Libertarianism: Through thick and thin

For some time now, I've been doing most of my blogging at the Western Standard. However, this debate between Timothy Sandefur, Jason Kuznicki, and Todd Seavey piqued my interest.

The debate is strictly intra-libertarian, which is why I decided to give it attention here rather than at the WS's blog. For a while now, some libertarians -- including my friend, Peter Jaworski -- have defended a "thin" version of libertarianism. In this debate, Seavey is the representative "thin" libertarian. Sandefur and Kuznicki both criticize the thin view, in somewhat different ways.

My perspective on the debate is a bit odd, because I used to be a thin libertarian. Now I'm unsure about thin libertarianism, for many of the reasons Sandefur identifies.

First, some general remarks about the relationship between politics and morality.

1.
Politics always proceeds from some more basic moral ideas. For example, if X is good, and ought to be promoted, then (it might follow) the state ought to promote X. As Jeremy Waldron puts it, "Catholics...have a particular conception of the good, and for many that conception issues in a particular vision of law and justice, expounded (say) in the jurisprudence of Thomas Aquinas. Muslims proclaim a comprehensive religious vision, and this generates for them a particular vision of the well-ordered society."

On this model, politics are "tied to" or "generated" by particular conceptions of the good. When it comes to justifying one's vision of the political order -- and liberalism, in particular -- Ronald Dworkin calls the strategy of linking morality and politics the strategy of continuity.

The advantage of the strategy of continuity is that one's arguments about the good do most of the heavy lifting. If one can make the case that X ought to be promoted, or that X is the way people ought to live, etc., then the appropriate political order just sort of falls out as an implication of the argument. In addition, one does not need to motivate people to adopt this political vision; the motivation springs from prior moral argument about the good.

The problem with the strategy of continuity -- as Rawls saw -- is that it does not seem that disagreements about the good are always resolvable through rational argument. Instead, "reasonable disagreement" reigns: you say people ought to value this, I say people ought to value that, and that's where the argument stops, with neither of us being unreasonable for our insistence on one conception of the good over the other. Or so people who reject the continuity strategy will say.

The alternative to the strategy of continuity is discontinuity. One sharply distinguishes between conceptions of the good and politics. On this model, according to Waldron, "Particular theories of justice are not seen as tied to or generated by particular conceptions of the good. Instead, they stand apart from competing religious and philosophical conceptions. They present themselves as solutions to the various problems which disagreement about the good generates in society." Emphasis added.

According to the first strategy, every conception of the good comes with a companion conception of justice, a particular vision of what the ideal city/state would look like. According to the second strategy, one attempts to form a conception of justice that is independent of any particular conception of the good. A conception of justice with this form can be called a strictly political conception of justice.

People who have different ideas about the good will tend to disagree about politics. Therefore, to gain the consensus of all reasonable people, a conception of justice must be formulated as a separate "module", one that does not depend for its justification on any particular conception of the good. This is the essence of the discontinuity strategy, and it gets its best showing in contractarian theories like that of Rawls and Jan Narveson (although I know from personal experience the latter would not much like to be grouped in with Rawls.)

If justice is a module, distinct from any single conception of the good, where does its content come from? How do we know what justice demands? Here there are different answers. Rawls thinks the content of justice can be generated by working out the implications of certain basic ideas he thinks are already floating around in the culture of liberal democratic societies. These include the idea that citizens are free and equal, that society is a fair system of cooperation, and so on.

Whether he is right or wrong about this, one thing is clear: if this is where justice comes from, its scope is very limited. We cannot say our conception of justice is true, only that it is reasonable. And, even then, it is only reasonable for people like us, who already accept the basic ideas. Rawls explicitly disavows any attempt to link those basic ideas to a more comprehensive moral theory, like those found in the work of Immanual Kant and John Stuart Mill.

Another way to generate a "discontinuous" conception of justice is Narveson's way. For him, the content of interpersonal morality is the system of rules people would agree to, if they started from a Hobbesian state-of-nature that was devoid of moral constraints. What's interesting about Narveson's proposal is that he thinks the rules people would agree to are libertarian in character: don't worsen others; otherwise, do what you want. What makes his argument an example of discontinuity is that this basic moral rule is not an extension of any particular conception of the good. It is the right rule -- he thinks -- because anyone would accept it, almost regardless of his/her conception of the good.

2.
Narveson's view is an important jumping off point for us. I would say he is pretty much the "thin" libertarian par excellence. Consider Seavey's claim:

Libertarianism’s chief strength, then, has always been in recognizing the vast gulf between, on one hand, myriad, never-ending social complaints (along with the conflicting social philosophies built around them) and, on the other hand, the minuscule and tightly constrained range of things that rise (or, if you prefer, fall) to the level of political/legal complaints.

Continuity, to recall, doesn't really see a vast gulf between what ought/ought not to be promoted (simplicter) and what the state ought to promote/not promote. However, discontinuity -- whether in Rawls or Narveson -- does see the gulf. People reasonably disagree about what ought to be promoted. Hence, from the mere fact that X ought to be promoted (even if it is a fact), it does not follow that the state ought to promote X (Jaworski calls this the "ought/state" gap; I like that.)

Libertarianism, understood in the thin sense, is an example of discontinuity. Libertarianism must rise above conflicting "social philosophies." Its prohibitions must be based on different (firmer?) ground. Libertarian property rights, one must argue, can and must be detached from any particular conception of the good, and defended in terms acceptable to many different reasonable views about the good.

Seavey sells his argument a little short by claiming that the Taliban (to take an example) merely have a preference that people live one way rather than another. Rather, I would say that the Taliban have a deep, very comprehensive view about the way people ought to live, about what ought to be promoted. The fact that other people strongly disagree with their conception of the good is a reason to seek a political conception that depends neither on the Taliban's conception of the good, nor on a Millian conception of the good that emphasizes experiments in living.

My own view is that, taken to the logical extreme, discontinuity will almost always end up at something libertarian-like. On this, I think Narveson is correct: if what's important is identifying the norms all would agree to in a suitably circumscribed baseline situation (finding the appropriate baseline is a problem in itself, let me tell you), then the set of norms meeting this description will be small, and mostly "negative" in character: a list of "thou shalt nots", rather than "thou shalts."

One can be a libertarian without being a thin libertarian; but it certainly seems easier to be a thin libertarian.

3.
So what's the problem with thin libertarianism? The issues Kuznicki identifies are practical in nature (and not in a derogatory way.)

The problem I see here is that thin libertarianism...wouldn’t last very long. A thin libertarian state inhabited by sufficiently prejudiced people would all but instantaneously transform itself into an extension of their prejudices. Prejudiced people with full negative rights won’t just sit around muttering curses on their chosen outgroups. They will agitate for instantiating prejudice in law. If they are determined enough, they will eventually succeed. Thus, thin libertarianism is possibly very thin indeed.

I think Kuznicki is right about this. Rawls' own theory has a similar problem: once you've detached political norms from most of morality, what incentive do people have to uphold the political norms? To some extent, Rawls can handle this problem, because he thinks that, in private, different groups will be able to reconcile their various conceptions of the good to his favored conception of justice. The only groups that can't or won't be able to do this will be those with unreasonable conceptions of the good, to whom we don't have to justify ourselves anyway.

I still don't see why this should be, unless one defines the reasonable in a very question-begging way. Thin libertarians are in even bigger trouble: what motivation would a racist majority have to respect the absolute right of self-ownership of minorities? Why would they not work to chip away at it, in whatever way possible?

The worries about thin libertarianism are quite similar to the worries that drove me to a pro-14th Amendment libertarian view (a la Randy Barnett) and away from the "states's rights" libertarianism espoused by Ron Paul and people at Lew Rockwell. Racist factions at a local level, possessing plenary police power, would easily be able to pass laws stripping minorities of rights and dignity.

Rights will not be continually protected unless people agree that rights matter. But one cannot explain why rights matter without delving into the deeper moral issues discontinuity bids us avoid. This is why thin libertarianism fails.

Madison's Federalist 10 is very instructive here.

