StephanKinsella.com

Following up on this post–my latest hnn reply is reprinted below again, in case it gets deleted.

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Palmer writes:

Mr. Kinsella is not only not a careful reader, but it seems that he’s not much of a thinker, either.

Here we see Palmer once again donning his his personal attack mode regalia. I tire of these people always trying to make it “about me”–really, I’m not an important enough figure to do this to. Anyone perusing my corpus can analyze Palmer’s claim for the puerile slander that it is. I may not have gone to Oxford (sniff), but still…

I am, however, a bit disappointed he didn’t call me a racist, anti-semite, slavery supporter, misogynist, or homophobe, in this post. I must be losing my touch.

Neither I nor anyone else I know would argue that the Tenth Amendment imposes limits on the states, as Mr. Kinsella says I do. That would, indeed, be quite a stupid claim. I leave it to the reader to ponder what it says about Mr. Kinsella that he has interpreted my words in that manner.

I did not say explicitly that Palmer argued this. Rather, I made clear my view that the Tenth Amendment does NOT limit the states. I made this comment to explain why I objected to your use of “reserved” earlier–your use makes sense only if you do view the Tenth Amendment in this way. Therefore, since the 10th can’t be viewed this way, your usage makes no sense.

Let’s see why. Palmer said “the federal constitution […] does not reserve to the states the power to regulate commerce among the states.” He said this in support of his contention that I am “seems deaf to clearly unconstitutional rights violations”. In other words, Palmer is contending here that because the federal constitution does not “reserve to the states the power to regulate commerce among the states” — in the 10th amendment, which does the reserving — then this implies that state laws regulating commerce among the states are unconstitutional. But this conclusion rests on the assumption that states are granted their power by the Constitution–by the Constitution “reserving” certain powers to the States. And if it does not reserve this power to the states, then they don’t have it. That would imply that the reservation clause of the 10th amendment is a grant of power to the states. But it clearly is not, as I pointed out, to illustrate Palmer’s implicit error.

Rather, a proper understanding ou our federal system would require the following argument for saying the state wine laws were unconstitutional: Congress is granted the exclusive power under the IC clause to regulate interstate commerce, and due to the supremacy clause, any contrary state law is preempted. This is the type of argument that would have to be made; it is the dormant commerce clause type of reasoning. It has nothing to do with any reserved power to the states.

Here’s how this can be seen. If there were no commerce clause at all, then it would clearly not be unconstitutional for states to regulate wine from other states. Why? Because there is simply no limit in the federal constitution on states doing this. In fact the “reserved” language in the 10th empahsizes this. We do not need to find some language saying “power to regulate interstate commerce is reserved to the states.” The states have plenary power, subject only to limitations on that power in their own constitution or in the federal Constitution.

There is no explicit limit placed on states to regulate IC, in the Constitution. It is implied only because the Constitution grants Congress the power to regulate this. That crowds out the state’s right to do this, or preempts it. But since the federal government is one of enumerated powers, if the IC clause did not exist, it would not have the power to regulate IC, and there would be no preemption of the state’s power to do so.

So the issue of whether a state has a right to regulate interstate wine shipments turns solely on the IC clause itself (and also the later-ratified 21st Amendment). It has nothing to do with the 10th Amendment. So there is no need to say anything about whether the “power to regulate IC is reserved to the states”. The question is whether Congress is given this power, and whether it conflicts with a given state law.

This can be seen even more clearly by recognizing that the Constitution was enacted in 1789 with no bill of rights. The 10th Amendment was not ratified until 1791. It was added just for extra caution. In the two-year period from 1789 to 1791, there is no doubt hat we still had a federal system. In this federal system, the feds had only the powers granted to it; and the states were limited by this Constitution only where it explicitly limited the States or where it implicitly limited them due to a grant of power to the feds that would preempt contrary state laws. So if a state had tried to regulate wine in 1790, one could still argue that the dormant IC clause nullifies this state law. Notice this argument would be the same one as we make now (though we now have to take the 21st Amendment into account too). In both cases it is irrelevant whether there is a “power to regulate interstate commerce” “reserved” to the states.

