Playing With Fire

by Liberty and Power

[cross-posted at Austro-Athenian Empire]

Because Ron Paul sponsored a constitutional amendment to ban flag-burning, some critics have inferred (not unreasonably) that he supports bans on flag-burning. In fact he doesn’t; he was simply trying to make the point that such bans would presently be unconstitutional, and so that those who do favour making flag-burning illegal are obligated to amend the Constitution.

It was for similar reasons that Paul introduced a declaration of war against Iraq – not because he supports such a war (nobody who’s followed his campaign even slightly could suppose that), but because he wanted to make the point that a war is unconstitutional unless Congress declares it – so that if his colleagues take the Constitution seriously they should show it by, um, doing their wrong deeds the right way.

Okay, I get it; but I don’t much care for the strategy.

What’s my objection? Well, I’m not making the criticism that his introducing these proposals is risky because Congress might actually vote for them; if the mood of the Congress were such that they had a chance of passing, someone else would already have introduced them, so I don’t think it was especially risky (though it is disconcerting to see a loaded gun being tossed around to make a political point, even if the safety is on).

No, my complaint is that this strategy focuses unduly on the unconstitutionality of Congress’s misdeeds rather than their wrongness. Paul clearly doesn’t think that aggressive wars and flag-burning bans would be unobjectionable if only they were constitutional; but his strategy could encourage that belief.

Of course as an anarchist I don’t regard the Constitution as having any authority; but I don’t think my criticism depends on that point. Assume the truth of minarchism; or assume the correctness of Barnett’s case for the anarcho-compatibility of the Constitution; or even just assume (and this much is definitely true) that a federal government that kept itself within constitutional bounds would be enormously, staggeringly preferable to the one we have now – and I still think my criticism holds. However objectionable a law’s unconstitutionality is (and I do think, as things stand, that a law’s being unconstitutional is a serious ceteris paribus objection to it), such a law’s being inherently unjust is surely a more serious objection to it. As a political strategy, introducing resolutions encouraging Congress to pass unjust constitutional amendments in order to render other unjust actions constitutional (thus making the Constitution more unjust – as though whatever legitimacy the Constitution possesses could be independent of its content!) can only foster the misleading impression that unconstitutionality is a more serious problem than injustice. I’m not saying that Paul believes that; I don’t think he does. But I do think he has been trying to serve two masters – constitutionality and natural justice – and this particular strategy I fear serves the lesser master at the expense of the greater.

Incidentally, on a tangentially related subject, can anyone tell me precisely what Ron Paul’s views on abortion are? Because I know he recently supported legislation declaring human life protected from the point of conception; but I seem to remember that back in the 90s he was supporting RU 486 (the “morning-after pill”) as a desirable alternative to abortion, which would imply that he thinks protected status begins at some point later than conception. (Didn’t he have an article in Liberty in this subject? Unfortunately my back issues are packed away.) So has he changed his mind, or is there some nuance I’m missing? Does anyone out there know more?

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Less Antman - 11/19/2007

He would vote to ban abortion as a state legislator. He wrote that the state should do so in both 1983 (Abortion and Liberty) and 1990 (Challenge to Liberty: Coming to Grips with the Abortion Issue). Also, he voted to ban partial birth abortion when it came up for a vote in Congress. His position on that vote was that the Federal courts had prohibited state legislation on the matter, so that he was not violating Federalism by voting to override the Federal court (neither a yes nor a no vote would respect state's rights). This once again indicates that he WOULD vote to ban abortion where he thought there was proper authority. Also, he supported a constitutional amendment to ban abortion, arguing this was the proper constitutional means of achieving the goal at the Federal level (although he felt, as a practical matter, that getting Roe v Wade overturned and banning at a state level was far more likely to be a successful approach).

Not sure on RU-486: that was the version before RU-Pentium, right? I don't know when he believes conception has occurred, but his proposed human life amendment gives the unborn the right to life from the moment of conception (there is still a libertarian argument that a woman has no obligation to have her body ordered to support another human, which would presumably still allow abortion prior to viability, and non-lethal removal after viability, but I've never seen Paul acknowledge that possibility).

Sudha Shenoy - 11/18/2007

Ah. I misunderstood. Sorry.

Roderick T. Long - 11/17/2007

Paul's making a clear distinction between his own _private_ notions, & what he would be prepared to do in a _political_ role.

I don't see how that's the relevant distinction. The distinction I'm talking about is between what abortion policies he would impose as a holder of national office and what abortion policies he would impose if he were a holder of a local office (e.g. a state legislator). That's not a distinction between private and political, it's a distinction between national-political and local-political.

Sudha Shenoy - 11/15/2007

I think he has a point there. Paul's making a clear distinction between his own _private_ notions, & what he would be prepared to do in a _political_ role.

Roderick T. Long - 11/15/2007

Surely the point of returning the issue to the states is to have a _range_ of alternatives?

Yes, but surely he has preferences (whether or not he wants to enforce them centrally) as to how far that range should go.

Scott Horton - 11/15/2007

See also part two of the youtube of his recent interview with that NH newspaper editorial board. He says there that he thinks RU-486 was good because it would work before conception could be proven to have taken place.

Robert Horn - 11/14/2007

I misunderstood. I doubt that you will find his personal opinion in a reliable form. When given the direct question he did not give a specific personal opinion. He said that his personal opinion would not matter, if President.

Sudha Shenoy - 11/14/2007

The problem is that gadzillions of Americans, esp certain types of Christians, feel that the Iraq war _is just_, as is a ban on burning the US govt's flag. Focussing on the US constitution is to say: 'Here is the political/legislative _means_ you must adopt (in current circs.) to achieve your ends. Put up or shut up.' This at least gives people pause -- & brings out the general principles that are really at issue: 'How impt is free speech, protected under the First Amendment?'

Sudha Shenoy - 11/14/2007

Surely the point of returning the issue to the states is to have a _range_ of alternatives? If all state govts followed exactly the same policies, the exercise would be a bit pointless. And I'm not sure that 'let state govts decide' is equal to saying, 'state govts would do what _I_ feel is right' -- ?

Roderick T. Long - 11/14/2007

A US President might have an opinion, but it should be a state issue.

Yes, I know he favours returning it to the states. But my question was what his opinion was what, in his opinion, the states should do.

Robert Horn - 11/13/2007

This question was asked during the Q/A session at Google. The summary answer was that abortion rules were properly a matter for the states and not for the Federal government. A US President might have an opinion, but it should be a state issue.

As for RU-486, Dr. Paul is an OB/GYN. As such, I'm more confident in his understanding of the science than that of activists. When used within days you get into the tricky area of whether conception has occurred (medically defined as successful implantation) and whether the RU 486 is preventing implantation (contraception) or undoing implantation (abortion). I won't second guess him.