Blogs > Liberty and Power > Should We Celebrate Enforcing the Commerce Clause against the States?

May 18, 2005 6:35 am


Should We Celebrate Enforcing the Commerce Clause against the States?






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Stephan (K-dog) Kinsella - 7/14/2005

Palmer writes:

Mr. Kinsella is not only not a careful reader, but it seems that he's not much of a thinker, either.


Here we see Palmer once again donning his his personal attack mode regalia. I tire of these people always trying to make it "about me"--really, I'm not an important enough figure to do this to. Anyone perusing my corpus can analyze Palmer's claim for the puerile slander that it is. I may not have gone to Oxford (sniff), but still...

I am, however, a bit disappointed he didn't call me a racist, anti-semite, slavery supporter, misogynist, or homophobe, in this post. I must be losing my touch.

Neither I nor anyone else I know would argue that the Tenth Amendment imposes limits on the states, as Mr. Kinsella says I do. That would, indeed, be quite a stupid claim. I leave it to the reader to ponder what it says about Mr. Kinsella that he has interpreted my words in that manner.


I did not say explicitly that Palmer argued this. Rather, I made clear my view that the Tenth Amendment does NOT limit the states. I made this comment to explain why I objected to your use of "reserved" earlier--your use makes sense only if you do view the Tenth Amendment in this way. Therefore, since the 10th can't be viewed this way, your usage makes no sense.

Let's see why. Palmer said "the federal constitution [...] does not reserve to the states the power to regulate commerce among the states." He said this in support of his contention that I am "seems deaf to clearly unconstitutional rights violations". In other words, Palmer is contending here that because the federal constitution does not "reserve to the states the power to regulate commerce among the states" -- in the 10th amendment, which does the reserving -- then this implies that state laws regulating commerce among the states are unconstitutional. But this conclusion rests on the assumption that states are granted their power by the Constitution--by the Constitution "reserving" certain powers to the States. And if it does not reserve this power to the states, then they don't have it. That would imply that the reservation clause of the 10th amendment is a grant of power to the states. But it clearly is not, as I pointed out, to illustrate Palmer's implicit error.

Rather, a proper understanding ou our federal system would require the following argument for saying the state wine laws were unconstitutional: Congress is granted the exclusive power under the IC clause to regulate interstate commerce, and due to the supremacy clause, any contrary state law is preempted. This is the type of argument that would have to be made; it is the dormant commerce clause type of reasoning. It has nothing to do with any reserved power to the states.

Here's how this can be seen. If there were no commerce clause at all, then it would clearly not be unconstitutional for states to regulate wine from other states. Why? Because there is simply no limit in the federal constitution on states doing this. In fact the "reserved" language in the 10th empahsizes this. We do not need to find some language saying "power to regulate interstate commerce is reserved to the states." The states have plenary power, subject only to limitations on that power in their own constitution or in the federal Constitution.

There is no explicit limit placed on states to regulate IC, in the Constitution. It is implied only because the Constitution grants Congress the power to regulate this. That crowds out the state's right to do this, or preempts it. But since the federal government is one of enumerated powers, if the IC clause did not exist, it would not have the power to regulate IC, and there would be no preemption of the state's power to do so.

So the issue of whether a state has a right to regulate interstate wine shipments turns solely on the IC clause itself (and also the later-ratified 21st Amendment). It has nothing to do with the 10th Amendment. So there is no need to say anything about whether the "power to regulate IC is reserved to the states". The question is whether Congress is given this power, and whether it conflicts with a given state law.

This can be seen even more clearly by recognizing that the Constitution was enacted in 1789 with no bill of rights. The 10th Amendment was not ratified until 1791. It was added just for extra caution. In the two-year period from 1789 to 1791, there is no doubt hat we still had a federal system. In this federal system, the feds had only the powers granted to it; and the states were limited by this Constitution only where it explicitly limited the States or where it implicitly limited them due to a grant of power to the feds that would preempt contrary state laws. So if a state had tried to regulate wine in 1790, one could still argue that the dormant IC clause nullifies this state law. Notice this argument would be the same one as we make now (though we now have to take the 21st Amendment into account too). In both cases it is irrelevant whether there is a "power to regulate interstate commerce" "reserved" to the states.

This is why I said earlier that Palmer's "comment betrays an utter confusion about our federal system." To make this comment shows that one believes the states have to "find" in the Constitution somewhere their powers. It presupposes that in our Constitutional order the states derive their power from the Constitution. I pointed out that they do not.

Now, it could be that Palmer misspoke, or was a bit uncareful here, and I am making too big a deal out of his error. But I believe if he meant it as I take he did, it is symptomatic of a deeper error; the error of not seeing our system as truly federal. It seems to repeat the Lincolnian error that the states were created by the Constitution, rather than predating the Constitution as separate, sovereign states.

Now, if Palmer did indeed misspeak, he could simply clarify what he meant, and that would show that my criticism is simply inappliable (though it would be applicable to those who do believe the States derive their power from the federal Constitution). But he did not do this. Instead he resorts to pettifogging, personal insult, and arrogant, snide insults--childish ones, at that, pretending to lecture me about the Constitution. I am not the world's greatest expert--again, Palmer, it's not "about me"--but it's clear to any objective observer that I have a reasonably good handle on the Constitution.