4.
Sandefur's objections to thin libertarianism are a bit more theoretical in nature. He argues that thin libertarianism -- and likely any "merely" political conception of justice -- is disingenuous. "Every attempt to create a "value free" politics fails, usually by showing that at bottom there is some normative conception about how people ought to live."

I think he's right about this. In any event, I've read a lot of stuff from liberals who defend the view in a discontinuous way, and always, always there's a deeper, more controversial moral view at work (typically, a kantian one.) Kant emphasized the overriding importance of autonomy, arguing (basically) that to fail to respect a person's autonomy was to fail to respect him as a human being.

While this kind of kantian reasoning does seem to prohibit the state from making strongly paternalistic laws, it does not -- or, at least, many believe it does not -- prohibit the state from subsidizing education, to take an example. But the point, as Michael Sandel would say, is that the kantian view is an extremely controversial one. If one's political view is an application of kantian principles, this does not show that the view is wrong; it does, however, belie the suggestion that one is getting beyond moral disagreement.

On the contrary: when one advocates kant-inspired liberalism, one is immediately mired in philosophical debate, much of it as resistant to rational resolution as the disagreements about the good these liberals claim to want to avoid.

Sandefur is also correct that one cannot treat rights as "primary moral principles." At times, Nozick seems to do this (at other times, he just takes a kantian position.) This is not just because the motivation to adhere to rights has to come from somewhere. It's also because -- and this is my point, not Sandefur's, though maybe he'd agree with it -- the application, scope, and shape of rights is always somewhat indeterminate.

Must every state protect free speech at least to the extent guaranteed by the 1st Amendment? In fact, that's a trick question: the 1st Amendment is, in some sense, indeterminate. The Founders could not have foreseen the Internet; yet "freedom of speech and the press" clearly extends to the Internet. Why?

Well, here, I think Ronald Dworkin is on to something. "Freedom of speech" is an abstract principle. Its content can be filled in once one understands that it is linked to a particular conception of the good. If "freedom", broadly construed, is important because the good life is the autonomous life, then we know just how wide the scope of that principle is.

Suppression of speech inhibits participation in the good life, because it threatens autonomy. Suppression of speech on the Internet also (and for similar reasons) inhibits participation in the good life. By the way, this isn't inconsistent with original intent jurisprudence, because, as Dworkin suggests, the Founders could and probably did intend to lay down abstract principles, at least in places.

5. Conclusion:
"Thin" libertarianism has one attractive feature thick, comprehensive libertarianism cannot match: it makes the promise of transcending reasonable disagreement about the good. But it may not be able to fulfill that promise.

At the same time, I'm reluctant to say thicker libertarianism, based on a view of the good that emphasizes autonomy, can do it, either. Autonomy is a slippery idea. Joseph Raz's version of liberalism is firmly based on a plausible interpretation of the concept, but it's not exactly libertarian in its details.

One might say: that's because Raz's conception of autonomy is too robust, too thick. We need a thinner version, like the one Rasmussen and Den Uyl present (they call it self-directedness.) For example, a thin version of autonomy might identify infringments of autonomy with acts of violence, such that the only way one can interfere with another's autonomy is if one uses violence against him or her.

That conception of autonomy would be very thin, and very congenial to libertarianism. But now the argument can now be turned back on the thick libertarian: why should we accept the thin version of autonomy? The argument simply can't be that a thin version of autonomy is more widely accepted than a thicker version. After all, that wasn't enough of a reason to accept thin libertarianism!

My concern is that a thick version of autonomy, like the one Raz espouses, will almost always lead away from a libertarian politics. Thicker versions of the concept of autonomy might imply that a very poor black person who can't get a job in a racist community is lacking autonomy.

And I'm not sure this is wrong; but if we've already accepted that the state ought to treat what will/won't promote autonomy as a reason to act, then we will also be quickly led to accept that maybe the state ought to help this person out in various ways (incidentally, Rasmussen et al. do not respond all that well to this objection in their book.)

Again, I'm not sure it is a bad idea for the state to help out the truly desperate. But it isn't a very libertarian one. To borrow a clever saying from Kuznicki, there may be no such thing as thick libertarianism, at least once one has augmented it with a plausible, thicker view of autonomy.

Moral accounting and double effect

First, some necessary clarification: Let us say that an illegitimate government is one that regularly forces those who haven't previously consented to its authority to perform actions not otherwise morally required (e.g. by the rights of others.) I take it as given that, accordng to this definition, all governments are illegitimate (but not necessarily so.)

For example, assume that abolishing slavery was a good thing to do. During the Civil War, abolishing slavery required conscription and other measures libertarians would definitely reject under normal circumstances. Conscription, especially, seems an obvious rights-violation. Any government that practiced conscription would be illegitimate according to the definition just presented.

Suppose that an even more extensive violation of rights was required to abolish slavery in the United States. At what point would we say that the moral cost of abolishing slavery was too high?

In the comments to this post, Stephan Kinsella seems to suggest that the moral cost incurred during the Civil War was too high. Ridding America of slavery was a good thing to do, "aside from the cost and consequences," he writes. These costs include the deaths of half a million people, the aforementioned conscription, and presumably Lincoln's suspension of habeas corpus.

Was the moral cost of abolishing slavery too high? Fortunately, I don't need to answer that question, because just in raising it Kinsella and others have relocated to my turf. I'm perfectly willing to entertain the possibility that the good of abolishing slavery did not outweigh the evil of fighting the Civil War. When an action is known to produce more evil than good, performing that action may be unjustified. Perhaps this is one such case. 

But we've already admitted that a government that practices conscription is illegitimate -- but so is each and every other government! No government is legitimate, which means no government may impose obligations on us (e.g. to fight in a war) that we wouldn't have anyway. However, this does not mean that we should necessarily condemn all the actions of governments -- we should, I argue, condemn all and only those that it was reasonable to assume would lead to more evil than good.

In other words, once Kinsella moves away from the illegitimacy of government to the assessment of the moral cost of government action, he's accepted that there is nothing in principle preventing government actions from being morally justified. He just thinks that, in practice (and during the Civil War), government does/did more harm than good.
***
Here is a thought experiment to buttress the point. Suppose one could tell a convincing sociological story about how a simple change in traffic laws would eventually lead all slave owners to voluntarily give up their slaves. Now we've already admitted that no government is legitimate. The government has no more right to set traffic laws than I do. However, I have absolutely no problem with the government changing the traffic laws in this way. In fact, I think it would be wrong for it not to do so, given the fact that it is probably the only institution with the salience necessary to unilaterally alter traffic laws.

Suppose we had good reason to believe that altering traffic laws in the required way would lead to an extra ten or so fatalities a year, at least for the first five years. Does anyone doubt that, even with this added moral cost, it would still not be morally acceptable for the government to change the traffic law?

The thought experiment presents a clear case in which an illegitimate government may act in morally justified ways, just as long as its action produces more good than evil. Really, it's just an application of the doctrine of double effect.

In response to my claim that it's good when the state protects individual rights, Kinsella writes, "Only if it does so without violating others' rights--that is, without any collateral damage, and without taxing or spending others' money. Otherwise, the action taken has both good, and bad, aspects--it's not unambiguously good." Emphasis added. I don't think that anyone is claiming that the Civil War was unambiguously good. But does an act have to be unambiguously good (in all its effects?) before it can be morally justified?

We can make Kinsella's point here even stronger: suppose a really strong man uses my head as a battering ram to break down the door of a thief's home so he can retrieve his stolen property. Assume that it would be a good thing if he got his property back, but it's not a good thing for my head to be used as a battering ram. The strong man's action is not unambiguously good. Can it be justified?

Obviously not, for several reasons: first, the strong man could have used his own shoulder to break down the door. There were other, less costly ways to attain the good end than the way he chose. Second, the moral cost of bashing someone's head in could reasonably outweigh the good of getting the strong man's property back. The strong man's action was not morally justified.

