From the Mises Blog:

Study Libertarian Legal Theory Online with Stephan Kinsella

December 6, 2010 by J. Grayson Lilburne

Murray Rothbard wrote in the preface of his The Ethics of Liberty:

“While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future. Hopefully libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.”

Throughout his career, Stephan Kinsella has been doing just that. And now, after years of researching and developing the subject, he’s offering a 6-week, online course on libertarian legal theory starting January 31 through the Mises Academy. Kinsella’s new course: “will provide detailed discussions of the foundations of libertarian theory and related topics such as individual rights; justice, punishment and restitution; anarchy and minarchy; contract theory; inalienability; property rights and homesteading; intellectual property; legislation versus common law; legal positivism; Austrian economics and libertarianism; and causation and responsibility.”

Click here for an outline of what will be covered each week, and to sign up!

I’m glad Lew Rockwell is not joining this ridiculous boycott: No Amazon Boycott at LRC. For my own thoughts, see Re: Should We Boycott Amazon.com?.

Now that PayPal has also refused to deal with Wikileaks, will the Amazon boycotters now suicidally boycott and refuse to use PayPal?

And the State Dept. is urging students not to read or share WikiLeaks. Now we have to boycott students!

Related:

• Structural Safeguards to Limit Legislation and State Power
• Constitutional Structures in Defense of Freedom (ASC 1998)
• Randy Barnett’s “Federalism Amendment”–A Counterproposal; and related posts
• How to Fix the US
• KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021)
• KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021)
• Libertarian Nation and Related Projects

From TLS and the Mises Blog, a few related posts, “Randy Barnett’s Proposed ‘Federalism Amendment’” [Mises; archived comments; 4/23/2009], “Randy Barnett’s “Federalism Amendment”–A Counterproposal” [Mises; archived comments; 4/26/2009], and “Randy Barnett’s Federalism Amendment” [TLS; Mises; archived comments; 12/3/2010]. Each reproduced below along with archived comments from the quondam Mises Blog.

***

Update: See also Randy Barnett’s Bill of Federalism, and discussion of same by George Will.

“Randy Barnett’s Proposed ‘Federalism Amendment'” [Mises; 4/23/2009]

Randy Barnett has an interesting article in the Wall Street Journal, “The Case for a Federalism Amendment,” where he proposes “that states petition for a convention to propose an amendment repealing the 16th Amendment authorizing an income tax,” or, “Alternatively, states could include the repeal of the 16th Amendment in a more comprehensive ‘Federalism Amendment.'”

While federalism, more decentralization, and indeed anything that reduces the scope of federal power is good, there are a few troubling aspects to this proposal.

First, Barnett notes that repeal of the 16th amendment “would result in the Congress imposing a national uniform ‘excise’ or sales tax as authorized by Article I, Sec. 8.” Any libertarian should favor repeal of the 16th amendment, but advocating “replacing” it with a national sales or excise take is not a good idea. First, any such abolition would be gradual (even Barnett’s proposed amendment waits five years to repeal the income tax); so we’d just end up with both the income tax and the new tax. And even if the 16th amendment were repealed, there can be little doubt that the criminal gang know as our government would find a way to permit income taxation. Third, the problem is not the form of tax, but the extent–the solution is lower tax rates, not changing the type of tax. A real tax reform amendment would impose absolute, strict, and low caps (during debate on the 16th amendment, a 10% cap was considered, but rejected for fear Congress might actually tax at such a high rate, and “because people thought the idea that the tax might ever rise that high too absurd to address”!). (For more on this, see Lew Rockwell, The Myth of the Replacement Tax; Anthony Gregory, The National Sales Tax Disaster; Ron Paul, Tax Reform Is a Shell Game; Bruce Bartlett, Fair Tax, Flawed Tax; Harry Browne, National Sales Tax; Laurence Vance, The Tax That’s Anything But Fair.)

Another problem with Barnett’s “Federalism Amendment” is that it does not specifically provide for the right of secession; but this right is surely the crux of federalism. Without a right to exit, any “federalism” rights are hollow. Indeed, far from permitting secession, Barnett’s proposal specifically says, in Section 2, that states may do what they want in their own borders, BUT “Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.” Can there be any doubt that this clause would be seized by the President to justify forcibly preventing secession? Indeed, pro-war, centralist DC libertarians often justify Emperor Lincoln’s actions in The Recent Unpleasantness based on similar reasoning. (I note that in his comments explaining each of the five sections of his proposed amendment, Barnett doesn’t mention or explain this provision, though he does address most of the others.)

Other proposals are unclear to me: Explaining Section 2 further, he writes:

Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment.

If I understand what is proposed here, this would eviscerate much of the Fourteenth Amendment (surprising, since Barnett is a proponent of the Fourteenth Amendment and its use by Congress and federal judges to strike down unlibertarian state laws). Consider a state law that discriminates against blacks. Isn’t this activity wholly within the state?

This interpretation is buttressed by his Section 5, which provides:

The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty.

[Explanatory comment by Barnett:] Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power.

This implies the federal judges can review federal law only (which is as it should be)–but it’s silent as to review of state law, and does not ban it; given that it’s a current practice (and one Barnett approves of), the amendment ought to specifically state that federal judges may not review state law any more under the 14th.

I’d add that if we really want to make sure Congress stays within its limits, in addition to providing for a clear recognition of the right to secede, and limiting federal judicial authority–the states ought to be empowered to review and nullify federal law (for more on this see Jefferson’s Kentucky Resolution and Madison’s Virginia Resolution (links here); see also my post The Meaningless Constitution; and Kilpatrick’s great The Sovereign States.

Update:

There’s another curious aspect to his argument: He proposes:

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

[Barnett’s explanatory comment:] Section 3 adopts James Madison’s reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments.

What is he talking about? An obligation is a binding legal contractual obligation, or perhaps a moral obligation. There is neither in the case of things like Social Security payments. First, there’s the issue of legislative (or parliamentary) sovereignty: a current Congress cannot tie the hands of future Congresses. The law may be changed at any time. So it’s not a legal obligation. I am not even aware of Congress ever “promising” to (always?) make SS payments; in fact, as far as I know the right to receive such welfare payments is explicitly NOT a contractual or property right. It’s entirely at the state’s discretion. And what would a “promise” be anyway–an official act of legislation? Where is it? A binding promise, like a contract? But it’s not, and can’t be. Is it a moral obligation? Of course not, as the obligation would involve immoral things like the state continuing to exist and continuing to steal taxes from younger generations.

So there are no obligations or commitments. This as far as I read it would actually not empower Congress to keep making Social Security payments. Which, to my mind, is god; but this is not what Barnett means to do here: In reality, what would probably happen is that the Congress would just start describing anything it wants to spend money on as a “previous commitment” or “promise” that we “must” fulfill.

Update 2: In my Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Hastings Constitutional Law Quarterly, 1997), I survey a couple of other proposals for amending the Constitution. One my favorite is this one by Joe Sobran:

What we need is an amendment forbidding the circumvention of the Constitution. It could read: “The Constitution shall not be circumvented. ” I just got a big laugh from any lawyers who may be reading this.

 

More seriously, a better way to increase federalism than Barnett’s amendment would be the proposal of Marshall DeRosa, as set ot in book The Ninth Amendment and the Politics of Creative Jurisprudence (online copy; Google books version; Amazon; David Gordon’s review). DeRosa proposes an ingenious constitutional amendment, which would read as follows:

When a national majority of each State’s chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States’ designated chief judicial officers shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this amendment.

As DeRosa explains, this would allow controversial Supreme Court decisions to be overturned “more expeditiously and competently” than at present. The states would not have to “resort[] to a cumbersome amendment process or the national congress that is significantly detached from states’ interests.” Also, the amendment would have a chilling effect on the Supreme Court, making it more reluctant to issue unreasoned or unconstitutional decisions, just as lower courts are reluctant to issue decisions that may be overturned by higher courts. In essence, this amendment would “heighten popular control over unenumerated rights jurisprudence, and to that extent a significant portion of originalism would be recovered.”

As I noted in my article, this amendment would be prefereable to that suggested by Robert Bork, since Bork’s amendment would have little positive effect on federalism. (In his book Slouching Towards Gomorrah: Modern Liberalism And American Decline, at p. 117, Bork proposed a constitutional amendment to make “any federal or state court decision subject to being overruled by a majority vote of each House of Congress.”)

As for other potentially useful amendments, unfortunately, Sobran’s proposed amendment, “The Constitution shall not be circumvented,” would be easily circumvented, as Sobran recognized. However, Sobran proposes another “amendment that would actually restrain the federal government. It would read: ‘Any state may, by an act of its legislature, secede from the United States.'” This is what is sorely lacking from Barnett’s proposal.

