About a year ago, on the heels of the Supreme Court decision striking down the state law in Texas prohibiting sodomy, the Washington Times had an altogether predictable massive anxiety attack because of what its editors saw as the impending collapse of Western civilization. In writing about the Times editorial, I quoted Skip Oliva (of Citizens for Voluntary Trade) as follows:

The Times editorial does not use the phrase"individual rights" once, but it does refer to"states' rights." It's no coincidence that"states' rights" was once used to justify segregation and slavery. Under the federal Constitution, sovereignty is vested with the people; the states are but a convenient mechanism for dividing government power. Since the function of sovereignty, i.e. government, is the protection of individual rights--and only the protection of individual rights--there does not exist any distinct"states' rights" which can overrule the individual's liberties. No matter how big a majority might wish to do so in any given state, the government may not regulate the private consensual sexual conduct of its citizens on the grounds of public morality.

Skip also noted that conservatives have long ignored the Ninth Amendment with"malicious forethought," which is indisputably true. You can read much more about the Ninth Amendment, and its guarantee that the individual is sovereign in his personal autonomy so long as he does not violate the rights of others, here and here.

In another post that dealt with the numerous errors in a Ramesh Ponnuru article about the constitutionality of the Texas sodomy law, I repeated what I myself had said earlier on the subject of"states' rights":

One other point: many conservatives, and even many libertarians, often advocate"states' rights" on issues such as abortion and sodomy laws. I think they are grievously mistaken about the underlying issue: if a right is, in fact, a legitimate individual right, it is not up for grabs by the individual states -- i.e., the various states may not properly decide to recognize an individual right or not. This is not to say that there are not many genuinely optional issues about which states may legislate in different ways. But again, with regard to individual rights -- such as the right to one's own body (under which right I include the right to abortion, the right of consenting adults to engage in sexual activity, and the"right to die" -- and I will address the last point in a separate post soon) -- these may not legitimately be infringed upon by any government, including a state government. But certain advocates of"states' rights" seem all too willing to trade in one centralized tyranny for 50 smaller ones. A tyranny of whatever degree and scope is wrong, and it is certainly wrong when it violates and disregards the most basic personal rights -- and the fact that a government does so only in a smaller geographical area does not make it any less wrong, or any less abhorrent.

As I noted, many"libertarians" make the same mistake that is more commonly associated with conservatives. Here, for example, is Ron Paul -- the only self-proclaimed"libertarian" in the United States Congress -- speaking to the House in support of the Marriage Protection Act, of which he was proudly an original cosponsor:

Mr. Speaker, as an original cosponsor of the Marriage Protection Act (HR 3313), I strongly urge my colleagues to support this bill. HR 3313 ensures federal courts will not undermine any state laws regulating marriage by forcing a state to recognize same-sex marriage licenses issued in another state. The Marriage Protection Act thus ensures that the authority to regulate marriage remains with individual states and communities, as the drafters of the Constitution intended.

The practice of judicial activism – legislating from the bench – is now standard procedure for many federal judges. They dismiss the doctrine of strict construction as outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the law they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than on upholding the rule of law, Americans find themselves increasingly governed by judges they did not elect and cannot remove from office.

Consider the Lawrence case decided by the Supreme Court last June. The Court determined that Texas has no right to establish its own standards for private sexual conduct, because these laws violated the court’s interpretation of the 14th Amendment. Regardless of the advisability of such laws, the Constitution does not give the federal government authority to overturn these laws. Under the Tenth Amendment, the state of Texas has the authority to pass laws concerning social matters, using its own local standards, without federal interference. But rather than adhering to the Constitution and declining jurisdiction over a state matter, the Court decided to stretch the “right to privacy” to justify imposing the justices’ vision on the people of Texas.

After further details about the alleged"need" for the Marriage Protection Act, Paul says that"[i]t is long past time we begin using our legitimate authority to protect the states and the people from judicial tyranny."

And lest anyone fail to understand what he is up to tactically, Paul spells it out for you:

Since the Marriage Protection Act requires only a majority vote in both houses of Congress (and the president’s signature) to become law, it is a more practical way to deal with this issue than the time-consuming process of passing a constitutional amendment. In fact, since the Defense of Marriage Act overwhelmingly passed both houses, and the president supports protecting state marriage laws from judicial tyranny, there is no reason why the Marriage Protection Act cannot become law this year.

In other words: it's just too damned hard to get a Constitutional amendment passed by Congress and approved by the required number of states -- so let's take this really neat way to get around all that nonsense, and do what we want without all that fuss and bother!