Now let's see Palmer's latest insults:

I wrote that the power to regulate interstate commerce is not a power reserved to the states; it's specifically delegated to Congress. Mr. Kinsella objected to the use of the term "reserved": "The states do not need to find in the Constitution some 'power' 'reserved' to them to regulate commerce." The term "reserved" is from the text of the Tenth Amendment, which states that the powers that are not delegated to the United States, nor prohibited to the States, are reserved to the States, or to the People. That does not mean that the powers are "granted" to the States by the federal government, nor does quoting it mean that I or anyone else thinks that it is intended to be a limit on the power of the states. The power to regulate interstate commerce has been delegated to the Congress, and thus to the United States, and is thus not reserved to the states.


Yes, it is true, that if a power has been delegated to the feds, then it is not reserved to the states. But so what? The question is whether this power has been delegaged and whether it conflicts with a given state law. Not what has been "reserved". Again, the reserving language simply emphasises that the feds have only the powers enumerated. If there were no IC clause and no 10th amendment, the states would be able to regulate IC because there is no other limit. So this shows that you don't need to even answer the question whether the states have the power "reserved" to them. Even if they did not have the power reserved to them in some explicit statement, exercise of this power would be unconstitutional only if it violated a limit in the Constitution or it was contrary to a power granted exclusively to Congress.

Which brings up another point--just because a power is delegated to Congress does not necessarily mean state laws exercising a similar power are necessarily unconstitutional. For more on the "dormant" commerce clause, see here. As pointed out there,
The grant of power to Congress over commerce, unlike that of power to levy customs duties, the power to raise armies, and some others, is unaccompanied by correlative restrictions on state power. [...] As Hamilton pointed out in The Federalist, while some of the powers which are vested in the National Government admit of their ''concurrent'' exercise by the States, others are of their very nature ''exclusive,'' and hence render the notion of a like power in the States ''contradictory and repugnant.'' As an example of the latter kind of power, Hamilton mentioned the power of Congress to pass a uniform naturalization law. Was the same principle expected to apply to the power over foreign and interstate commerce? [...] That [...] the commerce clause, unimplemented by congressional legislation, took from the States any and all power over foreign and interstate commerce was by no means conceded and was, indeed, counterintuitive, considering the extent of state regulation that previously existed before the Constitution.


What does this mean? It means that even if Congress has the power to regulate IC, it does not necessarily mean that States cannot. In other words, the dormant commerce clause reasoning may be wrong. It also means that Palmer is wrong in simply assuming that the delegation of a power to the feds means that power is not reserved to the states, in a sense. It could be, after all, that a given power is meant to be concurrent, not exclusive.

But this just shows that a reasonable lawyer or libertarian could disagree with the Supreme Court's wine decision, and agree instead with the dissent. Which is what this discussion was about, and which Palmer seems to want to evade in slippery fashion by quibbling over the word "reserved".


Stephan (K-dog) Kinsella - 7/14/2005

Palmer hurls personal insults--calling me deaf and blind and a fantasizer, insinuating I am not "a serious person" and that I am somehow callous to blacks, which hints at racism--and why? For holding a rather pedestrian and standard view long common among conservatives and libertarians--the simple view that we happen to have a federal system in which the central state was supposed to have only enumerated powers.

No need to reply to personal insults. I'm happy to let Palmer's tactics speak for themselves. On to the substance of Palmer's comment, which I think is largely confused.

Palmer says, "Mr. Kinsella's reading [of the Constitution] seems to think that it places no constraints on the powers of the states. That's clearly not the case, as there are numerous constraints on state power."

I do not believe this at all, nor did I state or imply it. I can only assume Palmer is basing this charge on my assertion that the states have plenary police power in contrast to the feds which do not. But this comment is just a standard comment any law student would make. Plenary police power is simply the general power to legislate. See, e.g., the 1920 US Supreme Court case Rhode Island v. Palmer (referring to states' "plenary police power") and US v. Lopez (quoting the 1819 case McCulloch v. Maryland: "The [federal] government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted.", and quoting Gibbons v. Ogden for the proposition that "The enumeration presupposes something not enumerated"; and further stating: "The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation). Roger Pilon has written on this very case.

In short, it is not radical or innovative to recognize that in our system, the states are seen (like all other states in the world) as having plenary police power--the power to legislate in general--, which is not necessarily unlimited, but which is general legislative power; but that the federal government does not have plenary police power, but only the power to legislate on specifically enumerated subjects. States can pass laws on nuisances, murder, rape, robbery, torts, contracts, pollution, guns, whatever, subject to certain limits. The feds can only enact legislation if they can first find an enumerated power, and then only if it is not limited by a right specified in the Bill of Rights or elsewhere. That is why there is no general federal law against murder or rape. Such a law would be unconstitutional. Recognizing (or favoring) the fact that the feds can't outlaw rape does not make one pro-rape, though at this point I wouldn't be surprised at a libertarian centralist making such an argument.

The fight over the expansive reading of the interstate commerce clause is that it has been used to basically give the feds plenary legislative power, since, ever since Wickard v. Fillburn in 1942, they can ridiculously argue that anything they want to legislate "affects" interstate commerce and is "therefore" within the purview of Congress. Lopez and some other recent cases choked back slightly on the expansive reading of the IC clause, thereby recognizing that the feds do not have plenary power to legislate. They have to find an enumerated power to legislate. This is unlike the states: the states need only ensure that whatever legislation is passed does not violate limits placed on it (by either its own constitution or the federal one), and perhaps a more general due process type test that the power be exercised for some general public purpose.

As is well known, having plenary police power does not imply that the power is without limits, obviously; as I of course recognize, and have written many times, state constitutions clearly limit state power. Having plenary police power does not mean that the power is unlimited.

It is clear that recognizing this widely known distinction does not mean holding that states are unlimited--either by their own constitution or the federal one. So Palmer is just off base here.