Update 3: Other discussion of Barnett’s proposal include Doug Mataconis, Is It Time For A Federalism Amendment?; Ilya Somin, Randy Barnett’s “Federalism Amendment”; and Roderick Long, Amendment Unmended.

“Randy Barnett’s Proposed ‘Federalism Amendment'” [archived comments; 4/23/2009]

Comments (8)

• Stephan Kinsella
• An reader sent me this email:”I’m confused as to why Barnett’s Section 2 even discusses “acts of war or violent insurrection against the United States.” Doesn’t Article I already address this? And don’t the centralists already view secession as inherently unconstitutional? If so, why do they need an amendment saying so?I also doubt that section 2 would seriously crimp federal regulatory activity. There are tons of FTC justifications for regulating intrastate commerce. I doubt the FTC would surrender just because they’d be violating yet another constitutional provision.Indeed, Barnett would’ve been better off proposing an amendment banning “regulatory” agencies.

• Published: April 23, 2009 3:40 PM

• Stephan Kinsella
• On my facebook page linking to this post, one commentator writes:”I fail to see the usefulness of amendments since they’re continually ignored.”Another responds: “Indeed. In regard to federalism, Barnett’s propopsed amendment would restate the continuously ignored Tenth Amendment, except that it would legitimize the bogus Incorporation Doctrine — a bit of judicial usurpation that Barnett approves. In other words, where not redundant, it’s largely harmful.”

• Published: April 23, 2009 4:52 PM

• Brutus
• “I fail to see the usefulness of amendments since they’re continually ignored.”I completely agree. As Dr. Hoppe has pointed out regularly, this is a State Constitution interpreted by the State. The State will always interpret the document to justify its expansion. Amendments which limit its power are ignored or reinterpreted to augment the power of the State. Of course, this is exactly what the anti-Federalists predicted.I think our efforts would be better used in convincing people that the Constitution is meaningless rather than dreaming up new amendments which will probably never be ratified or if they are ratified, will become justifications by the State to expand its power.

• Published: April 23, 2009 6:12 PM

• Jardinero1
• I think an amendment which nullifies the commerce clause and the necessary and proper clause would do far more to restore state prerogatives than any federalism amendment would.

• Published: April 24, 2009 9:56 AM

• redshirt
• Woods makes the point the founders fully understood that enumeration of powers logically trumps any notion of broad power that might be extrapolated from a single clause. Unfortunately, stupid people (or politically motivated people) got a hold of those clauses and decided that they apply more broadly. Obviously, if powers are enumerated then any clause that would seem to indicate greater generality would only apply to carrying out the enumerated powers and not to other possible new powers. This was the explanation that was necessary to get the Constitution ratified in the first place.An amendment then would only have to clarify the language of those phrases to specifically be applied to the fulfillment of the enumerated powers.BUT, these things are pointless in that the FEDERAL government appoints the attendees to a con-con and would be incalculably dangerous to put this Senate and Congress, under the influence of this President in charge of appointing the team.

• Published: April 24, 2009 10:09 AM

• David Spellman
• We do not need more amendments to the constitution–we need less, as in, repeal most of the double digit numbered amendments.When new amendments are proposed, there is always a minor concession to liberty that is overwhelmed–even nullified–by the larger grant of powers to the government. I have not seen an amendment proposed in our lifetimes that would improve our government. They are all subtle attempts to overthrow what little freedom we have and incorporate it into the constitution.It would be much better to at least keep the constitution intact and ignored than to destroy it outright. It would be fantastic if someday the people rose up and destroyed the usurper government and restored a constitutional government. I hope that someday the darkness in the hearts and minds of the People will be enlightened.

• Published: April 24, 2009 10:27 AM

• Evan Bailey
• This amendment needs teeth. Otherwise, it will just be ignored like Article 1, Section 8 and the 10 Amendment.
  The teeth could take the form of secession, but are there any other options?

• Published: April 24, 2009 11:01 AM

• JC Butte
• Any clause prohibiting armed insurrection against the US government would be a direct repudiation of the second amendment.

• Published: April 24, 2009 9:15 PM

“Randy Barnett’s “Federalism Amendment”–A Counterproposal” [Mises; 4/26/2009]

Re Randy Barnett’s Proposed “Federalism Amendment”, here’s an amended version that I think would be an improvement:

Section 1: Secession. Any State or Indian tribe may, by an act of its legislature, secede from the United States.

Section 2: Nature of the Union. From the perspective of the United States, the States are sovereign and are the parties to the Constitution, which is a compact among the States.

Section 3: Nullification.

(a) When a national majority the States of the United States declares a decision by any federal court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this Section.

(b) Any federal treaty, executive agreement, statute, regulation, administrative ruling, executive order, or the like may be nullified by a national majority of the States, pursuant to the procedures set forth in Section 3(a).

(c) Any person holding an office of the United States government may be removed from office by a national majority of the States, pursuant to the procedures set forth in Section 3(a).

Section 4: Interstate Highway Funds. The United States is prohibited from placing any conditions on any grants of interstate highway funds not directly and reasonably related to the purpose of establishing interstate transportation.

Section 5: Free Market. An internal free market, being necessary to the prosperity of a national economy, the interstate commerce clause set forth in Article 1, Section 8, Clause 3 shall henceforth be construed, with respect to commerce among the states, to give Congress only the power to prohibit State restrictions on interstate trade; and in no event shall this power or any other power in the Constitution be construed to give the Congress plenary legislative or police power. This Section is subject to the limits set forth in Section 1.

Section 6: Income Tax. The 16th article of amendment to the Constitution of the United States is hereby immediately repealed, and any person convicted of the crime of federal tax evasion, whether currently in prison or not, whether currently living or not, whether also convicted of other crimes or not, is hereby pardoned.

Section 7: Election of Senators. The 17th article of amendment to the Constitution of the United States is hereby immediately repealed.

Section 8: State Pardon Power. The governor of each State shall have power to grant reprieves and pardons to any individual convicted of any crime by any federal court who (a) is currently imprisoned within the territory of said State; (b) is a current or previous resident of said State; or (c) committed the acts serving as the basis for said conviction while present in said State.

Section 9: Federal Judiciary. The judicial power of the United States includes the power to nullify (a) any federal law or policy (1) that is not expressly authorized by this Constitution, or (2) that prohibits or unreasonably regulates of a rightful exercise of liberty; and (b) any state law expressly prohibited by a provision of this Constitution or by a constitutional federal statute; but does not include the general power to nullify or review other state laws. This Section is subject to the limits set forth in Section 1.

Section 10: Posse Comitatus. No member of the United States’ armed forces or any other armed federal official, employee or agent may be present or bear arms in the territory of a State without the express written permission of the governor of said State. No federal military installation may be placed in the territory of a State without the express written permission of the governor of said State.

Section 11: Original Understanding. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.

Now, let me be clear: I think the Constitution is a hopeless sham, and that it’s not possible to have a successful amendment process. It’s not possible to fix it by amendment. It’s a set of paper limits enforced and interpreted by the very state that it seeks to limit (see, on this, Hoppe and de Jasay). And if we are going to amend it there are many others I’d want–maybe a return to the Articles of Confederation; explicit limits on spending and taxes, supermajority, sunsetting, Bricker Amendment and other provisions–but we are here focusing on ways of reinforcing, enhancing, and restoring federalism as one of the structural limits on federal power.

Further, personally, I think Section 1 alone is sufficient–the clear right to secede would be a significant limit on federal overreaching. But for those who insist on more detail, and to pivot off of Barnett’s more detailed proposal, I’ve added the other sections.

Commentary:

Section 1 makes it clear that any State or Indian tribe may secede. This is the ultimate structural limitation on federal power. And unlike most proposals which only focus on the States, this one also allows Indian tribes to gain independence.

Section 2 makes it clear that the Straussian-Lincolnian-centralist concept of the Constitution is invalid; that the Constitution is like a compact or treaty, among and between the States which are parties to this compact. Such a construction helps make it clear that the federal government really is limited, and at the end of the day, that its a creature of the states, and subject to control by them.

The phrase “from the perspective of the United States” is added to avoid implying that States actually have legitimacy from a natural law, individual, or libertarian perspective. That is, States have “right” from the perspective of the U.S., which means that there are limits on federal power; but this does not imply States are legitimate or have actual sovereignty.

Section 3 permits any federal court decision to be reversed by a majority of the states. This is taken from Marshall DeRosa’s proposal, but is not limited to Supreme Court opinions, because the Court could skirt this amendment by simply refusing to review lower court cases. This section also permits treaties and federal statutes and regulations to be nullified, and any federal officeholder to be removed from office, by a majority of the states. Treaties are included to prevent the treaty power from being used as an end

Section 4 prevents the federal government from using conditions placed on interstate highway funds to be used to manipulate the states and their internal policies and laws.

