From Mises blog. Archived comments below.
See also Incorporation and the Fourteenth Amendment: The 140 Year Old “Riddle” (Aug. 18, 2008).
Update: For related posts:
- Libertarian Centralists
- The Libertarian Case Against the Fourteenth Amendment
- Healy on States’ Rights and Libertarian Centralists; Healy versus Bolick and the Institute for Justice
- Judicial Activism and the Presumption of Unconstitutionality (draft, 2005)
- Doherty on Slaughterhouse, Libertarian Centralism, and the Fourteenth Amendment
- The Heroic Gene Healy on the 14th Amendment: “If this be heresy—then make the most of it!”
- Incorporation and the Fourteenth Amendment: The 140 Year Old “Riddle”
Libertarian Centralists
June 7, 2005 1:57 PM by Stephan Kinsella | Other posts by Stephan Kinsella | Comments (11)
In another post, I made the offhand comment that the recent Supreme Court marijuana decision shows that libertarian centralists are naive in hoping to get justice from federal courts. Tibor Machan complained that I am not naming names.
The issue of “libertarian centralists” has been discussed at length. See the post Healy on States’ Rights and Libertarian Centralists, which contains many links to many discussions of this topic.
Federal Review-Fourteenth Amendment
To clarify and elaborate a bit, what I mean specifically are those libertarians who are in favor of centralizing more jurisdiction at the federal level so that the federal courts can strike down “bad” state laws. I include here the libertarians who (a) believe that the Constitution does permit the federal courts to review state laws for compliance with the rights implicit in the Bill of Rights; and (b) believe that it’s a good, libertarian idea for the feds to have the power to do this.
These libertarians include those who think the priviliges or immunities clause is a very open-ended source of federal power to do strike down bad state laws. Constitutional scholar Roger Pilon holds this view. Randy Barnett, a significant libertarian legal thinker whose work I also greatly respect, seems to hold a similarly open-ended view of the power granted to federal courts, under the privileges or immunities clause and the ninth amendment (I discuss this in Barnett and the Fourteenth Amendment). I think prominent Objectivist legal theorist David Mayer also holds a similar view–see, e.g., his comments endorsing the Lawrence decision (which decision I have criticized, on libertarian grounds). I respect all these thinkers, but I do think their constitutional views are wrong; the original federalist system and even the 14th amendment did not contemplate such broad powers of review in the hands of the federal courts; and I also think shifting power up, more centrally, in the hopes that the central decision-maker will be “better” than the lower levesl of government is unlibertarian and naive.
What I do disagree with is the illegal and illiberal 14th amendment being ridiculously construed to permit federal courts to strike down state laws that violate the Bill of Rights–which was only meant as a limit on federal power. As I noted in Cato on Federalism, Pilon even seems to endorse the clearly unlibertarian and unconstitutional Civil Rights Act of 1964 since it abolished (state) Jim Crow laws, even though that law also outlaws discrimination in the private workplace on the basis of race, color, religion, sex, or national origin (see also this piece by Pilon). Also, as noted by Gene Healy in The 14th Amendment and the Perils of Libertarian Centralism,
In the Cato Handbook for the 105th Congress, Pilon declares that Congress has “often failed in its responsibility under the Fourteenth Amendment to police the states. Here is an area where federal regulation has been, if anything, too restrained.” … In that piece, and a June 18, 1996 Washington Post op-ed, Pilon argued that Congress has the power under Section Five to step in and protect basic individual rights when states “fail to secure them against private violations.” Astute observers will note in that constitutional theory an opening wide enough for Congress to drive through a truckload of federal hate crimes laws. And in fact, in his Cato Handbook chapter [Sec. 3] and Post op-ed, Pilon declared that the Fourteenth Amendment would allow the passage of a particularly egregious hate crime law, the Church Arson Prevention Act of 1996. Congress passed the Church Arson Prevention Act in June 1996, in response to national furor over a purported wave of black church burnings in the South. In the Post and the Cato Handbook, Pilon chided Congress for relying on the Commerce Clause in enacting the anti-arson statute. Instead, he argued that Congress should have federalized the crime of church-burning pursuant to its authority under Section Five of the Fourteenth Amendment. “If the facts had warranted it,” he wrote, Congress would have had “ample authority” under Section Five to pass the Church Arson Prevention Act.
