Blogs > Liberty and Power > "I'll Let You Know in a Couple of Years."

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

Daddy has an LRC blog post about this.

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

Not only this, Anthony: by the reasoning of the libertarian centralists, state laws against murder, rape, and robbery must also be overturned. Why? Because those laws would be unconstitutional at the federal level. At the time of the founding rights were protected from federal invasion by simply the lack of the grant of power to violate them. There are no powers enumerated for the feds to censor speech, so the right to free speech is secured in this way. There is also no general police power granted to the feds, so they cannot outlaw murder.

In short, just as the First Amendment says Congress shall make no law about speech or religion, and the Second Amendment effectively says to Congress that it shall not make any law regulating guns, the Tenth Amendment can be understood to say, "Congress shall make no law respecting any subject for which there is no enumerated power"--and since there is no power enumerated to federally ban murder, the Tenth Amendment says, inter alia, "Congress shall make no law prohibiting murder."

Now what is it the "incorporationists" want to do? They want to take what were really limits on federal power in the Bill of Rights--which is amendments 1-10 and 27, after all--and turn them into "rights," rights which restrict the states AND the feds. Therefore, the right to free speech and religion implicit in the limitations of the First Amendment--voila!--are applied to the states. They now are restricted from making laws censoring speech or establishing religion.

Likewise, the rights implied or expressed in the other amendments also limit the states. BUt the Tenth Amendment, then, which limits the feds and prevents them from passing laws against murder, then also applies to the states. After all, if a limit--which was the means of protecting rights--is good enough for the feds, it's good enough for the states. If the feds can't enact laws censoring speech or stoping murder, well, by God, neither can the States. Therefore, by incorporating the Bill of Rights--you would have to strike down most state private and criminal law.

Of course, to avoid this result, you have to change your understanding of the Bill of Rights and recognize that it is simply a limitation on the powers of hte federal government, and just as it makes absolutely no sense to apply the tenth amendmnt to the states, so it makes no sense to apply the others to the states.

The Bill of Rights was seen as not even being necessary, but just added for greater safety--safety from the feds, not the states. It is utterly ridiculous to view the Bill of Rights as a grant of powers to the feds, or as a set of rights that can be enforced on or limit the states. If the Bill of Rights had not been ratified, in theory the Feds ought still to be prohbiited from censoring speech. In this case, what would the libertarian centralists do to make up a reason that the Constitution limits the states--point to the Republican Form of Government clause? Surely no one would be stupid enough to do that.

Waitasec...

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

Do the "rules" of this board prevent disingenuous replies or outright libel? I guess not.

P-dog says:

What I find remarkable is the eagerness to resist restrictions on state power emanating from the federal courts when they are (or could be but didn't, as in the Kelo case) issuing opinions that are well grounded in the text of the constitution.

But they are not well-grounded in the "text" of the Constitution. This is mere question-begging. Palmer here snidely implies that hmm, there must be some sneaky reason we are "eager" to "resist restrictions" on state power. P-boy here snidely implies that those who are in favor of federalism--you know, like all educated libertarians until the modern "improved" generation--are "eager" to want states to be able to hurt people. This vile slander is inappropriate in this forum.

If one thinks the "text" that reads "privileges or immunities of citizens" automatically and obviously means citizens' rights, as implicit in the.... Bill of Rights, despite the history of the 14th amendment, then he must have a crystal ball. I mean, they left the word "rights" out because ... ahhh ... .well, who knows, but they MUST have meant rights, anyway. And, umm, just because this language tracks language in a previous bill that clearly referred to a narrow set of rights, not a broad set, well, let's just ignore that. And look, just because they listed due process in the 14th amendment, even though they didn't need to if the privileges/immunities clause incorporated the one from the 5th amendment--let's just ignore that too.

Rejecting the 14th Amendment on the grounds that it isn't part of the Constitution is absurd; we currently do have a federal Constitution.

P-dog may be right; but none of us are basing our argument on this claim. Now the brilliant Gene Healy does make this quite respectable argument:

Given that the Fourteenth Amendment was never legitimately ratified,we’re freer to adopt a narrow construction of the amendment than we would otherwise be. By giving a narrow reading to the Fourteenth Amendment (which was not a product of constitutional consent), courts keep faith with the Tenth (which was). From this perspective, the post-Civil-War Court’s crabbed construction of the Privileges or Immunities Clause in Slaughterhouse might well be justified as a blow for originalism.

