Dispatches from the Creation Wars

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.

And arguing:

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.

Comments

#1 Russell
January 22, 2007

While I realize that the contemporary southern apologists defended slavery under the name of freedom, it seems exceedingly odd to me that current adherents to the Lost Cause should be called libertarian. It might be justified to view William Lloyd Garrison as an early libertarian. But not Jefferson Davis.
#2 Jim Babka
January 22, 2007

Ed, I’m leaning in your camp on this one, after paying a great deal of attention to Herb Titus. But it still seems to me that their roles are different.

What’s missing for me here is, a) Can a state secede? The states voluntary organized this government, can they leave it? b) Why have we bothered with having a Ninth and especially a Tenth Amendment? c) Or, why do we still bother with states?

Finally, and perhaps most importantly, the federal government has only a handful of crimes it’s allowed to prosecute. Murder, for example, doesn’t make the list. It seems reasonable to me that some matters should be handled by states — that one size fits all is not beneficial to us as a people, but rather differences in states are a good thing, creating a competition, if you will, for providing the most attractive atmosphere. It seems there are good reasons for ruling some things as being outside of the federal government’s purview.

I’m interested in your answers to these questions.
#3 konrad_arflane
January 22, 2007

I’m not Ed, but with regard to “c) why do we still bother with states?”:

Why do we still bother with counties and municipalities if they can’t decide on their own to disobey/disregard state laws? That’s a rhetorical question, but if you can answer it, you should be able to answer your own question through extrapolation.

In any event, while the 14th amendment places limits on the states as to how they are allowed to treat their citizens, there is still very much room for different policies within those limits. There is still room for “competition…for providing the most attractive atmosphere” – as long as it doesn’t involve depriving any individual of his/her inalienable rights. Although I’m not sure state self-government is best viewed as some sort of competition for attracting residents. I would say that it’s more about people having a say in how they want the society to be where they already live.
#4 Alan B.
January 22, 2007

I am not a lawyer, but I’m pretty sure that the Federal gov’t does have laws against murder in those cases in which it has jurisdiction. As for Federal laws abridging freedom of speech, I would think that trademark and copyright laws qualify for that.
#5 DuWayne
January 22, 2007

Jim Babka -

I certainly think it makes a lot of sense for the states to handle the majority of criminal cases, though I think you are mistaken about the right of the feds to prosecute criminals. I am pretty sure they can, under a limited set of circumstances – most obviously, when the crime/s are commited across state lines. I believe this includes murder. I know most crimes commited on federal property, or against federal agents or employees, because of their job or on the job – are prosecuted by the feds, in federal court.

But ultimately, the federal governments major role (in regards to the domestic) is to protect the civil liberties of every American citezen, as they are spelled out in the constitution. It makes sense to keep criminal law, as localized as possible, not only leaving much to the states, but also trickling down many responsabilities to the county and municipal levels.

There is a very reasonable argument for keeping the least localised government entity, in charge of the more abstract, generalised functions. While putting the more direct authority under the most localised control. Thus, people thousands of miles away have very little to do with the laws and governance that most directly affect us, giving us a stronger voice in our own, local rule of law. A good example is Oregon’s death with dignity act. The citezens of my new home state, have decided they want that right. Or consider minimum wages, the minimum wage in my municipality is considerabley higher than the fed’s. Because it costs a lot more to live in Portland than it does to live in, say, Clay Center, Kansas. A person making $5.25 an hour couldn’t afford to live anywhere near Portland. That same wage, would afford someone in Clay Center, a better standard of living than someone making Portland’s MW and living in Portland.

The advantages of this breakdown of the rule of law, are too numerous to list here.
#6 DuWayne
January 22, 2007

I should add, that as a supporter of univeral health care, the advantages of state governance are also important. It is increasingly clear that UHC is going to be a state issue, which I think is appropriate. While it can be argued that there is no constitutional restriction on a federal UHC, it makes sense for the states to make it reality. For one thing, it would make it easy to compare what is working and what isn’t. Making it easier to refine and improve on it. For another, many states already have infrastructure in place, to build upon. But what works, with a few adjustments, in Oregon, might be totaly wrong for California.
#7 Craig Pennington
January 22, 2007

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.