I side here with the federalist view of libertarian Gene Healy, legal scholar Raoul Berger, and Thomas Jefferson.
Randians and One-World Government
I also mean some Randians, who seem to have a rosy view of America and American justice and our Constitutional system, and who also hold views that seem to logicaly imply one-world government (the ultimate in centralism), despite stating elsewhere that they oppose one-world government. Objectivists seem obsessed in rationalist-constructivist manner over the alleged need to have a “final arbiter” who can settle disputes (apparently, whether the final decision is right or wrong–so long as it’s “final”), and have a their rabid opposition and hostility to anarchy because of the possibility of disputes between independent states. If anarchy is flawed because of the problems of competing defense agencies who are not subject to the authority of a final arbiter, the Randian is logically committed to favoring an end to the current international anarchy of 200 nations not subject to a unified, “rational” government.
Rand herself was explicitly against one world government, but the implications of Randians’ hatred of anarchy and their arguments in this regard would seem to support increasing centralization wherever possible.
See, e.g., the comments of my old friend, Objectivist Bob Bidinotto:
here (my comment to which he was responding):
“For a government to operate legitimately, i. e., in accordance with individual rights, presupposes the existence of a supporting culture, one respectful of the philosophic premises at the base of the rule of law and individual liberty: reason, individual rights, constitutionally limited government. Today, such an Enlightenment-based cultural infrastructure may be possible at the level of single nations.
But globally?
A precondition of a legitimate one-world government would be the existence of a global culture endorsing these Enlightenment premises. While that may be theoretically possible in the future, it certainly doesn’t exist, and it’s highly unlikely. And for us to endorse a “one-world government” in a world that rejects Enlightenment premises is suicidal.
For all those reasons, the “final arbiter” of conflicts among Americans must remain within U. S. borders, at the federal level. Conflicts between us and those in foreign lands can be addressed, where possible, by treaties — but not treaties that undermine U. S. sovereignty and the rights of U. S. citizens.”
Notice here Bidinotto speaks of the road blocks that prevent us from having one-world government. But he speaks of it as if it would be something that might be a good idea, if e.g. we had more universal respect around the world for “Enlightenment premises.”
See also Roderick Long’s Bidinotto-Long debate on anarchism.
Libeling, Hysterical Opponents of Federalism
I also mean those libertarians libertarians who seem to have a virulent opposition to federalism and to equate advocates of federalism with defenders of slavery. This includes the likes of Tom Palmer and his ilk (see links in this post).
Coda: See also the following posts regarding federalism: Healy versus Bolick and the Institute for Justice; and my article on Kelo (discussed here).
June 7, 2005 at 2:33 pm
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The Distraction of Anarcho-Libertarianism
Tibor R. Machan
To be sure there are those who insistently call themselves anarcho-libertarians, following mainly in the footsteps of the late Murray N. Rothbard and writing, most often, for blogs and other forums at the Mises Institute in Auburn, Alabama. Rothbard, however, wasn’t your ordinary anarchist, one who rejects all law and government. He advocated what he called defense agencies or something along those lines that are, in fact, governments committed to nothing more than defending individual rights. Yes, these would be governments but they would govern in terms of principles that would restrain their power severely, limited to the function of securing our rights (as the Founder’s put it in the Declaration of Independence).
One area of difference between Rothbardian—or anarcho—libertarians and others is not what so many of the former think, namely, anarchism, but the idea of floating governments. By this view governments need not have jurisdiction within some contiguous geographical region but can, a bit like pizza delivery or plumbing service providers, float about, adjudicating disputes in any region that would hire them to help uphold justice.
