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Cox on Holzer on Thomas and Libertarian Centralism

An old LRC post about a great Stephen Cox review.

Cox on Holzer on Thomas and Libertarian Centralism

Posted by Stephan Kinsella on April 23, 2007 11:15 AM

Stephen Cox has an excellent review in the latest Liberty of Henry Mark Holzer’s recent book The Supreme Court Opinions of Clarence Thomas, 1991–2006: A Conservative’s Perspective. Cox’s review, entitled The Constitution and Its Emanations, does a good job of skewering the dishonest, confused, results-oriented libertarian critiques of Supreme Court jurisprudence; he sounds suspiciously like a decentralist libertarian, as well. Note, e.g., the distinction Cox makes between “result libertarianism” and “process libertarianism”:

My money is with the process libertarians. I believe that the practical losses one may suffer by being on their side are vastly outweighed by the practical gains. State constitutions are strong on certain individual liberties, and the federal Constitution is in most respects a model of libertarian thought. To interpret these documents fairly, giving their words the sense that their authors intended, is good for the cause of liberty, in the short term, usually, and in the long term, almost always. Granted, the First Amendment’s guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” comes far short of erecting a “wall of separation” between church and state (Thomas Jefferson’s phrase [1802], not in the Constitution). But I’m not much troubled by “In God We Trust” on our coins, or the eye of God on the Great Seal of the United States. If you are, I think you’ve got too much time on your hands.

That last line is hilarious. Also:

It is simply breathtaking, the degree to which presumed supporters of civil liberties have gone in amending the Constitution by judicial interpretation. I am, by profession, a literary historian and critic, and I know I would be laughed out of my profession if, when I interpreted texts, I took the kind of freedoms with fact and logic that judges, lawyers, and professors of law routinely take when they interpret the Constitution. To preserve some minimal reputation for honesty, I try to make my interpretations represent the meanings that are actually present in the texts I study. I realize that good authors often create intentional ambiguities, and bad authors often create unintentional ones, but I make every attempt to avoid replacing even those ambiguities with the meanings that I myself would prefer to see.

If only more con law professors had as much common sense.

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Holzer, Animal

An old LRC post:

Holzer, Animal

Posted by Stephan Kinsella on January 19, 2006 10:41 PM

Re Holzer (2, 3)–note that he’s that rare Randian, an animal rights advocate (2). So let’s see, as a Randian we can presume he is pro-abortion, believing it’s not even immoral to abort a mere “piece of protoplasm,” as Rand, the former piece of protoplasm, put it; … so it’s okay to kill fetuses, nuke innocent children, and torture possibly innocent suspects. But animals have rights! Whooppeee!

Update: See Objectivist Hate-Fest; Liberals and Abortion on TV and Films.

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In Writing a Novel: One Coincidence Only Is Permitted

I read a comment by Buckley long ago, regarding advice he had gotten from John Braine (author of How to Write a Novel): that in writing a novel, “the reading public expects one coincidence and is cheated if it isn’t given one, but scorns two.” I’ve always thought that was brilliant. And it’s right: I can tolerate one coincidence in a novel; more than that is annoying. It becomes like John Carter in the boring, serial Mars books. Not sure if you have to have one coincidence, but probably so–otherwise, it’s more like a real-life story, which usually have no designed, plot-like arc. (This is probably one reason I have always tended to dislike movies based on real events such as someone’s life–if they are true to real life, then they will usually have no cinematic story-like arc, no “plot”–just a series of events that tell facts that actually happened in reality; if they are interesting, they probably fiddled with the truth to make it more movie-like, which also bugs me. I’d rather see a documentary or read a biography or history book.)

Here’s an excerpt of an interview with Buckley containing this comment:

INTERVIEWER

Did you say once that when you decided to write a novel John Braine sent you a book on how to write one?

BUCKLEY

We were friends. … So he used to write me regularly, and I had lunch with him once or twice in London; he was on my television program, along with Kingsley Amis. … when I sent him a letter saying that I was going to write a novel, he said, Well, I wrote a book on how to write a novel, and here it is. So I read it.