Playing the doughface’s advocate (probably incorrectly since I haven’t been following the debate,) is their case not that the state governments have a legitimate authority to violate the unalienable rights of individuals, but that the federal government can not have a legitimate authority to interfere with a State that is violating the unalienable rights of individuals. Still BS, IMO, but less ridiculous than the position ascribed to them in this post.
#8 Ed Brayton
January 22, 2007

Jim Babka wrote:

Finally, and perhaps most importantly, the federal government has only a handful of crimes it’s allowed to prosecute. Murder, for example, doesn’t make the list. It seems reasonable to me that some matters should be handled by states — that one size fits all is not beneficial to us as a people, but rather differences in states are a good thing, creating a competition, if you will, for providing the most attractive atmosphere. It seems there are good reasons for ruling some things as being outside of the federal government’s purview.

I think you’re right about this. My argument is not that federalism doesn’t matter at all, but that on issues involving individual rights it is much better to have a Federal government protecting our rights than a state government destroying them. I do agree that as a matter of policy, some things are best left to the states. I do not at all like, for example, the federalization of so many categories of crime.
#9 Joe Shelby
January 22, 2007

Historical Question – granted that the Civil War was specifically over the issue of how much could the Federal government override the States, and thus the 14th amendment could be seen as codifying the final terms of the peace treaty into law that could be exercised and interpreted by the courts.

But even so, how did the framers of it and its supporters actually get the states to sign to it? I understand that most of the southern states were effectively under Republican minority-rule governments, but even so I would think that *some* of the northern states (besides Ohio) might have put up some resistence to such an overwhelming change in the federal/state relationship.

Not that there wasn’t some controversy over its congressional passage in the first place, according to Wikipedia’s entry on it.
#10 James
January 22, 2007

To my mind these “doughface libertarians” are nothing of the sort, they are simply federalists. Libertarianism is about reducing the size an dscope of government, not just central government.

I have some concpetual trouble witht he federalism debate as New Zealand has no states so I have no frame of reference, but it seems to me that whether or not you are going to be screwed over is more important than who’s doing it.
#11 Alex
January 23, 2007

Sometimes the “doughfaces” are really eager to invoke the Founders in their arguments (perhaps most especially since that takes them to a time before the 14th Amendment). However, I’m not sure that the more government-distrustful Founders would be happy with a modern-sized state having as much power over their citizens as the modern doughfaces would like.

The population of the United States at the time of the 1790 census was just under 4 million people. There are now 25 states with a population of over 4 million each. California
alone has nearly ten times as many people as the nation did at is founding.

If the Founders thought that a Federal government could not adequately respect the individual rights of 4 million citizens, then how on earth could a state government end up respecting the individual rights of 34 million citizens without really serious checks and balances?
#12 DuWayne
January 23, 2007

Alex -

The thing is, that with those populations comes stronger municipal governments, to compensate.

I live in Portland, OR, now, metro area population of more than two million – not huge, but a lot bigger than where I came from. Low and behold, there are much stronger county and municipal governments here. Even better examples would be Chicago, NYC, LA, etc. The larger the city, the stronger the municipal government.

I tend to think that it is quite natural, in a democracy. As a population at any level of governance grows to a certain point, sub-levels appear with more direct authority. In Portland it is not quite as apparent. But even here, the districts within the municipality have similar powers to those of your average, midwestern, small town municipal governments. In Seattle, this is a lot more apparent – in Portland, they are more like neighborhood associations with serious balls.

Point being, our system is well suited to focusing the strongest governance at the local levels.
#13 Stephan Kinsella
January 31, 2007

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,

This is simply false. I also believe that no government MAY “justly violate” our rights. I have argued strenuously for this in many fora. It is in fact why I am an anarcho-libertarian. Just because I do not believe the federal Constitution authorizes the central state to, say, outlaw murder, or even to prevent states from violating rights, does not mean I believe the acts or murder, the rights violations by states, are “just”. In fact they are not. But the issues are separate ones.

and further that if the Federal government prevents them from doing so, then the Federal government is being tyrannical.

Well, not necessarily: but it is the case that if a dangerous state that claims it derives its authority from a written Constitution and is therefore also abide by limits on its authority, if that state just disregards these limits, then this is troubling and dangerous, even if it vindicates rights when it seizes powers never granted to it.

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.

These smears are despicable and betray either dishonesty or thorough brainwashing on your part. Ending slavery itself was not tyrannical and to imply that those who maintain that the Civil War was illegal and immoral are pro-slavery or neo-confederates is malicious lies.