Could such floating governments function? Perhaps, in times when location doesn’t have a lot to do with movement—as in a Star Trek like world where people can travel from one place to another without having to occupy solid space as they do. Or maybe sooner. But this isn’t the point I wish to focus upon here.
Instead, the issue is whether these so called anarcho-libertarians have some kind of higher moral ground than those who hold that there needs to be some kind of adjudication system in place for a free society to function.
Most defenders of the classical liberal idea of limited government include as one of their premises that human beings sometimes do not conduct themselves in a civilized fashion and find themselves, thus, in conflict with others. Even when they do their utmost best to act in a civilized fashion and respect the rights of everyone, they can make innocent mistakes that can lead to disputes among them. And it is important, in such instances, to have in place a forum and process that will enable them to reach some sort of decisive settlement of the dispute.
This is where the institution called “government” comes in for even the most libertarian of us. Any idea of doing away with government—and renaming it something like “defense agency” or “justice agency” or the like isn’t the same as doing away with it—is a myth, an idle dream for anyone interested in justice throughout human communities.
Governments, of course, can have many forms and most have been corrupt versions in most of human history, there is no disputing this among libertarians. But anarcho-libertarian have the penchant for elevating their Rothbardian version of libertarianism as holier than though—as if they were pure, while all the rest, such as Nozickians, Randians, and those who follow the likes of von Mises and von Hayek, were all a corrupt, compromised version.
Not so fast. First of all, there is an ongoing and unfinished philosophical dispute about whether the anarcho-libertarian position is any more libertarian than the rest, and in my view, at least, it isn’t at all. As I noted above, the only substantive difference is that the Rothbardians believe governments can move about, float in space, and need not be anchored to terra firma. This is interesting but not a moral issue at all. It is a technical one.
More importantly, though, the alleged purism of the anarcho-libertarian rests on semantics—renaming the institution that is to adjudicate disputes and thus gaining some supposedly moral high ground for denouncing all government. Rothbard, for example, defined government in terms of taxation—it isn’t one if it doesn’t tax. Rand, who had no problem using the term “government,” defined it without this element. So, which is the better definition?
Well, historically most governments have taxed but does that settle the matter? After all, one may define “marriage” as the exclusive and committed romantic relationship between two people and protest, well, since adultery and philandering is rife among these so called married people, so understood marriages have never existed. Those, then, who want what they might and out to be would them insist on renaming it, but to what point? None that I can see.
There is another thing going on here. Much of this, in my view, is turf fighting. By now libertarianism is not just a movement but a sort of industry, seeking clients all over the place—e.g., donors to foundations, institutes, centers and such. (This is even evident in the way they treat one another’s organizations and the people associated with them—often with out and out contempt.) And aside from the good feeling people may enjoy from thinking themselves to be the pure at heart among all the rest who are, well, not so pure, willing to bend a bit here or there, the title to being the holiest libertarian of them all can gain one some coins, too. I will not make the mistake, as some economists might, of construing this the prime reason for much of the acrimony—for, yes, much of the disputation is sadly very acrimonious—but it is one of a collage of reasons, I think, that so much ink is spilt on who is the most libertarian of them all.
There is, finally, the proclivity of many people who chime in on what a certain religious, political, ethical, artistic or philosophical movement really is all about to wish to have their way of understanding it to be the superior, even the only, way. This one-size-fits-all mentality isn’t confined to libertarians but they, perhaps more than others, may feel more at home with such a motive since it fits the silly version of individualism: Doing it my way, just because, well, it’s my way. This view comes to such folks, I believe, more comfortably, since they aren’t bound by various notions of duty to the team or the like. (Yet a little prudence might inform them that hanging in there together, a friendly fashion, may fend off being hanged individually.)