INTERVIEWER

Was it helpful?

BUCKLEY

I remember only one thing—which doesn’t mean that I wasn’t influenced by a hundred things in it—but he said that the reading public expects one coincidence and is cheated if it isn’t given one, but scorns two.

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Ethan’s “Books” Haiku

My 8 year old recently brought home a few haikus he wrote at school. (A haiku is a type of Japanese poetry where you have 3 lines, with 5, 7, and 5 “on” (like a syllable); http://en.wikipedia.org/wiki/Haiku)

My favorite is “Books”:

Books

Books. Books. Their knowledge.

Information flows through me.

The knowledge of books.

Others:

River

Its current flows fast.

The river rushes swiftly.

Its cool, sweet water.

Humans

I am one of them.

Some of them work all day long

You are one of them.

Air

It flies everywhere

It gives humans oxygen

We need it to live

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Interesting piece in The Daily Bell: Mr. Goldberg Apologizes for His Mises/Phone Booth Crack?. Apropos this, see my 2001 LRC article about this little punk, On Jonah Goldberg’s Youthful Phase.

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Lea’s Ham Sandwiches

From a LRC post in 2006:

Re: Reuben deviationists

Posted by Stephan Kinsella on September 12, 2006 10:18 PM

Okay guys, I have to weigh in here: Sure corned beef sammiches are good (Corned Beef Academy is good, it). But if you are ever in the Philadelphia area (specifically, West Chester, in the western suburbs), the best philly cheesesteak I’ve ever had is at The Pepper Mill. (Also: Murphy’s Deli makes a mean muffaletta.)

But let me tell you, bruthuh: the world’s best ham sandwich can be had at Lea’s Lunchroom in Lecompte, Louisiana. Das good ya cher! (Just found out tonight, googling, Mr. Lea was on the Johnny Carson show one time–this video is priceless!)

Lecompte is pronounced like “luh count” by the way.

I’d had these sandwhiches as a kid and teen on the way past Lecompte on various camping trips, and always missed them. My mom and dad went there recently scouting out some campgrounds outside of Alexandria (“Ellic”), and told me about it. I mentioned I’d like one so my dad made a few calls, to see if they could ship them. He found out that they used to ship them but the FDA made them stop. So he called them back and they gave him the recipe. It is basically this, and I plan to try it soon. I haven’t tried it yet but my dad has and said it’s close to the original and very good.

Lea’s Ham Sandwich Recipe

  • use some kind of white bread hamburger buns (they used a particular brand but I forget)
  • go get you some ham, you, like maybe honeybaked
  • keep some in slices, and grind a bunch, like with a grinder, or onion chopper
  • also chop up/finely shred some lettuce
  • put miracle whip on the buns (not mayo)
  • put the chopped ham on the bottom bun
  • put sliced ham on the top bun
  • put the shredded lettuce, dill pickle slices, and a slice of tomato in between
  • Then you want to compress/toast/smash the whole thing, sort of in a panini grill thing or george foreman type device, till the outside is toasty and it’s kinda smashed and hot

For another great recipe I picked a while back, check out this old LRC post:

Re: Hey, this stuff is great!

Posted by Stephan Kinsella on December 18, 2005 11:44 PM

Jeff, can’t go wrong with jambalaya (my hometown is allegedly the “jambalaya capital of the world”), but this recipe is one of my all-time favorites and unlike anything you’ve tasted: fairly easy, and utterly delicious: Chicken Big Mamou Pasta. Strangely enough, I found it at the Magnolia Cafe in Philly when I lived there. Trust me on this one.

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Left-libertarians and aggression: a facebook conversation

From this post:

Derek: “don’t know, when you define aggression a priori”

I am not sure what this means. I am defining what libertarians are in terms of their view on aggression: they are against it. Aggression itself requires further explanation, definition, and justification. In my various articles I have attempted this.  E.g http://mises.org/daily/3660#ref18 .