Section 5 makes it clear that the interstate commerce clause serves only as a veto on state laws that restrict interstate commerce; it establishes an internal free market, and effectively overturns cases such as the notorious Wickard v. Filburn. The provision is not a general grant of police power. Many federal laws based on the modern, overbroad reading of this clause would then be unconstitutional (such as the federal trademark law). The “veto” is limited, of course, by a State’s right to secede under Section 1.

Section 6 repeals the income tax amendment immediately (not in five years, as Barnett proposed), and pardons anyone convicted of federal tax evasion.

Section 7 repeals the 17th Amendment, to abolish the direct election of senators.

Section 8 permits state governors to pardon federal prisoners having various connections to the governor’s State.

Section 9 makes it clear that the federal courts have the power to nullify federal laws, based on the Jeffersonian notion of “concurrent review,” but that they do not have the general power to nullify or review state laws. There is a limited right to review state laws expressly prohibited by the Constitution, but even this is only a conditional right, given the states’ right to secede. In other words, a State’s compliance with federal requirements (such as internal free market) is seen as a condition of the State’s membership in the Union. If it does not want to comply, it may leave, or might even be ejected.

Section 10 is based on some of the ideas behind the posse comitatus laws, but is more general and has more teeth. It specifies that the US military or other armed agents, and federal military institutions, need the written permission of the governor of a given State, to be present in its territory.

Section 11 makes it clear that the Borkian notion of “original understanding” is the proper way of interpreting the Constitution. (See note 6 of my Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Hastings Constitutional Law Quarterly, 1997).)

I welcome any suggestions for additions to or changes to this proposal.

Update: I was reminded by a friend of Roderick Long’s well thought out “Virtual-Canton Constitution,” which is of relevance to the issue of designing constitutions.

“Randy Barnett’s “Federalism Amendment”–A Counterproposal” [archived comments; 4/26/2009]

Sheldon Richman April 26, 2009 at 11:20 am

Repealing the 16th Amendment would not mean Congress can’t tax wages and salaries. That was never held to be unconstitutional — quite the contrary. The 1895 Pollock case, which led to the amendment, affirmed Congress’s power to tax wages and salaries. However, it struck down the tax on property income, which brought down the entire tax bill since otherwise, contrary to congressional intent, the entire tax burden would have been put on wages and salaries.

BioTube April 26, 2009 at 11:21 am

The highway provision should probably be extended to all federal fund-shunting.

Stephan Kinsella April 26, 2009 at 11:43 am

Sheldon, I agree that the feds can still probably tax income even without the Sixteenth Amendment. Do you have an alternative proposal? I have toyed before with the idea of abolish all federal ability to tax, forcing them to rely on contributions from the States, sort of like the UN is funded. But this moves us towards a more radical change, back toward the Articles of Confederation–which I’d be in favor of, of course.

Stephan Kinsella April 26, 2009 at 11:52 am

Incidentally, Sheldon, I do not believe I implied that repealing the 16th would repeal the federal income tax. In any event, I’m not sure this is really a federalism question.

MTB April 26, 2009 at 12:22 pm

Are you writing an amendment that you think has a chance of passing, or a libertarian fantasy amendment? Professor Barnett’s version, while I don’t believe it will ever gain traction, is at least somewhat plausible.

JC Butte April 26, 2009 at 4:34 pm

Sheldon, Any US law taxing wages, salaries and commissions would have to be regarded as a “direct” tax subject to apportionment, wouldn’t it?

My own opinion is that the 16th amendment authorized a tax on capital, not labor, which is why it didn’t originally include a withholding clause…which didn’t emerge until WW2. Did wage earners even file returns from 1917 to 1943?

The Brushaber decision would seem to support that in that it declared that the 16th amendment conferred “no new powers,” although much of the rest of the language is obscure.

geoih April 26, 2009 at 4:40 pm

What about repealing the “necessary and proper” clause, the “commerce” clause, and the “general welfare” clause? How about a clarification to the second amendment?

dewind April 26, 2009 at 5:45 pm

The clarification of text and removing anything ambiguous from the Constitution would be necessary. Section 11 would sufficiently deal with perverse interpretations. Though I’d rather weigh on the safe side and destroy and vague-aries.

RWW April 26, 2009 at 7:48 pm

If they ignore the Constitution as it currently stands, what’s to stop them from ignoring this addition?

Gil April 26, 2009 at 8:47 pm

What bother with all the guff and break up the union in a way that each State become a sovereign nation-state?

D. Frank Robinson April 26, 2009 at 9:29 pm

I have no objection to the Kensella Amendment.

However, I contend that the conceptual structure of the US Constitution is dysfunctional for a population of 300 million. For example, if the US House of Representatives was apportion on the basis of one per thirty thousand population (the original ratio), then it might gain the general support of the people governed. This ratio of representation is now considered ‘impractical’. Therefor, the United States is an impractical union and should be dissolved into bodies which can practice a reasonable level of representation, i.e., 1 to 30,000 or lower. If that is not practical, then it is possible that no form of representative government is scalable and practical – unless the principle of secession applies to political entities of any population.

A market, on the other hand, is highly scalable and needs no political quotas for ‘representation’ to function. Everyone represents oneself in the market.

wuzacon April 26, 2009 at 11:29 pm

I agree with the comment that it is sufficient to clarify that the states have the right to secede, possibly adding the right to nullify, and repealing the 16th and 17th amendments, which really did kill federalism. If necessary, we could clarify that direct taxation includes any tax on any transaction, whether for goods or services. I would probably add some provision eliminating the Fed. I would object to states having the power to fire individual employees and I think many of the other provisions are far too specific and unnecessary. One change that would be appropriate is to permit state legislatures to author an amendment to the Constitution, to be added when 2/3s of the state legislatures and the people of 2/3s of the states adopt the amendment.

Has anyone ever tried to call a constitutional convention? It may be the only way to pass something like this.

Bill in StL April 26, 2009 at 11:45 pm

While we’re at it, let’s add language to clarify that prohibited “infringement” does not mean “unreasonable regulation of” it means “any restriction whatsoever.” Too many supreme court decisions include nonsense about balancing rights with government interests.

Bud April 27, 2009 at 12:58 pm

One other item worthy of attention, if we wish to restore actual Federalism, is the disposition of lands currently controlled by the Federal Govenment. Here is some draft language that will surely invite the attention of wordsmiths:

XXX: Congress shall make no law establishing Government ownership of land or navigable waterways in any State; any land currently owned by the Government shall be transferred to the State in which it exists no later than two years after the ratification of this Amendment. Subsequent Government use of State lands shall be subject to contractual agreements with the State in question.

EB April 27, 2009 at 1:54 pm

“Section 2 makes it clear that the Straussian-Lincolnian-centralist concept of the Constitution is invalid; that the Constitution is like a compact or treaty, among and between the States which are parties to this compact. Such a construction helps make it clear that the federal government really is limited, and at the end of the day, that its a creature of the states.”

Just playing devil’s advocate; even if one accepts that the Consititution was created by the States, and therefore those States have the right to get out of it, wouldn’t this right apply ONLY to the original 13 states that preceded the Constitution? How can one say that, for example, Tennessee “entered into a compact” with “other states” via the Constitution, when Tennessee was in fact created through the Constitution, many years after its enactment? Indeed, with the possible exception of Texas, the other 47 states were created out of property acquired by the federal government (e.g., the Louisiana Purchase) upon which the same federal government ALLOWED settlement; see Article 4, Section 3 – “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property BELONGING TO the United States”

Also, the same section, present since the original ratification, says that “no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” The fact that Congress has, and always had, such a veto power would seem to run against the concept of the States as sovereign entities.

Stephan Kinsella April 27, 2009 at 2:10 pm

EB:

“even if one accepts that the Consititution was created by the States, and therefore those States have the right to get out of it, wouldn’t this right apply ONLY to the original 13 states that preceded the Constitution? How can one say that, for example, Tennessee “entered into a compact” with “other states” via the Constitution, when Tennessee was in fact created through the Constitution, many years after its enactment?”

From my comments here and here:

Of course, there is a right to secede. Of course, Sandefur is dead wrong in harping on this allegedly significant distinction without a difference. The CSA had a right to secede and to revolt, just as did the USA in seceding from Britain. (This pettifogging by thelibertarian centralists reminds me of the hairsplitting involved in the claim that there is a difference between alienating and forfeiting a right–often made to justify the latter while pretending to still be in favor of “inalienable” rights; rights are not inalienable. They are (proportionatley) forfeited, or alienated, by committing crime).

The states of the US obviously have a constitutional right to secede, since the federal government is merely an agent of limited powers created by compact of the original 13 state-parties, and that compact (a) never denied the right of states to leave the union; (b) the states never gave up this right; and (c) the feds were never granted the power or authority to stop the states from leaving. It is quite obvious that there is a constitutional right to secede.