And of course the federal Constitution also places limits on the States. Some of the ones Palmer lists are indeed limits on states. It means something to have a Union, after all. So Palmer is wrong again in saying I believe the Constitution does not limit the States -- although I do believe States have a constitutional right to secede, which makes any "limits" placed on them by the Constitution voluntarily imposed ones that can in principle be nullified at any time by the State seceding--it would be like agreeing not to do certain things while employed by a given employer; so long as one wants to stay in the relationship, the limits are there; but one can just quit if the limits become too onerous. So the limits placed on States only operate so long as the State is a member of the Union, which it can leave if it so wishes (woops--may, not can).

However, in my view, the Constitution does not place as many limits on the States as Palmer apparently believes it does. For instance, the 14th Amendment puts fewer limits on the states, in my view, than Palmer thinks it does. Palmer speaks of "the clear text of the 13th, 14th, and 15th amendments" as if this settles the issue. The main debate between so-called libertarian "centralists" like Roger Pilon (whom I respect) and others such as Michael Kent Curtis, and apparently Palmer, on the one hand--and others, primarily Raoul Berger and libertarians such as Gene Healy, myself, Lew Rockwell, and many more -- is how the "privileges and immunities" clause of the 14th amendment is interpreted. Theorists like Curtis and Pilon believe the Privileges or Immunities clause is a sweeping set of rights, similar to those enumerated and implied in the federal Bill of Rights. Others, such as Berger, do not. I think the issue is not nearly as clear-cut as Palmer claims it is. The text of the 14th Amendment and the P or I clause is anything but clear. My own view is that it puts only narrow limits on what states can do, but does not clearly mean to place on them all of the limits that the Bill of Rights applies to the federal government itself. This issue can be debated, or at least I think so, even if some of the libertarian centralists don't want to admit it's a debatable issue.
Palmer writes, "Why is Mr. Kinsella deaf to the claims of violated rights by black Americans, whose rights were taken from them?"

Palmer seems to be implying that an emotional approach is the right one--that we ought to twist the words of the Constitution to support the right result in a given case; that if the Constitution would not permit the feds to stop the states from denying certain rights, that we ought to pretend otherwise. I would prefer a more honest approach. I prefer to identify what the law and Constitution is--to admit where it is unlibertarian, and where it is good. And where it is unlibertarian, to deny its legitimacy, to urge or favor change. Not to pretend that it really is libertarian. (And then we can debate whether a federal system is more "libertarian" than a centralized, nationalist, top-down one... unless Palmer et al. think that, too, is not debatable either. Some of my own views on this are here: Supreme Confusion, Or, A Libertarian Defense of Affirmative Action.)

So I am not "deaf" to the claims of victims of state action; I have written many times that I would myself use whatever weapon at my disposal to fight against the state harming me. If I could sue a state in federal court to make the state stop taxing me, I would do it. But that does not mean that as an honest commentator, and as someone considering which institutional features are most likely to limit state violation of rights, that I have to oppose any constitutional limits on federal action.

In fact, I have read the opinion in the wine-sales case at the root of this thread. The issue, like much of Con law, is muddy; but I find Clarence Thomas's dissenting opinion, as is often the case, to be the more persuasive. Read it and see if you don't agree. You will, I believe, see that his reasoning is more honest, simpler, and less results-oriented. The majority wanted to overturn the wine restrictions and found a way to do it. You can see this in their opinion. Thomas was earnestly and honestly trying to accurately construe what the Constitution means, and I think he got it right. I suppose Palmer would not call Thomas a racist, but you never know--there are apparently lots of "self-hating" types around.


Stephan (K-dog) Kinsella - 7/14/2005

Sheldon, there are pros and cons to the issue, but it does not seem like slam-dunk, as Walter Block and I argued here. To use a crude analogy: if you shoot a bad guy and the bullet goes through him and also kills an innocent person, was "the act of shooting" libertarian solely because it killed a bad guy? Can you separate the killing of the malefactor from the killing of the third party?


Stephan (K-dog) Kinsella - 7/14/2005

"As a matter of political economy or public choice, I see no warrant in the claim that the use of a higher-level political authority to invalidate the unjust invasions of rights by a lower-levle political authority is necessarily wrong or that it tends over the long run to undermine liberty."

The history of this own country is a good illustration of this.

"If the state of North Carolina invalidates, on the grounds of the state constitution, the unjust invasion of rights by a city or county government, would Rockwell or Brady object? On what grounds? That the county or city had the right to violate rights?"

Anyone who advocates any degree of limited power of a state entity, or federalism, does not thereby say the lower entity had a "right" to violate rights. If the Texas has no authority to invade Belgium to overturn "bad" Belgian laws, does this imply thaat Belgium has a "right" to violate rights? Or does it simply imply Texas has no authority to invade Belgium for such a purpose? Likewise, if the US has no authority to overturn bad state laws, it only means the US was not granted unlimited power, which would seem to be a good thing from the point of view of liberty.

But in our constitutional scheme, of course, states have plenary police power; the feds do not. It is unconstitutional for the feds in most cases to strike down even evil state laws, because federal power is limited and enumerated; it is not unconstitutional for states to overturn "bad" laws of their own political subdivisions, since state constitutions do not limit the states to only enumerated powers.

However, a true federalist does politically advocate federalism "all the way down"--as Hans Hoppe explains in his book on Democracy (http://www.hanshoppe.com/publications.php#democracy).