Aggression is fairly obvious in terms of human bodies. But in terms of other scarce resources, you have to identify the owner first–aggression here is dependent on property rights. Thus what makes libertarianism unique is its property right assignment rule: basically the Lockean rule of appropriation of unowned property.

” you do so in a manner that objectively deems certain actions as non-aggressive and therefore non-problematic when they actually are in some reasonable sense.”

In other words, you are willing in some cases to condone the use of violence against someone who has not committed aggression against the body of, or trespassed against the owned property of, another person. We libertarians call that “criminal” or aggression.

“When recognizing social problems, aggression being one of those many problems (one of the more serious ones), you don’t engage in the tendency of deeming social problems non-problems at all because you understand you’re not aware of certain social contexts.”

We don’t “deem” anything but we are opposed to aggresion. We believe aggression is always unjustified. This does not mean we think there are no other social problems. What you are doing here is exactly what conservaives do when they say they aer against violence but it’s just one of many values, etc. — Check out this post and y’ll see wha I mean http://www.libertarianstandard.com/2012/01/17/the-disingenuous-liberty-isnt-the-only-value-attack-by-liberals-and-conservatives-on-libertarianism/

“The NAP, on the other hand, is about removing all care about context and focusing on one principle, or axiom in some cases, about aggression.”

No. You are wrong. You are squirming and evading, trying to avoid naming the truth: that you are sometimes willing to condone or commit aggression. If you are, go ahead and say it. If not, then you are identical with libertarians.

Let’s take a simpler exapmle. Presumably you oppose the torture and murder of children. Right? For whatever reason. You think that it is unjustified. It is wrong. It should not be engaged in. Saying this is not “simplistic” or “out of context”–it is just what you believe. Likewise libertarians feel the same about aggression: we basically believe that humans ought to live in society, in cooperation, as much as possible; that when there is a possibility of physically, violent conflict, this is always because of the fundmanetal fact of scarcity: their intended use of some scarce resources, whether others’ bodies or other reosurces, conflict. We believe that to avoid the problem of violent conflict people ought to abide by a set of property rules that allocate particular owners of all such contestable resources. And we believe that the owner should be the person himself, in the case of bodies; and in the case of previously unowned resources, it ought to be the first one to start using it, or someone to whom he has contractually transferred it.

Now the only way you can disagree with this is to think someone other than A ought to own his body–i.e. slavery. Or that someone other than the original homesteader of a resource should have it–that is, A homesteads property X and later on, some latecomer B gets to take X from A, to become its new owner. We call this theft.

Why would you be in favor of slavery or theft?

“Considering that libertarianism is all about people freeing themselves and taking *self-responsibility*, conveying an ethic that creates some philosophical and practical dependency of this type is a dangerous way of thinking in my opinion.”

It’s not “about” this. It’s not “about” anything–it’s not a novel with a plot. LIbertarianism is a political philosophy with a particular view of how property rights should be allocated. Every political philosophy has some view of property rights. It’s just that all the non-libertarian ones believe in some form of slavery or theft.

“I think this stems from the Austrians means of deriving ethics from a system of rights, “natural” rights usually, rather than derive a system of rights from their larger theory of ethics.”

Has nothing to do with it.

I suggest you read my What It Means to be an Anarcho-Capitalist. stephankinsella.com/publications

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Epstein: Does the Second Amendment Apply to Washington, D.C.?

Back in 2008 I pointed out some problems with resorting to the courts of the central state to vindicate our rights, in the context of the Heller gun rights case. I argued that the Bill of Rights limits the power of the federal government. It was certainly not meant not empower the federal government via the courts or Congress to strike down state laws. For example at the time the Bill of Rights was ratified (1791), several states had an established religion. (See my post State and Religion.) Obviously the prohibitions on state involvement in religion in the First Amendment were limits on federal not state power.

The same is true for the Second Amendment. I have never believed the prefatory clause about militias was a limit on this limitation on federal power. In my view a federal court should refuse to enforce a federal law restricting gun rights, since there is no enumerated power granted to Congress to enact such a general, national law. And as a backstop, the Second Amendment further prohibits such federal legislation. But does it limit the states? No.

