More on federalism and libertarianism

I just found this fascinating article that deals precisely with the tension between libertarianism and federalism that bedevils much of the American libertarian movement, such as Ron Paul and his followers:

https://mises.org/library/fourteenth-amendment-good

Basically, up until the passage of the 14th amendment after the civil war, the Constitution, including the Bill of Rights, was only held to restrain the powers of the federal government. Which, given the powers of the states at the time, was not much restraint at all, from the individual’s point of view. So in many ways, federalism was bad news for classical liberals and libertarians. It allowed slavery, for example.

The 14th amendment restrained the powers of the states from denying their residents the equal protection of the laws, and later Supreme Court decisions went further, citing the amendment as proof that the Bill of Rights should restrain government at the state, as well as at the federal level. The idea that the Bill of Rights guarantees the civil liberties of individual Americans against all levels of government is, therefore, a relatively recent one, and certainly not envisioned by the Framers.

I’m still torn on this issue. There is certainly a temptation to use federal power to force states to adopt policies that promote greater freedom. The trouble is that freedom’s ideological enemies are then given the same tool to push their illiberal agenda on the states, owing to the force of judicial precedent in our legal system. I’ll think about this issue some more and get back to you.

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Who gives a damn about war anymore?

How many liberals give a damn that Obama has returned US troops to Iraq and committed our presence in Afghanistan beyond the end of his term, despite his earlier pledge to withdraw troops by this year? Does anyone remember that he was granted the Nobel Peace Prize at the start of his presidency because of all the promises he made to bring about world peace? The casualness with which we are letting ourselves get sucked in to those quagmires again is truly astonishing, but I’m seeing very little outcry from most quarters. Most on the right, of course, have learned absolutely nothing from their foreign policy mistakes and are still in thrall to neoconservatives notions of nation-building and solving the world’s problems through military force, but given the bile that Democrats spewed against Bush junior, one might think they would exercise a little more skepticism about continuing our foreign interventions.

The truth, of course, is that with a liberal in the White House, the political incentive to oppose the military-industrial complex has vanished. In Libya and Syria, Obama has shown himself incapable of withstanding the pressures to get ever more deeply involved in other countries’ problems. Since the average American is not paying for the war directly in blood, he thinks it doesn’t concern him, making the political contest about domestic issues. But Americans are paying for these wars in our exploding debt that taxes our economy to death. I think the way in which American citizens are being taxed indirectly, rather than directly, goes a long way towards explaining why they can’t see that the solution is shrinking government, rolling back our foreign and domestic commitments and returning to principles of peace, free trade and the free market.

Restraining federal government vs restraining all government

There is a current in libertarianism that welcomes expansion of federal power, as long as this promoted “personal freedom”. Such sentiments are all right, provided that a) “personal freedom” means the same thing to me as it does to you, and b) that expanded federal power can’t later on be used to take away personal freedoms. Unfortunately, neither of the two are always the case, and often they are the opposite.

Exhibit A: gay marriage. Recently the Supreme Court decided that marriage was a fundamental right that could not be denied on the grounds of the sex of the consenting parties. At first glance, this looks like a victory for personal freedom. On further consideration, it does nothing to change the fact that the government still has a say in who you can legally marry, e.g. if you’re already married to another person, you’re not allowed to marry a third person, even if your current spouse consents. Some libertarians have pointed out how government continues to regulate our private lives through licensing marriage, but many others have ignored this fact in order to cheer on this enormous new expansion of federal power. And this ignores the other consequences for personal liberties that accompanied this decision, e.g. the lawsuits brought against business owners that refuse to cater to gay couples on the grounds that this violates the public accommodations clause of the Civil Rights act. An extension of personal liberty in one area is accompanied by a retraction of liberty in another, owing to our messed up legal system.

The solution I prefer is for the federal government to get out of marriage completely. This would give powers back to the states to ban gay marriage, but I think I part ways with many libertarians on things like social legislation. Societies and communities differ in their values and norms and it is reasonable for each community to wish to regulate itself in a way that it sees fit, even if that means tolerating something less than libertarian at the local level. I think I would draw the line at civil rights, however: states should not be allowed to deny local residents the rights enumerated in the Bill of Rights, for example, such as right to fair and speedy trial. I need to think more about what powers should be given to the states and what powers should be withheld, but at first approximation I would say the line should be drawn at the Bill of Rights.

