in cases such as libel or fraud.

Well. Libel and fraud are prohibited and regulated by state law. So if Vermont penalizes libel or fraud, this is not a case of Congress making a law at all. In fact, Congress has no power to criminalize libel or fraud, or even murder or rape, for that matter. So actually, the First Amendment, in saying Congress shall make no law abridging freedom of speech, can be read unequivocally. At least, Brayton’s example does not show that it cannot be. Now I do not deny that his general point is invalid, and that other, better illustrations of it could be found. But Brayton’s choice of this bad illustration is a good illustration of how centralists simply think of states as just subdivisions of a unitary central state having plenary legislative power.

{ 10 comments }

banker January 22, 2007 at 5:12 am

Well, the Cato institute is in Washington DC so if the federal government didn’t exist then neither would they. Add this to the “libertarian” University of Chicago school people, where apparently one of the more promenint alum think the central bank should be run by a computer, and you have a group of pseudo libertarians of the Reaganesque kind. Also, there are too many mathematicians trying to pass off as economists. As valuable as mathematics can be in analyzing data, hard core math/physics people tend to forget that economics is the study of people.

Black Bloke January 22, 2007 at 11:13 am

Stephan Kinsella said on January 21st 2007:

I did not imply he [Tim Sandefur] was ignorant…

Stephan Kinsella said on January 5th 2007:

As I’ve noted before, many libertarians display… ignorance of the federalist aspect of our Constitution… Case in point… Tim Sandefur…

Nope, no implications of ignorance there…

Stephan Kinsella said on January 21st 2007:

I noted recently how many libertarians ignore or disregard the federalist aspect of our Constitution–e.g., when they use the term “government” 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. I gave as an illustration the use by Tim Sandefur saying 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.”

Tim Sandefur explains his use of the term “government”:

This is absolutely absurd. 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. 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. 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?

Seems like pretty reasonable explanation of his recounting of the SCOTUS decision.

Stephan Kinsella January 22, 2007 at 11:21 am

Black Bloke:

Stephan Kinsella said on January 21st 2007: “I did not imply he [Tim Sandefur] was ignorant…”
Stephan Kinsella said on January 5th 2007:
“As I’ve noted before, many libertarians display… ignorance of the federalist aspect of our Constitution… Case in point… Tim Sandefur…”
Nope, no implications of ignorance there…

This is dishonest since what I said was: “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.”

Black Bloke excised the “disregard for” part. I gave Sandefur as an example of the monolithic use of government. I don’t think Sandefur is doing this because he is ignorant, but because he disregards the importance of federalism because of his different view of the Constitution.

Regarding Sandefur’s explanation of why he used “government” as he did: “Seems like pretty reasonable explanation of his recounting of the SCOTUS decision.” Sure. So what? IT’s still a good illustration of my point.

Stephan Kinsella January 31, 2007 at 3:24 pm

Brayton has replied here; the reply I posted there is pasted below:

Stephen Kinsella and Timothy Sandefur have had a long running feud over some basic matters of libertarian legal theory, a feud that Kinsella has now brought me in to with this post on the Mises Institute blog. The crux of the dispute revolves around the issue of federalism and it highlights a very basic split among libertarian-minded legal theorists. It is my position, and Sandefur’s, that if rights are indeed inalienable then they may not justly be violated by any government; Kinsella and his ideological brethren take the position that some governments – states and local governments – can violate our rights at will,

This is simply false. I also believe that no government MAY “justly violate” our rights. I have argued strenuously for this in many fora. It is in fact why I am an anarcho-libertarian. Just because I do not believe the federal Constitution authorizes the central state to, say, outlaw murder, or even to prevent states from violating rights, does not mean I believe the acts or murder, the rights violations by states, are “just”. In fact they are not. But the issues are separate ones.

and further that if the Federal government prevents them from doing so, then the Federal government is being tyrannical.