I’m no southern nationalist and personally dislike the rebel flag yeehaw types. So?

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.

This is of course not true. The states have no right to violate rights; no government, or individual on the earth, has a right to violate rights. But this does not imply that a semi-criminal central state has a constitutional authority to go around policing this.

A simple example will show the absurdity of that position: what would they do in a nation that did not have a federalist structure?

This is inane. Basically every state in the world, and all 50 United States, have this structure. In these states, someone like me (like most libertarians throughout history) would as a general matter prefer, ceteris paribus, decentralized structures (sometimes called subsidiarity etc.). But if I were talking about, say, France, or even Canada, or Louisiana, where (I assume) there the central state has *plenary* legislative power, I would of course be in favor of rules at the top level of that government aimed at limiting that government itself.

What Brayton and his ilk don’t seem to realize is that our federal structure is unique. Our federal state has fewer powers than most normal states; it may not outlaw murder, for example, even though murder is definitely a crime. When a state is created that is defined by and authorized by a Constitution, its self-proclaimed authority is also conditioned on its adherence to the limits placed on it in that Constitution. If that Constitution does not authorize the state to stop another given state from doing something bad, then it simply does not authorize it, even if we might want it to; and if it ignores this limit, then the danger is now that it has established the principle–and we have ratified it–that it is not really bound at all by the limits placed on it. That is, that it is an unlimited state. Brayton and Sandefur may have no problem with an unlimited state–but we libertarians do. (They may protest that they are in favor of constitutional limits on the state–that is, that the state limit itself. Yeah. Good luck. The only real limit would be external to the state: which is exactly what vertical checks and balances (federalism) is all about, which Brayton and Sandefur reject.)

There are many nations small enough that they don’t have a federal/state distinction.

So? The US central state is bound by its Constitution, which sets up a federal gov’t having only defined and enumerated powers. It is not a government of plenary legislative power,
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?

In a smaller state, ideally as many limits on that state’s power to become tyrannical as can be imagined should be placed on it–these include written constitutions, horizontal and even vertical separation of powers, even democracy to some extent, bills of rights, rights to secede, etc.

My position is simple and consistent: all rights are individual rights, derived from the principle of self-ownership.

So? All libertarians believe this.

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.

“Inalienable” seems to add nothing; rights are in fact alienable. If you commit murder you alienate (or forfeit) your right not to be put in prison; that is why it is just to punish a criminal.

I would simply say no one has a right to violate individual rights; that is, private and public criminality are all unjust.

Governments are formed in order to secure those rights,

No, they’re not; they’re formed as power grabs and are inherently criminal. They are *sold to the duped people* as being done to secure rights; but this is just PR.

and when the government fails to do so we are obliged to replace it with one that will do so.

This is like saying, if the mafia on your block does a bad job you are obligated to replace it with a better mafia. How about the mafia being obligated not to subjugate people, and people having a right to fight them off, despite their PR?

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?

It is not “acceptable”. But how does its lack of acceptability mean that the feds are, or even should be, empowered to stop these rights violations? Are you in favor of a one-world state that will stop “unacceptable” violations by every member state? Who will stop the overlord state from doing “unacceptable” things?

To allow state governments to do so

Who wants to “allow” them 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.

Ridiculous. So there were no rights until 1866! hahahahhaha

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.

Yep; but most people on your side are ignorant of this.

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.

This is somewhat true; states cannot be trusted, including the central state you are so enamored of for some reason. I think the main reason was however ot keep the new central state from passing a federal religion to encroach on the local state religions etc. This is just competition between states. So? There is a *reason* the feds were not granted plenary powers. So what? Their power is nonetheless not plenary and strictly enumerated.

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.

It would have been a full victory for liberty to empower the new central state to have total control over the States, to treat them like administrative units? that is, every movement in the direction of centralization of power is a good thing, and decentralized power structures should never be used as a way to limit state power and thus promote liberty? Wow.

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.

It’s the other way around, actually: the utoptian, centralist libertarians want the feds to be able to regulate the states, so they contort the 14th amendment’s vague and limited powers in this way. It’s very dishonest. I have no trouble admitting when a given law or constitutional provision is unlibertarian; there is no doubt that the income tax is constitutional, for example, despite its immorality. If the 14th amendment really incorporated the bill of rights, I would oppose it on strictly libertairan grounds: I would say it was a *bad idea* but I woudl be happy to acknowledge it. In fact, if someone–Randy Barnett promises more study of this–can demonstrate that the 14th really did mean to limit the states as broadly as modern centralist libertarians calim, and give such a broad power grant to the feds (basically ending federalism), I would happily acknowledge this. But it appears to me that it is wishful (and often dishonest) thinking on the part of centralist libertarians.