Anyway, libertarianism is the political idea that a society is best that abides most consistently, most fully by principles of individual rights to life, liberty, and property—at least this is one good way of identifying it. The best institutional arrangements for getting such a society in play and maintaining it are what can be called the problems of libertarian political science—should there be such bodies of specialists as courts, police, military, legislatures, etc.—and because the viewpoint is rather radical, just exactly what that political science will ultimately yield hasn’t been adequately explored, as far as I can tell. (Most well funded political science and public policy centers at universities, don’t even pay attention to the libertarian alternative, so scholarship and research on that issue is rather scarce.)
In my humble view these acrimonious, pseudo-moralistic, name-calling fights among defenders of human liberty do more damage then service to the central purpose, namely, to make headway and to contain the statists everywhere.
June 7, 2005 at 2:35 pm
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about marijuana, we in montreal have a new project that gives heroinoman 3 dose a day, 7 days a week with psychologist help. I know what is a junkie so i won’t blame them for this idea, there is a lack of money for enough access to health care so it is a pragmatic way to make em have confidence in the system who kill them.
with this who am i? June 7, 2005 at 2:47 pm
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Machan writes,
“Rothbard, however, wasn’t your ordinary anarchist, one who rejects all law and government.”
Nor am I or any other libertarian anarchists of which I’m aware.
“He advocated what he called defense agencies or something along those lines that are, in fact, governments committed to nothing more than defending individual rights.”
If you want to define “government” to mean whatever institutions administer law and justice, but which are not necessarily *states*–that is, entities that claim a coercive monopoly on justice in a given area, require forced membership and tribute (taxes)–then we anarchists are not opposed to government. We are opposed to states–that is, any entity that outlaws competition, and that compels membership and taxes. We oppose these things because they are necessarily aggressive. I have written on this here: What It Means To Be an Anarcho-Capitalist.
“One area of difference between Rothbardian—or anarcho—libertarians and others is not what so many of the former think, namely, anarchism, but the idea of floating governments. By this view governments need not have jurisdiction within some contiguous geographical region but can, a bit like pizza delivery or plumbing service providers, float about, adjudicating disputes in any region that would hire them to help uphold justice.”
Tibor, to me this is just a technical question. I have no firm position on it. In my view, what is crucial is the belief that a given “government” may not outlaw competition. It may not forcibly prevent someone in “its” territory from opting out or hiring another PDA. If such rules were followed and a given PDA still came to dominate an area, fine.
To me it is rather simple: does a libertarian oppose aggression in all its forms, or not? I think he has to. So then the question is, what actions that are typically or necessarily taken by “governments” constitution aggression? I think it is pretty clear, or at least reasonably arguable in line with reasonable libertarian principles, that if a government compels taxes, or membership/citizenship, or outlaws competing agencies, then this is aggression.
“Instead, the issue is whether these so called anarcho-libertarians have some kind of higher moral ground than those who hold that there needs to be some kind of adjudication system in place for a free society to function.”
But anarchists to believe there needs to be a justice system, of course.
“Most defenders of the classical liberal idea of limited government include as one of their premises that human beings sometimes do not conduct themselves in a civilized fashion and find themselves, thus, in conflict with others. Even when they do their utmost best to act in a civilized fashion and respect the rights of everyone, they can make innocent mistakes that can lead to disputes among them. And it is important, in such instances, to have in place a forum and process that will enable them to reach some sort of decisive settlement of the dispute.”
Sure, just as it is important to have in place an industry that will make automobiles. This does not mean there needs to be coercion used to “put in place” such an industry or institution.
“This is where the institution called “government” comes in for even the most libertarian of us. Any idea of doing away with government—and renaming it something like “defense agency” or “justice agency” or the like isn’t the same as doing away with it—is a myth, an idle dream for anyone interested in justice throughout human communities.”
Well let’s forget the semantics then. Whether you call it PDA or government, the anarchist opposes the use of aggression by both private individuals and these entities. Minarchists and certainly mainstream people have no qualms with the state employing some aggression. Anarchists oppose the aggression.
“Governments, of course, can have many forms and most have been corrupt versions in most of human history, there is no disputing this among libertarians.”
Most? Have there been ANY that have not been corrupt?