"Similarly, if the federal government invalidates, on constitutional grounds (and the grounds for the court's decision were quite strong, based on the commerce clause and Section 2 of the 21st Amendment), oh, say, coercive segregation and the lynchings of disfavored minorities who are not accorded protection by the state governments, I see nothing contrary to a proper constitutional order in the federal government doing so and a great deal to say on its behalf."

Well, there is the matter of federalism and strictly enumerated federal powers--none of which grant the feds the power to stop racist laws and policies and actions by the states, any more than the feds have the power to invade Israel to prevent it from discriminating against non-Jews. (Some argue the 14th Amendment gives the feds the power to stop such state laws, but as Cato's Gene Healy has shown (http://www.stephankinsella.com/archive/2005_03_01_archive.php#111023450075069821), this is not so.)

"There is nothing magical about the states that gives their politicians the power to violate rights."

Sure. States have no right to violate rights. That does not imply that every government on the face of the earth is somehow authorized and justified in attacking a given state whose laws violate rights.

"What is behind the opposite view, it seems, is the view that somehow the states are preexisting corporate bodies that have a mystical existence that individuals don't have. It is incipient collectivism, both incompatible with the American constitutional order and incompatible with libertarianism."

This seems disingenuous to me. It implies that wanting the most powerful state in history to have limits by means of a constitution with enumerated powers .... is collectivist. Hogwash. The proper libertarian view is that neither the feds nor the states have the "right" to violate rights; that when they do so, they are to that extent criminal and tyrannical.... and that each state that does exist ought to have various structural and other limits on its ability and tendency to violate rights, one important feataure of which, in a union, is vertical separation of powers (federalism), combined with strictly enumerated and limited powers.

Moreover, it is libertarian to focus most on the most powerful and most dangerous and most centralized state around--which is the federal government, not the states. As an example--I moved to Texas and thereby avoided state income taxes from Pennsylvania and Louisiana. Not so easy to move to another country to avoid US income taxes.

Does Palmer have a problem with horizontal separation of powers (the tripartite system of independent legislature, executive, and judiciary) and checks and balances, or only vertical separation of powers?

IMO, it is bad enough for libertarians to casually dismiss important structural constitutional limits on federal power.... it is worse to imply that those who appreciate such limits are some kind of collectivists, mystics, racists, or proponents of criminality.


Stephan (K-dog) Kinsella - 7/14/2005

A follow up point: I myself am in favor of the Jeffersonian idea that the states themselves have the constitutional authority to nullify federal laws in the state's territory. The logic of those, like Palmer, who seem to see little reason for federalism to restrain the central state from striking down bad state laws, would also support states striking down bad federal laws. But notice you don't hear them advocating this. You don't hear them saying Texas ought to prevent federal IRS stormtroopers from enforcing federal income tax law on Texas soil; you don't hear them saying Massachussetts ought to physically prevent federal agents from enforcing the draft against Mass. citizens; nor that states should simply disregard federal affirmative action mandates and laws; nor that California should prevent FBI agents who try to arrest medical marijuana users, and so on.

Why the deafening silence in favor of nullification of bad federal laws by the states?


Stephan (K-dog) Kinsella - 7/14/2005

Read Palmer's latest closely. You'll see he resorts yet again to the tired--but subtly insinuated--charges of racism. And he answers none of the points of my careful response I posted previously, which completely eviscerated his claims.

Palmer snidely implies I'm racist (besides another insult--that my "sad moaning about insults is pathetic."). Wow. He claims I do not "understand federalist principles, which do, after all, delegate some powers to the federal government." Wow. Wow, again. After this comment after I clearly stated "And of course the federal Constitution also places limits on the States. Some of the ones Palmer lists are indeed limits on states. It means something to have a Union, after all." Wow, Palmer.

One would be tempted to observe that these ever-more-shrill charges of racism are even worse than the scattered remnants or true racism itself, had they not become so pathetic and b-o-r-i-n-g. News Flash, Palmer, No one listens to cries of wolf anymore.

Palmer writes, "I responded by mentioning that he seems deaf to clearly unconstitutional rights violations and blind to the text of the federal constitution, which does not reserve to the states the power to regulate commerce among the states."

This very comment presupposes that in our Constitutional order the states derive their power from the Constitution. They do not. The states do not need to find in the Constitution some "power" "reserved" to them to regulate commerce. Rather, the Constitution establishes the federal government and sets up what it can do. We don't need to find in the Constitution a grant of power, or lack of denial of same, to the states. This very comment betrays an utter confusion about our federal system.

By labeling unlibertarian state laws as "clearly unconstitutional" Palmer is either begging the question or being disingenuous. Let me be clear. A state law against rape is not unconstitutional. A federal law banning rape, however, clearly is "unconstitutional". Clearly the states and the feds are governed by different standards, from the federal constitutional point of view.

A federal law banning marijuana is also unconstutional. Why? Because the feds are a government of strictly enumerated powers, and the Constitution nowhere enumerates a power to ban marijuana. However, a state law banning marijuana is not unconstitutional, since the states do not need to point to the Constitution for legitimacy, or for authorization or empowerment. Palmer must accept the Lincolnite myth that the states were created by the federal system and Constitution, rather than predating it. This error would help explain a lot.

"No insult there. As to fantasies about state militias confronting federal officers, I have little doubt that that's a favorite among the core lewrockwell.com crowd. It's implied by the language of states "preventing" federal agents, and it's certainly implied by the enthusiastic support for the Confederacy, which confronted federal troops with armed force in order to maintain a "peculiar institution." Ugh."

