History News Network puts current events into historical perspective. Subscribe to our newsletter for new perspectives on the ways history continues to resonate in the present. Explore our archive of thousands of original op-eds and curated stories from around the web. Join us to learn more about the past, now.
Libertarians are divided over the Supreme Court's recent decision to allow states to exercise expanded powers of eminent domain: should the Court have struck down the offending statute in the name of property rights, or let it stand in the name of federalism?
I think each side is partly right and partly wrong; in an article on LRC today I explain why.
"If you promise me $10 and then don't deliver do I have any moral claim against you?"
Well, yes, obviously. That's what promises are for: keeping.
There are lots of speech-acts that morally bind you to carry something through even though breaking them doesn't count as a violation of anybody's rights: not just making promises but also, e.g., swearing, taking oaths, exchanging vows, making alliances, etc. By giving your word you accept a moral obligation on yourself, and by breaking it you are doing wrong. If the moral obligation is an obligation directed towards somebody else (e.g. if you exchange a vow of sexual faithfulness with me, or if you promise me some gift) then by breaking it you are specifically wronging the other party.
Of course, it is only in the case of a contract that the sort of wrong you do is a violation of rights. But violating somebody's rights is hardly the only way that you can do wrong by her.
David T. Beito -
7/9/2005
Why did she oppose the 15th?
John T. Kennedy -
7/9/2005
Every usurpation by government implicitly entails an assertion of unlimited authority. You can't take 1% of my income without implicity asserting the authority to take whatever you choose.
John T. Kennedy -
7/9/2005
If you promise me $10 and then don't deliver do I have any moral claim against you?
John T. Kennedy -
7/9/2005
a) If I promise you a round square I've promised you something round and I've promised you something square. Those components can seem sensible considered one by one, but taken together they are not.
b) Morality covers vices and crimes but only crimes are relevant in this context. Only violations of rights are crimes. Breaking such a promise might be a vice (though vices are often notoriously difficult to identify in others) but it's no crime.
Roderick T. Long -
7/9/2005
"Limited government" is government that is structured in such a way that its extending its powers will be difficult or improbable. Since in fact there's no way to prevent increase in power once you have a monopoly state, in that sense limited government is impossible.
But certainly there are different ways of structuring states, such that it is harder, or takes longer, for some of them to grow than it does for others, and to that extent there is such a thing as limited government, as a matter of degree (a state with checks and balances is more limited than a dictatorship).
Moreover, in a third sense all governments are limited, in the sense that there are limits to what any state can actually accomplish (snce, for one thing, all states survive only through the acquiescence of their victims).
Anyway, the phrase "limited government" does not occur in the Constitution. Also, the Constitution is not a promise from the Federal govt., it is a set of instructions to the Federal govt. -- to be enforced, its authors said, by armed insurrection if necessary.
Roderick T. Long -
7/9/2005
If I kill you after promising not to, I am committing two moral wrongs: I am killing you, and I am breaking my word to you. Either one would be wrong if done separately; added togetehr they make a bigger wrong. What's the problem?
If by "entitled" you mean having a right, I agree that a mere promise by itself is not an entitlement; but rights are not, thank goodnes,s the only moral claims.
Roderick T. Long -
7/9/2005
Interestingly, Isabel Paterson supported the 14th amendment (and favoured taking it to incorporate the Bill of Rights), but opposed the 15th.
Roderick T. Long -
7/9/2005
a) The Constitution contains a great many separate undertakings. They may all add up to a promise of limited government, and that promise may be incoherent, but it doesn't mean that each and all the separate undertakings become incoherent. Probably everyone's belief set is inconsistent (e.g. everyone probably thinks they have at least one false beleif, but they believe of each of their beleofs taken individually that it's true); that doesn't mean nobody has any coherent beliefs.
b) Your argument about promises seems to rest on the premise that we have no moral obligations except the obligation to accept rights; I certainly don't accept that.
John T. Kennedy -
7/9/2005
No, I'm saying the mugger's promise entitles you to nothing and breaking such a promise is no offense in and of itself.
You were already fully entitled to your life, the promise has zero moral content.
John T. Kennedy -
7/9/2005
Roughly a zillion seemingly sensible words have been written about limited government. You've read a fair number of them. What do you understand to be the meaning of the term limited government?
John T. Kennedy -
7/9/2005
I did mean to say round square.
Okay, so you're not blameworthy for not producing a round square after promising one. Then, pretty clearly you can't be blameworthy for not producing a limited government after promising one. And neither can the Supreme Court, or Congress or the President.