This is why I said earlier that Palmer’s “comment betrays an utter confusion about our federal system.” To make this comment shows that one believes the states have to “find” in the Constitution somewhere their powers. It presupposes that in our Constitutional order the states derive their power from the Constitution. I pointed out that they do not.

Now, it could be that Palmer misspoke, or was a bit uncareful here, and I am making too big a deal out of his error. But I believe if he meant it as I take he did, it is symptomatic of a deeper error; the error of not seeing our system as truly federal. It seems to repeat the Lincolnian error that the states were created by the Constitution, rather than predating the Constitution as separate, sovereign states.

Now, if Palmer did indeed misspeak, he could simply clarify what he meant, and that would show that my criticism is simply inappliable (though it would be applicable to those who do believe the States derive their power from the federal Constitution). But he did not do this. Instead he resorts to pettifogging, personal insult, and arrogant, snide insults–childish ones, at that, pretending to lecture me about the Constitution. I am not the world’s greatest expert–again, Palmer, it’s not “about me”–but it’s clear to any objective observer that I have a reasonably good handle on the Constitution.

Now let’s see Palmer’s latest insults:

I wrote that the power to regulate interstate commerce is not a power reserved to the states; it’s specifically delegated to Congress. Mr. Kinsella objected to the use of the term “reserved”: “The states do not need to find in the Constitution some ‘power’ ‘reserved’ to them to regulate commerce.” The term “reserved” is from the text of the Tenth Amendment, which states that the powers that are not delegated to the United States, nor prohibited to the States, are reserved to the States, or to the People. That does not mean that the powers are “granted” to the States by the federal government, nor does quoting it mean that I or anyone else thinks that it is intended to be a limit on the power of the states. The power to regulate interstate commerce has been delegated to the Congress, and thus to the United States, and is thus not reserved to the states.

Yes, it is true, that if a power has been delegated to the feds, then it is not reserved to the states. But so what? The question is whether this power has been delegaged and whether it conflicts with a given state law. Not what has been “reserved”. Again, the reserving language simply emphasises that the feds have only the powers enum
erated. If there were no IC clause and no 10th amendment, the states would be able to regulate IC because there is no other limit. So this shows that you don’t need to even answer the question whether the states have the power “reserved” to them. Even if they did not have the power reserved to them in some explicit statement, exercise of this power would be unconstitutional only if it violated a limit in the Constitution or it was contrary to a power granted exclusively to Congress.

Which brings up another point–just because a power is delegated to Congress does not necessarily mean state laws exercising a similar power are necessarily unconstitutional. For more on the “dormant” commerce clause, see here. As pointed out there,

The grant of power to Congress over commerce, unlike that of power to levy customs duties, the power to raise armies, and some others, is unaccompanied by correlative restrictions on state power. […] As Hamilton pointed out in The Federalist, while some of the powers which are vested in the National Government admit of their ”concurrent” exercise by the States, others are of their very nature ”exclusive,” and hence render the notion of a like power in the States ”contradictory and repugnant.” As an example of the latter kind of power, Hamilton mentioned the power of Congress to pass a uniform naturalization law. Was the same principle expected to apply to the power over foreign and interstate commerce? […] That […] the commerce clause, unimplemented by congressional legislation, took from the States any and all power over foreign and interstate commerce was by no means conceded and was, indeed, counterintuitive, considering the extent of state regulation that previously existed before the Constitution.

What does this mean? It means that even if Congress has the power to regulate IC, it does not necessarily mean that States cannot. In other words, the dormant commerce clause reasoning may be wrong. It also means that Palmer is wrong in simply assuming that the delegation of a power to the feds means that power is not reserved to the states, in a sense. It could be, after all, that a given power is meant to be concurrent, not exclusive.

But this just shows that a reasonable lawyer or libertarian could disagree with the Supreme Court’s wine decision, and agree instead with the dissent. Which is what this discussion was about, and which Palmer seems to want to evade in slippery fashion by quibbling over the word “reserved”.