But of course it does exist and its intent and language is clear.

Oh, it is? Even Barnett, in his article, writes: “I am also sympathetic with his conclusions about the unconstitutionality of prohibitions on abortion, but will not address the substance of this issue here. Discerning and applying the original meaning of the Fourteenth Amendment is a tricky business and I intend to do more work on this subject in the future. For one thing, originalism properly done requires a careful attention to evidence; it is not enough that a particular interpretation is a plausible fit with the text.”

It is not at all clear; as the Slaughterhouse cases themselves show. What is disgusting is that these naive, amateur, lying, semi-statist punks feel compelled to distort and personally smear those who hold a different substantive view on constitutional, legal, and political matters.

After its passage, the states no longer had the authority to destroy the rights of those living within their borders.

Yeah, it just took 50 or so years for the Supreme Court to recognize this and start incorporating selected parts of the Bill of Rights. So I guess for 5 or so decades the states did still “have the authority” to “destroy the rights of” those living within their borders. So the federal gov’t you are so willing to trust is apparently inept? Wow.

And you are apparently not an anarchist, meaning you do believe government is legitimate and has the right to make decisions about people’s lives, tax them, etc., which does imply the right to violate rights. Wow.

And are you in favor of a UN, say, having the power to prevent, say, the US from violating individual rights of its own citizens? If not, would you say that until that glorious day, the US has the “authority to destroy the rights of” Americans? (And if so, why would you want this rights-destroyer to be granted power to police the States??)

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.

Only partially; see Raoul Berger.

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.”

Is it plain? If so, what does “privileges or immunities” maen? If it means a broad set of rights, why was the word “rights” not used? And why would due process and equal protection be added separatlye, wouldn’t that be included in P/I?

And if the P/I clause incorporates the rights in the bill of rights, why is due process separetly enumerated–after all, it’s already in the 5th amendment, so would be applied to the states via incorporation, right? So isn’t it strangely redundant to list it again?

And why did we have to have subsequent amendments giving blacks, and women, the right to vote, if the equal-protection clause was as broad as the utopians would read it now? After all, if you read it like these guys propose, granting only white males the right to vote clearly violates the equal protection clause. Why then, did we need to pass separate constitutional amendments to guarantee this? Could it be–gasp!–that these limits were narrow and not as broad as utopians might want to believe?

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.

hahahahha! no doubt!! hahahahha Read Berger. Read the Slaughterhouse cases.

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,

No. I am all for any state being smashed or limited. What reduces our liberty is the pack of public criminals that people like Brayton and Sandefur legitimize. Both local States, and the central federal state, are threats to our rights and liberty; and in fact each violates our rights on a daily basis, from taxation to regulation to criminalization of victimless crimes. We have some solace that some of these states pay lip service to paper limits placed on them. When they disregard these limits and do things forbidden to them or assume powers never granted, this is a threat to our liberties, surely, for the very reason that an unlimited state is worse than a limited state.

that if the states are not allowed to destroy our freedom then, in a fit of Orwellian illogic, our freedom will be destroyed.

I don’t want the states to be allowed to do this. How does maintaining that the feds are not constitutionally empowered to stop this mean it should be allowed? Do you think Zimbabwe should be empowered to invade Massachussetts to stop blue laws? If not, does that mean you think Massachussetts’ blue laws should “be allowed”? Your argument is like that of the soft-headed liberal who thinks that if the state does not have food-welfare it is “allowing” people to starve.

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.

Sure it is. but you are the one who is in favor of states and their necessary invasions of 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.

Sure. Which means, no state is legitimate, since states necessarily violate rights by existing.

All government actions which violate the rights of the individual are illegitimate actions, whether that government is seated in Lansing or Washington DC.

Sure.

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.

Of course. And if China, or Brazil, or Sorrento, Italy, does it, it’s “illegitimate”–or, rather, simply criminal. So?

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.

Of course it’s not just fine; it’s criminal. It takes a mind steeped in nationalist thinking to come to this conclusion.