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Aug 19, 2007 7:59 am

Ron Paul on Separation of Church and State

On June 5th, the New York Times published a transcript of the 2008 Republican presidential candidates debate moderated by Wolf Blitzer in which Ron Paul participated. Page 20 of the transcript contains the following exchange on separation of Church and State....

BLITZER: Congressman Paul...What do you say about this whole issue of church and state and these issues that are coming forward right now?

PAUL: Well, I think we should read the First Amendment, where it says, "Congress shall write no law.” [NOTE: the actual wording is "Congress shall make no law."] And we should write a lot less laws regarding this matter. It shouldn’t be a matter of the president or the Congress. It should be local people, local officials. The state should determine so many of these things that we just don’t need more laws determining religious things or prayer in school. We should allow people at the local level.

That’s what the Constitution tells us. We don’t need somebody in Washington telling us what we can do, because we don’t have perfect knowledge. And that’s the magnificence of our Constitution and our republic. We sort out the difficult problems at local levels and we don’t have one case fit all, because you have a
Supreme Court ruling like on Roe versus Wade; it (ruined ?) it for the whole country.

There are at least four disturbing aspects to Paul's statement that the separation of Church and State should be decided on the local level -- from state legislatures to town meeting to local school boards.

1) to get a technical and lesser point out of the way...the self-described Constitutionalist is advocating an unconstitutional position. The Fourteenth Amendment provides, "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." Those privileges and immunities are delineated in the first ten Amendments (the Bill of Rights) -- the First of which was clearly intended to provide for freedom of conscience/religion by removing state involvement in promoting or quashing specific beliefs.

2) He apparently does not believe in the tripartite division of power -- the Executive, the Legislative, the Judicial -- because he wants to hobble the Supreme Court so that it cannot act as a check and balance. If he attempts to change the power and the role of the Supreme Court, then he will be acting unconstitutionally in this regard as well. Elsewhere he has stated,
"[I]f federal judges wrongly interfere and attempt to compel a state to recognize the marriage licenses of another state, that would be the proper time for me to consider new legislative or constitutional approaches."

3) Since he believes "the difficult issues" like the relationship between Church and State should be sorted out at the local level, I must assume he believes that all the other "difficult issues" -- e.g. the right to bear arms, the availability of due process -- should be decided on a state-by-state or even city-by-city level. The Bill of Rights is a profoundly pro-natural rights document; Paul's diminishment of the Bill of Rights is profoundly pro-statist, leaving natural rights to the discretion of tens of thousands of local governments who are free to act as petty tyrants.

4) The establishment of theocracy is not and cannot be a libertarian position and, yet, this is the door Paul is deliberately opening. It is not merely abortion that will be targeted. Consider two quotes from Paul: "If I were in Congress in 1996, I would have voted for the Defense of Marriage Act[.]" AND "I was an original cosponsor of the Marriage Protection Act, HR 3313, that removes challenges to the Defense of Marriage Act from federal courts' jurisdiction."

The man would impose a Religious Right Conservate agenda upon the nation and circumvent Constitutional protections offered to the individual by appealing to "state's rights" and "local authority." Since when do libertarians consider states to have rights? Only individuals have rights and those rights can be violated as easily by a state government as by a federal one.

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Anthony Gregory - 8/21/2007

Oh, I'm no Constitutional fetishist. But the attempts to use the 14th Amendment to impose libertarianism throughout the land is an example of Constitutional fetishism. I prefer the least statist approach, which is for the feds to do as little as possible.

Stephan Kinsella - 8/20/2007

Good point, Anthony. States do not have rights, of course, nor are they really "sovereign"; for decentralist libertarians, "states rights" is really just a label for limiting federal power. You could call the lack of federal power to stop Canadian socialized medicine "Canadian-socialism-rights" if you wanted, but it really just means the feds have no jurisdiction in this area. And being oppose to giving the US federal government power to force Canada to change its domestic policies does not mean one favors Canadian socialized medicine, of course.

David T. Beito - 8/20/2007

True. That's why I had my qualifier about the Articles of Confederation. The U.S. can not be propertly called federalist after that point.