As Kevin Gutzman discusses in ch. 3 of Virginia’s American Revolution: From Dominion to Republic, 1776-1840 (as well as in his 2004 Review of Politics article “Edmund Randolph and Virginia Constitutionalism,” Virginia (in addition to two other states) retained the right to reclaim the powers they were delegating to the Federal Government (that is, to secede) in case those rights were perverted to their oppression (which has to be a matter that is for them alone to decide). See ch. 3 of Virginia’s American Revolution and the aforementioned article. In fact, the two leading Federalist spokesmen in the ratification convention told the convention that they were to be “as one of thirteen parties to a compact,” that the Federal Government would have only the powers it was “expressly delegated,” and that they could reclaim the powers they were granting it (that is, secede) if those powers were perverted to their (that is, Virginians’) oppression. (Obviously, only Virginians could be the judge of that.)

Further, the Supreme Court has long had what it calls the Equal Footing Doctrine (2), which holds, after the manner of Virginia’s Northwest Cession of 1781, that all states have the same rights. If Virginia (and NY and RI) reserved the right to secede, then all states have that right. This doctrine requires all states to be treated alike, and reflects the universal understanding of the ratifiers, that means any state can secede if it wants to.

Incidentally, the two VA Ratification Convention delegates mentioned above were the governor, Edmund Randolph (also a prominent Framer) and George Nicholas, who often spoke for Madison. They were two of the five members (along with John Marshall and James Madison) of the all-Federalist committee to draft the instrument of ratification.

(For more on this, see the two above-noted works by Gutzman, plus his Gutzman’s Mr. Franck, Meet Mr. Randolph and Neocons vs. the Real Constitution.)

Now, of course, it could be that the president, in the mode of Lincoln, would ignore Texas’s right. That’s a separate issue.

***

So why does Sandefur nitpick on the difference between “secession” and “revolution”? Because you see, he wants to argue that since there is no legal right to secede (contra reality), then all that’s left is the right to revolt. But then those nasty Southern racist slaveholders had no right to revolt–why? Because (as I explain in
Sandefur and Federal Supremacy), in Sandefur’s view, “the Southern states could not legitimately claim a right to revolt in defense of slavery”. (Nevermind that he views the American revolution from Britain as legitmate, even though colonial America had slavery!)

But this is sleight of hand on his part. He pretends like his reason to oppose the CSA’s revolution was that they had slavery (again, nevermind the fact that the US did in 1776, too). But note, he writes: “revolution is justified only as a form of self-defense against rulers who have engaged in a train of abuses and usurpations against those individual rights which just governments protect. This alone distinguishes an act of revolution from a mere criminal conspiracy.”

Sandefur is of the opinion that there was no train of abuses justifying revolution (despite the fact that the federal taxes, impositions, tariffs, etc. were more onerous in 1861 than those King George imposed in 1776; and certainly today’s federal mandates, taxes, and regulations are orders of magnitude beyond either, thus making the case for revolution stronger today than ever!). This means, however, that slavery has nothing to do with Sandefur’s arguments against the right to revolution. For under this theory, even if none of the United States had had slavery in 1861, it would still have been a “mere criminal conspiracy” for the South to secede, without permission from Congress. This is because the South, according to Sandefur, would not have been “able to point to a long train of abuses pursuing the design of reducing them to despotism”. In other words, even if slavery had already been abolished, the Union would be justified in using armed force to subdue a seceding State, unless the State was engaged in “revolution” in response to acts of “despotism” by the Union.

Sandefur’s real position is that, barring acts of despotism by the central government, it may legitimately use armed force to prevent the secession of its States.

So, according to our centralist “libertarian” “allies,” states cannot secede, since they have no right to (despite the fact that Virginia and other states explicitly retained this right, which was recognized by the ratifying convention; and the Equal Footing Doctrine, which requires all other states to also have this right); and they can’t revolt, since there has been no long train of abuses (despite the current unprecedented world financial crisis foisted on the states by the feds, imposing cripling million-dollar future obligations on the citizens of the States; despite the fact that Sandefur et al. recognize the puny abuses of King George as justifying the 1776 American Revolution (please, please give me back King George)).

In reality, the proper libertarian view is that of course there is a right to secession, both constitutional and natural; and there is a right to revolution, since our federal government is criminal, unlibertarian, unconstitutional, and tyrannical (little Timmy can’t acknowledge that–wouldn’t be a polite position to take while kissing ass at some DC cocktail party).

***

The truth is that right to secede is anathema to the centralist libertarian and Randroid mindset, which is obsessed with the idea of having a nice, neat, legal, “final” deciding authority…. even if it’s the criminal state itself–which is why they distort and lie, to justify their disgusting worship of the unconstitutional, unlibertarian 14th Amendment, federal judges, and federal power.

Further, Sandefur disparages libertarians who hold views similar to Paul’s as “paleoconservatives.” A better term might be anti-centralist libertarians. The truth is, the centralism and naive federal judiciary worship of Sandefur and his statist-centralist pals is hardly compatible with libertarianism, which is anarchist, anti-state, and decentralist.

***

A final point. So what if there is no right to secede in the Constitution? The Constitution was an immoral, unlibertarian, criminal coup d’etat. In any event, agreements entered into by previous generations do not bind us.

***

One other comment: it’s sad that an ostensibly libertarian site, one that trumpets the Declaration of Independence, is accepting the Lincolnian state’s “logic” in denying to States the right to secede (or revolt). Extremely disappointing.

But then, I guess that’s what you get from a soi-disant libertarian who has “distanced myself from the more extreme elements of the libertarian movement.” Wow, I guess even Barry Goldwater would be too much for him! Only respectable types around here, move along, move along.

To those watching from the sidelines, whose side would you rather be on: that of the brave Ron Paul; that of principled, anti-centralist, anti-war libertarians; that of Jefferson and Madison (of Kentucky and Virginia Resolves fame — 1, 2) — or that of a self-admitted “pro-war libertarian” who says “the evidence is clear that Western Civilization is in a fight for its own survival right now. Following the naive foreign policy advocated by the Libertarian Party and its pacifist allies is, quite frankly, a prescription for suicide.”

Hey, buddy, we are committing suicide right now–you see the financial implosion going on around you? Hmm, I wonder if it might have something to do with the military spending of this federal beast, and its authority and capacity to decide whether or not and how to wage war–which you support?

***

Another point about the “respectable,” non-extremist, cocktail-party libertarians yammering about slavery as if this was some unique taint of the CSA’s secession (yes yes, we’re all anti-slavery now–well, we anarcho-libertarians are anti-slavery, of course–against slavery of all kinds; the statist, I mean, minarchist, cocktail-party centralist libertarians favor taxation, which is a type of slavery, and the state’s right to exist, and hence its ability to inevitably kill and kidnap and jail innocent people as it enacts one unjust positive law after another) — but how they can maintain that slavery taints the CSA’s case but not the USA’s requires a mental compartmentalization and disingenuous mental gymnastics that is almost admirable, in a twisted sort of way: After all, during the American Revolution, the British offered freedom and a bounty to any slave who fought for them, so it was the anti-slavery cause, and the colonists’ the pro-slavery one, as Dr. Johnson loved to point out. And, of course, during Recent Unpleasantness (which DiLorenzo appropriately refers to as The War To Prevent Southern Independence), the Union also contained slave states throughout the war, and in fact, before Lincoln’s invasion of the South, there were more slave states in the Union than in the Confederacy. So how do the slave-owning USA during the Civil War, and the slave-owning USA during the Revolutionary War, garner the centralists’ favor, when this fact condemns the CSA’s botched effort? Why, because without the US gaining independence from Britain, and defeating the secessionist CSA, we wouldn’t have the 14th Amendment authorizing federal judges to supervise the hicks and peon lawmakers of the southern and rural states! And we wouldn’t have “American entry into WWI, to the punitive Treaty of Versailles, [] the rise of German nationalism and Hitler and WWII, tens of millions dead and the Holocaust, nuclear bombings of Japan, the Cold War, etc.” We wouldn’t have American Greatness!

***

Did you know, the last slave state to enter the union was West Virginia, which entered the union via an unconstitutional act by the Lincoln regime. So Sandefor’s favorite tyrant, Abe Lincoln, 1) violated the Constituton, to 2) bring another slave state into the union.

***

Readers should realize that the “right of revolution” crap is a complete fabrication of Harry Jaffa’s demented mind, and is parroted by all of his sychophants like li’l Tim Sandefur. It’s all made up. The founders never engaged in any such discussion. If they did, why doesn’t Jaffa or Sandefur quote them?

This is what Straussianism is: reinterpreting historical documents in a way that rewrites history to fit neocon policy agendas. How is this different from Soviet propaganda practices?