This is why arguments about whether economic forces could have rid the United States of slavery are so important. If the invisible hand had freed the slaves, that would have been a morally costless way of achieving a worthy goal. But if, as Sandefur and I seem to believe, economic forces would not have been enough to lead slave owners to voluntarily free their slaves, then it may have been justified to use other means to do so.

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On Moral Justification and Political Legitimacy

I'm keen on a distinction A. John Simmons makes (can't remember where at the moment) between moral justification (i.e. of some action) and the legitimacy of an authority (i.e. political authority.) Like any thoroughgoing Lockean, Simmons accepts that we are only under a moral obligation to obey a government if we have consented to that government.

Of course, we all have pre-political obligations. We are all obligated not to intentionally kill others who themselves haven't violated any pre-political obligations. We are all obligated not to use the property of others without permission, and so on.

The question of political legitimacy is whether a government can establish other moral obligations, beyond the pre-political. If the government tells me to do X, and X is not something I'm morally required to do anyway, what conditions must be met if the government's decree is supposed to establish a new moral obligation to do X?

The typical answer here will have something to do with consent. For example, if I have previously consented to do what X tells me to do, and X tells me to do something, then I am obligated to do this. If I've consented to obey the law, then I am morally obligated to obey the law. And so on.

The problem is that most of us haven't expressly consented to obey the government in this way, and accounts of tacit consent are fairly implausible. Thus, it appears that the government lacks the authority required to establish new moral obligations. None of us is morally obligated to obey the law, except when the law forbids us from doing something our pre-political obligations forbid us from doing in the first place.

Simmons position amounts to philosophical anarchism. According to Robert Paul Wolff, what government lacks is the capacity to make binding commands of us -- commands that we would be obligated to obey over and above the pre-political moral requirements we are all subject to anyway. To the extent that a government lacks this capacity, that government is illegitimate.

I'm a philosophical anarchist in this sense. However, while I deny the legitimacy of government, I do hold that particular acts of government can be morally justified. For example, it's a good thing when the government stops one person from inflicting violence on another. It's good that some entity exists to stop people from carrying off my property.

If Superman existed and used his super strength to protect my rights, I would also think that was a good thing, even though I would deny that I had any independent reason to obey Superman's commands to respect the rights of others. To the extent that rights violations would occur without his presence, the world would be a better place with Superman in it

We have to be careful here: it might be that Superman couldn't be trusted to use his power only to defend the rights of others. He could use his power for evil as well as for good. To the extent this is so, we might prefer a world without anyone like Superman. But this would be an "all-things-considered" judgment: we would have to compare the good a Superman might do with the evil he could do, and draw our conclusions that way.

However, this would not change the fact that when Superman (or the state) upholds the rights of citizens, then Superman (and the state) is worthy of praise. But what we would not do is condemn Superman as an evil-doer (or the state as an inherently criminal enterprise) on those occasions in which Superman/the state upheld individual rights.

Now let's look at the dispute between Timothy Sandefur and Stephan Kinsella. In reference to the Civil War, Sandefur argues that "The federal government had the right and the duty to put down the Confederate rebellion." We can set aside, for the moment, Sandefur's claim that Lincoln was duty-bound (under the U.S. Constitution) to stop the South from leaving the Union. I think he's right, but that's not what's at issue here.

The issue, rather, is how we should morally evaluate the actions of the state when it stopped the Confederate rebellion. In judging whether an action is good or not, we need a certain standard. In referring to "the ultimate values of libertarian political philosophy," Sandefur thinks libertarianism does posit such a standard. As I read his argument, Sandefur thinks it was good to quash the rebellion and Kinsella thinks it was not.

As I see it, that standard is liberty. Other things being equal, it's better when people are free than when they are not. Slavery is bad; abolishing slavery made the world a better place.

In his response to Sandefur, Kinsella takes the position that

Under my libertarianism, any pro-slavery legislator in either sorry government--or even any voter who endorsed slavery--is a criminal rights violator. Just because a libertarian does not endorse the USA's unconstitutional, immoral, criminal, unlibertarian, illegal actions does not mean we condone its enemy's actions either, as is plain to anyone with a lick of sense and a drop of honesty.

Let's accept the claim that both the United States was and is engaged in the widespread violation of individual rights. Let's also accept the claim that the Confederate government would also have been engaged in violating those same rights. Further, let's accept the philosophical anarchist's point that neither the Union, nor the Confederacy, was legitimate; neither could impose moral obligations on people apart from the obligations they would have had anyway.

Even accepting all this, as libertarians, why should we not think that it was a good thing that Lincoln acted as he did and rid the United States of slavery? This does not mean Lincoln had legitimate authority: he could not make it the case that slavery should be morally forbidden. But I take it that as libertarians we think that slavery is morally forbidden, and that ridding America of slavery was a good thing to do.

This is especially so if you think, as Sandefur does (and I agree) that economic forces in the United States were insufficient on their own to end slavery. If you think this, then you will be led to think that if someone had not acted, slavery would not have withered away on its own. In other words, in a world without Lincoln (or Superman; or the equivalent) slavery would still exist in the United States. And, I think it follows, that world would be -- in that respect -- a much worse place than the one we presently occupy.

Like Rothbard, Kinsella's position is that any state is inherently a criminal enterprise. This seems to amount to the view that nothing the state does can ever be morally justified. Even if it would be justified for you and I to use force to free our neighbor's slaves, it would not be justified for the U.S. government to forcibly free those slaves (would it even be justified in Kinsella's world for the state to pay slave owners to free their slaves? I doubt it.)

To me, this position seems absurd. Obviously, I can and should evaluate the state's conduct the same way I would evaluate the conduct of anyone else. When the state protects individual rights, that's good. When it doesn't, that's bad. And at no time does the state gain legitimate authority, in the sense the philosophical anarchist describes. But the state did not need any kind of special authority to free the slaves: morality itself provided all the justification the state needed to act in that case.

Some thoughts on what can rightfully be considered a law

In my previous post, I didn't mean to equivocate between conceptual and substantial normative matters when I discussed what it takes for a "law" to be rightfully considered a law.

"Rightfully considered" is, in the above statement and my previous post, not a reference to the justness of a law, at least not primarily. But consider: Jones and Smith both wash up on a deserted island. Jones is much more physically powerful than Smith and hence Smith is rather afraid of him. This fear increases when Jones begins to articulate rules for Smith to follow: "Every morning, you will wake up at sunrise and gather coconuts for me. If you do not bring back four coconuts, then I will beat you."

Jones is certainly trying to give Smith a command. And suppose Smith, out of fear of being beaten, does acquiesce to Jones' demand. In fact, Smith gets into the habit of obeying Jones so much that Jones does not even have to specify that Smith will be beaten if he doesn't follow his commands.

My intuition about this story is that Jones is not making laws. In the story, he does have all the guns (so to speak) but the situation is lacking certain features that are necessary if genuine laws are to exist. These features might include:

1. Jones' commands aren't general enough to qualify as laws.
2. Jones isn't writing them down anywhere.
3. The only reason Smith is obeying Jones is because he doesn't want to be beaten. Neither Smith nor Jones actually think Jones has any real authority at all.

We can reject the first two features as being irrelevant, with the following caveat: they probably bear on the relevance of the third feature, which is where all the action is.

As for the third feature -- well, think about it. When Jones tells Smith to do something, Smith does it. But he does it only because he thinks he will get beaten if he does not. Jones' pronouncement that Smith ought to do such and such is never enough, on its own, to get Smith to believe that he ought to do such and such. Smith never takes Jones' command that he X as a reason to X.

Now there's a complicated story to be told about how Smith might eventually come to recognize Jones's authority and internalize it in a way that Jones' commands will, on their own, begin to establish reasons for him to act. But until the situation between Jones and Smith reaches the point where Smith begins to recognize Jones' commands as reasons, I do not think we can say that Jones is making law.

We might not want to say that Jones is making law even after such internalization has occurred; but we certainly can't say it before. This is what I mean, first, when I talk about what can rightfully be considered a law. The question is conceptual, in that there seem to be certain necessary conditions that must be met before we can even say that law-making exists in the first place.