Notice again how Palmer tries to snidely imply that being in favor of federalism means one "supports" the Confederacy--"enthusiastically" no less. He here implies that those who are in favor of federalism are racists in favor of slavery--the "peculiar institution" he is referring to. This is utterly ridiculous, as anyone reading this can see. Palmer is resorting to desperate tactics. They can speak for themselves.

My sincere view is that Palmer cannot reply substantively to the substance of my previous replies because I am actually correct and my simple comments have devastated his position, and revealed his personal attacks and disgusting tactics fow what they are. Therefore, he dodges the issue, slimily shifts ground and once again puffs his chest and tries to slam his opponents as being advocates of slavery and racism. Any fair reader can judge who is pathetic in this exchange.


Stephan (K-dog) Kinsella - 7/14/2005

Read Palmer's latest closely. You'll see he resorts yet again to the tired--but subtly insinuated--charges of racism. And he answers none of the points of my careful response I posted previously, which completely eviscerated his claims.

Palmer snidely implies I'm racist (besides another insult--that my "sad moaning about insults is pathetic."). Wow. He claims I do not "understand federalist principles, which do, after all, delegate some powers to the federal government." Wow. Wow, again. After this comment after I clearly stated "And of course the federal Constitution also places limits on the States. Some of the ones Palmer lists are indeed limits on states. It means something to have a Union, after all." Wow, Palmer.

One would be tempted to observe that these ever-more-shrill charges of racism are even worse than the scattered remnants or true racism itself, had they not become so pathetic and b-o-r-i-n-g. News Flash, Palmer, No one listens to cries of wolf anymore.

Palmer writes, "I responded by mentioning that he seems deaf to clearly unconstitutional rights violations and blind to the text of the federal constitution, which does not reserve to the states the power to regulate commerce among the states."

This very comment presupposes that in our Constitutional order the states derive their power from the Constitution. They do not. The states do not need to find in the Constitution some "power" "reserved" to them to regulate commerce. Rather, the Constitution establishes the federal government and sets up what it can do. We don't need to find in the Constitution a grant of power, or lack of denial of same, to the states. This very comment betrays an utter confusion about our federal system.

By labeling unlibertarian state laws as "clearly unconstitutional" Palmer is either begging the question or being disingenuous. Let me be clear. A state law against rape is not unconstitutional. A federal law banning rape, however, clearly is "unconstitutional". Clearly the states and the feds are governed by different standards, from the federal constitutional point of view.

A federal law banning marijuana is also unconstutional. Why? Because the feds are a government of strictly enumerated powers, and the Constitution nowhere enumerates a power to ban marijuana. However, a state law banning marijuana is not unconstitutional, since the states do not need to point to the Constitution for legitimacy, or for authorization or empowerment. Palmer must accept the Lincolnite myth that the states were created by the federal system and Constitution, rather than predating it. This error would help explain a lot.

"No insult there. As to fantasies about state militias confronting federal officers, I have little doubt that that's a favorite among the core lewrockwell.com crowd. It's implied by the language of states "preventing" federal agents, and it's certainly implied by the enthusiastic support for the Confederacy, which confronted federal troops with armed force in order to maintain a "peculiar institution." Ugh."

Notice again how Palmer tries to snidely imply that being in favor of federalism means one "supports" the Confederacy--"enthusiastically" no less. He here implies that those who are in favor of federalism are racists in favor of slavery--the "peculiar institution" he is referring to. This is utterly ridiculous, as anyone reading this can see. Palmer is resorting to desperate tactics. They can speak for themselves.

My sincere view is that Palmer cannot reply substantively to the substance of my previous replies because I am actually correct and my simple comments have devastated his position, and revealed his personal attacks and disgusting tactics fow what they are. Therefore, he dodges the issue, slimily shifts ground and once again puffs his chest and tries to slam his opponents as being advocates of slavery and racism. Any fair reader can judge who is pathetic in this exchange.


Stephan (K-dog) Kinsella - 7/14/2005

Read Palmer's latest closely. You'll see he resorts yet again to the tired--but subtly insinuated--charges of racism. And he answers none of the points of my careful response I posted previously, which completely eviscerated his claims.

Palmer snidely implies I'm racist (besides another insult--that my "sad moaning about insults is pathetic."). Wow. He claims I do not "understand federalist principles, which do, after all, delegate some powers to the federal government." Wow. Wow, again. After this comment after I clearly stated "And of course the federal Constitution also places limits on the States. Some of the ones Palmer lists are indeed limits on states. It means something to have a Union, after all." Wow, Palmer.

One would be tempted to observe that these ever-more-shrill charges of racism are even worse than the scattered remnants or true racism itself, had they not become so pathetic and b-o-r-i-n-g. News Flash, Palmer, No one listens to cries of wolf anymore.

Palmer writes, "I responded by mentioning that he seems deaf to clearly unconstitutional rights violations and blind to the text of the federal constitution, which does not reserve to the states the power to regulate commerce among the states."

This very comment presupposes that in our Constitutional order the states derive their power from the Constitution. They do not. The states do not need to find in the Constitution some "power" "reserved" to them to regulate commerce. Rather, the Constitution establishes the federal government and sets up what it can do. We don't need to find in the Constitution a grant of power, or lack of denial of same, to the states. This very comment betrays an utter confusion about our federal system.

By labeling unlibertarian state laws as "clearly unconstitutional" Palmer is either begging the question or being disingenuous. Let me be clear. A state law against rape is not unconstitutional. A federal law banning rape, however, clearly is "unconstitutional". Clearly the states and the feds are governed by different standards, from the federal constitutional point of view.