The truth is that the states were always sovereign, which means they could secede whenever they damn well wanted to for any reason. But this is all a diversion the REAL question is: Why was there a war?

Everyone knows that Lincoln did not invade in 1861 to free any slaves. Why, then, did he invade his own country and micromanage the murder of 350,000 American citizens?

These naive, dishonest, dishonorable, faux-libertarian apologists for statism, centralization, and war should have to answer this, and answer for their treason.

EB April 27, 2009 at 3:12 pm

“These naive, dishonest, dishonorable, faux-libertarian apologists for statism, centralization, and war should have to answer this, and answer for their treason.”

Gee, so much for posting “civil comments…”

M.Ross April 30, 2009 at 1:15 am

I agree! And it is apparent that as with other matters of gov’t, few People even read most documents that created the gov’t. Ex:

Prove This Statement Wrong! I submit:

The 17th Amendment Does Not Apply To Any States That Did Not Ratify It – Because They Did Not “Consent” To It, & the Constitution Declares:

“…; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” – Article V last clause.

The “Consent” clause is Written Inviolate by the framers!

No State Ratification Means No Consent, & No 17th Compliance Required! A state must ratify to “Consent” to “be deprived of its equal Suffrage in the Senate.”! Which states did not consent? Find each state’s 17th amendment ratification documents. Rattle the states, not the feds!

This Is A “Federal Question” Of “Great Public Importance”!

“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”
South Carolina v. United States, 199 U.S. 437, 448 (1905).

< http://mrossarr.nixsyspaus.org/17thamend.shtml>

 Darrel Raber March 13, 2010 at 8:16 am

Have just turned back from a special holiday to Pattaya, stayed at West of Eden in the northern part which is less busy than southwestern areas, superior hotel and great bays near Pattaya like at Koh Larn. We hired a landrover for only 400 baht per day and would drive around the entire area. So many marvelous localises to dine, our cherished restaurant was Ahan thai Aroy which had the most wonderful view over the beach, the faculty was quite friendly and the food so delicious, we went for sunset cocktails. My wife and I had a great time in Pattaya City and will be back for New Year.

“Randy Barnett’s Federalism Amendment” [TLS; Mises; archived comments; 12/3/2010]

TLS version:

Last year I discussed Randy Barnett’s proposed constitutional amendment in Randy Barnett’s Proposed “Federalism Amendment” and Randy Barnett’s “Federalism Amendment”–A Counterproposal. The amendment would give a two thirds majority of the states the power to repeal any federal law or regulation.

As noted in recent blogposts (Does Amending the Constitution Dishonor the Founding Fathers? by Damon Root on Reason‘s Hit & Run blog and Reflections on the Repeal Amendment by Ilya Somin on Volokh Conspiracy), the idea has now been endorsed by a number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor. I doubt it will go anywhere, but it’s good to see it getting more attention.

As I noted in my posts from last year, Barnett’s proposal could be improved by explicitly recognizing the constitutional right of states to secede, and other changes. And a far better improvement would be an amendment explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction (on this, of course, see Tom Woods’s Nullification).

“Randy Barnett’s Federalism Amendment” [archived comments; 12/3/2010]:

 

J. Murray December 3, 2010 at 11:46 am

20% sounds like a better target number. There needs to be some mechanism for the minority to protect itself from the tyrrany of the majority.

REPLY

Daniel Kuehn December 3, 2010 at 11:46 am

I’m not sure if you realized, but this has also been discussed recently in the Virginia state legislature. I wrote about that, and my support for the amendment, here:

http://factsandotherstubbornthings.blogspot.com/2010/11/states-rights-and-constitution-in.html

Although you’ll see I support it precisely because it’s federalism but not nullification/secessionism. My view is that nullification and secession as conceived by Woods defeat the whole purpose of a federal republic – but yes, I agree – this amendment is a very good idea.

REPLY

RWW December 3, 2010 at 9:32 pm

What is “the whole purpose of a federal republic”?

REPLY

scineram December 3, 2010 at 12:10 pm

“explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction”

Which would defeat the whole point of having the union in the first place.

REPLY

Daniel Kuehn December 3, 2010 at 12:19 pm

Right.

I wish Tom Woods and other nullificationists would simply come out and say they don’t think federalism is a good idea – that they want a mutual security compact between independent states or something like that.

Did Jefferson and Madison similarly not like federalism? I think that’s harder to say because in the early republic everyone was necessarily groping around in the dark. I feel pretty comfortable saying they probably wanted a meaningful federalism, not just a mutual security compact, and that they were simply reacting to a shocking overreach by Adams. Jefferson and Madison I expect were closer to states and localities saying “I’m not going to wait for the Supreme Court to tell me the Patriot Act is unconstitutional” than they were to the secessionist doctrines that would emerge in the 1860s.

REPLY

David Bratton December 3, 2010 at 12:31 pm

I’ll say it. Federalism is a mere confidence game and it always has been. There is no such thing as divided sovereignty. Divided sovereignty is a contradiction in terms because sovereignty is the power to act as the final judge in all disputes. There cannot be two opposing final judges, so either the states are sovereign and the Federal Government is not, or it’s the other way around.

REPLY

Daniel Kuehn December 3, 2010 at 12:42 pm

And I gather you think the Supreme Court is going to be a lap dog to the Federal government… an institution which essentially has no authority or sway over the justices at all?

I think people who make your case vastly overstate this issue of a “final judge”. Our final judge may not always agree with you, but that is hardly the same as saying they are biased in favor of the federal government. Biases may emerge from time to time and the decision making isn’t perfect, but I don’t see any reason to believe it is systematically imperfect. The case that the Supreme Court is beholden to the Federal Government is very weak, and it’s always a case that is made by citing innuendo and personal dissatisfaction with decisions, rather than evidence or even logic.

Now – that’s not to say the actual institutions of governance couldn’t be more balanced – they can be. The actual institutions of governance are quite imbalanced, which is why we see a drift towards the federal government (the Supreme Court can’t make all adjustments… some disputes never come before it). That’s why I support the Federalism Amendment. But that’s a very different argument from the argument that federalism itself is a “contradiction in terms”.

REPLY

nate-m December 3, 2010 at 1:32 pm

And I gather you think the Supreme Court is going to be a lap dog to the Federal government… an institution which essentially has no authority or sway over the justices at all?

Um. I don’t know if this comes as a shock or anything, but the USA Supreme Courts is part of the Federal Government. You can’t say that ‘Sumpreme Court has sway over the Federal Government’ because they are one and the same. It’s like saying that my arm is a significant influence over the behavior of my liver.

I think people who make your case vastly overstate this issue of a “final judge”. Our final judge may not always agree with you, but that is hardly the same as saying they are biased in favor of the federal government

Seeing how Supreme Court justices are appointed by the actions of the other two branches of government then I don’t see why it would come as a shocker that the they are going to appoint people that agree with their political viewpoints.

In case your not getting what is being said here:

The Supreme Court is a balance for government power in the same way that Congress controls the government budget and the Executive branch has the power of the veto. This is designed to _slow_down_ bad legislation to prevent politicians from taking advantage of shocking events and temporary extreme sways in public opinion to pass power-grabbing legislation.

The Supreme Court is made up of pro-federal-government judges because that is what the other branches of the federal government wanted to be in there. The Supreme Court, like everybody else in the planet, are just going to act on their own self interest. Nothing more, nothing less.

The Supreme Court is NOT the ultimate power or counterweight for Federal power. It is PART of the Federal power.

The system is designed so that the power resides in the state so that the state is the final arbitrator and that the individual states are ultimately answerable to local constituents.

But that is thrown out the window with everything else a hundred years ago.

REPLY

Daniel Kuehn December 3, 2010 at 1:44 pm

I didn’t think I needed to clarify the initial point. Are you being sarcastic? In case you’re not I’ll clarify – yes, the Supreme Court is a part of the Federal Government but it has no role in providing federal-level governance outside its task of judging. It therefore has no interest in expanding power at the federal level. Clear?

Now – you are exactly right that Supreme Court justices are appointed by other branches of government. This is precisely why I think it would be better to have election of Senators by state legislature and repeal authority for the state legislatures. But there’s nothing about the Supreme Court being a court in Washington D.C. that introduces a problem here.

“The system is designed so that the power resides in the state so that the state is the final arbitrator and that the individual states are ultimately answerable to local constituents.”

Are we reading the same Article 3? Power resides in the states to be sure. I am struggling to see support for your conclusion that final arbitration does. Could you cite something to that effect?

Beefcake the Mighty December 3, 2010 at 1:48 pm

“It therefore has no interest in expanding power at the federal level. Clear?”

This statement, if honestly put forth, is naive, I’m afraid.