And you're not blameworthy for not producing a red square anyway. Your promise is not an agreement or bargain with me, it doesn't entitle me to anything, so failing to produce it is no offense against me or anyone.
Roderick T. Long -
7/9/2005
I don't see this. Your argument amounts to saying that once someone violates one of your rights, then a) they're equally likely to violate any other rights you may have, and b) if they do violate more rights that adds nothing to their blameworthiness. But both of those conclusions seem plainly false. What is true, I think, is that a person can't violate some rights and respect otehrs without falling into logical inconsistency; but that claim doesn't license either (a) or (b).
Roderick T. Long -
7/9/2005
There may be a logical conflict among his commitments, but I don't see how that makes the promise itself a) contradictory, b) meaningless, or c) morally irrelevant. If your account of language were correct it seems that we would be unable to understand a great deal of speech that in fact we understand perfectly well.
Roderick T. Long -
7/9/2005
Do you mean a round square? If so, the answer is no; but if I promise to bring you both a red square and a round square, then if I bring you neither, I'm certainly blameworthy for the former.
John T. Kennedy -
7/8/2005
Of course.
David Timothy Beito -
7/8/2005
John, the federal government used similar sanctions to compel Southern states to ratify the fifteenth amendment. See here:
Despite this, critics of the fourteenth amendment (which has almost become a cottage industry) never mention this. Perhaps (in some cases at it least) it has something to do with a tendency to portray the South in the best possible light.
John T. Kennedy -
7/8/2005
Let's say you promise to bring me a red square. Having made that promise is it wrong for you to break it? Is it an offense against me? Does your promise oblige you to produce a logical impossibility?
Anthony Gregory -
7/8/2005
Fine, a State can't have rights to secede, but neither should a central State have the right to stop it, agreed?
John T. Kennedy -
7/8/2005
We can also tell that he fully intends to dispose of you as he sees fit.
His words add nothing to his natural obligation to not harm you, as Spooner observed.
John T. Kennedy -
7/8/2005
It's not three wrongs: Subtract the two I identified and you're left with zero.
The "promise" is self-contradictory - the intent to dispose of you at his discretion is as fully implicit in the "offer" as the intent to let you live.
What he "offered" has nothing to do with whether he ought to shoot you or not.
It's nonsense to say he shouldn't shoot you because he promised not to.
Roderick T. Long -
7/8/2005
What language, precisely, in the Constitution makes it contradictory?
Anyway, it's not true that we can't interpret or follow a document that contains a contradiction. If I ask you to bring me a red square, a green square, and a round square, you can't do the third thing I asked but you can still do the first two, and you understand the first two requests perfectly well.
Roderick T. Long -
7/8/2005
The mugger is speaking English. We can tell what his words mean. The moral question is a separate one (though as far as the moral question goes, I do think we can distinguish better and worse things the mugger might do, and shooting-plus-breaking-a-promise is worse than shooting alone.)
Roderick T. Long -
7/8/2005
I should have said three things rather than two; I don't agree that the promise-breaking isn't an additional wrong.
But in any case, would you say that we can't tell what his promise meant?
John T. Kennedy -
7/8/2005
No, it doesn't make sense any more than it makes sense to say the mugger shouldn't shoot you *becasue* he promised not to. His "offer" to not usurp your rights does not oblige him to not usurp your rights, only natural law does.
John T. Kennedy -
7/8/2005
Your two legitimate complaints against him are that he took your money and he shot you. His promise not to shoot you is empty - it obliges him to nothing.
It's not valid to say he shouldn't shoot you *because* he offered not to. That he was going to shoot you at his own discretion was fully implicit in his purported offer.
John T. Kennedy -
7/8/2005
The constitution purports to authorize limited government - it purports to a contradiction in terms. You can't validly interpret a contradiction beyond identifying it.
Any logical framework you attempt to base upon a contradiction is degenerate, you can derive any propostion based on the constitution as both true and false.
There is no valid constitutional argument that can be made against any usurpation.
Roderick T. Long -
7/8/2005
I agree with John on the moral question, but it still makes sense to ask what plausibly counts as secession under the rules of the Constitution. I would figure that whatever procedure allows a state to join the Union would be the same procedure that allows it to quit.
Roderick T. Long -
7/8/2005
To David: as I understand it, the argument is that the Federal govt. declared the state legislatures illegal unless and until they ratified the 14th amendment (something that I guess didn't happen with the 15th?), but an illegal legislature can't legally ratify anything.
