Author Archives: Doug Mataconis

There Is No Such Thing As “State’s Rights”

slide4

Stephen Green has an excellent column this week at Pajamas Media where he cautions his fellow libertarians to stay away from the siren call of the “state’s rights” movement:

We need to give up this notion of “states’ rights.” First of all, it’s in bad taste. The phrase used to be code for “Jim Crow.” And while I’m certain that’s not true for 99% of us, we can — and should — do better than to emulate vile racists. Secondly, however, “states’ rights” is a misnomer. It’s an impossible thing. It doesn’t exist, and shouldn’t.

Let me explain.

I remember reading once somewhere that:

All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In other words, individuals have rights, and governments are instituted with powers to protect those rights, and are (or ought to be) restricted from abusing them.

With me so far? Individuals have rights; governments have powers.

As Green goes on to point out, the ongoing tension between the state and Federal governments was instituted to protect individual liberty not to give some amorphous entity called a “state” rights over it’s citizens. In fact, the Constitution specifically provides the Federal Government with the power to step in when the states step over the line:

One of the tensions that exists between Washington and the states is that Washington has the duty — the power — to “guarantee to every State in this Union a Republican Form of Government.” And when a particular state government discriminates against 20, 30, 40% of its citizens, then it’s no stretch to argue that that state no longer enjoys a republican form of government. At least not how republicanism is properly understood in this country.

More importantly, we fought a war that pretty much resolved the issue of state’s rights, and afterwords passed an amendment that significantly altered the relationship between the states and the federal government. Whatever the “rights” of the states may have been before the ratification of the 14th Amendment, they were significantly cut back by it’s adoption. So it is pointless to talk about the 10th Amendment in a vacuum as if the 14th Amendment doesn’t exist.

Green closes out with the most important point:

States don’t have rights. Individuals do. It’s time we went about the business of restoring those rights, without alienating a huge constituency which suffered too long without them.

Indeed.

The Conscience Of A Phony Libertarian: Wayne Allyn Root And The Decline Of The Libertarian Party

If the only book on libertarianism that you ever read was Wayne Allyn Root’s The Conscience of a Libertarian, then you’d be compelled to conclude that the most important liberty issues facing America are internet gambling, tax cuts for small businesses, and home schooling. That’s because Root, a former Republican who became the Libertarian Party’s Vice-Presidential nominee in 2008, seems to devote far more space to those policy areas than to others that most libertarians that I know care about, such as civil liberties, the war on drugs,and the national security state. In fact, I think it’s fair to say that Root spends far more time talking about himself, and why only he is capable of making the Libertarian Party competitive, than he does about these issues, or about what it really means to be a libertarian.

That’s understandable, though, because this is quite obviously a campaign book designed to bolster Root’s bid for the 2012 LP Presidential nomination, and because Root is not much of a libertarian.

Like many Republicans, conservatives, and “Constitutionalists,” Root blindly worships the Constitution to the point where “state’s rights” take on more importance than individual liberty. For example, he suggests early on at page 18 (in my copy at least) that individual states should have the “right” to decide issues like abortion, gay marriage, stem cell research, online gaming, assisted suicide, and drug use. This may be a perfectly correct Constitutional position, it is not, however, a libertarian position. To a libertarian, state interference in an individual’s life is wrong whether it happens at the federal, state, or local level, and a law saying that someone can’t ingest a certain substance is wrong regardless of whether or not the Tenth Amendment authorizes it.

Another example occurs on page 75, where he says that the Supreme Court’s decision in Loving v. Virginia, where the Court struck down state laws barring interracial marriages, was the wrong decision. Instead, he says, the Court “should have declared that government had no right to license marriage at all.” I happen to agree with the idea that marriage and the state should be separated, but this reaction to the Loving decision strikes me as bizarre, not the least because the Court never would have done what Root proposes because none of the litigants in the case were asking it to do that. Loving was decided correctly, why is it so hard to say that ?

On page 222, Root demonstrates yet another deviation from libertarianism when he discusses immigration and says; “We must secure our borders and bring illegal immigration to a screeching halt. How? By protecting our borders with all those troops we will bring home from … around the globe.” Militarizing the border ? Hardly a libertarian position, but definately a Republican one.

On page 257, he endorses the debunked claims of the anti-vaccination crowd: “I believe that our national epidemic of autism and ADHD has a definite connection to the large-scale vaccinations required of our young children.” There is, of course, no evidence to support this claim but I suppose that if Root were the nominee in 2012 the LP would get Jenny McCarthy’s vote. This is a minor issue, and not really “libertarian,” but the last thing the LP needs to do is associate with someone who believes in pseudo-science.