Daniel Kuehn December 3, 2010 at 2:18 pm

Beefcake –
Well note also what I agreed on with nate regarding the incentive structure of the Supreme Court.

If you’re willing to note other incentives I’m all ears and happy to agree if they seem sensible.

My point is simply that they are not beholden to the federal governing bodies or dependent on them in the way that the modern nullification view insinuates.

J. Murray December 3, 2010 at 12:28 pm

A Federation is a group of sovereign nations that band together and agree on common rules. The United States isn’t a nation. It’s 50 nations engaged in a pact of common economic rules and military protection. Because the USA isn’t a nation, no state or Federal elected body can force any other state to engage in practices that violate the terms of the original pact. That’s the purpose of nullification.

The Federal government was meant to be the steward of the common military defense and to ensure the individual states weren’t violating the rules lain out in the Constitution, mainly ensuring the free movement of people and goods between the borders. Anything that extends beyond this duty can be nullified.

REPLY

Daniel Kuehn December 3, 2010 at 12:45 pm

“Because the USA isn’t a nation, no state or Federal elected body can force any other state to engage in practices that violate the terms of the original pact. That’s the purpose of nullification.”

Nobody is arguing that a Federal elected body can force a state to violate the terms of the original pact.

The argument is that nullification is wrong because it would allow individual states to violate the terms of the original pact when constitutionally legitimate Federal action is deemed inconvenient.

It’s precisely because of the anti-Constitutionalism of nullification that people are opposed to it.

REPLY

Stephan Kinsella December 3, 2010 at 12:49 pm

No, it wouldn’t. You speak from ignance. Read Woods.

and if it did–good.

REPLY

Daniel Kuehn December 3, 2010 at 1:04 pm

I haven’t read Woods but I’ve listened to several versions of his lecture on nullification. Unless Woods takes a completely different approach in his book than he does in his lectures, I have to agree with scineram.

Might I submit, Stephan, that you are wrong to say that scineram is arguing from ignorance and that the wedge between you and scineram emerges from a difference in your views on “the whole point of having the union in the first place”.

It seems unnecessary for you to accuse others of ignorance, when this seems like the far more likely explanation for your disagreement.

REPLY

Stephan Kinsella December 3, 2010 at 1:07 pm

MAdison and Jefferson favored nullification. Were they against the Union? Come on, this is nonsense.

REPLY

Ben December 3, 2010 at 1:55 pm

I think the whole crux of the argument is that if the Federal Government is telling the states to do something that the state believes to be unconstitutional, then the state has every right to nullify that law. After all, the Federal government is only allowed as much power as the states grant it, not the other way around. As long as the states are not doing anything outside the bounds of the constitution, then there is really nothing the Federal government can do.

REPLY

Mark December 3, 2010 at 2:33 pm

I’ve often entertained different constitutional amendment ideas that would reign in the federal government, but I decided the only one that will work is an amendment that takes away the federal government’s power to tax and forces it to subsist on voluntary contributions from the state. That’s the only one that transform the federal government from master into the agent of the states intended by the original ratifiers of the Constitution.

REPLY

Ben December 3, 2010 at 3:24 pm

I’ve often wondered (since I got my first paycheck at 15 and saw how much I was paying in tribute), why do the states tolerate the federal government taking their money and then making them jump through all kinds of hoops to get back the money that belonged to the state in the first place?

REPLY

J. Murray December 3, 2010 at 4:06 pm

40 out of the 50 states are net tax recipients. It’s just another matter of tyranny of the majority. The 40 states simply outvote the 10 states that send up more in forced tribute than ever get back.

REPLY

Nikolaj December 3, 2010 at 8:12 pm

Stephan you said:
“And a far better improvement would be an amendment explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction”

Would not such a request be an explicit recognition that now the right to nullify does not exist (when it clearly exists, see Woods, Nullification)?

REPLY

Stephan Kinsella December 4, 2010 at 9:25 am

Fair point; and one advantage of nullificaiton is that it can be done NOW by one state standing up to the feds. They don’t need to wait for such an amendment. But I’d take it anyway.

Same with secession: it is a right too, but the feds have muddied the waters so I would be happy with an amendment making it clear, even though arguably it’s “unnecessary”. The state has made unnecessary things necessary by its predictable chicanery.

REPLY

RWW December 3, 2010 at 9:36 pm

States don’t have rights. This whole discussion puzzles me.

REPLY

Stephan Kinsella December 4, 2010 at 9:24 am

This is a tired old argument. Everyone knows that “states rights” doesn’t mean states have rights, any more than “property rights” means property has rights. IT simply refers to the limited and enumerated powers nature of the federal state.

REPLY

Hilarious quote from this Slate article (also discussed at about 15:00 in the Slate Culture Gabfest for 12/1/10):

A criticism about the advent of the “fiction writing” degree, MFA:

The whole discipline had been gestating for a decade, beginning with novelist Walter Besant musing in 1884 over the notion of “Professors of Fiction”—something then as fantastical as a steam-powered robot. It was a vision that at least one critic found “Appalling. As if there were not enough novels already. … [Now] we are to have our young maidens trained to the business, and let loose upon the world, in batches, every year to pursue their devastating calling, as if they were dentists or pharmaceutical chemists.”

As I noted in Objectivism: Leonard Peikoff vs. the World, the Objectivist world is being shaken by the latest schisms and excommunications, regarding ARI founder and Rand heir Leonard Peikoff’s denunciation of former ARI board member John McCaskey. Diana Hsieh and her husband have weighed in with overwrought “final thoughts” in Closing Thoughts on ARI, Peikoff, and McCaskey (they closed comments and refuse to state their final decision about ARI and Peikoff’s treatment of McCaskey), as have others. Most interesting was Robert Tracinski’s Anthemgate, and Michael Stuart Kelley’s comments on that piece, Thoughts On Tracinski’s Anthemgate Article.

This latest scandal concerns Peikoff’s apparently unfair insistence on his right to determine what Objectivism is and his use of his influence to eject McCaskey. This is threatening to make ARI and Objectivism even more marginalized and to splinter and harm that movement. As Tracinski notes:

Early this month, John McCaskey resigned from the board of directors of the Ayn Rand Institute and from the Anthem Foundation for Objectivist Scholarship, which McCaskey founded to promote the training and hiring of Objectivists in academia. McCaskey resigned after his removal was demanded by Leonard Peikoff, Ayn Rand’s student and heir, who does not sit on the board but, through his control of Ayn Rand’s name and intellectual property rights, holds enormous clout over the Institute’s actions.

In other words, the existence of IP rights is helping to kill Objectivism. A bit ironic given Rand’s and Objectivists’ endorsement of IP rights and IP law.

One Objectivist even noticed this–a commentator on Objectivist Living notes:

Those who so readily dismiss libertarians who are questioning the soundness of the monopolies-by-law called “intellectual property” should think a few times about what deadening effects will continue to result from Rand’s copyrights remaining in the Peikoff family. For most of the rest of this century, by the way.

Yes, decrying the abuses Peikoff makes with them is a consequentialist argument. Nonetheless, he wouldn’t have that position to abuse Rand’s legacy if copyrights were even reined back to less outrageous proportions, let alone questioned in full.

See this post.

Podcast: Play in new window | Download (Duration: 31:51 — 14.6MB)

Subscribe: RSS

Ayn Rand had Francisco d’Anconia say in the “Money Speech” from Atlas Shrugged, “Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.” Love that line.

I feel the same about people who denigrate the libertarian notions of self-ownership and the non-aggression principle. The alternative to my being a self-owner is that someone else–maybe the person objecting to the “coherence” of self-ownership–owns me instead. That’s slavery. Those who object to the NAP must favor some kinds of aggression–or what we libertarians quaintly call “crime.”

From The Libertarian Standard, Nov. 19, 2010. Any updates to this post will be made here.

Update: for extended quotes from Rothbard and Hoppe about the problem of universal equal or communist ownership, see KOL468 | Is Group Ownership and Co-ownership Communism?

Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…

Rothbard has so many amazing works. Some of my favorite of his articles include “The Mantle of Science,” “Law, Property Rights, and Air Pollution” (pdf), “Beyond Is and Ought,” “Toward a Reconstruction of Utility and Welfare Economics,” “Left and Right: Prospects for Liberty,” and various chapters in The Ethics of Liberty such as “‘Human Rights’ As Property Rights,” “Knowledge, True and False,” and “Property Rights and the Theory of Contracts.” I think my favorite collection of his works is The Logic of Action One and Two–just chock full of classic, amazing pieces [now online as Economic Controversies]. And yet another favorite is The Free Market Reader–one of the best introductions to free market thinking; see Rothbard’s opening chapter, “Ten Great Economic Myths” (also ch. 2 in another great collection, Making Economic Sense).

