Stephen Kinsella and Timothy Sandefur have had a long running feud over some basic matters of libertarian legal theory, a feud that Kinsella has now brought me in to with this post on the Mises Institute blog. The crux of the dispute revolves around the issue of federalism and it highlights a very basic split among libertarian-minded legal theorists. It is my position, and Sandefur’s, that if rights are indeed inalienable then they may not justly be violated by any government; Kinsella and his ideological brethren take the position that some governments – states and local governments – can violate our rights at will, and further that if the Federal government prevents them from doing so, then the Federal government is being tyrannical. Thus, Kinsella takes Sandefur to task for his arguments against the Kelo ruling for not distinguishing between the levels of government involved:
I noted recently how many libertarians ignore or disregard the federalist aspect of our Constitution–e.g., when they use the term “government” to mean state and federal government. Including both state and fed governments in the term “government” is a subtle way to put forward the centralist idea that the Fourteenth Amendment gives all kinds of power to the feds to police state actions. I gave as an illustration the use by Tim Sandefur saying that “On June 23, 2005 [in the Kelo case], the United States Supreme Court held 5-4 that government can seize private property and transfer it to developers to boost local economies [italics added].” Notice this use of “government” here in a manner that implies that the feds have the right and obligation to oversee all levels of “government.”
He drags me into the debate by quoting this statement of mine:
Even where the language appears to be unequivocal, we all recognize inherent limitations on them; for example, though the first amendment clearly says that Congress shall make no law abridging freedom of speech, we recognize as legitimate a whole range of such abridgments in cases such as libel or fraud.
Well. Libel and fraud are prohibited and regulated by state law. So if Vermont penalizes libel or fraud, this is not a case of Congress making a law at all. In fact, Congress has no power to criminalize libel or fraud, or even murder or rape, for that matter. So actually, the First Amendment, in saying Congress shall make no law abridging freedom of speech, can be read unequivocally. At least, Brayton’s example does not show that it cannot be. Now I do not deny that his general point is invalid, and that other, better illustrations of it could be found. But Brayton’s choice of this bad illustration is a good illustration of how centralists simply think of states as just subdivisions of a unitary central state having plenary legislative power.
Kinsella is one of the group that Sandefur likes to call “doughface libertarians.” Their philosophy seems to be quite popular among southern nationalists in particular, men like Thomas Woods, who still argue, bizarrely, that ending slavery was tyrannical because it was the Federal government telling the states that they couldn’t violate the rights of the individual. They genuinely seem to think that liberty does not belong to the individual as a matter of right but that rights reside with state governments to protect or crush at their will.
A simple example will show the absurdity of that position: what would they do in a nation that did not have a federalist structure? There are many nations small enough that they don’t have a federal/state distinction. If the rightful authority to destroy individual rights is purely a matter of which level of government is undertaking the destruction, would the national government in those countries have the rightful authority to violate such rights or not?
My position is simple and consistent: all rights are individual rights, derived from the principle of self-ownership. Those rights are inalienable, which means that no government, whether it is located 15 miles from us or 1500 miles from us, may justly violate those rights. Governments are formed in order to secure those rights, and when the government fails to do so we are obliged to replace it with one that will do so. All of this echoes the Declaration of Independence and the natural rights philosophy upon which it is based.
If we are indeed endowed with – that is, born with – inalienable rights that may not justly be violated, then why would it be acceptable for a state government to violate those rights? To allow state governments to do so is to say that such rights aren’t really inalienable at all but exist at the whim of the majority which may violate them at any time as long as they do it one state at a time. And that was largely true in this country until the passage of the 14th amendment.
When Madison proposed what became the 1st amendment, he wanted it applied to the states as well as to the Federal government; he was voted down in that regard. At the time, the states were zealous to retain their identity and their authority to violate the rights of the individual through such impositions as official state churches and slavery. There was no way to pass the Constitution without preserving such authority, so it remained a partial victory for liberty until after the civil war.
For the doughface libertarians, there is a curious logic: I don’t like the 14th amendment, therefore I’m going to pretend it doesn’t exist. But of course it does exist and its intent and language is clear. After its passage, the states no longer had the authority to destroy the rights of those living within their borders. And that was precisely the intent of the amendment, to apply those protections for individual rights found in the Constitution to the states and prevent state governments from doing what the Federal government could not do. The language of the amendment is plain enough:
Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
When the 14th amendment was proposed, there was no doubt that it was intended to apply the protections found in the Bill of Rights to state actions. The men who proposed it in Congress, led by Rep. Bingham, announced and defended it precisely as such. Here is Bingham in arguing for the amendment:
Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced…’Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be…’What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?…Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights.
Kinsella’s position strikes me as absolutely bizarre; he is essentially arguing that preventing the states from depriving its citizens of life, liberty and property somehow reduces our liberty, that if the states are not allowed to destroy our freedom then, in a fit of Orwellian illogic, our freedom will be destroyed. But if the Declaration of Independence is correct in arguing that all people are endowed with rights as individuals – and I think it is – then it is tyrannical for any government to violate those rights.
Kinsella is simply wrong when he claims that our statements show that we “think of states as just subdivisions of a unitary central state having plenary legislative power.” We think of state governments as governments, plain and simple. And like all governments, their legitimate authority is limited by the rights of the individual. All government actions which violate the rights of the individual are illegitimate actions, whether that government is seated in Lansing or Washington DC.
If the Federal government puts homosexuals in prison, for example, that action is illegitimate; it’s illegitimate because it violates the right of self-determination that is endowed to each individual as their birthright. If a state government takes the same action, I maintain that the action is equally illegitimate and unjust for the very same reason. Kinsella, on the other hand, believes that it’s unjust for the Federal government to do so but just fine for the state government to do so. And that’s why he’s wrong.