Gun control and incorporation of the Bill of Rights

The Second Amendment prevents the federal Congress from infringing on the rights of citizens to bear arms. At the same time, up until 1925, the federal Constitution, including its amendments, was understood to constrain the powers of the federal government only. That is how, for example, slave states were able to deny civil rights to blacks, but presumably it also allowed states and local governments to exercise whatever control they wished over local residents’ rights to possess weapons. In 1925, however, the Supreme Court decided that the 14th amendment required “incorporation” of the Bill of Rights into state law. This included the Second Amendment, a point which was recently clarified in 2010 by the Supreme Court in McDonald v Chicago.

Many gun-control advocates would probably wish we could return to the old federalism when it comes to the right to bear arms; however, they cannot return the power to control guns to states without also returning the powers to deny due process, suppress free speech, or revoke any of the other rights protected in the Constitution. As a libertarian and believer in natural rights, I mostly welcome this restriction on state and local powers from infringing on natural rights; at the same time, I sympathize with the notion that different communities may even disagree on what constitutes a natural right.

The right to bear arms does seem to be one of those rights that many deny exists. While no one denies the natural right to self-defense, many balk at extending that right to carrying firearms. My response to this is that the individual has a right to any effective form of defense, and for many, the most effective form of defense is the handgun. I’m sure even the most pro-gun advocate would not claim that an individual needs a right to possess his own nuclear arsenal, since there is no sense in which a private citizen needs those kinds of weapons to defend himself and his household. But handguns may be the only thing that works against violent intruders, whereas knives or his own fists and feet may not be adequate.

That being said, should states be allowed to decide differently on this question? I would say that, if states have the power to deny private citizens the right to bear arms in self-defense, they should also have the power deny all other rights. If we allow disagreement over one right, why not allow disagreement over the others?

Is the government representative of the people?

Libertarians, and many conservatives, often speak of the government in adversarial terms. There’s this tyrannical government in power, opposed to the people, and much of politics is about restraining the government from interfering in the people’s lives. At the same time, however, our government is supposed to be representative of the people, and many liberals, and in some contexts conservatives as well, give the government a mandate to infringe on all sorts of liberties, on the grounds that it represents the “people’s will”. So what is going on here? If the government is just an extension of the people’s will, how can we speak of the people and the government as if they are separate entities in conflict?

I’ve been thinking about this, too, in light of my last two posts. My impression is that, from a libertarian perspective, the government is always in some kind of adversarial relationship with the people, regardless of whether it is monarchical or republican in structure. Imposing republican structure and constraints on government is simply the best tool we have for restraining and taming the beast that is government. However, unless one is an anarchist, one concedes that the government is needed for certain roles that cannot be provided by the private sector, such as law enforcement and national defense. So the people delegate some powers to government to fulfill these roles, but they never let the government forget that it exists on the people’s sufferance. Moreover, even if the government is structured to represent the people’s views, it remains an alien and potentially hostile entity that the people must be vigilant against.

What is the supreme function of the state?

Enoch Powell said that the supreme function of the state was to protect against preventable evils. I’m not sure how well that meshes with the idea of limited government. The set of “preventable evils” is indefinite, so on these grounds there is no limit to the powers we might wish to give to the government on the promise that they will protect us from evils. I think rather that the state must be limited to enforcing the laws and defending the country against attacks.

Powell’s remarks came in the context of his objection to immigration. Immigration gave rise to culture clash, which must be prevented. The problem I see is this: who is the government to say how the country’s culture should be managed or preserved? Should the government also be micromanaging the lives of individuals to ensure conformity with what the government sees as correct cultural behaviors? Perhaps Powell and his paternalist supporters would agree with that, but I do not.