To John: yes, but it still makes sense to ask whether the Constitution's own procedures were followed. (Analogy: suppose a criminal says "I'll shoot you unless you hand over your wallet." So you do, and then he shoots you anyway. It seems you've got two legitimate complaints against him, whereas if he'd simply taken the wallet and gone off you'd just have had the one.)
Roderick T. Long -
7/8/2005
Nothing you've said about the Constitution's legitimacy shows that it lacks coherent meaning. (And Spooner certainly didn't think it lacked coherent meaning. Not only did he write a whole book expounding its meaning, but even later on, in No Treason, he explicitly reaffirms its coherent meaning when he writes: "the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize.")
If all you mean is that the Constitution isn't morally binding on anybody, I agree; but what does that have to do with the question of how to interpret it?
John T. Kennedy -
7/8/2005
A state can't have a right to secede because it can't have any rights at all. Any state is in principle just as much a usurpation as the federal government.
John T. Kennedy -
7/8/2005
Spooner demonstrated that there's nothing the least bit legitimate about the ratification of the constitution itself or any amendments to it.
John T. Kennedy -
7/8/2005
I'm not just saying the constitution is illegitimate. I'm pointing out that it's fundamentally incoherent and thus there can be no valid argument based on it that any branch of the government ought to do anything. Specifically you can't base any argument for how Kelo ought to be decided on it.
The constitution intends nothing coherent.
Anthony Gregory -
7/8/2005
That was quite an article! It gives me a lot to think about. I might come around to ageeing with your interesting view of breaking it down like this.
I question, however, on the notion of secession: What type of majoritarian or other process would a state have to go through to sufficiently demonstrate that it wants to secede? If 51% of Californians want to secede, is that enough? Should it require a supermajority?
David Timothy Beito -
7/8/2005
I always wondered why those who question the legitimacy of the ratification process of the fourteenth amendment don't similarly question the ratification process of its companion: the fifteenth amendment. The history of each amendment was really quite similar. Why the distinction?
Roderick T. Long -
7/8/2005
I'm a bit puzzled by your response. As I say in the article, what the Constitution means and whether it's a good thing are two entirely separate questions. So how does showing that the Constitution is illegitimate invalidate anything I said about what it means?
John T. Kennedy -
7/8/2005
On my blog I explain what's wrong with Long's argument:
In a new article Roderick Long attempts a Spoonerite interpretation of the constitution and fails.
One thing I do like about the piece is how neatly Long dismisses Stephan Kinsella's objection that the ratification of the Fourteenth amendment was illegitimate: There was never any legitimate ratification of any part of the constitution. But Long's entire argument can be dispatched almost as easily.
Long seeks to interpret the intent of the constitution by Spoonerite means, but this is fruitless for his purposes. Rather than take Long point by point I'll just offer a simpler and more correct argument based on Spooner's principles that leads directly to very different conclusions.
Of natural law Spooner writes:
"Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them,--that is, all the laws of their own making,--have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice of them, unless it be to trample them under foot, as usurpation. If they command men to do justice, they add nothing to men's obligation to do it, or to any man's right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command any man to do anything which justice does not require him to do, they are simple, naked usurpation and tyrannies. If they forbid any man to do anything which justice would permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. They are all necessarily either the impudent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers, or the senseless work of ignorant or thoughtless men, who do not know, or certainly do not realize, what they are doing."
On it's face the constitution appears to intend limited government but limited government is impossible in principle. So does it fundamentally intend usurpation or justice? I'd say the document fundamentally intends usurpation but it doesn't really matter. To the extent that it intends usurpation nobody is bound to take the least notice of it. To the intent that it intends justice it is empty wind adding nothing to anyone's responsibilities or obligations.
But isn't the constitution in some way binding on government officials who hold it to be a valid agreement? Spooner correctly observes that it is not:
"It is mere idle wind. At most, it is only a pledge of faith to an unknown band of robbers and murderers, whose instrument for plundering and murdering other people, I thus publicly confess myself to be. And it has no other obligation than a similar oath given to any other unknown body of pirates, robbers, and murderers.
For these reasons the oaths taken by members of Congress, "to support the Constitution," are, on general principles of law and reason, of no validity. They are not only criminal in themselves, and therefore void; but they are also void for the further reason that they are given to nobody."
An idle wind cannot reasonably be construed as any kind of agreement among any parties to limit government, nor can an intent to usurp individual rights since it necessarily asserts unlimited authority.
At the end of the day the only proper reason for contemplating the intent of the constitution is to demonstrate it's incoherence, to reduce it to plain absurdity. Long has gone astray by attempting to put the wind to another purpose.