“But anarcho-libertarian have the penchant for elevating their Rothbardian version of libertarianism as holier than though—as if they were pure, while all the rest, such as Nozickians, Randians, and those who follow the likes of von Mises and von Hayek, were all a corrupt, compromised version.”
But opposing aggression in principle does make one necessarily believe all those minarchist type libertarians are endorsing a form of aggression. Are we not permitted to be principled anarcho-capitalists because it is impolite?
“More importantly, though, the alleged purism of the anarcho-libertarian rests on semantics—renaming the institution that is to adjudicate disputes and thus gaining some supposedly moral high ground for denouncing all government. Rothbard, for example, defined government in terms of taxation—it isn’t one if it doesn’t tax. Rand, who had no problem using the term “government,” defined it without this element. So, which is the better definition?”
I don’t konw. But what we libertarians oppose is aggression–including of course institutionalized aggression. Some of us libertarians recognize that states necessarily employ aggression. We oppose this. If someone advocates some institution or arrangement that has or will or probably will nor necessarily will commit aggression, we oppose it. What is so complicated about this?
Well, historically most governments have taxed but does that settle the matter? After all, one may define “marriage” as the exclusive and committed romantic relationship between two people and protest, well, since adultery and philandering is rife among these so called married people, so understood marriages have never existed. Those, then, who want what they might and out to be would them insist on renaming it, but to what point? None that I can see.
Semantics is confusing the issue. Some libertarians who oppose aggression notice that certain institutions are inherently unlibertarian, because they are inherently aggressive. By their nature. Agencies that tax. Agencies that war. Agencies that compel membership and loyalty. Agencies that monopolize the business of justice, and who corrupt it and provide such a poor product. The names and labels used are irrelevant.
There is another thing going on here. Much of this, in my view, is turf fighting. By now libertarianism is not just a movement but a sort of industry, seeking clients all over the place—e.g., donors to foundations, institutes, centers and such. (This is even evident in the way they treat one another’s organizations and the people associated with them—often with out and out contempt.) And aside from the good feeling people may enjoy from thinking themselves to be the pure at heart among all the rest who are, well, not so pure, willing to bend a bit here or there, the title to being the holiest libertarian of them all can gain one some coins, too.
I think the main issue is for people to try to sort out fundamental libertarian principles and their application.
There is, finally, the proclivity of many people who chime in on what a certain religious, political, ethical, artistic or philosophical movement really is all about to wish to have their way of understanding it to be the superior, even the only, way. This one-size-fits-all mentality isn’t confined to libertarians but they, perhaps more than others, may feel more at home with such a motive since it fits the silly version of individualism: Doing it my way, just because, well, it’s my way. This view comes to such folks, I believe, more comfortably, since they aren’t bound by various notions of duty to the team or the like. (Yet a little prudence might inform them that hanging in there together, a friendly fashion, may fend off being hanged individually.)
A call for civility and caution and humility is to be welcome; but there is nothing at all wrong with having principles, with proclaiming them, with debating them.
In my humble view these acrimonious, pseudo-moralistic, name-calling fights among defenders of human liberty do more damage then service to the central purpose, namely, to make headway and to contain the statists everywhere.
Well, Tibor, this could be, though i don’t agree w/ your premise. In some disputes you have holier-than-thou beltway types who yell “racist” at the slightest provocation; the others defend themselves. I would never equate them. I woudl also not ever blame the victim–us victims of statism–for how we respond to it. If we have more statism it is not our fault, it is the fault of statists and those who advocate statism.
June 7, 2005 at 2:54 pm
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As a lay “consumer” of libertarian ideas, I would like to see less strident argumentation among libertarians of various types and more civil engagement on the differences on issues. This would help advocates of varying viewpoints to examine and strengthen their arguments.
As such a consumer, I am in need of help with formulating discourse with non-libertarians (most of the people I talk to every day) that is persuasive and which effectively problematizes the usual frames for discussion. I need to see the libertarian intelligentsia hammering out the issues like adults.