Well, not necessarily: but it is the case that if a dangerous state that claims it derives its authority from a written Constitution and is therefore also abide by limits on its authority, if that state just disregards these limits, then this is troubling and dangerous, even if it vindicates rights when it seizes powers never granted to it.

Kinsella is one of the group that Sandefur likes to call “doughface libertarians.” Their philosophy seems to be quite popular among southern nationalists in particular, men like Thomas Woods, who still argue, bizarrely, that ending slavery was tyrannical because it was the Federal government telling the states that they couldn’t violate the rights of the individual.

These smears are despicable and betray either dishonesty or thorough brainwashing on your part. Ending slavery itself was not tyrannical and to imply that those who maintain that the Civil War was illegal and immoral are pro-slavery or neo-confederates is malicious lies.

I’m no southern nationalist and personally dislike the rebel flag yeehaw types. So?

They genuinely seem to think that liberty does not belong to the individual as a matter of right but that rights reside with state governments to protect or crush at their will.

This is of course not true. The states have no right to violate rights; no government, or individual on the earth, has a right to violate rights. But this does not imply that a semi-criminal central state has a constitutional authority to go around policing this.

A simple example will show the absurdity of that position: what would they do in a nation that did not have a federalist structure?

This is inane. Basically every state in the world, and all 50 United States, have this structure. In these states, someone like me (like most libertarians throughout history) would as a general matter prefer, ceteris paribus, decentralized structures (sometimes called subsidiarity etc.). But if I were talking about, say, France, or even Canada, or Louisiana, where (I assume) there the central state has *plenary* legislative power, I would of course be in favor of rules at the top level of that government aimed at limiting that government itself.

What Brayton and his ilk don’t seem to realize is that our federal structure is unique. Our federal state has fewer powers than most normal states; it may not outlaw murder, for example, even though murder is definitely a crime. When a state is created that is defined by and authorized by a Constitution, its self-proclaimed authority is also conditioned on its adherence to the limits placed on it in that Constitution. If that Constitution does not authorize the state to stop another given state from doing something bad, then it simply does not authorize it, even if we might want it to; and if it ignores this limit, then the danger is now that it has established the principle–and we have ratified it–that it is not really bound at all by the limits placed on it. That is, that it is an unlimited state. Brayton and Sandefur may have no problem with an unlimited state–but we libertarians do. (They may protest that they are in favor of constitutional limits on the state–that is, that the state limit itself. Yeah. Good luck. The only real limit would be external to the state: which is exactly what vertical checks and balances (federalism) is all about, which Brayton and Sandefur reject.)

There are many nations small enough that they don’t have a federal/state distinction.

So? The US central state is bound by its Constitution, which sets up a federal gov’t having only defined and enumerated powers. It is not a government of plenary legislative power.

If the rightful authority to destroy individual rights is purely a matter of which level of government is undertaking the destruction, would the national government in those countries have the rightful authority to violate such rights or not?

In a smaller state, ideally as many limits on that state’s power to become tyrannical as can be imagined should be placed on it–these include written constitutions, horizontal and even vertical separation of powers, even democracy to some extent, bills of rights, rights to secede, etc.

My position is simple and consistent: all rights are individual rights, derived from the principle of self-ownership.

So? All libertarians believe this.

Those rights are inalienable, which means that no government, whether it is located 15 miles from us or 1500 miles from us, may justly violate those rights.

“Inalienable” seems to add nothing; rights are in fact alienable. If you commit murder you alienate (or forfeit) your right not to be put in prison; that is why it is just to punish a criminal.

I would simply say no one has a right to violate individual rights; that is, private and public criminality are all unjust.

Governments are formed in order to secure those rights,

No, they’re not; they’re formed as power grabs and are inherently criminal. They are *sold to the duped people* as being done to secure rights; but this is just PR.

and when the government fails to do so we are obliged to replace it with one that will do so.

This is like saying, if the mafia on your block does a bad job you are obligated to replace it with a better mafia. How about the mafia being obligated not to subjugate people, and people having a right to fight them off, despite their PR?