Hummel has also warned against the "constitutional fetishists" (many of them libertarians) who downplay the fact that the Constitution gave protection to that institution. The protection not only took the form of the fugitive slave clause but also Jefferson's failure to ban slavery from the Louisiana purchase.

Bill Woolsey - 8/20/2007

I find it difficult to take McElroy seriously. Surely, she couldn't be so ignorant?

While I can't understand why Horwitz thanks McElroy, he describes reasonable concerns about Paul's federalism. (And stance on immigration.)

I favor a constitutional order where the Federal government overturns violations of individual liberty by state and local government. I favor a constitutional order where the federal judiciary applies some kind of statement of individual rights in this way.

However, I realize that there are libertarians who oppose this. They believe that giving the Federal government the power to do these things will create an unlimited Federal government.

I don't really agree, but I don't believe that such people aren't libertarians. For example, the Libertarian Party nominee in 1996 and 2000, Harry Browne, took exactly this position. I didn't agree, but I understood that he was a libertarian.

People who hold such a position no more favor having local governments impose theocracy than those of us who favor ending the prohibition of heroin advocate heroin abuse (or use.)

Further, to assert as "fact" the incorporation doctrine (that the 14th amendment means that the Federal judiciary should enforce the bill of rights against the states,) is remarkably ignorant. I don't mean to suggest that this interprenation is wrong, much less absurd. Just that it is an interpretation and surely, everyone knows that there are some, even libertarians, who disagree.

I am certain that Ron Paul favors repeal of the 16th amendment. Does his opposition to the income tax mean that he isn't a Constitutionalist?

It is my understanding that Ron Paul is a libertarian. He believes that abortion should be illegal on libertarian grounds. And he doesn't favor theocracy more than any other libertarian. But he is a principled federalist. This does mean less federal action in protecting individual rights than today.

But it also means that he opposes efforts by the Christian right to impose their agenda at the federal level.

So, it is my understanding that he has opposed efforts to ban gay marriage in all states. But supports efforts to make it so that there is no requirement for one state to recognize gay marriages from another state. Whether or not this is wise, it seems to be to be a principled implication of his federalism.

I support Ron Paul because he is a strong voice against an invasion of Iran.

He favors a rapid and complete withdrawal from Iraq.

He opposed the invasion of Iraq from the start.

The other Republicans are intolerable on what I believe is the most important issue.

Maybe Richardson is tolerable. I cannot take Kucinich or Gavel because of their left-populist views on economic policy.

And, by the way, it is the Christian right that needs most to hear the message of noninternentionism. And I think Ron Paul is more likely to get a serious hearing than most.

Oh, I forgot. McElroy... voting is
immoral. I get it.

Bill Woolsey

Anthony Gregory - 8/19/2007

There was no federalism with regard to slavery, David. It was federally protected by the Fugitive Slave Act. No Union With Slaveholders! was the right strategy. Hummel has done great work showing the importance of the national socialization of costs of slavery and indicating that without union, slavery would have not persisted long.

A question: Would you or would you not push the button to dissolve the federal government and allow the fifty states to run themselves? I would in a heartbeat. I'd expect most state policies to liberalize, as well, but the reduction of federal power is alone worth it.

The US is the biggest government in the world. I think any reduction in its power should be favored, without necessarily endorsing the ways other criminal gangs employ their power.

David T. Beito - 8/19/2007

The trouble with this theory is that the states are so geographically large thus weakening the ability of people to defend and foster liberty by voting with their feet. While this may have changed, historically the cost of doing so have often been too high. Slavery and Jim Crow are the two best known examples of the failure of federalism to undermine major threats to liberty. For this reason, the American system is not federalism in the truest sense of the word.

Now.....if the states were the size of Swiss cantons (or if the Articles of Confederation had survived) the story would have been different because voting with the feet could be rendered more effective. Perhaps also, technology has now served to lower these costs.

Anthony Gregory - 8/19/2007

Certainly. Limited-government libertarians should support the idea of sovereignty and jurisdiction. If the US government shouldn't overturn bad laws in other nations, why in the several states? Federalism is an important limit for minarchism. Or for anarchism. I don't understand the appeal of libertarian centrism. It is the attempt to use conservative means to achieve liberal ends, which was, of course, the way liberalism became corrupted to begin with.