June 8, 2005 at 1:51 am
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Oh, I guess the concept of “monopoly” vs “competition” is sooo hard to grasp
States are bad because they are monopolies, not because they provide protection and arbitration services. Remove monopoly and then you get competition between different providers of these services – and voluntary membership instead of coercion and nighmarish bureaucratic barriers to migration. That’s the whole reason for “floating governments” (or, rather, insurance/security companies).
Because nobody likes his liberties being restricted and unreasonably high fees being charged, the cometitive system of protection is bound to make protection fees and insurance premiums (taxes, in statist speak) lower while providing both better protection and more individual liberties, including liberty of choosing what level of protection (and from which “enemies”) is desired by each consumer.
June 9, 2005 at 10:47 am
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It looks like we should have more faith in the Supreme Court of Canada, who just ruled that it is unconstitutional for the Quebec government to prevent individuals from privately purchasing health services that are currently provided under public medicare. This is a huge first step towards the destruction of the grossly inefficient public health system in Canada. The usual suspects are already denouncung the ruling (ie. labour groups).
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Armstrong wrote, “It looks like we should have more faith in the Supreme Court of Canada, who just ruled that it is unconstitutional for the Quebec government to prevent individuals from privately purchasing health services that are currently provided under public medicare. This is a huge first step towards the destruction of the grossly inefficient public health system in Canada.”
As I pointed out in the post to which this post links and branches from, it would have been desirable for the dissent to have had its way, and for the state marijuana laws to have been upheld, because (a) the federal law is unconstitutional, and (b) there is nothing wrong with one branch of the feds overruling another branch of the feds. It does not violate federalist principles.
However, here we have Canada’s federal government overturning a law of one of its provinces, which is objectionable at least insofar as this depends on a top-down, centralized state structure.
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Mr. Kinsella, your legal analyis is very intelligent and informative, I always look forward to reading your work. I guess my initial question here is should a federal court have the right to overturn lower level laws that restrict the rights of individuals in those lower jurisdictions? My gut instinct is that this is desirable for promoting liberty. At the heart of both rulings this week was that both courts decided federal law takes precedent over state/provincial law, the difference being one law is designed to restrict liberty by prohibiting a substance while the other law promotes liberty by declaring a state monopoly unconstitutional. My background is economics, could a legal scholar please use their comparative advantage and provide commentary on this ruling? I plan to take a look at later today, I have a meeting I need to prepare for fisrt. The judgement can be found here if anyone is interested:
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc035.wpd.html
Thanks,
Matt -
Matt, my view (see, e.g., my article Supreme Confusion, Or, A Libertarian Defense of Affirmative Action, which was linked in this linked post; and my recent piece with Walter Block, Federalism) is that of course, individual victims ought to use one state against another if possible to vindicate their rights. And in a particular case, we can embrace the concrete result if it means more liberty for the plaintiffs or victims of a given law. So if the feds strike down state’s wine laws, this does mean, in the narrow view and in the short run, a victory for liberty. But it is a victory achievable only at the expense of the feds having and assuming more power than they are, or should be, granted under the constitution.
If Canada’s federal court (and I don’t know much about Canada’s actual federal system) strikes down a provincial law that is harming people, or if the US Supreme Court strikes down a Texas sodomy law, then I can as a libertarian say that the result is good for the victims, and it’s good that an unlibertarian law was nullified. But I would not be dishonest and claim that the reasoning behind the decision was really in line with the Constition. For example I believe that the US Constitution was not intended to permit the sodomy law to be striken. So I would prefer to be honest about this–to say, who cares about the Constitution, I prefer the libertarian result. But you have these libertarian legal scholars who not only like the result but who try to justify it based on the Constitution. I think that effort is futile.