If we are indeed endowed with – that is, born with – inalienable rights that may not justly be violated, then why would it be acceptable for a state government to violate those rights?

It is not “acceptable”. But how does its lack of acceptability mean that the feds are, or even should be, empowered to stop these rights violations? Are you in favor of a one-world state that will stop “unacceptable” violations by every member state? Who will stop the overlord state from doing “unacceptable” things?

To allow state governments to do so

Who wants to “allow” them to do so?

is to say that such rights aren’t really inalienable at all but exist at the whim of the majority which may violate them at any time as long as they do it one state at a time. And that was largely true in this country until the passage of the 14th amendment.

Ridiculous. So there were no rights until 1866! hahahahhaha

When Madison proposed what became the 1st amendment, he wanted it applied to the states as well as to the Federal government; he was voted down in that regard.

Yep; but most people on your side are ignorant of this.

At the time, the states were zealous to retain their identity and their authority to violate the rights of the individual through such impositions as official state churches and slavery.

This is somewhat true; states cannot be trusted, including the central state you are so enamored of for some reason. I think the main reason was however ot keep the new central state from passing a federal religion to encroach on the local state religions etc. This is just competition between states. So? There is a *reason* the feds were not granted plenary powers. So what? Their power is nonetheless not plenary and strictly enumerated.

There was no way to pass the Constitution without preserving such authority, so it remained a partial victory for liberty until after the civil war.

It would have been a full victory for liberty to empower the new central state to have total control over the States, to treat them like administrative units? that is, every movement in the direction of centralization of power is a good thing, and decentralized power structures should never be used as a way to limit state power and thus promote liberty? Wow.

For the doughface libertarians, there is a curious logic: I don’t like the 14th amendment, therefore I’m going to pretend it doesn’t exist.

It’s the other way around, actually: the utoptian, centralist libertarians want the feds to be able to regulate the states, so they contort the 14th amendment’s vague and limited powers in this way. It’s very dishonest. I have no trouble admitting when a given law or constitutional provision is unlibertarian; there is no doubt that the income tax is constitutional, for example, despite its immorality. If the 14th amendment really incorporated the bill of rights, I would oppose it on strictly libertairan grounds: I would say it was a *bad idea* but I woudl be happy to acknowledge it. In fact, if someone–Randy Barnett promises more study of this–can demonstrate that the 14th really did mean to limit the states as broadly as modern centralist libertarians calim, and give such a broad power grant to the feds (basically ending federalism), I would happily acknowledge this. But it appears to me that it is wishful (and often dishonest) thinking on the part of centralist libertarians.

But of course it does exist and its intent and language is clear.

Oh, it is? Even Barnett, in his article, writes:

“I am also sympathetic with his conclusions about the unconstitutionality of prohibitions on abortion, but will not address the substance of this issue here. Discerning and applying the original meaning of the Fourteenth Amendment is a tricky business and I intend to do more work on this subject in the future. For one thing, originalism properly done requires a careful attention to evidence; it is not enough that a particular interpretation is a plausible fit with the text.”

It is not at all clear; as the Slaughterhouse cases themselves show. What is disgusting is that these naive, amateur, lying, semi-statist punks feel compelled to distort and personally smear those who hold a different substantive view on constitutional, legal, and political matters.

After its passage, the states no longer had the authority to destroy the rights of those living within their borders.

Yeah, it just took 50 or so years for the Supreme Court to recognize this and start incorporating selected parts of the Bill of Rights. So I guess for 5 or so decades the states did still “have the authority” to “destroy the rights of” those living within their borders. So the federal gov’t you are so willing to trust is apparently inept? Wow.
And you are apparently not an anarchist, meaning you do believe government is legitimate and has the right to make decisions about people’s lives, tax them, etc., which does imply the right to violate rights. Wow.