Some kind of mutual recognition of one person's ability to establish, through his words alone, reasons for another person to act is probably one of those conditions. If you don't have that, you don't have law. I think Hart described this as seeing the law from the internal viewpoint. The law must be represented internally before we can say it rightly exists.

We need not fill in all the details of how such internalization might occur here. But there is one relevant question: suppose I could give some complicated sociological story (e.g. on this deserted island) about how Smith might come to accept Jones commands from the internal viewpoint. Could I give such a story in a way that would make no reference to the commands Jones was actually making?

In other words, is the continued internalization of law and authority consistent with any set of laws whatsoever? Or is it not the case that some commands cannot be given without inherently undermining the authority of the law-giver? If Jones commands Smith to kill Smith's children, is that consistent with Smith coming to internalize Jones' authority?

If you're a certain kind of moralist, you'll likely think the answer is "no." For example, if you think all agents are born having easy access to certain basic moral truths, then you'll think that those truths -- natural laws, if you like -- put a limit on the kind of authority people can come to accept. If Jones consistently commands that Smith do immoral things, Smith might still do those immoral things, but it will be extremely difficult for him to come to internalize Jones' authority. Smith will constantly face a conflict between his clear knowledge of the moral law and Jones' violation of it.

So here is where the conceptual question of what can rightfully be considered a law connects with the moral question of what the law ought to look like. In short: an egregiously unjust law is (conceptually) no law at all; and bodies that attempt to create such unjust laws undermine their authority.

UPDATE:
Timothy Sandefur's erudite and gracious response to this post and the one before is here. *sigh* There is so much I need to learn.

Some thoughts on the 14th Amendment

Timothy Sandefur has two great posts on 14th Amendment incorporation here and here. Both are well worth reading, especially if you are a libertarian. I have to admit, when I first taught philosophy of law, I did give my students a version of what Sandefur calls "vulgar incorporation." Partly this was because it was easier to teach that way; partly it was because, at the time, I didn't really understand incorporation myself (and I'm still no expert, as this post will likely indicate.)

Here is the relevant portion of the 14th Amendment:
"No state shall...deprive any person of life, liberty, or property, without due process of law."

The question is: what does due process of law require?

When I was teaching philosophy of law for the first time, I was very much taken with Justice Scalia's criticism (in his book, A Matter of Interpretation) of what is often pejoratively called substantive due process. For Scalia, all that due process of law requires of a state is that if it is going to deprive a person of liberty, it has to go through the right process, i.e. it has to pass a law, give the person who supposedly violated the law a trial, and so on.

As Scalia says (p. 24), "Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process our traditions require -- notably, a validly enacted law and a fair trial." We could call Scalia's interpretation of the Due Process Clause "procedural due process."

This is not an unreasonable way of interpreting the Clause, but it is certainly not the only way to interpret it.

In contrast, the substantive due process interpretation of the Clause requires the states not only adhere to the right process, but also that the laws they pass by way of that process meet additional, more-than-formal requirements. According to the vulgar form of incorporation, these are the requirements set out in (most of) the Bill of Rights.

In other words, the idea is that the term "liberty" in the Due Process Clause of the 14th Amendment includes or incorporates within it at least some of the guarantees set out in the Bill of Rights (like the 1st Amendment), making it possible for these guarantees to be applied not only to federal action, but to state action as well. If California throws someone in jail for expressing a political opinion, federal courts would free him (and strike down California law) on 1st and 14th Amendment grounds.

Cohen v. California (1971) demonstrates this nicely. In his opinion, Justice John Marshall Harlan II wrote that "The state may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense."

As Sandefur notes, the "liberty" guaranteed in the Due Process Clause is not in a one-to-one relationship with the Bill of Rights. When a federal court is assessing the constitutionality of a state law, it is not simply a matter of determining whether, under the Constitution, the federal government would be permitted to make such a law. Things are a little more complex than that (or should be, at least.)

Sandefur writes:

Incorporation, therefore, is not an exact one-to-one ordering of state and federal law; it is an inquiry into whether the state’s action so exceeds the standards of “lawfulness” as to violate the due process of law clause—or whether it deprives a person of the privileges or immunities of citizenship—and that inquiry is guided by reference to the Bill of Rights, among other things, which lay out the standards for determining what constitutes “due process of law.”

First emphasis added. Now it's an important to ask: just what are the standards of "lawfulness"? What criteria must a "law" meet in order to be reasonably called a law? Is it just a matter of the law being written down in the right place?

I bored my students to death, I'm sure, but we did examine legal positivism, especially Austin's relatively crude version of the doctrine. For Austin (basically), a law is just a law if it is backed up by a powerful enough authority. Austin's criteria for "lawfulness" is "enforced-ness."

Thus, if we are legal positivists of this stripe, we will likely find Scalia's interpretation of the Due Process Clause fairly congenial. As long as California could enforce it, the hypothetical California law we are considering would meet the standards for lawfulness, and -- on due process grounds, at least -- the federal court could not object to it.

As I understand Sandefur's position, his claim is that a law must meet other, perhaps moral standards, if it is to be rightly considered a law. The argument seems fairly tight: if California meets the procedural standards for the making of a law, but does not meet these other, substantive standards, then it hasn't made a law at all. Thus, when it puts people in jail on the basis of that "law" it is depriving them of their liberty without due process. It would, in fact, be exercising naked coercion, might without right.

How do we know what the moral standards of lawfulness are? As Sandefur notes, answering this question requires an engagement with political philosophy. Some conservatives (like Scalia) see such an engagement as just an excuse for judges to ignore the law and impose their own views. That's certainly a danger. It's even more of a danger if one does not believe in moral truth at all.

But the important point is that the Framers of the Constitution did seem to believe in moral truth. The 8th Amendment (to take an example of Ronald Dworkin's) seems to lay down an abstract principle, rather than a specific prohibition of certain forms of punishment. We do not, I think, travel far from their vision in thinking that a concern with moral and political philosophy is essential to a proper interpretation of the Constitution.

Link

Individual right to bear arms vindicated: Ron Paul supporters dismayed

One of the neo-Confederate Ronulan cultists lovely folks at lewrockwell.com is already registering dissatisfaction with the Heller decision.

Why? Because, according to Stephan Kinsella's interpretation of the law, the Second Amendment only forbids the federal government from banning guns (actually, that's inaccurate: the claim is more that the Second Amendment and the entire Bill of Rights are "irrelevant and redundant .")

Well, isn't Washington, D.C. under federal jurisdiction, and doesn't that mean the Second Amendment would apply? Things are not so simple. He cites approvingly Kevinn Gutzman's claim that, " the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court."

Thus, if D.C. must be treated like a state, then the federal Supreme Court can't overturn a gun ban on Second Amendment grounds, since, as noted, the Amendment (and the entire Bill of Rights) is only supposed to apply to the federal government. QED.

The Cato Institute's Tom Palmer called this line of reasoning "just plain dumb," but, anyway, that's the argument. It's the reason why not everyone is celebrating in Lincoln-hating land today. Stephan Kinsella and others are worried that the 2nd Amendment will be applied against the states through the 14th Amendment, and that highly restrictive state gun laws in places like Chicago will be struck down next.

Let me put that point more concisely: some of Ron Paul's supporters are dismayed by today's Supreme Court decision because they think it might be used in the future to prevent a democratic mob from trampling on an individual's rights. But Ron Paul himself thinks it's just fine for such mobs to restrict a person's liberty, just so long as the mob and the individual reside in the same state.

And people wonder why I refuse to call them libertarians.

Cross-posted at the Western Standard's Shotgun blog.

Show trial in British Columbia

Ok, it's not really a trial (if only!) It's the second day of the British Human Rights tribunal's hearing into whether a prominent Canadian magazine (Maclean's) violated the B.C. Human Rights Act, exposing Muslims to hatred and contempt.

What did Maclean's do? It published an excerpt from Mark Steyn's book, America Alone. Steyn argues that a) increasing Muslim birthrates and immigration from the Middle East, combined with b) the West's own unwillingness to assert its values, and c) the flaws of the expansive welfare state, are going to lead to increasingly "Islamified" societies in Europe (and Canada, presumably.) As societies become more Islamic, they will become less liberal. So goes the argument, anyway.