That is, we can't ignore the 14th, but recognizing its problematic origin, perhaps when the federalism principle of the 10th butts up against the alleged erosion thereof in the 14th, we give the nod to the 10th. Just a thought.

But our arguments don't rest on this. We assume the 14th is part of the Constitution. So why does Palmer use this straw man?

We should appeal to it when the appeal is well grounded in the text and likely to advance liberty.

Well now, finally an unambiguous normative assertion about what "we" "should" do. I welcome a rigorous defense of this, coupled with some explanation why it is obvious why anyone who disagrees with it is an apologist for slavery, bigot, racist, anti-semite--am I leaving any out?--the kind of outrageous, disgusting smears that Palmer regularly trots out on his smearblog as the kneejerk response to anyone who does not toe the Cato line. But eve if this mere assertion were true, it again rests on the notion of appeals "well grounded in the text." Of course, this is what is in question, so it is question begging, as well as disingenuous.

What exactly is P-dog saying? Is he saying everyone (or just libertarians?) should (?) "adopt" a given argument for construction of the Constitution, as long as someone can plausibly say "it is well grounded in the text", so long as in one concrete case it increases liberty? What exaclty is he saying? That it does not matter what the Constitution really means? That the original limits on the feds are elastic? Subject to their discretion? Or only ... if they are libertarian judges? What?

Similarly, the guarantees to citizens of the several states in Article IV of "all Privileges and Immunities of Citizens in the several States" is in the federal (and unamendd) Constitution, as is the guarantee of a "Republican Form of Government."

HO HO! So here we come to the fall-back. Notice Palmer first tries to imply that the 14th amendment's "privileges or immunities" clause somehow includes some broad set of rights, supposedly largely coextensive with those express or implied in the Bill of Rights (well, only, er, some of htem--not those in the 10th, or the 27th amendment, or the unratified 1st article of the 12 articles submitted... or not in the 3rd, or 2d, amendment, and not parts of the 5th, and, er, um, also not the due process clause of the 5th, because, you see, that's already in the 14th).

Then his fall-back: why, we never had federalism at all! You see, FROM THE BEGINNING, the feds had the power to review state laws for all the rights in the Bill of Rights, because of the original privileges or immunities clause (even though this is not in the power-graning section of the constitution) or the Republican form of government clause--but let's ignore the fact that, say, the original privileges or immunities clause was adopted in 1789, when there WAS NO BILL OF RIGHTS (that came in 1791), so how in the world could the earlier P-I clause include those rights, as is argued that the later one does... or does the earlier P-I clause incorporate, oh, I don't know, some other unspecified set of rights? So that the feds have strictly enumerated powers... except here--they had the power to enforce whatever rights they wanted to against the states, no definition or limits at all. Even though the States would never have consented to a federal Constitution that granted such power.

Nice. Convenient. Let's chuck all we know about history and context, and just read the bare words on paper, in the most favorable way as possible for (centralized) libertarianism... then just "assume" we can somehow, someday, find enough libertarian judges to interpret it the same way...

Oh, it's so beautiful, I want to cry.

The 13th, 14th, and 15th amendments are in the federal Constitution.

Interesting, that--curious, if the 14th Amendment's due process and/or privileges or immunities clause are so fricking broad, then presumably so is its equal protection clause. You know, that one that prevents states from treating classes of citizens differently, from discriminating? So just curious, mind you, but if that one is so broad--wouldn't you THINK it would have prevented States from discriminating against BLACKS and WOMEN in the FUNDAMNETAL FRICKING RIGHT TO VOTE? Well, I would. But lo and behold, we needed the 15th, and 19th, amendments, to give blacks and women the right to vote. Hmmm, interesting. I guess the "equal protection" clause of the 14th ain't as broad as it seems to a college libertarian on first reading, is it? Maybe, just maybe, the same is true of the privileges or immunities clause? Nahhh--can't be. Anyone who thinks so is a Christian or an anti-semite (or is there a difference?).

If a state were to deny a person the legal right to vote on the grounds of race, would Mr. Anthony favor the intervention of the federal courts or of the federal Congress?

