Category Archives: Point/Counterpoint

Screw the Parties! Vote Your Heart, Not With FUD

Indepedent-woters-on-the-rise

So far today, we have posts from Matt Souders and Sarah Baker as to why voting a certain party affiliation is a better idea for libertarians. They’re well reasoned, well backed up, and ultimately, I believe, short sighted.

I have a different idea: forget the letters next to the names. Forget “tactical” voting. If libertarians, as a movement, want to make real change, they need to vote independently, without any care for party affiliation. In some cases, they should even write in a vote for someone off the main ballots.

The Trojan Horse

As a libertarian, I’m used to being toyed with. Republicans want my vote to fix the economy. Democrats want my vote to address social issues (translation: “lol smoke weed erryday y’all”) and to keep us from going to war. And every time we’ve gone one way or the other, we’ve gotten burned.

The Tea Party was started largely as a protest against goverment overspending, and candidates were elected to office – including in a massive wave in 2010 – to address that. Unfortunately, once they got into office, spending didn’t go down appreciably in many cases. Instead, they spent all their time implementing what I derisively call “Jesus Laws”: socially conservative laws put in to please white, middle-aged and older Christian voters. If you hate abortion, you love the Tea Party, but otherwise, I’d argue they’ve done more harm than good.

Of course, the Tea Party burns today as a fight against the mainstream Republicans who have run the party for so long and who have contributed to so many of our problems, including our blown up debt. Men like John McCain and Peter King are anathema to these people for their desire to wage war for any reason and being “squishy” on spending. The ironic thing, from the perspective of the Tea Party, is that they keep invoking the name of Reagan, who was the catalyst for the big-spending Republican Party.

Democrats, of course, have always been the big spenders, but at least they will care about social liberties and not going to war, right? Not so fast. The same Barack Obama who was so anti-Iraq War in 2003, and who ran on being against it in 2008 – arguably winning on that front – has since engaged us in multiple illegal wars in Syria and Libya, and is engaging in illegal actions in Iraq once again as a fight against the Islamic State. Civil liberties? Hah, ask the conservative groups targeted by the IRS, and the reporters and whistleblowers being targeted by the government in the war on leaks. All of this from a man who campaigned against the very things he now stands for. For Pesci’s sake, it took Joe Biden’s diharrea of the mouth to get the President to come around on gay marriage.

The underlying point is that the people campaigning to reform the system often get co-opted by it, and being a part of a major party hurts that. The party simply doesn’t help outliers, and trying to take the party from within is going to prove to be a very hard road – one that could take a generation – for liberty-minded people on either side of the divide. Candidates become different people once they’ve been voted into office; their responsibility to their constituents largely ends at that point, as shown by the extraordinary retention rate in Congress. Once in office, the peoples’ use is finished, and they are summarily discarded.

The Fear, Uncertainty and Doubt of the Two Party System

We’ve heard it before: “A vote for X is a vote for Y”. This often comes about when libertarians – either in primaries, or in general elections where they’re petitioning candidates or running on a big-L Libertarian ticket – represent a threat to the status quo. Most recently was the case of Robert Sarvis, who many argue cost Ken Cuccinelli the governor’s mansion in Virginia by drawing 6.5% of the vote, well above Terry McAuliffe’s margin of victory.

This is a good thing, which is not something I say because I personally find Cuccinelli repulsive; that would be the case if Sarvis or anyone else took things to the other extreme and cost a Democrat an election. Anything that upsets the two-party apple cart is a positive development. The system needs a few shocks. If that means some weak candidates of either party have to get voted out, so be it.

One of the most common refrains we hear is that Republican or Democrat, it doesn’t matter because it’s just two heads of the same dragon. Outside influences – of all shapes and sizes – are like a knight fighting that dragon. The odds are against him, and it’s very likely he’ll be burnt to a crisp by their fire, but even dragons get tired from constantly fighting off outside threats. Also, the more third parties get involved, the more powerful their influence with the media. The best part of Robert Sarvis drawing “only” 6.5% of the vote in Virginia is that it caused a lot of writers to drop a lot of ink/pixels noting how upsetting a force his candidacy was. Even Gary Johnson’s largely Quixotic bid for the Presidency, which drew 1% of the vote, was good for bringing positive attention to libertarian causes. It’s a slow trudge, but the more attention it gets, the better.

Besides, the other half is just as bad, right? So what if a Terry McAuliffe wins an election? Or even Barack Obama or George W. Bush? Liberals who hated Bush likely wouldn’t have loved Gore, and conservatives who deplore Obama wouldn’t be happy with McCain or Romney, either. If they’re saying they’re simply marginally more happy, they’ve already lost. Eating crumbs off the table still leaves a person malnourished.

The Libertarian Party: Our Unreliable Ally

After all this, it’s obvious that we should all rally around the Libertarian Party as our cause celebre, as Sarah argues in her post, right? Not so fast. A closer look shows they’re unreliable at best, and outright using the party at worst. For the most part, the Libertarian Party has been a sort of rehabilitation centre for C-list Republicans, the equivalent of a baseball player being demoted to the minor leagues to work on his swing before being promoted back to the big time.