Related posts:

• Fleming on Woods
• The Trouble with Feser (Feser on Libertarianism)
• Luker on 10 Most Harmful Books
• Minarchists as Statist-Aggressors

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I repeat my reply on the hnn list here, in case it is deleted:

Luker is being disingenuous. First stirring up attention by including Rand along with Hitler; then feigning innocence by asking “why in the world would you think that equates them? lists are silly anyway.” On the other hand, it’s clear that Luker’s attempts at expression are just his way of grunting, “me think free markets bad. me think they just as bad as hitler. urrgghh.”

So, so what? We are used to living with anti-liberals. This is nothing new. The essence of leftists is that they equate peaceful, productive people with criminals; thus they are willing to use the power of the state to wield force against both. Again, this is nothing new.

I think it’s really silly to talk about harmful books. No one can really trace out the causal connections. What we can do is judge individual, concrete human actions–whoever they were “influenced” by. And we can judge the relative substantive merit of competing ideas. So this is really just a complicated, fancy way of expressing our disagreement. Luker, whether he admits it or not, adheres to one brand of socialism, or criminality. But he tries to dress it up to make it seem all fancy and stuff.

It does not offend me that he compares Rand to Hitler. This is only natural for the leftist mentality. What is offensive is that he believes that peaceful human interaction may be punished by the force of the state’s army. All the rest–comparison of Rand to Hitler–is just a stark illustration or consequence of this fundamentally illiberal mindset.

And my follow up reply to Luker’s asinine response:

Luker, “This kind of johnny-come-lately response to a conversation he hasn’t bothered to read seems characteristic of Stephan (not Stephen) Kinsella.”

Sigh. Why you people always want to make it “about me” is mystifying. I am really not that special, not worth making into some kind of big target. Better to just focus on substance.

“It is, finally, nauseating to be told yet one more time that in putting Rand on the List I “compared” or “equated” Rand with Hitler. If I made a list of things to do tomorrow and it included “get dressed”, “deposit a $1,000,000 check from Objectivists at L & P for my brilliant List”, “take a shower” and “kill myself for pandering to the Objectivists at L & P” — I do not think that I would have compared or equated the four things.”

You are pettifogging. You clearly are classifying Rand’s books along with Hitler’s as both being “bad”. Sure, you probalby think Hitler is way worse than Rand. So what? As I said above, your “comparison” does not bother me at all; it is just an outcome of the fact that you are illiberal (I take it you are, which is why you have Rand on your list). (BTW, I am not an Objectivist nor, I believe, are most people on this list.)

The truth is that anyone who believes that a principled advocacy of individual liberty, property rights, economic liberties, etc. (like Rand or other libertarians) is “bad” is simply an opponent of human freedom. But we live among these type of people; most people are illiberal to some extent. This is no surprise. Most people are therefore criminality-advocates to some extent. Again, no surprise.

Anyone that believes untrammeled human liberty is “bad” is necessarily going to be making the mistake of categorizing Hitler along with libertarians–since he views them as bad. This is not especially offensive; it’s just an outcome or symptom of the underlying error of opposing libertarianism–human rights and liberty.

What is wrong is the opposition to Rand’s and other libertarians’ advocacy of individual rights. It is substantively wrong; it is an error on Luker’s part. But he shares this error with most of the human race. Quibbling over whether he is really “comparing” Rand to Hitler is just a waste of time. He clearly believes (a) Hitler’s evil actions were bad; and (b) putting in place a system of principled individual rights and liberty is bad. To this extent he has necessarily to classify them as similar. The problem is that while he is right about (a), his position (b) is simply mistaken.

And

Luker: “You are correct in guessing that I am not a libertarian. You are incorrect in thinking that libertarians are the only people committed to human freedom. I’ll put my record of deeds up against yours any day.”

Libertarians are those who oppose all forms of aggression–the initiation of violent force against innocent victims. If you are also opposed to aggression, you are a libertarian. If you are not opposed, then you are in support of some forms of aggression. Those who are in favor of aggression are what some people might call “criminals,” but in any event, it’s hard to see how advocates of violence and aggression can be good advocates of “human freedom.” You see, human freedom requires the absence of violent aggression.

It always amazes me that advocates of varying degrees of institutionalized aggression try to squirm and deny what they are really in favor of. Look, I’m in favor of free markets even if some people would be unemployed or whatever; I admit it. Why don’t you people just admit: you are in favor of aggression–sometimes. You are willing to break an egg to make an omelet. At least it’s honest.