You see, there is actually constitutional grounding for such an intervention. There happens to be a constitutional amendment to this effect--the 15th. We don't deny this. Strangely, as I noted above, the equal protection clause of the apparently very broadly construed 14th does not cover the right to vote; but no matter. Just b/c the 15th does grant a right to vote to blacks, does not mean that the privileges or immunities clause of the 14th includes the rights implied in the bill of rights. These are separate matters. Palmer need not caricature our view; we are actually very clear and upfront about it. We admit some constitutional limits on states, and deny others. For some reason, for those libertarian centralists who are apparently not bothered by the idea of a non-limited federla government, anyone who thinks federal supervisory power over states is limited must be a fascist secretly yearning for states to permit mobs to lynch blacks once more.

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

Sure, bill, there is unlimited space. have at it.

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

Mr. Gregory, if a state were torturing people to death in truly cruel and unsual ways, would you join hands with Mr. Kinsella and march against the federal courts taking steps to stop such behavior? I would hope that you would leave Mr. Kinsella to march on his own, as would all of the rest of the libertarians on the planet.

Mr. Palmer, can you not read? I have admitted many times over the purely instrumental value of the US Constitution. I would not hesitate to oppose it where I thought it unlibertarian. As a matter of fact, I think it is unlibertarian and I think the federal state it set up ought to be disbanded. You would not I suspect, because we need a benevolent nanny to ride herd over the nasty, naughty states, and the feds are your daddy, aren't they? WHO'S YOUR DADDY?

If the state were torturing people, this would not change the fact that the US Constitution does not authorize the feds to stop it. Would I in some cases "want" the feds to march on the states to stop this anyway? I don't know. What has that to do with whether the Constitution authorizes this action? To my mind, integrity calls for an honest interpretation of the Constitution. Where it is illiberal, we can acknowledge this, and then consciously choose to abandon the Constitution, or try to change it.

Jason Kuznicki - 7/13/2005

When I was still green at Liberty & Power I might have kept such a discussion open. Not anymore.

Imagine that in place of every name-calling post above, you had instead written one letter to a legislator in support of property rights. Wouldn't we all be better off?

William Marina - 7/13/2005

Dear Stephan,
While blogging is fun, I have too many commitments now in retirement such as writing new editions of some of my earlier books, new books, essays, and as exec. dir. of the Marina-Huerta Educ. Found. to spend a great deal of time either reading or responding to many blogs.
In discussing feudal growth mgt laws, for example, it makes more sense to do so in a forthcoming, 4th ed. of A History of Florida, than to spend much time doing so blogging. And, after all, the Supremes did have something to do with an election there in 2000.
Or, as Jay Leno facetiously cited Bush the other night, "Why shouldn't I select a couple of Justices, they selected me."
Regards, Bill

Tom G Palmer - 7/13/2005

If it were properly considered cruel and unusual punishment, about which there is a debate going on right now. Mr. Gregory, if a state were torturing people to death in truly cruel and unsual ways, would you join hands with Mr. Kinsella and march against the federal courts taking steps to stop such behavior? I would hope that you would leave Mr. Kinsella to march on his own, as would all of the rest of the libertarians on the planet.

William Marina - 7/13/2005

Sometimes I wonder about all of the heavy elephant .... philosophizing that goes on within this blog. The courts have been riding roughshod over us for years, and definintely follow the election returns. Every Empire uses such Legalism.

Zoning and other building regulations can be just as effective as a taking, and have gone on for years, certainly since the 1920s, and much increased by feudal, growth management policies, about which I have written in several places.

In my experiences as a builder as president of Marina Const. Co. developing properties in So. Fla, I had some interesting encounters with gov't winning a few and losing some. Twice I made 400% profits, once in one year, by correctly betting how the Mafia controlled building companies that develop central sewers systems (aeorobic would be much better) were playing the rezoning game.

$104K in bills in a brief case ain't all bad. OK, so I wasn't even the poor man's Howard Roark! Not enough space here to recount it all.

Anthony Gregory - 7/13/2005

Should the federal government forbid states from implementing the death penalty?