And are you in favor of a UN, say, having the power to prevent, say, the US from violating individual rights of its own citizens? If not, would you say that until that glorious day, the US has the “authority to destroy the rights of” Americans? (And if so, why would you want this rights-destroyer to be granted power to police the States??)

And that was precisely the intent of the amendment, to apply those protections for individual rights found in the Constitution to the states and prevent state governments from doing what the Federal government could not do.

Only partially; see Raoul Berger.

The language of the amendment is plain enough: … “Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Is it plain? If so, what does “privileges or immunities” mean? If it means a broad set of rights, why was the word “rights” not used? And why would due process and equal protection be added separatlye, wouldn’t that be included in P/I?

And if the P/I clause incorporates the rights in the bill of rights, why is due process separetly enumerated–after all, it’s already in the 5th amendment, so would be applied to the states via incorporation, right? So isn’t it strangely redundant to list it again?
And why did we have to have subsequent amendments giving blacks, and women, the right to vote, if the equal-protection clause was as broad as the utopians would read it now? After all, if you read it like these guys propose, granting only white males the right to vote clearly violates the equal protection clause. Why then, did we need to pass separate constitutional amendments to guarantee this? Could it be–gasp!–that these limits were narrow and not as broad as utopians might want to believe?

When the 14th amendment was proposed, there was no doubt that it was intended to apply the protections found in the Bill of Rights to state actions.

hahahahha! no doubt!! hahahahha Read Berger. Read the Slaughterhouse cases.

Kinsella’s position strikes me as absolutely bizarre; he is essentially arguing that preventing the states from depriving its citizens of life, liberty and property somehow reduces our liberty,

No. I am all for any state being smashed or limited. What reduces our liberty is the pack of public criminals that people like Brayton and Sandefur legitimize. Both local States, and the central federal state, are threats to our rights and liberty; and in fact each violates our rights on a daily basis, from taxation to regulation to criminalization of victimless crimes. We have some solace that some of these states pay lip service to paper limits placed on them. When they disregard these limits and do things forbidden to them or assume powers never granted, this is a threat to our liberties, surely, for the very reason that an unlimited state is worse than a limited state.

that if the states are not allowed to destroy our freedom then, in a fit of Orwellian illogic, our freedom will be destroyed.

I don’t want the states to be allowed to do this. How does maintaining that the feds are not constitutionally empowered to stop this mean it should be allowed? Do you think Zimbabwe should be empowered to invade Massachussetts to stop blue laws? If not, does that mean you think Massachussetts’ blue laws should “be allowed”? Your argument is like that of the soft-headed liberal who thinks that if the state does not have food-welfare it is “allowing” people to starve.

But if the Declaration of Independence is correct in arguing that all people are endowed with rights as individuals – and I think it is – then it is tyrannical for any government to violate those rights.

Sure it is. but you are the one who is in favor of states and their necessary invasions of rights.

Kinsella is simply wrong when he claims that our statements show that we “think of states as just subdivisions of a unitary central state having plenary legislative power.” We think of state governments as governments, plain and simple. And like all governments, their legitimate authority is limited by the rights of the individual.

Sure. Which means, no state is legitimate, since states necessarily violate rights by existing.

All government actions which violate the rights of the individual are illegitimate actions, whether that government is seated in Lansing or Washington DC.

Sure.

If the Federal government puts homosexuals in prison, for example, that action is illegitimate; it’s illegitimate because it violates the right of self-determination that is endowed to each individual as their birthright. If a state government takes the same action, I maintain that the action is equally illegitimate and unjust for the very same reason.

Of course. And if China, or Brazil, or Sorrento, Italy, does it, it’s “illegitimate”–or, rather, simply criminal. So?

Kinsella, on the other hand, believes that it’s unjust for the Federal government to do so but just fine for the state government to do so. And that’s why he’s wrong.

Of course it’s not just fine; it’s criminal. It takes a mind steeped in nationalist thinking to come to this conclusion.

Person January 31, 2007 at 3:48 pm

And let me guess … Stephan still thinks the markup and preview functions are AOK.

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