A federal law banning marijuana is also unconstutional. Why? Because the feds are a government of strictly enumerated powers, and the Constitution nowhere enumerates a power to ban marijuana. However, a state law banning marijuana is not unconstitutional, since the states do not need to point to the Constitution for legitimacy, or for authorization or empowerment. Palmer must accept the Lincolnite myth that the states were created by the federal system and Constitution, rather than predating it. This error would help explain a lot.

"No insult there. As to fantasies about state militias confronting federal officers, I have little doubt that that's a favorite among the core lewrockwell.com crowd. It's implied by the language of states "preventing" federal agents, and it's certainly implied by the enthusiastic support for the Confederacy, which confronted federal troops with armed force in order to maintain a "peculiar institution." Ugh."

Notice again how Palmer tries to snidely imply that being in favor of federalism means one "supports" the Confederacy--"enthusiastically" no less. He here implies that those who are in favor of federalism are racists in favor of slavery--the "peculiar institution" he is referring to. This is utterly ridiculous, as anyone reading this can see. Palmer is resorting to desperate tactics. They can speak for themselves.

My sincere view is that Palmer cannot reply substantively to the substance of my previous replies because I am actually correct and my simple comments have devastated his position, and revealed his personal attacks and disgusting tactics fow what they are. Therefore, he dodges the issue, slimily shifts ground and once again puffs his chest and tries to slam his opponents as being advocates of slavery and racism. Any fair reader can judge who is pathetic in this exchange.


Stephan (K-dog) Kinsella - 7/14/2005

"Let's move beyond this argument."

No.

"Kinsella doesn't understand the ICC, which simply grants the power of to regulate commerce to the Congress - the states, by joining the union, agreed to give up some of their powers to the federal government and this was one of them - and the 10th amendment which reserves, or leaves to the states all of the powers that the states previously held and were not otherwise assigned to the fed'l gov't."

Sure, I understand it. I just don't agree with all the current jurisprudence around it. I suppose you would say Clarence Thomas "doesn't understand the ICC" either, eh? Sounds like a Palmerite tactic. Rather than admitting reasonable people can disagree, you adopt the pose that it's a black and white issue, so anyone not adopting your line must "not understand." Pitiful.

"Here we have clear victory for liberty for the individual."

No, actually, it is not a clear victory. It is mixed. It is good in that the wine laws were stricken. It is bad in that the feds continue to do things they are not authorized to do. That means they increasingly feel they are not limited by the ostensible limits on them in the Constitution. This is a step toward ever more unlimited and unaccountable central state. This is a "clear victory for liberty"?

"And yet, Kinsella and the others in Alabama are working feverishly to explain how the ruling is unconstitutional, and how the states were once again screwed."

Like Clarence Thomas and the other dissenters, Rehnquist and O'Connor, right? It's just my opinion that the dissent was right. Libertarians are not allowed to have independent opinions on constitutional interpretation?

"These extreme lengths to which they go to defend states rights provoke me to ask: if the states are so damn good in all circumstances, why have they done such a piss-poor job of protecting our liberties over the past 200 years - whether by preserving federalism, or in many cases protecting individual liberties within the states?"

There are 2 independent issues. First, was the decision constitutional. I think it was not. But you do not need to be a proponent of states' rights to admit this. Second, if the constitutional decision had been made (if the dissent had won), would that be libertarian? I think it would be the better result. I like many other libertarians am not in favor of "states' rights" really, but of devolving power locally, that is, of having power dispersed rather than centralized. Are you of the opposite view?


Stephan (K-dog) Kinsella - 7/14/2005

"The ban on interstate trade in wine is unconstitutional because it is an assertion by a state of a power reserved to the Congress."

As I admitted before, this is arguable, though I believe the dissent by Thomas I recall, was better reasoned. Reasonable libertarians can disagree on this; it is just a constitutional interpretation issue anyway. But Palmer must feel it is not debatable; I am "blind to the text of the Constitution". As is Clarence Thomas, I suppose?

"Nor did I state that supporting federalism implies supporting the Confederacy. Mr. Kinsella has written in support the Confederacy, so such a strange and unjustified inference would be both untrue and unnecessary to suggest that he is a supporter of the Confederacy and is sympathetic to the use of armed force by state governments against the federal government."

I have not written in support of the Confederacy. I have stated my opinion that the federal government had no authority under the Constitution and no right under international law or libertarian principles to attack the South. I have stated my opinion that the Constitution was intended to permit states to secede. This is not in "support of the Confederacy." In fact I have written many times that the good ole' boy Rebel Flag waving romanticizing the agrarian South etc. is not my bag at all.

"The use of the term "reserved" is from the text of the U.S. Constitution, in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Mr. Kinsella should do some reading before spouting."

I am well aware of the 10th Amendment. It establishes the general principle that the federal government is one of strictly enumerated powers. It emphasizes this by simply pointing out that anything not delegated to the feds is reserved by the people or the states; that means, it is not given to the feds. It does not mean that state powers are granted to them by means of this reservation. It just means that the powers the states and their citizens already had are only partially given up to the feds.

So the "reservation" far from being either a limit on the states, or even a claim to a source of power for them, is simply a way of limiting the feds by the mechanism of enumerated-powers. There is no way to read this limit on the feds as a limit on the states.

It is indeed arguable that the grant of power to the feds to regulate interstate commerce itself does trump state power in this narrow area. However, it is also arguable, as the dissent does, that the prohibition amendments came AFTER the IC clause and made clear that states have broad power to regulate alcohol. A plain reading of the prohibition amendments would seem to show a conflict with the dormant commerce clause argument; if there is conflict, the later constitutional provision governs, of course.