Case in point is his stunning, amazing article in The Logic of Action One, “Justice and Property Rights” [and, again, this is also in Economic Controversies]. This piece was published in two forms in 1974: first, in Egalitarianism as a Revolt Against Nature and Other Essays, and is available online here. The second version was also published in 1974, in Property in a Humane Economy, Samuel L. Blumenfeld, ed. (online here). Oddly, The Logic of Action One, at least the version online here, contains the original version of “Justice and Property Rights” from Rothbard’s Egalitarianism book; while Economic Controversies, which is otherwise identical in content to The Logic of Action, contains the Blumenfeld version that contains the extra paragraph.

Now, The Logic of Action is not online and not easy to find, but this article in my copy of that book is heavily underlined. But luckily the Blumenfeld book is online at Mises.org. The two pieces seem identical but the latter version appends an important concluding paragraph that is not present in the first one:

It might be charged that our theory of justice in property titles is deficient because in the real world most landed (and even other) property has a past history so tangled that it becomes impossible to identify who or what has committed coercion and therefore who the current just owner may be. But the point of the “homestead principle” is that if we don’t know what crimes have been committed in acquiring the property in the past, or if we don’t know the victims or their heirs, then the current owner becomes the legitimate and just owner on homestead grounds. In short, if Jones owns a piece of land at the present time, and we don’t know what crimes were committed to arrive at the current title, then Jones, as the current owner, becomes as fully legitimate a property owner of this land as he does over his own person. Overthrow of existing property title only becomes legitimate if the victims or their heirs can present an authenticated, demonstrable, and specific claim to the property. Failing such conditions, existing landowners possess a fully moral right to their property.

This part was no doubt added by Rothbard to combat the arguments of some, such as some left-libertarians, who want to argue that existing property titles are illegitimate because of their non-immaculate origins and, presumably, ought to be wrested from current nominal owners, especially the wealthy, and I suppose redistributed to the proles.

[Update: See Rothbard’s “Confiscation and the Homestead Principle,” from Libertarian Forum, vol. 1.6, June 15, 1969, which may be what Kevin Carson has in mind here:

I’m quite friendly to George, and think the lines between individualism and Georgism are a lot less harsh than (say) Tucker would have believed. But I believe a great deal of rent could be eliminated simply by removing subsidies to economic centralization and positive externalties created by taxpayers–not to mention by removing state enforcement of title to vacant and unimproved land. If as much urban infrastructure as possible were funded by user fees, and cities broken up into lots of mixed-use neighborhoods in which residential areas had their own miniature “downtown” cores, differential rent would be far less significant. I think a majority of George’s aims could be achieved by Tucker’s means, or even by a throughgoing application of Rothbard’s means.] ¹

This piece is just so full of great insights. Hoppe has noted previously that there are arguments in Ethics of Liberty that basically anticipated Hoppe’s “argumentation ethics” defense of libertarian rights (see my post Hoppe and Intellectual Property: On Standing on the Shoulders of Giants). [continue reading…]

1. From Rothbard’s “Confiscation and the Homestead Principle,” from Libertarian Forum, vol. 1.6, June 15, 1969. Here Rothbard writes:

   Let us now apply our libertarian theory of property to the case of property in the hands of, or derived from, the State apparatus. The libertarian sees the State as a giant gang of organized criminals, who live off the theft called “taxation” and use the proceeds to kill, enslave, and generally push people around. Therefore, any property in the hands of the State is in the hands of thieves, and should be liberated as quickly as possible. Any person or group who liberates such property, who confiscates or appropriates it from the State, is performing a virtuous act and a signal service to the cause of liberty. In the case of the State, furthermore, the victim is not readily identifiable as B, the horse-owner. All taxpayers, all draftees, all victims of the State have been mulcted. How to go about returning all this property to the taxpayers? What proportions should be used in this terrific tangle of robbery and injustice that we have all suffered at the hands of the State? Often, the most practical method of de-statizing is simply to grant the moral right of ownership on the person or group who seizes the property from the State. Of this group, the most morally deserving are the ones who are already using the property but who have no moral complicity in the State’s act of aggression. These people then become the “homesteaders” of the stolen property and hence the rightful owners.

   Take, for example, the State universities. This is property built on funds stolen from the taxpayers. Since the State has not found or put into effect a way of returning ownership of this property to the taxpaying public, the proper owners of this university are the “homesteaders”, those who have already been using and therefore “mixing their labor” with the facilities. The prime consideration is to deprive the thief, in this case the State, as quickly as possible of the ownership and control of its ill-gotten gains, to return the property to the innocent, private sector. This means student and/or faculty ownership of the universities.

   As between the two groups, the students have a prior claim, for the students have been paying at least some amount to support the university whereas the faculty suffer from the moral taint of living off State funds and thereby becoming to some extent a part of the State apparatus.

   The same principle applies to nominally “private” property which really comes from the State as a result of zealous lobbying on behalf of the recipient. Columbia University, for example, which receives nearly two-thirds of its income from government, is only a “private” college in the most ironic sense. It deserves a similar fate of virtuous homesteading confiscation.

   But if Columbia University, what of General Dynamics? What of the myriad of corporations which are integral parts of the military-industrial complex, which not only get over half or sometimes virtually all their revenue from the government but also participate in mass murder? What are their credentials to “private” property? Surely less than zero. As eager lobbyists for these contracts and subsidies, as co-founders of the garrison state, they deserve confiscation and reversion of their property to the genuine private sector as rapidly as possible. To say that their “private” property must be respected is to say that the property stolen by the horsethief and the murdered [sic] must be “respected”.

   [See also Rothbard on the “Original Sin” in Land Titles: 1969 vs. 1974; Murray N. Rothbard, “Confiscation and the Homestead Principle (1969),” Panarchy; Jeff Deist, “Rothbard on Slavery Reparations,” Power & Market (July 12, 2019)]

   But of course Rothbard later implicitly repudiated these views, as can be seen in his 1974 article “Justice and Property Rights,” as I’ve explained here. [↩]

My two recent LRC posts. For other posts on the antics of the hilarious Objectivists, see here and here.

Re: The Latest Objectivism Schism: Peikoff vs. McCaskey

The Latest Objectivism Schism: Peikoff vs. McCaskey

I’ll be a guest on the Austin-based radio show “Live and Let Live” tonight, discussing IP. The host is Gary Johnson; the time is 9pm CDT. I’ll be on during the second hour of the two-hour program, which is live on the Rule of Law radio network. It can be heard on www.ruleoflawradio.com and on affiliate stations, including 90.1 FM in Austin. The episode will be archived on ruleoflawradio.com/archive.

Update: audio is here.

[C4SIF]

From the Mises Blog; archived comments below.

State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law

Archived comments below:

Bennette Sebastian November 12, 2010 at 2:31 pm

Libertarianpress.blogspot.com

REPLY

Ohhh Henry November 12, 2010 at 4:58 pm

It is not unprecedented for different factions of government to fight with each other for the right to control and steal from the public. In Nazi Germany the rivalries between top leaders were notorious. It was said to be one of Hitler’s favorite management techniques, to give ambivalent orders for overlapping responsibilities to two or more of his underlings. In Mao’s Cultural Revolution the factional rivalries apparently got so heated that there were army units fighting in the streets with tanks. In these extreme cases it may have been the deliberate policy of top leaders to divide and control their underlings, or it may be a natural and inevitable result of total government.

Each government department naturally wants to expand forever. When the public has been so tyrannized that there is almost no activity left which is not already controlled by some part of government, the departments must then fight to displace each other if they want to expand. Given the recent lack of fresh, new wealth and unregulated, successful industries to control and plunder in America, perhaps you will see a turf war between the IP Zealots and the Trust Busters.

REPLY

Stranger November 13, 2010 at 1:40 pm

The distinction is really quite obvious. Anti-trust law limits what you can do with your property, while IP laws limit what other people can do with your property (you are still free to limit or not limit other people’s access to your own property).

This makes anti-trust laws anti-economic, while IP laws are pro-economic.

REPLY

Stephan Kinsella November 13, 2010 at 2:25 pm

Stranger, you are confused: IP laws tell others what they can do with their OWN property. For example one effect of a patent on a method for tweaking your engine to get better mileage would be that I cannot tweak my own car’s engine to get better mileage.

REPLY

Stranger November 13, 2010 at 2:45 pm

There’s no need for me to explain this fallacy, as Rothbard already did so long ago in Man, Economy and State.

http://mises.org/rothbard/mes/chap10e.asp#7._Patents_Copyrights

REPLY

Matthew Swaringen November 13, 2010 at 3:21 pm

You said “IP law” when you should have said copyright then. If you agree only with copyright you should clarify your terms. You engage in (perhaps unintentional) deception when you have spoken in defense of IP only to trump someone who gives a patent example with talk of how only copyright is valid.