I'm not as sure about Steyn's thesis as I once was. His thesis seems to depend on the idea that, at its core, liberalism is hollow -- that it could not be defended, even if liberals wanted to defend it. Either that, or he assumes that arguments are impotent to change belief, so that no one can be argued into becoming more liberal.

Either way, I have qualms. And I'm telling you about them right now, on this blog. But a few law students in Toronto decided they didn't want argue with Steyn's claims. Instead, they went to Canada's peculiar institution of human rights commissions/tribunals and made multiple complaints against Maclean's for publishing the excerpts from Steyn's book.

The gist of the complaint is that by publishing those excerpts, Maclean's unlawfully exposed Muslims to hatred and contempt. You can see the relevant portion of the B.C. Human Rights Act here.

The Human Rights Tribunal (HRT) in British Columbia started hearings yesterday. The whole thing is an absolute, incredible farce. There are no clear standards of evidence in the B.C. HRT. The three person panel overseeing the hearing (and no, they're not judges, none of 'em) is admitting blog posts and blog comments as evidence of the harmful impact of the Maclean's piece.

In other words: if some evil cretins used this blog post as inspiration for a series of hateful posts about Muslims (on Stormfront, perhaps), I could be held responsible for that.

Truth is not a defense against a hate speech complaint in Canada. Nor, apparently, is intent. All that matters is if a panel of bureaucrats ascertains that the speech in question is likely to expose someone else to hatred or contempt in virtue of their membership in a protected group.

Khuruum Awan, one of the law students who brought the complaint, seems to be making things up as he goes along. Maclean's lawyer is grilling him, fortunately, but it's not clear to me any of this will matter much in the long run. If the HRT can't find a way to dismiss the complaint on technical grounds, how can Maclean's not be found guilty, under the wording of the B.C. Human Rights Act?

Ezra Levant, facing a human rights complaint of his own, is in B.C. live blogging the show trial here.

Mainstream media is hardly giving the matter any coverage at all. Canadians don't care. They're worried that if they stand up for free speech they will be labeled as racists or American-lovers or something like that. Cowards.

Hacking the library

I'm working on a Python script to look up basic information about books using a Library of Congress call number. The purpose of this script is to make my life easier. What I'm wondering is if there is a simple database out there my script could rely on to turn the LC numbers into book data. The actual Library of Congress Online Catalog might work, but it seems very slow. In brief, what I need is a database that has the following characteristics:

• It has to be relatively easy for my script to access. Straightforward HTTP requests, hopefully. The data has to arrive in a format that is easy to work with.
  
• It has to be reliable. I'm going to be using it a lot, so it has to be online most of the time.
• It has to be fast. As mentioned, the L of C's online catalog is probably too slow for my needs.

Oh yeah, and it has to be free, too. But there's got to be something out there, right? I was thinking maybe I should just use a college library's server to do my dirty work. BGSU's server is kind of clunky and the output it generates will be difficult for my script to process properly. At the end of the day, I may end up using it, but it would be nice to find something better.

I realize this post has nothing to do with politics or the law. Or philosophy. But I DO have other interests!

On the California gay marriage decision

Lots of people are talking about the decision of the Supreme Court of California to strike down a statewide ban on gay marriage. For a favorable assessment from a libertarian perspective, please check out this post from Kip Esquire's blog. For a typical, ham-fisted conservative reaction, Jeff Jacoby's op ed in the Boston Globe is illustrative.

Jacoby's piece provides three reasons for Californians to vote for a proposed constitutional amendment that would "override" the Court's decision. Here are the three reasons:

First, it's not the business of judges to make public policy.

This is the standard attack on so-called "activist judges", and, more broadly, on judicial review. But it is wrong to say that the judges in this case passed public policy. What they did was rule that an existing policy was inconsistent with California's state constitution. A constitution is, in some sense, a collection of policies, ones that are supposed to have authority over all the other policies the state passes. Rather than making policy, the court simply acknowledged the supremacy of existing policy -- the constitution itself.

"Reasonable men and women," Jacoby writes, "can disagree on whether same-sex unions should be granted legal recognition, or whether such recognition should rise to the level of marriage." But the question is whether the protections built into the California constitution already do mandate the legal recognition of same sex marriage. Perhaps reasonable people can disagree on that, too -- but that would require those reasonable people to actually engage the arguments the Court put forward.

Either restricting marriages to opposite sex partners violates the provisions of California's constitution, or it does not. The court ruled that the restriction is unconstitutional, as it is supposed to do. Contrary to Jacoby's position, the fact that the court did its job is no justification at all for voters in California to alter their constitution in the manner for which he is arguing.

Jacoby also makes the familiar claim that the same reasoning supporting the legal recognition of same sex marriages also probably supports the recognition of polygamous or incestuous unions. He might be right here. I think maybe, yeah, autonomy-based arguments for same sex marriage might also provide support at least to polygamous unions.

However, contrary Jacoby (and virtually every other conservative commentator) this fact does not represent a reductio ad absurdum of the autonomy-based arguments. We might end up accepting polygamy; on the other hand, there might be weighty reasons not to accept polygamy that weight against the value of people's autonomy. But I don't think those reasons apply to the case of same sex marriage.

Which brings us to Jacoby's third point. "Society has a vested interest in promoting only traditional marriage." As usual, society's interest in promoting heterosexual marriage has something to do with its interest in ensuring new citizens are produced. "The essential function of marriage is to unite male and female," he tells us. "That is the only kind of union that can produce new life, and therefore the only kind of union in which society has a survival stake."

For various reasons, I want to put the argument in schematic form. It goes something like this:

1. Step 1: Society can only continue to exist if a significant number of its members reproduce. Call this the sufficient reproduction condition.
   
2. Step 2: The institution of traditional, heterosexual only marriage, while not a necessary requirement of the sufficient reproduction condition, does facilitate its fulfillment. A society in which traditional marriage is practiced and widely endorsed will, other things equal, better meet the sufficient reproduction condition than it would otherwise.
3. Step 3: So one function of traditional marriage is to ensure that the sufficient reproduction condition is met.
4. Step 4: If marriage is not restricted to heterosexual couples, then, somehow, the institution will not be able to fulfill this function.
5. Conclusion: thus, extending marriage to same sex couples threatens society by making it harder to meet the sufficient reproduction condition.

In a weak, nearly tautological sense, I think there's probably something to the sufficient reproduction condition. And let's throw conservatives a bone: it's probably not enough for a society to just produce a sufficient number of new people; the vast majority of those new people must be brought up under certain conditions, taught certain things, etc. if the society is to survive.

Maybe the institution of marriage is a way for society to better meet the sufficient reproduction condition. Still, the most significant flaw in the argument occurs in step 4. In order for step 4 to work, the proponent of the argument has to say something like the following: if marriage is extended to same sex unions, then heterosexuals will be less likely to marry (oh, and, for whatever reason, same sex couples will not be able to pick up their reproductive slack.)

This claim just seems obviously, incredibly false. Why would heterosexuals stop marrying each other just because gays can start marrying each other? It makes no sense.

But suppose that there is something to the claim: if gays can marry, heterosexuals will choose not to do so. So what? If the lack of heterosexual unions puts society in peril, then one would think the burden would be on heterosexuals to keep -- you know, uniting with each other. It's not like gay marriages make it impossible for heterosexuals to marry. The proper conclusion of Jacoby's argument is not what he thinks it is: instead, the right conclusion to draw is that heterosexuals have a duty, not only to marry, but to produce lots of kids.

In my next post, I plan to explain why libertarians should be fans of same sex marriage, and equal treatment under the law more generally. But that will have to wait for a while.

Barack Obama and John Rawls

I didn't see the recent debate between Barack Obama and Hillary Clinton, but I came across the transcript here. At one point, the debate turns to the economy, specifically the capital gains tax. Obama favors raising the capital gains tax. However, as the moderator points out, each time the rate has been lowered (first by Bill Clinton, then by George W. Bush) the revenues the government have collected from the tax have gone up. Given this, why does Obama want to raise it at all?