For more discussion of this issue, see my What It Means To Be an Anarcho-Capitalist; The Trouble with Feser (On Libertarianism); On Jonah Goldberg’s Youthful Phase; see also these threads, which show some conservative types trying to wriggle out of being labeled advocates of aggression despite clearly endorsing it: e.g., my debate with Ed Feser et al. about the nature of criminality and aggression in this thread; the Chronicles thread I participated in with Scott Richert about the non-aggression principle (see his The Limits of Economics; Economics, Catholic Social Teaching, and Dissent); see also recent post on LewRockwell blog lately about this and Thomas Woods versus Thomas Fleming, Storck, et al.; and a Chronicles blog thread I participated in with Fleming et al.

Following up on this post—

Palmer replied to me, and I posted a reply to him tonight. I’ll reprint them in case HNN bans me or deletes me.

Palmer:

Anthony writes that “that means to me that…” That’s a rather weak reed on which to place so much weight. Does it mean that the states can prohibit Jews or Scientologists from making alcohol? Is that an implication of the language of the 21st amendment? That would certainly fall afoul of the 14th amendment, as well as of other elements of the federal constitution. Discriminating in state law against out-of-staters and prohibiting importation into the state of non-prohibited substances falls afoul of the commerce clause, which reserves to the congress the power to regulate commerce, i.e., to make it regular. (See the work of Randy Barnett on the meaning of the commerce clause: http://www.bu.edu/rbarnett/Original.htm .)

Mr. Kinsella’s sad moaning about insults is pathetic. Whether he is a racist is beside the point and not a charge that I made. (Putting the “N-word” all over web sites is evidence of something, but it’s not clear of what.) He mentioned an alleged “deafening silence” regarding federalism (despite the important work my colleagues have done on reasserting federalism, notably in the California cannabis cases), which simply revealed that he doesn’t understand federalist principles, which do, after all, delegate some powers to the federal government. I responded by mentioning that he seems deaf to clearly unconstitutional rights violations and blind to the text of the federal constitution, which does not reserve to the states the power to regulate commerce among the states. No insult there. As to fantasies about state militias confronting federal officers, I have little doubt that that’s a favorite among the core lewrockwell.com crowd. It’s implied by the language of states “preventing” federal agents, and it’s certainly implied by the enthusiastic support for the Confederacy, which confronted federal troops with armed force in order to maintain a “peculiar institution.” Ugh.

Daddy’s reply:

My bud Stephen Nipper had a post on Invent Blog where he made some normative assertions about patent reform. We had a little back and forth about it there, where I made clear my disdain for such uninformed, unserious talk by lawyers (pejorative emphasis intended).

Interesting patent, No. 6,899,671 (PDF version can be obtained here). ‘Nuff said.

Read here and follow the advice to hook a brother up. Poor student Timmy needs a bit of financial help to keep his blog alive. I already gave him my two cents, so I think I’m covered.

My latest article is Federalism, co-authored with Walter Block (LewRockwell.com, May 25, 2005). It pertains to some of the matters debated in the hnn thread.

How to Speed Up Firefox

In responding to Mark Brady’s hnn post and Lew Rockwell’s column about the Supreme Court decision freeing up interestate wine sales, Palmer writes:

Section 2 of the 21st Amendment states “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” That does imply that the states have the (lamentable) power to prohibit intoxicating liquors. It does not imply that they have the power to discriminate between producers or shippers that are in state and those that are out of state. Article I, Section 8 states that “The Congress Shall Have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The states can either ban liquor and forbid producers both within the state and outside of the state from distributing it in the state, or not ban liquor. But they can’t create a privilege for those within the state to sell liquor while those outside of the state are forbidden to engage in commerce across state lines in an otherwise legal product.