The 21st Amendment, in fact, states, "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

So, New York has a law that says you can't import alcohol from out of state. This kind of law seems on its face to be clearly contemplated by the 21st amendment. And it is prohibited. It does not say that "discriminatory laws don't count." Even if the IC clause bans states from discriminating against other states in commerce, the 21st arguably permits it, at least for regulation of alcohol.

This is the argument made by Thomas, and it is quite respectable. I think it is stronger than the majority's opinion. One does not need to be "blind" to make this argument.


Stephan (K-dog) Kinsella - 7/14/2005

I have elaborated on some of these ideas in an article co-authored with Walter Block, published today on Lew Rockwell: Federalism.


No Treason - 6/12/2005

Let's move beyond this argument. Kinsella doesn't understand the ICC, which simply grants the power of to regulate commerce to the Congress - the states, by joining the union, agreed to give up some of their powers to the federal government and this was one of them - and the 10th amendment which reserves, or leaves to the states all of the powers that the states previously held and were not otherwise assigned to the fed'l gov't.

Here we have clear victory for liberty for the individual. And yet, Kinsella and the others in Alabama are working feverishly to explain how the ruling is unconstitutional, and how the states were once again screwed. These extreme lengths to which they go to defend states rights provoke me to ask: if the states are so damn good in all circumstances, why have they done such a piss-poor job of protecting our liberties over the past 200 years - whether by preserving federalism, or in many cases protecting individual liberties within the states?


Tom G Palmer - 6/8/2005

Mr. Kinsella is not only not a careful reader, but it seems that he's not much of a thinker, either. Neither I nor anyone else I know would argue that the Tenth Amendment imposes limits on the states, as Mr. Kinsella says I do. That would, indeed, be quite a stupid claim. I leave it to the reader to ponder what it says about Mr. Kinsella that he has interpreted my words in that manner.

I wrote that the power to regulate interstate commerce is not a power reserved to the states; it's specifically delegated to Congress. Mr. Kinsella objected to the use of the term "reserved": "The states do not need to find in the Constitution some 'power' 'reserved' to them to regulate commerce." The term "reserved" is from the text of the Tenth Amendment, which states that the powers that are not delegated to the United States, nor prohibited to the States, are reserved to the States, or to the People. That does not mean that the powers are "granted" to the States by the federal government, nor does quoting it mean that I or anyone else thinks that it is intended to be a limit on the power of the states. The power to regulate interstate commerce has been delegated to the Congress, and thus to the United States, and is thus not reserved to the states.

How confused can Mr. Kinsella get? Every time he writes he embarrasses himself further. Someone should let him know that he is doing himself no favors by continuing to reveal such utter confusion.


Tom G Palmer - 6/7/2005

Well, this is getting a bit dull. So I'll leave it at this: Mr. Kinsella doesn't bother to read very carefully. I did not write and I do not believe that all state laws that are incompatible with libertarian precepts are unconstitutional. The ban on interstate trade in wine is unconstitutional because it is an assertion by a state of a power reserved to the Congress. Nor did I state that supporting federalism implies supporting the Confederacy. Mr. Kinsella has written in support the Confederacy, so such a strange and unjustified inference would be both untrue and unnecessary to suggest that he is a supporter of the Confederacy and is sympathetic to the use of armed force by state governments against the federal government.

The use of the term "reserved" is from the text of the U.S. Constitution, in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Mr. Kinsella should do some reading before spouting.


Tom G Palmer - 6/2/2005

Anthony writes that "that means to me that..." That's a rather weak reed on which to place so much weight. Does it mean that the states can prohibit Jews or Scientologists from making alcohol? Is that an implication of the language of the 21st amendment? That would certainly fall afoul of the 14th amendment, as well as of other elements of the federal constitution. Discriminating in state law against out-of-staters and prohibiting importation into the state of non-prohibited substances falls afoul of the commerce clause, which reserves to the congress the power to regulate commerce, i.e., to make it regular. (See the work of Randy Barnett on the meaning of the commerce clause: http://www.bu.edu/rbarnett/Original.htm .)

Mr. Kinsella's sad moaning about insults is pathetic. Whether he is a racist is beside the point and not a charge that I made. (Putting the "N-word" all over web sites is evidence of something, but it's not clear of what.) He mentioned an alleged "deafening silence" regarding federalism (despite the important work my colleagues have done on reasserting federalism, notably in the California cannabis cases), which simply revealed that he doesn't understand federalist principles, which do, after all, delegate some powers to the federal government. I responded by mentioning that he seems deaf to clearly unconstitutional rights violations and blind to the text of the federal constitution, which does not reserve to the states the power to regulate commerce among the states. No insult there. As to fantasies about state militias confronting federal officers, I have little doubt that that's a favorite among the core lewrockwell.com crowd. It's implied by the language of states "preventing" federal agents, and it's certainly implied by the enthusiastic support for the Confederacy, which confronted federal troops with armed force in order to maintain a "peculiar institution." Ugh.


Sheldon Richman - 5/26/2005

Seems like a slam-dunk: Yes!


Anthony Gregory - 5/23/2005

Tom Palmer points out that the Constitution says this: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

Well, to me that means that the States can pass whatever stupid laws they want on importation and transportation of alcohol into their jurisdictions, and any act violating those restrictions will be illegal under federal law.

The 21st Amendment never thrilled me. But, seriously, how does the federal government have the authority to override this bad State law?