The final strange passage that I’ll reference here is on page 29, where Root discusses his reasons for leaving the Republican Party (mostly because they wanted to ban online poker), and says, “nothing made my decision clearer than the morning of October 19, 2008, when I heard the remarkable announcement that General Colin Powell was endorsing Barack Obama for President of the United States… I was finally completely at peace with my decision to leave the Republican Party…” This was nearly five months after he had been nominated to run on the Libertarian ticket; had not made his mind up about the GOP at that point ?

After reading this book, and based on my previous experiences of watching Root during his various appearances on cable television, I am left with the over all impression of someone who is a cross between a televangelist and a used car salesman. The one thing that he seemed most concerned with is his own self-promotion, and I question his commitment to the ideas of the party that he proposes to represent.  I will give Root credit for being energetic, but libertarian he’s not.

Contra Rand Paul: The Libertarian And Constitutional Case For The Civil Rights Act Of 1964

slide4

Made by several of the most prominent libertarian scholars out there:

“I think Rand Paul is wrong about the Civil Rights Act,” libertarian Cato Institute scholar Brink Lindsey wrote in an e-mail. “As a general matter, people should be free to deal or not deal with others as they choose. And that means we discriminate against those we choose not to deal with. In marrying one person, we discriminate against all others. Businesses can discriminate against potential employees who don’t meet hiring qualifications, and they can discriminate against potential customers who don’t observe a dress code (no shirt, no shoes, no service). Rand Paul is appealing to the general principle of freedom of association, and that general principle is a good one.

“But it has exceptions. In particular, after three-plus centuries of slavery and another century of institutionalized, state-sponsored racism (which included state toleration of private racist violence), the exclusion of blacks from public accommodations wasn’t just a series of uncoordinated private decisions by individuals exercising their freedom of association. It was part and parcel of an overall social system of racial oppression,” Lindsey said.

“Paul’s grievous error is to ignore the larger context in which individual private decisions to exclude blacks were made. In my view, at least, truly individual, idiosyncratic discrimination ought to be legally permitted; for example, the “Soup Nazi” from Seinfeld ought to be free to deny soup to anybody no matter how crazy his reasons (they didn’t ask nicely, they mispronounced the soup, etc.). But the exclusion of blacks from public accommodations wasn’t like that — not even close.”

“To be against Title II in 1964 would be to be brain-dead to the underlying realities of how this world works,” said professor Richard Epstein of the University of Chicago. “In 1964, every major public accommodation that operated a nationwide business was in favor of being forced to admit minorities.” National chains, he explained, feared desegregating in the South without the backing of the federal government because they feared boycotts, retribution and outright violence.

The problem with the Civil Rights Act, Epstein explained, is “when you say, this is such a wonderful idea, let’s carry it over to disability. At this point, you create nightmares of the first order” in terms of problematic government bureaucracies and baseless lawsuits.

“We have to start with some historical context,” e-mailed George Mason Law professor David Bernstein, who is also a blogger at The Volokh Conspiracy. “If segregation and discrimination in the Jim Crow South was simply a matter of law, federal legislation that would have overturned Jim Crow laws would have sufficed. But, in fact, it involved the equivalent of a white supremacist cartel, enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and harassment of anyone who challenged the racist status quo.”

“Therefore, to break the Jim Crow cartel, there were only two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government by the federal government to prevent violence and extralegal harassment of those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that violence and harassment would generally be pointless. If, like me, you believe that it was morally essential to break the Jim Crow cartel, option 2 was the lesser of two evils. I therefore would have voted for the 1964 Civil Rights Act,” Bernstein concluded.

As I’ve been thinking about this issue since yesterday, I think this is about where I stand on this issue. I stand by what I said when this controversy first broke in that I believe, at least in the abstract, that people should be free to do business or not do business with whoever they want, for whatever reason they want. Additionally, I’m entirely uncomfortable with the tortured reasoning in Heart of Atlanta Motel v. United States and Katzenbach v. McClung, where the Commerce Clause was twisted beyond all rational meaning to justify Title II of the Act.

Instead of engaging in intellectual jujitsu, and doing several harm to concepts such as Federalism and limited government in the process, however, the Supreme Court did have another option; they could have revisited the horribly mistaken decision in The Slaughterhouse Cases:

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the “privileges or immunities” of citizens, or taking anyone’s life, liberty or property without “due process of law,” or depriving people of the “equal protection of the laws.” But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials.