Obama's response is interesting:

OBAMA: Well, Charlie, what I've said is that I would look at raising the capital gains tax for purposes of fairness.

We saw an article today which showed that the top 50 hedge fund managers made $29 billion last year -- $29 billion for 50 individuals. And part of what has happened is that those who are able to work the stock market and amass huge fortunes on capital gains are paying a lower tax rate than their secretaries. That's not fair.

And what I want is not oppressive taxation. I want businesses to thrive, and I want people to be rewarded for their success. But what I also want to make sure is that our tax system is fair and that we are able to finance health care for Americans who currently don't have it and that we're able to invest in our infrastructure and invest in our schools.

And you can't do that for free.

Some bloggers have taken Obama's statement to mean that he thinks "fairness" is always more important than growing the economy or increasing government revenue. This is an absurd interpretation of Obama's remarks.

Let's look at it this way: let's assume that cutting the capital gains tax down to 12 percent would make at least one person better off and nobody worse off. To use some jargon, cutting the tax down to 12 percent would be a Pareto improvement, relative to the status quo.

To some, if we can show that a policy is a Pareto improvement, that is all that needs to be said on behalf on that policy. Ideally, all policies should lead to Pareto improvements. Indeed, the aim is to reach Pareto efficiency, a state in which no further Pareto improvements can be made -- in which nobody can be made better off without making someone else worse off.

I do not think that is all there is to say. Consider a policy, P, that is a Pareto improvement. It makes at least one person better off and nobody worse off. However, this policy, P, was written on behalf of a certain lobbyist group. The one person that P will make better off is the lobbyist himself. It won't make anyone else worse off, at least compared to the status quo, but it won't exactly benefit them, either. We might say: the large benefit the lobbyist will receive from P will translate into smaller benefits for everyone else. Or maybe P simply allocates some "windfall" to the lobbyist that was not previously allocated to anyone.

The point is that P, while a Pareto improvement, is also unfair to the rest of us. Consider an alternative to P, policy Q. Q is also a Pareto improvement over the status quo. But the people who will benefit from Q are those who, prior to Q, were the worst off in society, according to some measure (and I admit, figuring out who the worst off are is difficult if not impossible.) I would argue that on fairness grounds, Q is better than P.

Obama, I think, is familiar with John Rawls' work A Theory of Justice. Consider three policies, each representing a Pareto improvement over the status quo:

Policy P: only benefits the wealthy person who lobbied for the policy in the first place.
Policy U: maximizes the welfare of society taken as a whole.
Policy Q: maximizes the welfare of the least advantaged, the worst off in the society.

The jury is still out on whether Rawls adequately makes the case for Q, the policy his own theory would likely favor, over U, the policy a utilitarian would favor. But consider this: neither P, nor U, nor Q can be policies that would (say) bring the economy to a screeching halt or reduce government revenues to zero or anything like that. This is because we've only "allowed in the door" policies that are a Pareto improvement over the status quo, and any policy that would destroy the economy cannot represent a Pareto improvement.

Thus, Obama and Rawls both reject "oppressive taxation", because such policies are, in the end, of no benefit to anyone. But among the policies that are Pareto improvements over the status quo, a choice must be made. Cutting the capital gains tax may make at least one person better off and nobody worse off; but so might leaving the tax where it is. The difference would be who will benefit from the policy. Obama seems to think that question matters, and so do I.

But there need not be an absolute trade off between economic efficiency and fairness: rather, the idea is to fairly allocate the benefits that come from having an efficient economy, without compromising the efficiency of the economy in the process.

I tend to think shrinking the government drastically would actually represent a huge move toward Pareto efficiency. Everyone, including lobbyists, would be better off if government had less power over the economy. In fact, there is a case to be made that it is precisely the worst off in society who would benefit the most from reducing the power of government. While Rawls would never have interpreted himself in this way, we can, in conjunction with the insights of public choice economics, make a pretty good case for libertarian economic reforms on Rawlsian grounds.

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Just saw this on a Fark thread... it's funny :-)

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My review of Goldberg's "Liberal Fascism"

Up on the Western Standard now is a review I wrote of Jonah Goldberg's book Liberal Fascism. I'm pretty happy with the piece, which is based not only on the book but on a radio interview my friends and I did with Goldberg.

By the way, Goldberg was a very good guest. The interview with him might be the best one Political Animals has ever done.

Here is a link to the audio of the interview.

And now for something a little different..

Back on the Western Standard:

'Please listen to RP before we find a "made in china" code bar on the neck of every Americans.'

50 years in the future...

We didn't listen to his message of liberty and limited government.

We didn't build a wall to keep the brown people out.

We spit on the gold standard.

Now China and the Bildebergs own America. The forces of the one world government round up every American they can find, bringing them to the Wal-Mart, where cybernetic "greeters" implant them with chips and tattoo "Made in China" on their necks.

Everyone is the property of the government. The Supreme Court of the United States forces all the states to provide abortions free of charge to the lesbian couples whose marriages it forced the states to recognize five years before.

Oh! If only we had listened to Ron Paul! If only we had abolished the 14th Amendment and the income tax. None of this would have happened. Without the support of the government, Wal-mart would be a little mom and pop operation, and some other, more virtuous capitalist enterprise would have taken its place.

Without the 14th Amendment, state legislatures would NEVER violate the privileges and immunities of their citizens. As everyone now knows, only the federal government is capable of being irrational (which means: evil; which means: anti-life; which means: A is not A.)

But instead of listening to Ron Paul, we allowed him to lose his seat in Congress. After that, he disappeared, and no one ever saw him again, except...

40 years ago, a cadre of Ron Paul acolytes living in Silicon Valley invented the Real Freedom Train, a time machine that could send Ron Paul, and only Ron Paul, into the future. For you see, just before their execution, Lew Rockwell and Hans Herman Hoppe were able to send a message back to our time, warning us of the future to come.

And the acolytes -- these plucky "Ronulans" -- listened, using the power of rationality to construct a machine that is now the only hope of our salvation. They will send Ron Paul into the future, where his message of limited government and individual liberty will finally be welcomed.

Wal-Mart's days are numbered! The Bildebergs had better pack up their bags and run away! Once Ron Paul is in charge and taxes are abolished, all corporations will be small and nice to people, and they will never, ever import products from China.

***
Click here to find see what this is all about. :)

Ok, now I have to post this.

But, damn it, someone IS wrong on the Internet (and it's probably a Ron Paul supporter!)

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Ban On Sex Toys Overturned; Ron Paul dismayed.

...but not in time for Valentine's Day, unfortunately.

The 5th U.S. Circuit Court of Appeals cited Lawrence v. Texas in its ruling. Here's a nice quote:

"Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct," the appeals judges wrote. "The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the state is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification after Lawrence."

This is excellent news, and implies Lawrence is as significant as Randy Barnett suggested. A libertarian revolution is truly in the works, and it's flying in the teeth of Ron Paul's failing "rEVOLution" -- a movement that would have stripped federal courts of the power to strike down oppressive laws like the one in Texas.

Good for the court. Too bad for Ron Paul. The individual's right to live her life as she sees fit trumps the "liberty" of the mob to tell her what to do in the privacy of her own home.

Since Ron Paul is all about amending the Constitution to fight the hordes of pregnant brown women streaming over the Mexican border, why hasn't be proposed an amendment explicitly saying that the Bill of Rights applies to the states as much as to the federal government?

Think what that would do to ensure freedom of the individual. Think about what an amendment enshrining Barnett's "presumption in favor of liberty" into law would do.

As a libertarian, I'm glad Ron Paul's bid for the Republican nomination is circling the drain.