That’s a matter of constitutional interpretation. As a matter of political economy or public choice, I see no warrant in the claim that the use of a higher-level political authority to invalidate the unjust invasions of rights by a lower-levle political authority is necessarily wrong or that it tends over the long run to undermine liberty. If the state of North Carolina invalidates, on the grounds of the state constitution, the unjust invasion of rights by a city or county government, would Rockwell or Brady object? On what grounds? That the county or city had the right to violate rights? Similarly, if the federal government invalidates, on constitutional grounds (and the grounds for the court’s decision were quite strong, based on the commerce clause and Section 2 of the 21st Amendment), oh, say, coercive segregation and the lynchings of disfavored minorities who are not accorded protection by the state governments, I see nothing contrary to a proper constitutional order in the federal government doing so and a great deal to say on its behalf. There is nothing magical about the states that gives their politicians the power to violate rights. What is behind the opposite view, it seems, is the view that somehow the states are preexisting corporate bodies that have a mystical existence that individuals don’t have. It is incipient collectivism, both incompatible with the American constitutional order and incompatible with libertarianism.

The good work of the Institute for Justice has struck down a state imposed cartel and advanced individual liberty. It was consistent with a perfectly reasonable reading of the constitution and a vindication of the rights of individuals to engage in trade.

I reprint my reply post here, in case some misanthrope takes it down:

“As a matter of political economy or public choice, I see no warrant in the claim that the use of a higher-level political authority to invalidate the unjust invasions of rights by a lower-levle political authority is necessarily wrong or that it tends over the long run to undermine liberty.”

The history of this own country is a good illustration of this.

“If the state of North Carolina invalidates, on the grounds of the state constitution, the unjust invasion of rights by a city or county government, would Rockwell or Brady object? On what grounds? That the county or city had the right to violate rights?”

Anyone who advocates any degree of limited power of a state entity, or federalism, does not thereby say the lower entity had a “right” to violate rights. If the Texas has no authority to invade Belgium to overturn “bad” Belgian laws, does this imply thaat Belgium has a “right” to violate rights? Or does it simply imply Texas has no authority to invade Belgium for such a purpose? Likewise, if the US has no authority to overturn bad state laws, it only means the US was not granted unlimited power, which would seem to be a good thing from the point of view of liberty.

But in our constitutional scheme, of course, states have plenary police power; the feds do not. It is unconstitutional for the feds in most cases to strike down even evil state laws, because federal power is limited and enumerated; it is not unconstitutional for states to overturn “bad” laws of their own political subdivisions, since state constitutions do not limit the states to only enumerated powers.

However, a true federalist does politically advocate federalism “all the way down”–as Hans Hoppe explains in his book on Democracy.

“Similarly, if the federal government invalidates, on constitutional grounds (and the grounds for the court’s decision were quite strong, based on the commerce clause and Section 2 of the 21st Amendment), oh, say, coercive segregation and the lynchings of disfavored minorities who are not accorded protection by the state governments, I see nothing contrary to a proper constitutional order in the federal government doing so and a great deal to say on its behalf.”

Well, there is the matter of federalism and strictly enumerated federal powers–none of which grant the feds the power to stop racist laws and policies and actions by the states, any more than the feds have the power to invade Israel to prevent it from discriminating against non-Jews. (Some argue the 14th Amendment gives the feds the power to stop such state laws, but as Cato’s Gene Healy has shown, this is not so.)

“There is nothing magical about the states that gives their politicians the power to violate rights.”

Sure. States have no right to violate rights. That does not imply that every government on the face of the earth is somehow authorized and justified in attacking a given state whose laws violate rights.

“What is behind the opposite view, it seems, is the view that somehow the states are preexisting corporate bodies that have a mystical existence that individuals don’t have. It is incipient collectivism, both incompatible with the American constitutional order and incompatible with libertarianism.”

This seems disingenuous to me. It implies that wanting the most powerful state in history to have limits by means of a constitution with enumerated powers …. is collectivist. Hogwash. The proper libertarian view is that neither the feds nor the states have the “right” to violate rights; that when they do so, they are to that extent criminal and tyrannical…. and that each state that does exist ought to have various structural and other limits on its ability and tendency to violate rights, one important feataure of which, in a union, is vertical separation of powers (federalism), combined with strictly enumerated and limited powers.

Moreover, it is libertarian to focus most on the most powerful and most dangerous and most centralized state around–which is the federal government, not the states. As an example–I moved to Texas and thereby avoided state income taxes from Pennsylvania and Louisiana. Not so easy to move to another country to avoid US income taxes.