As with my previous post, I’m interested first of all in natural rights and in finding government policies that carry out the state’s proper function of keeping the peace without limiting rights. One right I see is the right of freedom of association. I think that I or any fellow citizen has the right to associate with anyone, employ anyone, provide housing to anyone or give to anyone I please. So I can’t allow the government to forbid an employer from hiring a foreigner over a citizen, or from renting an apartment to a foreigner rather than a citizen. This is one reason I can no longer support the economic nationalism of Trump and other immigration restrictionists.

That being said, in a welfare state, which includes the US, things are not so simple. The taxpayer generally ends up paying for immigrants in many ways: through direct benefits; or, where immigrants don’t qualify for direct handouts, through taxpayer-supported healthcare or education, both of which immigrants in the US avail themselves to a great degree, often causing financial problems for many jurisdictions. However, the libertarian objects not only to welfare for foreigners, but welfare for fellow citizens, as well. While I can’t support the progressive support for both open borders and welfare, neither can I support the nationalists’ desire to keep their welfare while shutting out foreigners. In both cases, the state is being given too much power, by taking wealth from some and giving it to others.

Note that I do NOT believe in the “right to travel”. I think this right only extends as far as your personal property, or on territory that belongs to no one. I don’t believe the government “owns” the territory of the US, and I don’t believe the people collectively own it through the government. But at the same time, I can’t allow that foreigners have some natural right to cross our borders without being checked at all, if only to ensure that they are not threats to the country. Whether that squares with my ideas about the natural right to be free from unreasonable search and seizure is a good question which I will continue to think about.

First post and the NAP

I’ve been told to stop spamming Facebook and start my own blog, so here it is.

Been thinking a lot about politics since forever, but my opinions rarely stay the same. Currently I’m leaning pretty strongly libertarian and am supporting Rand Paul in the US presidential race. But I like having my views challenged, so I welcome all manner of comments, as long as they’re civil.

The basic idea behind libertarianism is the Non-Aggression Principle. This holds that the government should avoid any kind of coercion, except to protect the individual against coercion by others. It seems like a great principle when considered in the abstract, but many people balk when the full implications of the NAP are drawn out, e.g. progressives don’t like how no coercion means no taxation to support welfare programs, or conservatives don’t like how it means limiting our defense to countering actual invasions, rather than promoting “regime change” in order to prevent possible future threats.

One theme I’ve discovered to be distinctive between the libertarian and the non-libertarian mindset is the importance given to prevention and preventative measures. The libertarian believes government should only intervene in order to respond to some violation of rights, whereas non-libertarians believe the role of government is to prevent harm from occurring and that this sometimes necessitates suspending people’s freedoms.

I was recently involved in a discussion on the proper role of the police in a free society, where I maintained that it should not, ultimately, be the police’s job to protect the people, since that would involve giving the police the power to neutralize perceived threats, but before any actual crime has occurred. This is the thinking behind New York City’s stop-and-frisk policy: police are allowed to stop and frisk people with fewer grounds for suspicion than are required for an arrest. While the legal justification for stop-and-frisk, is “reasonable suspicion” of criminal activity, this can mean things as vague as “loitering” or “acting strangely”. Can one really argue that “acting strangely” (but NOT “criminally”) constitutes grounds for a reasonable search and seizure of the person in question?

Now, there may be evidence that such policies help reduce crime, but often a “law and order” type will treat that as the end of the discussion. It appears that, according to that kind of mindset, maintaining order is the ultimate purpose of government, even if it means suspending the right to be free from unreasonable search or seizure. I absolutely agree that order is vital to a functioning society, and that is one reason I believe the state should be given the power to arrest and prosecute criminal suspects. But is losing our freedom really the price we want to pay for having a more ordered society? Can we not trust society to order itself without giving the government that kind of power?

I don’t have a good answer yet to this question. Some things I want to investigate include: why was stop-and-frisk determined to be constitutional in 1968 in Terry v Ohio? What did police do before that date to deal with what they considered to be threats? If society felt at that point that they needed to give police more power to stop and search suspects, what had changed in society to give rise to this idea? What are the ways in which we can lower crime while preserving our freedoms?