Hat tip: A Stitch in Haste

Huckabee on Abortion

Ok, we've bashed around Ron Paul long enough. It's time to say a few words about Mike Huckabee, specifically on the issue of abortion. I quote from this article:

"It's the logic of the Civil War," Huckabee said Sunday, comparing abortion rights to slavery. "If morality is the point here, and if it's right or wrong, not just a political question, then you can't have 50 different versions of what's right and what's wrong...For those of us for whom this is a moral question, you can't simply have 50 different versions of what's right.

I give Huckabee credit here: as far as abortion prohibition goes, he's not taking the road of the sly and cowardly Dr. Paul. Paul, as you should remember, just tried to change the legal definition of person so that it would also include zygotes, while simultaneously claiming he was leaving the abortion issue for each state to decide (ignoring the ramifications of the Equal Protection clause of the 14th Amendment.)

Nope. Mike Huckabee is all for biting the bullet Ronald Dworkin fired in one of his books (I forget which one), in which he claimed that, if anti-abortion folk really believe abortion is murder, why don't they also believe it should be banned across the country?

Ron Paul ducks the bullet, but Mike Huckabee has shown he's willing to embrace it. Enthusiastic about it, even. Huckabee thinks that states should have no choice but to ban abortion. According to Huckabee, Massachusetts, California, and other liberal enclaves should have the same abortion policy as Mississippi, Arkansas, and Alabama. 

Over at Lew Rockwell's blog, the neo-Confederate jackals are suggesting Huckabee probably couldn't explain the concept of federalism without the aid of a dictionary. And they're wrong, as usual.

Here's a little hint for them: federalism doesn't mean every state gets to decide each and every policy issue on its own. If that were so, then each state would be a separate, sovereign nation. Perhaps that's the world Lew Rockwell and friends want, since they're such big fans of southern secession and all.

Federalism leaves some decisions up to the states, and puts others under the authority of the federal government. This is all set out in a fairly short document known as the Constitution of the United States of America.

But, as Huckabee would admit, you can't just pass the buck to the Constitution. You have to ask the further question, which decisions in particular should be left up to states to decide, and which ones should rest with the federal government? By what criteria should we decide?

Now some decisions just can't be made effectively at a state level, for all the reasons that came to light during the time of the Articles of Confederation. There are good, practical reasons to put certain decisions under the control of the federal government, rather than leaving them for each state to decide separately. You can find a series of arguments concerning which decisions should be left for the federal government to decide and why in a handy-dandy series of articles we now know as the Federalist Papers. The articles were written by these guys, James Madison and Alexander Hamilton. With some help from their pal John Jay.

In any event, practicality isn't the only reason to delegate authority over some issue to the federal government. The United States would not cease to function if a few states stopped women from voting, or allowed the enslavement of blacks. Practicality is not the only (or even the most important) reason to support the 13th and 19th Amendments. Prohibiting slavery and enshrining universal suffrage is also a matter of justice.

Huckabee is a great communicator, but his argument in the above quotation is unsubtle. It's not the case that every issue involving right and wrong must be settled at the federal level. Sometimes it might be better to allow state legislatures to decide wrongly, but freely, then to impose the morally best policy on all of the states.

But issues of justice can't be left up to the states. One might think that it is simply not permissible to allow certain states to enact truly unjust policy, and there is no question that abortion opponents consider the legalization of abortion deeply, deeply unjust. On issues of justice, one might believe, it is simply not possible to "let a thousand flowers bloom." It was wrong to even allow other states to allow their citizens to keep other human beings as slaves. It was unjust.

So I think Huckabee is right: if abortion is the killing of a person, if it is an issue of justice, then it is simply immoral to allow the practice to continue anywhere within the United States. And I think Ron Paul is incoherent to hold both that abortion is the killing of a person and that states should be able to decide whether to allow the practice to continue or not.

If Ron Paul believes what he says about abortion, then he ought to bite the same bullet as Huckabee, and "states' rights" be damned.

Of course, one could deny that abortion is the killing of a person in the relevant sense -- that it is not, in fact, an issue of justice. And one could hold, further, that ensuring the autonomy of women is an issue of justice. If this is what one believes, then one should support neither Mike Huckabee or Ron Paul. But the neo-Confederates are wrong to suggest that Huckabee's anti-abortion policy shows that he is ignorant about federalism.

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The Great Ron Paul Bait-n-Switch

So Ron Paul is scaling back his campaign. What's he going to do with all his money?

Well, 30 million dollars will practically guarantee he keeps his Congressional seat, probably in perpetuity, or however long his life lasts (I know, I know, the rEVOLution is eternal.)

And before anyone suggests that he can't use money donated to one campaign to benefit another, check out this. He can't transfer any money while he's actively seeking two offices simultaneously, but once he gives up on his Republican nomination campaign, no laws prohibit him from using the money to secure his seat in the House of Representatives.

Kind of ingenious, actually. Not that I'm accusing him of, you know, planning this from the start.

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Beating a dead horse

From the Smoking Gun comes the case of Christopher Holder, 19, arrested in Florida for using the word "motherfucker."

Actually, he was charged with disorderly conduct. Or, as the sheriff's report put it (and how does the Smoking Gun get those, anyway?):

"As a result of Holder's loud profanity outraging Amy Churchill's sense of public decency and affecting the peace and quiet of Churchill and her children, Holder was taken into custody for disorderly conduct."

I don't really think people should be arrested for offending Amy Churchill's sense of public decency, whatever that means. That's because of this little thing I believe in called "freedom of speech." And, unlike Ron Paul, I don't think states should have the "right" to squelch that freedom, just to protect the delicate sensibilities of Ms. Churchill and her two moppets (ages five and fourteen, according to TSG.)

Check here to learn from Dr. Paul what the First Amendment really means:

The First amendment acts as a simple check on federal power, ensuring that the federal government has no jurisdiction or authority whatsoever over religious issues. The phony "incorporation" doctrine, dreamed up by activist judges to pervert the plain meaning of the Constitution, was used once again by a federal court to assume jurisdiction over a case that constitutionally was none of its business.

Yes, damn that pesky doctrine of incorporation! Why should federal courts have the power to ensure state governments respect the inalienable rights of their citizens?

Similarly, the mythical separation of church and state doctrine has no historical or constitutional basis.

Oops. I didn't mean to quote that part. But can you really blame me? Do all the atheists and other secularists supporting Ron Paul (the ones who are left) know he doesn't believe in the separation of church and state? I mean, neither does Mike Huckabee, but at least his supporters are aware of that fact (indeed, that's probably why they're voting for him.)

Anyway, if you think Florida should have the right to arrest its citizens for using bad words, you should support Ron Paul. If you are not an idiot or a fascist, you should support... well, yourself, maybe.

Or instead of voting, make a sandwich for a homeless person. You'll do more good that way.

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What I've Been Doing Lately

Sorry for the light posting. Lately, I've been posting under my real name at the Western Standard's Shotgun blog. The WS has also published two of my articles, which I'll link to below:

Big City, Big Government (on government waste in Canada)

A New Declaration of Independence (a comparison of the Lakota secessionist movement in the United States to the drive for aboriginal self-government in Canada)

Unfortunately, one has to register to read either of these articles, but registration is free. Also, the Shotgun blog is home to some great discussion from a libertarian-conservative kind of perspective. Sometimes, I think I might be its most left-wing author. Weird, no?

Response to Comments

Since I don't usually have dissenting commenters, I've decided to address their counter-arguments in a separate post. This isn't meant to be an attack on anyone -- on the contrary, I love dissent, and wish there was more of it around here. I thank those who left replies for their thoughtfulness and civility.

Anonymous at 10:57 pm says:

Not all of us are like Rockwell. I fully agree with Ron Paul that Fox and all the other networks have a right to do what they're doing because they are private companies. But it doesn't mean I have to watch them nor buy the products of their sponsors.

Granted. And that's the way libertarians ought to respond, which is what makes the statist revenge fantasies I've come across (not to mention the "hit list" referred to here) hard to explain.

Anonymous at 11:12 pm says:

The belief that politics should be local is why I do support a stronger
State. You have far more chance of managing your government the closer they are to your environment and needs...The Federal government is now a nation unto itself, it's the Hollywood of politics and it gets bigger, dumber and less in touch with local realities every single year. [Emphasis added.]