I had problems with some aspects of the Heller case, in which the Supreme Court struck down a Washington D.C. gun law based on the Second Amendment. (See To Hell with HellerHeller gives local governments “space within which to limit gun ownership”; The Great Gun Decision: Dissent; Gun Haters Happy with Heller; and other posts.) Not that I was that upset with it. I would have probably voted to strike it down too, on libertarian grounds (see my post Higher Law). And thus I praised Heller plaintiff Tom Palmer for fighting against unlibertarian laws (Tom Palmer’s Fight for the Right to Bear Arms).

Scholar Kevin Gutzman had another interesting critique of Heller: he argued that not only does the Bill of Rights not apply to the States, but it did not even apply to Washington, D.C. itself, as a sort of “pseudo-state”–a special jurisdiction under federal control that operates somewhat like a state. I noted this intriguing argument in one of my posts criticizing Heller, The Great Gun Decision: Dissent, where I wrote:

Second, as Kevin Gutzman notes, the Bill of Rights provides limits on the power of the federal government–not states, and not DC. So, as with the majority in the Kelo case, the dissent would have had the right result for the wrong reasons. In Heller, the majority is correct in how they construe the meaning of the Second Amendment; the liberals are blatantly, dishonestly wrong. But both sides incorrectly believe that the Bill of Rights applies to DC. 1

Heller plaintiff Tom Palmer roundly condemned Gutzman’s argument as “just plain dumb.” And libertarian centralist and Lincoln idolator Tim Sandefur attacked both me and Gutzman, in a post entitled “Stephan Kinsella’s idiocy reaches new lows.”

What is interesting is esteemed libertarian and Cato scholar Richard Epstein has recently opined that the Second Amendment does not apply to Washington, D.C. In The Libertarian Gun Fallacy, Professor Epstein writes “the Second Amendment imposes no limitations on the states … Washington D.C. [is] the one place where the amendment has no application whatsoever.” (See also Damon Root on Libertarians, Guns, and Federalism.)

Hmm.

  1. See also my post The Unique American Federal Government.[]
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My Amazon Author Page

Is up!

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Note: An updated and revised version of this article is included as Chapter 21 of Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023).

***

Below is a lightly edited text version of “Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights [1995],” Hastings Const. L.Q. 24, no. 3 (Spring 1997): 757–84.

Taking the Ninth Amendment Seriously

Review of Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Philadelphia: Temple University Press, 1995)

By N. Stephan Kinsella[1]

Abstract:  In this review, Mr. Kinsella details and critiques Calvin R. Massey’s recent book on the Ninth Amendment.  Massey points out that many modern constitutional theorists hold that the Ninth Amendment cannot be read as a source of rights that can be used to strike down legislation, but only as a rule of construction that prevents construing the Bill of Rights to imply the existence of federal powers beyond those enumerated.  However, Massey argues, because of the modern expansion of federal powers and current constitutional jurisprudence, it is now “impossible” to achieve the amendment’s original function of limiting the implied powers of the federal government.  Massey suggests that, under a theory of “constitutional cy pres,” the original government-limiting purpose of the Ninth Amendment can nevertheless be achieved if it is read as a source of unenumerated rights that can be used to trump legislation.  Massey goes on to argue that these unenumerated rights include both natural rights and positive rights protected in state constitutions.

Kinsella argues that Massey’s theory has little constitutional support, and that this theory would undermine the principle of federalism, itself one of the original purposes of the Constitution.  Kinsella concludes by suggesting better approaches to constitutional interpretation or reform, such as the approaches of Randy Barnett and Marshall DeRosa. [continue reading…]

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Three Great Practical Things in my Life

I’m not talking about personal matters like getting married or having a child or having great parents. Or, intellectually, on the level of reading Mises or Hoppe or Rothbard (or meeting the latter two, for that matter). But three great practical things that stand out that have made big differences for me:

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Kinsella Podcast

I’ve started a podcast on HuffDuffer (RSS; Subscribe in iTunes), which I’ll use for my past and upcoming media, and for occasional audio files by other speakers I find interesting.

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