Mark Brady - 8/19/2007

Very well said! And let's take Anthony's argument further. Why should those who are not anarchists but instead support a "limited government" interpretation of the U.S. constitution favor the federal government policing the states?

Sudha Shenoy - 8/19/2007

If several tens of thousands of American localities -- small local & municipal govts -- have power, denied to larger territorial units like the states or the federal govt -- this can only be to the good. Given the particular range of views found in the US, there will be an equally wide range of policies. This would allow people to settle (as far as possible) in areas where others shared (broadly) their own views. Policy change would follow changes in the _local_ populace.

Switzerland more or less has this situation. Cantons have split & re-united. Some cantons have territory completely embedded in another canton. Eg, a growing Catholic minority in a Protestant canton voted to join a Catholic canton -- which now has some of its territory inside another canton. And so on.

The medieval City of London insisted on enforcing onerous municipal regulations. So production shifted increasingly to the suburbs, outside the City's jurisdiction.

Anthony Gregory - 8/19/2007

The First Amendment did not separate church and state, and wasn't intended to, since state governments had established religions with respect to which the First Amendment guaranteed Congress would make no law. Mild theocracy, certainly in our school systems, has always been a part of America, and it's hard to imagine the 14th amendment being intended to incorporate a right that the First Amendment was never meant to guarantee -- the right not to have, for example, prayer in public schools.

Certainly, I am against prayer in public schools, but for the same reason I'm against anything in public schools. I don't see why a libertarian atheist or non-believer would be so opposed to prayer in schools, when at least most non-believers are aware of the nature of prayer. I'm far more disturbed by the lying pro-state history they teach in schools, which the kids take as the absolute truth.

I am pro-natural rights and individual rights and oppose any state having the power to do anything. But if a libertarian gained power at the federal level, the most libertarian (and anarchist) thing he could possibly do regarding state policies is. . . nothing. If we anarchists believe state governments shouldn't police and protect us, we should also believe the federal government shouldn't police the states. States are, after all, nothing more than criminal gangs. The state government shouldn't be empowered against street gangs. The feds shouldn't be empowered to battle state gangs. Decentralism is a logical consequence of libertarianism.

Keith Halderman - 8/19/2007

One thing we have to keep in mind when we look at Ron Paul is that we are not discussing who is the best libertarian candidate but rather who is the best Republican candidate. Wendy do you really believe that if elected Paul would lead a crusade to deny women the right to have an abortion? I believe now is the time to put aside considerations of ideological purity and work with the admittedly slim possibility that practical change in the right direction can be accomplished. What other real possibility do we have, besides Paul, that things are not going to get worse?

David T. Beito - 8/19/2007

Steve I share some of your misgivings. I am of two minds about Paul's states rights views, but, like you, strongly disagree with Paul's anti-immigration stand.

Having on issues where Paul falls short, he is light years ahead of every other candidate in the race. Just compare him to Rudy, Thompson, and Romney. Paul recently stated that he prefered to abolish all government marriages to deal with gay marriage (a very good position) though he would leave it to the states. I can find the youtube if you like.

Despite his views on immigration, he has generally avoided scapegoating or demonizing immigrants, unlike the other candidates. In fact, in a recent debate he was the only candidate to warn against such scapegoating. Do you have any alternatives? I certainly don't see any. I don't think we will find a major party candidate who is even half as good as Paul for quite some time to come.

Steven Horwitz - 8/19/2007

As much I as I support many of Ron Paul's positions, and certainly find him to be the best of the bunch of the major party candidates, the reason I can't get at all excited and involved in supporting his candidacy is exactly this sort of stuff, along with his views on immigration I might add.

I understand and respect the federalist argument for liberty, and I do think that there are areas in which giving local jurisdictions latitude makes total sense. However, I think those areas are a lot more narrow than what Paul and other paleo-libertarians seem to argue for.

Yes, having some choice among 50 different varieties of statism might be better than one really big monopoly form, but those aren't the only alternatives on the table. My own view is that increasing the ability of individual states to decide social and cultural matters will be a major net loss of individual liberty.

In the same way that many anti-war libertarians were mystified, and rightly so, by Randy Barnett's support of the war on libertarian grounds, I continue to be mystified by the libertarian argument for allowing individual states to enact laws that are clearly destructive of individual liberty.