That case began when Louisiana passed a law forbidding butchers from slaughtering cattle anywhere in New Orleans except a single, privately owned facility. The beef industry was big business in New Orleans, and the new law put hundreds of butchers out of business overnight. The butchers sued, arguing that the law violated their right to earn a living without unreasonable government interference. Judges had recognized that right as far back as 1602, when England’s highest court declared government-created monopolies illegal under the Magna Carta. The right to earn an honest living came to be recognized as one of the fundamental rights — or “privileges and immunities” — in the common law.

Yet in Slaughterhouse, the Court ruled against the butchers, holding, 5-4, that despite the new amendment’s language, federal courts would not guarantee traditional rights against interference by states. With only minor exceptions, the Court declared, those rights were “left to the State governments for security and protection.”

The decision’s ramifications were profound. In the years after the Civil War, Americans — particularly in the South — needed protection against abusive state legislatures. That was the protection the privileges or immunities clause promised, and that the Slaughterhouse decision eliminated. During the next decade, federal authorities abandoned Reconstruction efforts to protect former slaves, and black Americans were condemned to another century of segregation and oppression.

Ten years later in The Civil Rights Cases, the Supreme Court invalidated the Civil Rights Act of 1875 which would have essentially accomplished the same thing that Title II of the 1964 Act did eighty-nine years later and in the process essentially gutted another part of the 14th Amendment, the Equal Protection Clause. At that time, the sole dissenter, John Marshall Harlan made a prescient observation:

Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree — for the due enforcement of which, by appropriate legislation, Congress has been invested with express power — everyone must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy either of the recent changes in the fundamental law or of the legislation which has been enacted to give them effect.

But for a different outcome in The Slaughterhouse Cases and The Civil Rights Cases, the entire system of mandated racial segregation known as Jim Crow would have been under direct legal assault at the time of it’s birth.

It’s also worth noting that Plessy v. Ferguson involved a Louisiana law that was designed to prevent the Pullman Company from offering equal seating options to blacks. That, in fact, was the entire purpose of Jim Crow laws. Even if, for example, the Woolworth’s in Greensboro, North Carolina had wanted to serve the four black college students who sat down at their lunch counter on February 1, 1960, the laws in place at the time told them that they couldn’t. Racial segregation in the South wasn’t a product of the free market, it was the product of a state imposing racial prejudices under the threat of criminal prosecution. For that reason alone, it was a violation of the 14th Amendment and the Federal Government was entirely justified in trying to bring it down.

Now, none of this means that racism didn’t exist in the South. Obviously it did, otherwise Jim Crow never would have been imposed in the first place. However, by passing these laws it’s fairly clear what that the intent of the Southern legislatures was to prevent the newly freed blacks from participating in the economic life of the South by denying them access to jobs, business opportunities, and trade while at the same time denying them access to the polls so that they wouldn’t be able to have their voice heard at the state capital. At the same time, it prevented other whites, as well as businesses from other parts of the country, from any efforts to break down the walls of segregation.

Even though the arguments that were used to justify the Constitutionality of the Act involved tortured reasoning under the Commerce Clause, the results would have been the same had the Supreme Court not so blatantly ignored the plain intent of the 14th Amendment so many years ago. So, yes, I think that Rand Paul’s criticisms of Title II are correct in some sense, and that the question of how far government should be permitted to regulate private affairs is an issue that needs to be debated more closely. That said, it’s fairly clear that the Civil Rights Act of 1964 was proper, and that it’s long past time that the Privileges and Immunities Clause was given it’s full force and effect.

Originally posted at Below The Beltway

William F. Buckley, Jr. Would Be Proud

42-19694571

William F. Buckley Jr. is famous for once having said:

“I am obliged to confess I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”

If he were still around today, I’m sure he’d get some enjoyment out of the fact that a plurality of Americans agree with him:

Tuesday’s primaries were more proof of the anti-incumbency mood felt in many parts of the nation, and a new Rasmussen Reports poll finds that many voters continue to feel a randomly selected sample of people from the phone book could do a better job than their elected representatives in Congress.

The latest national telephone survey of Likely Voters finds that 41% say a group of people selected at random from the phone book would do a better job addressing the nation’s problems than the current Congress. Almost as many (38%) disagree, however, and another 20% are undecided.

These findings show little change from early January and early September 2009. However, the number of voters who feel a random selection could do better is up eight points from early
October 2008
, just before the presidential election.

Honestly, it couldn’t be any worse, could it ?

1 4 5 6 7 8 323