Roderick T. Long - 5/20/2005

Well, I don't know why my attempt at a hyperlink created bold text instead, but here's another try. If it doesn't work, copy and paste:

http://praxeology.net/unblog08-03.htm#07


Roderick T. Long - 5/20/2005

For my take on this whole issue see here: http://praxeology.net/unblog08-03.htm#07.
My position (predictably) is somewhere in the middle -- or, more romantically, a dialectical synthesis.


Tom G Palmer - 5/20/2005

Mr. Kinsella is deafened, it seems, by lots of things. And blinded to even more.

Let's first look at the Constitution of the United States. Mr. Kinsella's reading seems to think that it places no constraints on the powers of the states. That's clearly not the case, as there are numerous constraints on state power. The Constitution includes Article I, Section 10, each clause of which starts with "No state shall...." Article I, Section 8 reserves the power "to regulate Commerce with foreign Nations, and among the several States" to "the Congress," not to the states. The states do not have plenary power; there are powers specifically denied to them.

When some of the state governments were violating the rights of U.S. citizens through coercive segregation, sanctioned lynchings, and the like, the federal government exercised its powers to protect the privileges and immunities of the citizens ofthe United States. Why is Mr. Kinsella deaf to the claims of violated rights by black Americans, whose rights were taken from them? Why is he blind to the clear text of the 13th, 14th, and 15th amendments?

As to state nullification of federal laws, that's not really on the table at the moment, and raising it is a convenient way to duck the issue of the lack of power on the part of the states to regulate commerce among the states (or to violate the fundamental rights of the citizens). A serious person would direct his or her attention to the federalist issues involved in the enforcement of federal anti-drug laws in states that have decriminalized them. That is a matter of law and the best vindication is through the courts, not recourse to armed clashes between state police (or armed posses) and federal troops of the sort about which Mr. Kinsella fantasizes.


Tom G Palmer - 5/19/2005

Section 2 of the 21st Amendment states "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." That does imply that the states have the (lamentable) power to prohibit intoxicating liquors. It does not imply that they have the power to discriminate between producers or shippers that are in state and those that are out of state. Article I, Section 8 states that "The Congress Shall Have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." The states can either ban liquor and forbid producers both within the state and outside of the state from distributing it in the state, or not ban liquor. But they can't create a privilege for those within the state to sell liquor while those outside of the state are forbidden to engage in commerce across state lines in an otherwise legal product.

That's a matter of constitutional interpretation. As a matter of political economy or public choice, I see no warrant in the claim that the use of a higher-level political authority to invalidate the unjust invasions of rights by a lower-levle political authority is necessarily wrong or that it tends over the long run to undermine liberty. If the state of North Carolina invalidates, on the grounds of the state constitution, the unjust invasion of rights by a city or county government, would Rockwell or Brady object? On what grounds? That the county or city had the right to violate rights? Similarly, if the federal government invalidates, on constitutional grounds (and the grounds for the court's decision were quite strong, based on the commerce clause and Section 2 of the 21st Amendment), oh, say, coercive segregation and the lynchings of disfavored minorities who are not accorded protection by the state governments, I see nothing contrary to a proper constitutional order in the federal government doing so and a great deal to say on its behalf. There is nothing magical about the states that gives their politicians the power to violate rights. What is behind the opposite view, it seems, is the view that somehow the states are preexisting corporate bodies that have a mystical existence that individuals don't have. It is incipient collectivism, both incompatible with the American constitutional order and incompatible with libertarianism.

The good work of the Institute for Justice has struck down a state imposed cartel and advanced individual liberty. It was consistent with a perfectly reasonable reading of the constitution and a vindication of the rights of individuals to engage in trade.


David T. Beito - 5/18/2005

That's "easy answer."


David T. Beito - 5/18/2005

If we had a Swiss model, in which the cost of moving is small, I would totally agree.

A key problem in the U.S. is that states are far too large geographically. Their great size makes it more difficult for people to limit or undermine tyranny in their own states either by turning to the courts or by "voting with their feet."

A case in point is Mississippi during the 1950s. It was a closed society in which every center of political power: courts, legislature, local sheriffs, etc. were determined to protect official Jim Crow (which was separate but highly unequal) and the denial of voting rights.

Several black majority delta counties, for example, which did not have a single black voter. Since only registered voters could be jurors, this meant no blacks were on juries either. This meant that blacks were at a tremendous disadvantage in protecting their property rights and right to life. As far as I know, for example, no white jury every convicted a white man of murdering a black during the early twentieth century in these areas.

Now.....if Mississippi had been divided into hundreds of independent cantons, I suspect that this that small white minority would have lost its total monopoly. This doesn't happen, however, and showed no signs of happening in the 1950s any time soon.

I think a similar analysis applies to slavery. I suspect that slavery would have collapsed long before the Civil War if the South had a canton system because blacks could have easily fled to neighboring free areas (thus increasingly the cost of enforcement to prohibitive levels). But the South didn't have cantons.

I don't pretend to have an easy but this is a dilemma (geographical size) which "states rightists" need to address.....but haven't.


Anthony Gregory - 5/18/2005

Lew Rockwell is not, as far as I can tell, advocating that federal courts defer to national legislatures, or that state courts defer to state legislatures. He opposes in particular federal intervention, including judicial intervention, in state policies. In fact, he thinks the federal courts should have, for example, overturned all of the federal regulatory legislation since the Lochner Era, and those bad state laws should have been fought within the states, including through the state courts.


David Timothy Beito - 5/18/2005

I see the logic of the argument but if the courts defer who will provide a check on the anti-liberty policies of state and national legislatures?

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