Let's grant the truth of the emphasized passage. It really is the case that I have a better chance of getting laws passed that impose my preferences at a more local level than at the federal level. And this is supposed to be a good thing? Is this the kind of freedom Ron Paul supporters are concerned about -- the freedom to tell people (usually those in the minority) what to do?

I dunno... as a libertarian, I've never been really interested in having that kind of freedom. You know, because I don't really believe in enforcing my preferences on others via the law. But I guess that makes me a war-mongering cosmotarian, or whatever term Lew Rockwell is using these days.

Tam at 12:00 am says:

[Ron Paul] is basically a Constitional Libertarian. meaning while he believes in liberty, he also believes in a strict interpration of the Constitution.

In your photo example, just as the Constitution does not allow the federal government to ban the display of such phots, it also doesn't get the fe gov the right to force the states to not ban such it.

There are two issues here: the first is the extent to which "constitutional libertarianism" is a consistent position. The second is the credibility of Ron Paul's supposed strict interpretation of the Constitution.

First, let's define a "small c" constitutional libertarian as a libertarian who a) believes in strong rights to life, liberty, and propery, and who b) thinks a strong, written constitution is one of the best means of guaranteeing those rights, as a matter of institutional fact. Now, a libertarian like this will have grounds to criticize a document like the Canadian Charter of Rights and Freedoms, which, in its very first section, subjects the rights it recognizes to "reasonable limits." Such a libertarian will also criticize the Charter for the absence of any recognition of property rights.

To a constitutional libertarian (CL), the Charter is defective. It should be altered in a way that will expand people's liberties: Section 1 should be abolished; property rights should be added. And at no stage will the CL be willing to accept the constitution just as it is. At all times, he will want to adjust it in ways that will increase liberty, and decrease the amount of control government (any government) exercises over peoples' lives.

Ron Paul also wants to change the American Constitution in various ways. Unfortunately, it is unclear that all of his changes would actually increase liberty, instead of simply increasing state police power. For example, Ron Paul is not interested in adding to the Constitution some kind of explicit recognition that the First, Second, Fourth, and Fifth Amendments restrict the power of state governments just as they restrict the power of the federal government.

A good question to ask yourself is why a so-called Constitutional libertarian would not be interested in modifying the Constitution in this way, since doing so would increase individual liberty, while decreasing government power at all levels.

Second, Ron Paul calls himself a constitutionalist, but he seems to pick and choose the parts of the Constitution he's willing to accept. Note, there's nothing wrong with such selectivity. What is wrong is failing to recognize that one is being selective, all while berating other people for being selective in other ways. That's simply hypocrisy.

What does Ron Paul's interpretation of the Constitution seem to leave out? Primarily, the Fourteenth Amendment. But the doctrine of substantive due process, which is derived from that Amendment, culminating in the Lawrence decision is great from a libertarian point of view.

I've written a lot on this already. What I can't understand is why an American "libertarian constitutionalist" would reject the Fourteenth Amendment. It would be like a Canadian LC wholeheartedly accepting Section 1 of the Charter.

Anonymous at 6:40 am says:

What would be the difference between the government having the power to censor the aforementioned photo and the state having the power? I don't want a born again Christian from Alabama telling me what i can and can't see (hence the dislike of a sprawling federal government).

But this is a false dichotomy. It is not the case that if state governments do not have the power to violate the First Amendment than necessarily the federal government will have that power. Maybe nobody should have that power. That's essentially what the Supreme Court decided in Cohen v. California, and their ruling was based on the First and Fourteenth Amendments

I'm a libertarian: I don't think anybody should be able to limit your freedom of speech, whether the mob in a state legislature supports that limitation or not. I agree with the Supreme Court's decision in Cohen v. California. Do Ron Paul supporters wish that case had been decided differently?

On The Contradictions and Revenge Fantasies of Ron Paul's Supporters

Over at A Stitch In Haste, Kip Esq. has some thoughtful observations about the following:

VIRGINIA BEACH, Va. — Police confiscated two display photos of scantily clad men and a woman from an Abercrombie & Fitch store and cited the manager on a misdemeanor obscenity charge, authorities said.
...
City code makes it a crime to display "obscene materials in a business that is open to juveniles," Bernstein said.

Call this exhibit #1. As Kip points out, the offending posters, one of which you can see below, do not remotely qualify as obscene according to the Supreme Court's interpretation of the Constitution.

However, as Kip also points out, according to Ron Paul's interpretation of the Constitution, the local or state government would be well within their rights to ban stores from using photos like this one.

Which brings us to exhibit #2. This is only one example of the kind of thing we're going to see from Ron Paul supporters as the "good doctor's" campaign slides into the abyss: revenge fantasies, especially against the media, the source of all their troubles (or so they seem to believe.)

"TommyzDad", a "Senior Member" over at the RonPaulForums, asks, "What kind of 'payback' would you like to see extracted from the MSM when Dr. Paul wins the House?" I will reproduce the first reply to his question in its entirety. Interestingly enough, the poster's user name is "Rockwell":

Immediately suspend their license for 90 days and freeze all assets from sale or transfer.

Hold public hearings to allow for any complaint from the citizenry, investigate. Issue subpoenas and take depositions from all executives to respond to charges. If found in violation of FCC laws revoke licenses and suspend all rights to future broadcasting on public airways of any responsible parties. Forfeiture and siezure of all property, equpiment, assets of those networks found to be in violation and sell off such property with funds to be used for the general welfare.

Rewrite FCC guidelines to prohibit the use of public airwaves by any organization with more than X employees, or more than X assets. Mandatory non-profit status and salary/compensation caps.

I'm sure I could think of others, that's a good start.

Now, the last time I saw a revenge fantasy like this, it was on the Democratic Underground forum, and it was from some lefty venting his spleen at the insurance industry.

But these are Ron Paul supporters. They're supposed to reject the idea that the FCC should be allowed to regulate the news broadcasts while it seizes the property of those who fail to comply with its edicts. That's the revenge fantasy of a fascist, not a libertarian.

Moreover, it's unlikely Ron Paul would support expanding the power of the FCC to make the fantasy possible. I wonder if "Rockwell" knows that.

Which brings our two exhibits together. Do Ron Paul supporters even know what the good doctor really stands for? Do they know that, under Paul's interpretation of the Constitution, states could prohibit the display of photographs as mild as the one displayed above? That, on his interpretation, the California law that led Paul Robert Cohen to be prosecuted for wearing a "Fuck the Draft" jacket is a perfectly legitimate exercise of state police power?

I bet they don't. Or maybe they just don't care. But a general ignorance of the ramifications of Ron Paul's anti-federalist (but hardly pro-liberty) ideology would explain their failure to realize that it would drastically expand state police power, while explicitly limiting the federal government's power to enact the kind of revenge fantasy cited above.

Or, like I said, maybe they don't care about consistency. Or liberty. And that would make Ron Paul's acolytes no different, essentially, from the supporters of Hillary Clinton and John McCain.

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Ron Paul or Ritalin?

From the Daily Paul comes this post from, "ILUVRON2008", the father of a young Ron Paul supporter:

My 13 YO Son Just Turned on CNN & FLIPPED OUT! Yelling WHATS WRONG with these people! They are ruining the country for US!!

He was very upset when he turned the TV on and started watching the results. When he said US, he meant his age group, and said "I dont understand why the American people were so DUMB. Why dont they understand that Ron Paul is our only hope! They are ruining this for us when we grow up. Now we will have to move to another country!" He said as he banged his fist on the kitchen table.

I had to encourage him because I have literally never saw him so upset.

Christ, Mr. ILUVRON, your son sounds like he has an anger management problem. You should assure him that if Ron Paul loses you will move to a happier place, like Canada, where he can receive free psychiatric treatment for his condition.

Or you could stop shoving Dr. Paul down his throat all the time, Mr. ILUVRON. Because I'm sure he didn't get the idea that the failure to elect Ron Paul will mean the end of the United States from his own brain. You sound like one of the parents described here.

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