Scavenging for additional justifications for his views, Paul appeals to tradition and ignorance, in a manner that would make any conservative happy -- for example, this guy. Paul says:

While marriage is licensed and otherwise regulated by the states, government did not create the institution of marriage. In fact, the institution of marriage most likely pre-dates the institution of government! Government regulation of marriage is based on state recognition of the practices and customs formulated by private individuals interacting in civil society. Many people associate their wedding day with completing the rituals and other requirements of their faith, thus being joined in the eyes of their church – not the day they received their marriage license from the state. Having federal officials, whether judges, bureaucrats, or congressmen, impose a new definition of marriage on the people is an act of social engineering profoundly hostile to liberty.

It should be noted that, both in his general approach and in his specific use of language -- his criticism of federal judges as"social activists" more concerned with"promoting a social agenda," for example -- Paul is thus far indistinguishable from any run-of-the-mill conservative. But it is this paragraph that contains the worst intellectual error in Paul's approach, and that is the root of all his other mistakes:

Some may argue that allowing federal judges to rewrite the definition of marriage can result in a victory for individual liberty. This claim is flawed. The best guarantor of true liberty is decentralized political institutions, while the greatest threat to liberty is concentrated power. This is why the Constitution carefully limits the power of the federal government over the states. Allowing federal judges unfettered discretion to strike down state laws, or force a state to conform to the laws of another state, leads to centralization and loss of liberty.

First, please be aware that this is the one and only time that Paul even mentions"individual liberty" -- and he mentions it only to swat down those who oppose his support for this legislation out of misplaced concern (in Paul's view) for such"individual liberty." I fear I must remind you at this point that Paul presents himself as a"libertarian," supposedly concerned with individual rights above all. Obviously, I have to remind Paul himself, since he is willing to see individual rights attacked by the states at the most fundamental level -- and do precisely nothing about it.

This is simply the elevation of form over substance, and it represents a"rationalistic" approach to this question, completely cut off from facts and from the actual reality with which we are presented. By this, I simply mean the following: Paul begins with the unquestioned premise that"decentralized political institutions" are the"best guarantor of true liberty" -- and he will do everything he can to maintain such"decentralized" institutions, even if that means that states thereby have untrammeled power to destroy individual rights completely. To put the matter more simply: Paul has no principled objection to absolute tyranny, as long as such tyranny is exercised in a small enough geographical area.

To make this issue absolutely unmistakable, let us rewrite Paul's key paragraph, in part updating it to reflect what might be current concerns for a certain (hopefully small) segment of our fellow countrymen:

Some may argue that allowing federal judges to outlaw the institutions of slavery or involuntary servitude, or to prohibit the establishment of internment camps, for African-Americans and Arabs can result in a victory for individual liberty. This claim is flawed. The best guarantor of true liberty is decentralized political institutions, while the greatest threat to liberty is concentrated power. This is why the Constitution carefully limits the power of the federal government over the states. Allowing federal judges unfettered discretion to strike down state laws, or force a state to conform to the laws of another state, leads to centralization and loss of liberty. This would be true even if federal judges were to find that state laws in favor of slavery or involuntary servitude, or the establishment of internment camps, for African-Americans and Arabs constituted a violation of individual rights.

Are we clear on this now? I hope so.

Paul's reprehensible performance on this issue reminds me of a remark I have often heard about a certain type of devotee of Ayn Rand's ideas, the type who likes to think of himself as some sort of"radical," but who underneath is actually a hide-bound traditionalist: that this kind of person is actually"a conservative who doesn't go to church." In the same way, many"libertarians" -- when you peel away the veneer of superficial and unprincipled concern for liberty and individual rights -- reveal themselves as worshippers of state power, so long as that power is sufficiently small in scope or exercised in ways with which they happen to feel comfortable, on whatever basis which appeals to them at the moment.

And in this way, these"libertarians" are also" conservatives who don't go to church." Paul should either take up the mantle of what conservatism represents today completely -- or decide that he actually wants to fight for the rights and autonomy of the individual, against encroachments by any government, state or federal.

In the meantime, I truly wish he would keep quiet about this kind of issue. He is also the kind of person who gives genuine libertarians a bad name. I can't blame people who have no idea what libertarianism stands for today. It is people like Paul who create a multitude of confusions, and who make libertarians indistinguishable from, for example, the crowd at National Review.

Perhaps Paul should start writing for them. After a while, I think he would feel completely at home. And he and the others there can share stories late at night about how those"activist judges" will shortly bring about the destruction of everything good and decent in civilization, and that they can prevent it only if Paul and his ilk can manage to find a Constitutional shortcut to forestall that calamitous End of Days.

(Cross-posted at The Light of Reason.)