Moreover, you have the more general question about what kind of institutional or structural system we ought to favor. Let’s take an example. Suppose the UN is organizing a world court. That court either will, or will not, be given jurisdiction to review municipal (which means national or local) laws of the UN’s member states. If it is given this jurisdiction, in principle it could review a Californian or US federal law and strike it down. However, if it has this jurisdiction, it might strike down both unlibertarian laws, and libertarian ones. And if it is given this jurisdiction, it would also very probably be used to decree things, to legislate from the bench, just as our own fed judges do, when they decree that states will raise taxes to equalize school quality, or to implement a busing scheme to integrate schools. Therefore, in my view it is quite obvious that the libertarian would NOT be in favor of this new World Supreme Court having the power of judicial review of municipal law. To grant them this power is to in effect grant the power to a more remote, more centralized, less accountable entity, to regulate the lives of everyone in the world.
Now some optimist types might say no, we can tinker with the new court’s constitution and require that it only overturn laws–and only bad ones, at that, not good ones; and not engage in judicail activism. Anyone who thinks this is possible is hopeless naive. Our own Constitution was a decent attempt to limit the congresscritters and judges, but it has failed. The logic of government is that such paper limits will be disregarded.
Therefore, a libertarian would of course oppose a wide grant of jurisdiction to this new, more centralized world supreme court. Even though that means that at some time in the future, this new court will be powerless to overturn unlibertarian state laws.
April 9, 2008 at 11:11 am
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Hello,
The 14th Amendment did not intend to extend the Supreme Court’s authority to negate legislation, mainly because no such authority exists in the first place. The only binding aspect of the privileges and immunities clause is through the Constitutional oath of office that every government official takes; It was intended that each government official must be held accountable through his reputation.
The 14th Amendment does, however, establish the power for Congress to make laws necessary to carry out its stipulations, which are essentially a restatement of the privileges and immunities and due process clauses. This establishes Congress — not the courts — as a check on tyrannical state laws!
Stephen, I do not share your view of the Bill of Rights as an enumeration of rights. Were that the case, the rights retained by the people referred to in the Ninth Amendment would be a vacuum, because by your definition the only rights that legally exist are those in the Bill of Rights. But the Ninth Amendment reaches outside the Bill of Rights by design. In my opinion, it reaches to the Magna Carta and the Declaration of Independence, i.e., Life, Liberty, and the Pursuit of Happiness.
Just because the Ninth Amendment was excluded when “incorporation” by the 14th Amendment was established by judicial fiat doesn’t make the Ninth irrelevant. To the contrary, it means that we have a job to educate and point out this error in thinking.
We should argue that the Constitution provides two mechanisms through which state tyranny can be mitigated, first by holding officials accountable through their reputations as in the privileges and immunities clause, and finally through Congressional action as in the 14th Amendment.
We should encourage the rejection of judicial fiat as a solution to tyrannical law, and move away from thinking of the Supreme Court as having some sort of spiritual link to the Framers’ intent. Placing this power in the hands of those to whom it does not belong leads to arbitrary and capricious decisions, and the enrichment of the legal establishment.
November 1, 2009 at 8:47 pm
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I believe a main point of anarchist thought regardless of school (capitalist, mutualist, or collectivist) is the idea of empowering people and returning power back to them rather then an impersonal entity, whether it be a state or private protection agency. (ie corporation). Why not have the people police themselves within militias and have the people within their local community decide justice. Basically you have autonomous villages or cities rather then states. This local communities would federate loosely with other communities. You don’t need “floating government” with private protection agencies that give no voice to the people they seek to protect. Wouldn’t it be easier for the neighborhood to set up their own policing mitiata then waste money on a private police force that gives them no say?
July 9, 2010 at 6:59 pm
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“Why not have the people police themselves within militias and have the people within their local community decide justice.”
Have you ever heard of something called specialization? Modern economies depend on it. Now, if you’re the type of anarchist who likes growing all your own food, and isn’t bothered by the prospect of not being able to bathe more than once a month, doing without specialization is OK. If you’re the type of anarchist that prefers laptops and lattes, specialization is required.
Besides, do you really think that having a “local community decide justice” will involve less politics?
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