Nevertheless, Rothbard was wrong.

“For literary creations are unique products of the individual; it is almost impossible for them to be independently duplicated by someone else.”

One might agree with this statement, but it only applies towards the whole sum of a book. Surely someone can write a similar plot, paragraph, character, or come up with a similar name? And yet copyright applies not only to entire books. There is “fair use” but fair use excludes the right to produce adaptations or extended works. Why would Rothbard disallow this? He might not disallow this, in which case his argument is not for anything like current copyright law. The problem is he doesn’t say, so exactly what copyright entails is entirely unclear.

He does imply copyright could be used for inventions that are sold, requiring the purchaser not to reverse-engineer them. But say that the purchaser does anyway, and a third party benefits who wasn’t party to that agreement. Say the third party has no knowledge of that agreement whatsoever, and produces a similar device. What recourse has the original seller against the third party? And what justification is there for recourse?

Rothbard didn’t think this through. And the reason he didn’t think this through is because the conditions of his time didn’t warrant a lot of thought on the subject. This is unfortunate. I think if Rothbard were from this era he would have come to the right conclusions. You may think differently on that matter, but what should at least be clear is that Rothbard didn’t spend nearly sufficient time to explain the whole of what his copyright entailed in comparison to the state, and all of it’s ramifications in a society where copying is nearly free.

“There would, however, be copyright for any inventor or creator who made use of it, and this copyright would be per­petual, not limited to a certain number of years. Obviously, to be fully the property of an individual, a good has to be perma­nently and perpetually the property of the man and his heirs and assigns.”

This idea is not so devastating when one thinks of an entire book and the rights to print and reproduce that book, except what if the heirs of the man’s heirs are fools and don’t give anyone the right to print the book, a choice the man would not have made? What if knowledge is lost to all because of their choice? This is ok? Perhaps to you it is, but to me it is a travesty.

When I think of land as property, I think of homesteading and improvements made to the land. But if an heir allows the property to be reclaimed by nature, does not exist on the land or use the land… is he the owner of it? I would say he isn’t any longer. One cannot gain land simply by claiming it, one has to do something to earn that ownership. And that something has to continue. To disagree with this principle is to say that ownership should last even when the scarce resources aren’t in use, and to say that I should be able to claim “all unused parts of the world” and shoot anyone who dares enter them.

REPLY

ABR November 14, 2010 at 12:24 am

Rothbard believed that land once homesteaded must remain ‘owned’ until or if the owner declares otherwise.

REPLY

Matthew Swaringen November 14, 2010 at 1:38 pm

I wouldn’t agree with him on that either.

Zorg November 14, 2010 at 8:34 pm

As I recall, he left the door open for abandonment of property in land.
His underlying assumption was that the present owner of record had
the superior *claim*. If another comes along to challenge that claim, then
that newcomer would have to show that his claim is superior.

Rothbard pretty much dismissed other theories of land ownership. He
talked about the importance of land being managed by absentee owners
and speculators even if it’s “unused” at present. I think he correctly sensed that there are a lot of pitfalls here. Some people have gone over the edge and seem
to want to start from scratch. If that is not a recipe for disaster, I don’t know
what is.

Rothbard just said that you’d have to challenge a title and then prove your
case. I don’t think he dismissed the idea that property could be considered abandoned at some point and that a “squatter” could homestead it. But he
was arguing against people – mostly socialists of one kind or another – who
still view property through collectivist lenses even when they give a nod to
private property.

I think there is more work to be done regarding land just like there is more
to be done on IP and other property issues. It does take time for these issues
to unfold and get the attention they deserve. Bad arguments take time to
reveal all their flaws just as good arguments need to be proven over time as they
withstand the attacks of less worthy arguments.

Latarsha Aunkst November 27, 2010 at 11:56 am

I’m sure I will get very angry reading more of this.

1. See Hsieh and Mossoff on IP and Sewing Machines; When Antitrust and Patents Collide (Rambus v. FTC); The Schizo Feds: Patent Monopolies and the FTC; The Schizophrenic State; Intel v. AMD: More patent and antitrust waste; Are Patents “Monopolies”?; Patents, Prescription Drugs, and Price Controls. [↩]
2. See note 10 and accompanying text of my article Reducing the Cost of IP Law (“Once again, as in the case of minimum-wage, social-security, and prounion laws, federal legislation works in favor of big business, … For a recent example, UPS is currently lobbying Congress to enact legislation that would redefine its rival, FedEx, as a trucking company rather than the airline it started out as in an attempt to make it easier for the Teamsters union to unionize FedEx drivers and raise their wage rates—and of course FedEx’s cost structure. See Del Quentin Wilber & Jeffrey H. Birnbaum, Taking the Hill By Air and Ground: Shift in Congress Favors Labor, UPS Over FedEx, Washington Post (September 14, 2007).

   See also Murray N. Rothbard, Origins of the Welfare State in America, Mises.org (1996) (“Big businesses, who were already voluntarily providing costly old-age pensions to their employees, could use the federal government to force their small-business competitors into paying for similar, costly, programs…. [T]he legislation deliberately penalizes the lower cost, ‘unprogressive,’ employer, and cripples him by artificially raising his costs compared to the larger employer.… It is no wonder, then, that the bigger businesses almost all backed the Social Security scheme to the hilt, while it was attacked by such associations of small business as the National Metal Trades Association, the Illinois Manufacturing Association, and the National Association of Manufacturers. By 1939, only 17 percent of American businesses favored repeal of the Social Security Act, while not one big business firm supported repeal.… Big business, indeed, collaborated enthusiastically with social security.”); Llewellyn H. Rockwell, Jr., “The Economics Of Discrimination,” in Speaking of Liberty (2003), at 99 (“One way the ADA [Americans with Disabilities Act] is enforced is through the use of government and private ‘testers.’ These actors, who will want to find all the “discrimination” they can, terrify small businesses. The smaller the business, the more ADA hurts. That’s partly why big business supported it. How nice to have the government clobber your up-and-coming competition.”); Rothbard, For A New Liberty (2002), pp. 316 et seq.; Rothbard, The Betrayal of the American Right, 185-86 (2007) (“This is the general view on the Right; in the remarkable phrase of Ayn Rand, Big Business is ‘America’s most persecuted minority.’ Persecuted minority, indeed! To be sure, there were charges aplenty against Big Business and its intimate connections with Big Government in the old McCormick Chicago Tribune and especially in the writings of Albert Jay Nock; but it took the Williams-Kolko analysis, and particularly the detailed investigation by Kolko, to portray the true anatomy and physiology of the America scene. As Kolko pointed out, all the various measures of federal regulation and welfare statism, beginning in the Progressive period, that Left and Right alike have always believed to be a mass movement against Big Business, are not only backed to the hilt by Big Business at the present time, but were originated by it for the very purpose of shifting from a free market to a cartelized economy. Under the guise of regulations “against monopoly” and “for the public welfare,” Big Business has succeeded in granting itself cartels and privileges through the use of government.”); Albert Jay Nock, quoted in Rothbard, The Betrayal of the American Right, 22 (2007) (“The simple truth is that our businessmen do not want a government that will let business alone. They want a government they can use. Offer them one made on Spencer’s model, and they would see the country blow up before they would accept it.”).

   See also Timothy P. Carney, The Big Ripoff: How Big Business and Big Government Steal Your Money (2006), and also Rothbard, Confessions of a Right-Wing Liberal (“This is the general view on the right; in the remarkable phrase of Ayn Rand, Big Business is “America’s most persecuted minority.” Persecuted minority, indeed! Sure, there were thrusts against Big Business in the old McCormick Chicago Tribune and in the writings of Albert Jay Nock; but it took the Williams-Kolko analysis to portray the true anatomy and physiology of the American scene. … As Kolko pointed out, all the various measures of federal regulation and welfare statism that left and right alike have always believed to be mass movements against Big Business are not only now backed to the hilt by Big Business, but were originated by it for the very purpose of shifting from a free market to a cartelized economy that would benefit it. Imperialistic foreign policy and the permanent garrison state originated in the Big Business drive for foreign investments and for war contracts at home.”)

   See also the Wikipedia article on Rothbard: “Rothbard was equally condemning of relationships he perceived between big business and big government. He cited many instances where business elites co-opted government’s monopoly power so as to influence laws and regulatory policy in a manner benefiting them at the expense of their competitive rivals. He wrote in criticism of Ayn Rand’s “misty devotion to the Big Businessman” that she: “is too committed emotionally to worship of the Big Businessman-as-Hero to concede that it is precisely Big Business that is largely responsible for the twentieth-century march into aggressive statism…”^[49] According to Rothbard, one example of such cronyism included grants of monopolistic privilege the railroads derived from sponsoring so-called conservation laws.^[50]” [↩]