Anthony Gregory - 7/13/2005

I strongly suggest that anyone curious as to why libertarians might oppose the 14th Amendment and centralism check out this article, "The Squalid 14th Amendment," by Gene Healy:

http://www.lewrockwell.com/orig/healy1.html

He discusses why the way it was ratified means "that the amendment cannot be justified with a bedtime story about Lockean first principles. If libertarians are to embrace the Fourteenth Amendment, they'll have to find pragmatic reasons to do so. The argument must be that the amendment has been, and will continue to be, an effective weapon in the struggle for individual liberty." Given this, Healy comes out against the amendment because he had many doubts about the that the federal courts will side with liberty more often than not, and he argues that gambling on this will likely be bad for liberty in the long run.

Tom G Palmer - 7/13/2005

People can disagree about lots of things. Constitutional interpretation is only one of them. What I find remarkable is the eagerness to resist restrictions on state power emanating from the federal courts when they are (or could be but didn't, as in the Kelo case) issuing opinions that are well grounded in the text of the constitution. Rejecting the 14th Amendment on the grounds that it isn't part of the Constitution is absurd; we currently do have a federal Constitution. We should appeal to it when the appeal is well grounded in the text and likely to advance liberty. Similarly, the guarantees to citizens of the several states in Article IV of "all Privileges and Immunities of Citizens in the several States" is in the federal (and unamendd) Constitution, as is the guarantee of a "Republican Form of Government." The 13th, 14th, and 15th amendments are in the federal Constitution. If a state were to deny a person the legal right to vote on the grounds of race, would Mr. Anthony favor the intervention of the federal courts or of the federal Congress? If not, on what grounds would he oppose it? It cannot be on the grounds of the text of the Constitution. Then would allowing the states to deny the legal right to vote on grounds of race be congenial to liberty? Whose?

Jason Kuznicki - 7/13/2005

Not to answer for Tom Palmer, but I do think that the game of "honestly mistaken"--or not--belongs to Objectivists, not to libertarians. I favor decentralization only insofar as it is a check on the power of the federal government. Can people who disagree with me be honestly mistaken? Please... Don't ask me to cut a window into the souls of others. I have enough trouble with my own opinions.

Anthony Gregory - 7/13/2005

So do you think that decentralist libertarians who think the Constitutional case, as well as the consequentialist case, for radical decentralism is best, are just obviously wrong? And can they be honestly mistaken?

Tom G Palmer - 7/12/2005

Yes, we can all agree that we would be better off if there were no crime. What's at stake is what role the courts, including the federal courts, have in curtailing the criminal actions of state actors. There are issues of constitutional interpretation at stake, as well as issues of prudence and the balancing of risks and of costs and benefits.

Anthony Gregory - 7/12/2005

"We would have been best off had the court enforced the constitution."

We'd be better off than that if the States simply didn't steal private property.

Manuel Lora - 7/12/2005

"The positive upshot is that it has galvanized, in a way that nothing had before, the efforts of state-level activists to protect one's right to one's legitimately owned assets."

But this is how it was supposed to be anyway. The states just now are starting to wake up from a 150 year old slumber is a good thing. Their reluctance to fight foreign (unconstitutional) mandates has caused the supreme court and the feds to do whatever they want, even if illegal.

Sheldon Richman - 7/12/2005

Good news indeed. We can only hope that it spreads. The state-level free-market think tanks have a new overriding mission.

Anthony Gregory - 7/12/2005

Well, now all the States in the Union feel vindicated by the federal standard, and grassroots activism has to occur within each State.

By my reading of the Ninth Amendment, if we assume the federal courts have the authority to bind States under the Bill of Rights, virtually all State laws should be overturned — all drug laws, tax laws, regulations, gun laws, mandatory schooling, and etc. Is this correct?

Tom G Palmer - 7/12/2005

I fail to see how we would be better off. We would have been best off had the court enforced the constitution. The negative upshot is that this has legalized ever-greater state and local-level theft. The positive upshot is that it has galvanized, in a way that nothing had before, the efforts of state-level activists to protect one's right to one's legitimately owned assets. The heroic Institute for Justice is spear heading the effort: http://www.ij.org/private_property/castle/6_29_05pr.html They deserve support.

Anthony Gregory - 7/12/2005

So the Supremes support Connecticut's "right" to steal land — and the Connecticut government doesn't? Sounds like another reason we would have been better off if the Supremes butted out.