Does Palmer have a problem with horizontal separation of powers (the tripartite system of independent legislature, executive, and judiciary) and checks and balances, or only vertical separation of powers?

IMO, it is bad enough for libertarians to casually dismiss important structural constitutional limits on federal power…. it is worse to imply that those who appreciate such limits are some kind of collectivists, mystics, racists, or
proponents of criminality.

A follow up point: I myself am in favor of the Jeffersonian idea that the states themselves have the constitutional authority to nullify federal laws in the state’s territory. The logic of those, like Palmer, who seem to see little reason for federalism to restrain the central state from striking down bad state laws, would also support states striking down bad federal laws. But notice you don’t hear them advocating this. You don’t hear them saying Texas ought to prevent federal IRS stormtroopers from enforcing federal income tax law on Texas soil; you don’t hear them saying Massachussetts ought to physically prevent federal agents from enforcing the draft against Mass. citizens; nor that states should simply disregard federal affirmative action mandates and laws; nor that California should prevent FBI agents who try to arrest medical marijuana users, and so on.

Why the deafening silence in favor of nullification of bad federal laws by the states?

It’s just amazing that Palmer would so openly disregard federalism, a central idea in the liberal tradition. If you reject federalism you give up any principled case against one-world government, as exhibited by many monomaniacal Objectivists whose desire for a “final authority” to settle disputes leads many of them to admit that their ideal would in fact be a one-world “Objectivist” state.

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Coda: My further response to Palmer’s reply:

Palmer hurls personal insults–calling me deaf and blind and a fantasizer, insinuating I am not “a serious person” and that I am somehow callous to blacks, which hints at racism–and why? For holding a rather pedestrian and standard view long common among conservatives and libertarians–the simple view that we happen to have a federal system in which the central state was supposed to have only enumerated powers.

No need to reply to personal insults. I’m happy to let Palmer’s tactics speak for themselves. On to the substance of Palmer’s comment, which I think is largely confused.

Palmer says, “Mr. Kinsella’s reading [of the Constitution] seems to think that it places no constraints on the powers of the states. That’s clearly not the case, as there are numerous constraints on state power.”

I do not believe this at all, nor did I state or imply it. I can only assume Palmer is basing this charge on my assertion that the states have plenary police power in contrast to the feds which do not. But this comment is just a standard comment any law student would make. Plenary police power is simply the general power to legislate. See, e.g., the 1920 US Supreme Court case Rhode Island v. Palmer (referring to states’ “plenary police power”) and US v. Lopez (quoting the 1819 case McCulloch v. Maryland: “The [federal] government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted.”, and quoting Gibbons v. Ogden for the proposition that “The enumeration presupposes something not enumerated”; and further stating: “The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation). Roger Pilon has written on this very case.

In short, it is not radical or innovative to recognize that in our system, the states are seen (like all other states in the world) as having plenary police power–the power to legislate in general–, which is not necessarily unlimited, but which is general legislative power; but that the federal government does not have plenary police power, but only the power to legislate on specifically enumerated subjects. States can pass laws on nuisances, murder, rape, robbery, torts, contracts, pollution, guns, whatever, subject to certain limits. The feds can only enact legislation if they can first find an enumerated power, and then only if it is not limited by a right specified in the Bill of Rights or elsewhere. That is why there is no general federal law against murder or rape. Such a law would be unconstitutional. Recognizing (or favoring) the fact that the feds can’t outlaw rape does not make one pro-rape, though at this point I wouldn’t be surprised at a libertarian centralist making such an argument.

The fight over the expansive reading of the interstate commerce clause is that it has been used to basically give the feds plenary legislative power, since, ever since Wickard v. Fillburn in 1942, they can ridiculously argue that anything they want to legislate “affects” interstate commerce and is “therefore” within the purview of Congress. Lopez and some other recent cases choked back slightly on the expansive reading of the IC clause, thereby recognizing that the feds do not have plenary power to legislate. They have to find an enumerated power to legislate. This is unlike the states: the states need only ensure that whatever legislation is passed does not violate limits placed on it (by either its own constitution or the federal one), and perhaps a more general due process type test that the power be exercised for some general public purpose.

As is well known, having plenary police power does not imply that the power is without limits, obviously; as I of course recognize, and have written many times, state constitutions clearly limit state power. Having plenary police power does not mean that the power is unlimited.

It is clear that recognizing this widely known distinction does not mean holding that states are unlimited–either by their own constitution or the federal one. So Palmer is just off base here.

And of course the federal Constitution also places limits on the States. Some of the ones Palmer lists are indeed limits on states. It means something to have a Union, after all. So Palmer is wrong again in saying I believe the Constitution does not limit the States — although I do believe States have a constitutional right to secede, which makes any “limits” placed on them by the Constitution voluntarily imposed ones that can in principle be nullified at any time by the State seceding–it would be like agreeing not to do certain things while employed by a given employer; so long as one wants to stay in the relationship, the limits are there; but one can just quit if the limits become too onerous. So the limits placed on States only operate so long as the State is a member of the Union, which it can leave if it so wishes (woops–may, not can).

However, in my view, the Constitution does not place as many limits on the States as Palmer apparently believes it does. For instance, the 14th Amendment puts fewer limits on the states, in my view, than Palmer thinks it does. Palmer speaks of “the clear text of the 13th, 14th, and 15th amendments” as if this settles the issue. The main debate between so-called libertarian “centralists” like Roger Pilon (whom I respect) and others such as Michael Kent Curtis, and apparently Palmer, on the one hand–and others, primarily Raoul Berger and libertarians such as Gene Healy, myself, Lew Rockwell, and many more — is how the “privileges and immunities” clause of the 14th amendment is interpreted. Theorists like Curtis and Pilon believe the Privileges or Immunities clause is a sweeping set of rights, similar to those enumerated and implied in the federal Bill of Rights. Others, such as Berger, do not. I think the issue is not nearly as clear-cut as Palmer claims it is. The text of the 14th Amendment and the P or I clause is anything but
clear. My own view is that it puts only narrow limits on what states can do, but does not clearly mean to place on them all of the limits that the Bill of Rights applies to the federal government itself. This issue can be debated, or at least I think so, even if some of the libertarian centralists don’t want to admit it’s a debatable issue.
Palmer writes, “Why is Mr. Kinsella deaf to the claims of violated rights by black Americans, whose rights were taken from them?”

Palmer seems to be implying that an emotional approach is the right one–that we ought to twist the words of the Constitution to support the right result in a given case; that if the Constitution would not permit the feds to stop the states from denying certain rights, that we ought to pretend otherwise. I would prefer a more honest approach. I prefer to identify what the law and Constitution is–to admit where it is unlibertarian, and where it is good. And where it is unlibertarian, to deny its legitimacy, to urge or favor change. Not to pretend that it really is libertarian. (And then we can debate whether a federal system is more “libertarian” than a centralized, nationalist, top-down one… unless Palmer et al. think that, too, is not debatable either. Some of my own views on this are here: Supreme Confusion, Or, A Libertarian Defense of Affirmative Action.)

So I am not “deaf” to the claims of victims of state action; I have written many times that I would myself use whatever weapon at my disposal to fight against the state harming me. If I could sue a state in federal court to make the state stop taxing me, I would do it. But that does not mean that as an honest commentator, and as someone considering which institutional features are most likely to limit state violation of rights, that I have to oppose any constitutional limits on federal action.

In fact, I have read the opinion in the wine-sales case at the root of this thread. The issue, like much of Con law, is muddy; but I find Clarence Thomas’s dissenting opinion, as is often the case, to be the more persuasive. Read it and see if you don’t agree. You will, I believe, see that his reasoning is more honest, simpler, and less results-oriented. The majority wanted to overturn the wine restrictions and found a way to do it. You can see this in their opinion. Thomas was earnestly and honestly trying to accurately construe what the Constitution means, and I think he got it right. I suppose Palmer would not call Thomas a racist, but you never know–there are apparently lots of “self-hating” types around.

Re my previous post: Well, they were successful in having my Wiki entry deleted. I think we should do what Pete Canning suggested, do a Wikinerd entry.

For my massive Polish fan base, my In Defense of Napster and Against the Second Homesteading Rule article has now been translated (at least I think it’s Polish).