I need to preface this with an admission: I voted for Barack Obama in 2008. I’m not even ashamed of it. While I didn’t buy the “Hope and Change” nonsesne, I did at least concede at the time that he wasn’t Bush, and wasn’t a Republican. However, another major thing in his favour was that the Libertarians were putting forth an embarrassing ticket of Bob Barr and Wayne Allyn Root.

Bob Barr was elected to the House of Representatives as a Republican during the Newt Gingrich-led Republican Revolution. While in office, Barr was such a hard supporter of the War on Drugs that he was voted out of Congress… with support from the Libertarian Party he would eventually represent. He also supported the Defense of Marriage Act before he was against it, voted for the Patriot Act, and voted for the Iraq War. The LP went from destroying Barr’s career to building it back up again, only to watch him go back to being a Republican in 2011.

As for Root, I’ll let my colleague Doug Mataconis take this one. Root, by the way, rejoined the Republican Party in 2012.

The Libertarian Party is used to grifters. Even Ron Paul used the ticket in 1988 to run for President, before almost immediately switching back to the Republican Party after the 1988 election. When it’s not doing rehab, the Libertarian Party has a succinct problem with crackpots and kooks; Michael Badnarik, the 2004 candidate for President, is a 9/11 truther.

Individual Liberty at the Ballot Box

None of this is intended to persuade anyone to vote one way or the other. In fact, the whole point of this is to point out an obvious truth: our current system isn’t working, and those who allow themselves to be co-opted by larger forces almost always end up disappointed.

What I will call for, however, is a call to conscience. Individual votes are ultimately irrelevant so long as one is voting to their personal convictions, and a request for those who tactically vote – like those who would vote for Mitt Romney despite prefering Gary Johnson – to reconsider. If you think a candidate is a preferable candidate, vote for that candidate. If that candidate lost a primary, write him in. If you think Elmer Fudd is a better option, guess what? Write in Elmer Fudd! Why not? We know he supports the Second Amendment, at least.

The key is never to fall in line with big-party dogma, it’s to ensure that people are voting with their hearts, saying what they want, and in the process sending a very strong message that the status quo is not acceptable. If we can’t even show individual liberty in the ballot box, how can we hope to achieve it in the legislature?

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

Take A Stand! Don’t Vote At All!

Today, my illustrious co-contributors have been making the case to you to vote. Sarah wants you to vote Libertarian, Matthew wants you to vote Republican, and Kevin doesn’t want you to vote Democrat, but drew the short straw and we made him argue it anyway.

Now I’m going to tell you why none of their arguments should make you vote for their parties.
Don't Vote!
First and foremost, the Democrats. Some might argue that if you vote Republican, you get big government AND social conservatism, but if you vote Democrat, you get big government and social liberalism. Frankly, it’s a lie. Democrats talk a good game about civil liberties, about ending the drug war, about being pro-choice, reining in the military-industrial complex, and ending foreign adventurism. Yet they change their tune as soon as they’re in power. Remember all those Bush-era domestic spying programs that Obama put a stop to? No, me neither. Remember when Obama closed Gitmo? No, me neither. Remember when Obama forced Congress to give him a declaration of War before bombing people? No, me neither. And it’s been his fellow Democrats defending his [in-]actions. Voting Democrat will never be beneficial to liberty.

As for the Republicans, one can make a very similar argument. Because if you vote Republican, you really do get big government and social conservatism. They talk a good game about small government and fiscal responsibility, but remember who was in office when TARP happened? Hint — it wasn’t Obama. Medicare Part D? No Child Left Behind? Yeah, not small government. Some might say the Republicans are the lesser of two evils, and that libertarians are more naturally allied with Republicans with Democrats, so you might as well pick them as your poison. There’s just one problem with allies when it comes to government: the alliance is forgotten the day after the election. Fusionism between libertarians and Republicans just isn’t going to work.

No, the reason not to vote Democrat or Republican is it truly has gotten very difficult to determine which of them is the lesser evil. And in our system of direct representation, does it really make sense to vote for someone who doesn’t represent you?

That leaves the argument that we should vote our conscience, and vote Libertarian. I’ll admit, of all three arguments, this is the one I’m most sympathetic to. After all, I would actually want to see Libertarians elected. I would trust a Libertarian candidate to represent my beliefs in Washington. And there’s one more argument for voting Libertarian, which Sarah overlooked: Since Libertarians never win, we don’t have to worry about being hypocrites when they then go to Washington and violate their campaign promises!

So why should you stay home? Why not “vote your conscience” and pull the lever for the Libertarian?

Because any vote, even one for the Libertarian, is an affirmation of the system.

But let’s face it. The system doesn’t work. And the reason it doesn’t work is that the system is rigged. The direct representation system with first-past-the-post voting is only stable with two parties. The two parties then exist to move as close to the center as possible and ensure that they don’t alienate voters. Parties don’t exist to cater to minority views.

But we’re libertarians. We’re not centrists. We are a minority view. Some suggest that we’re 15% of the electorate. But the other side of that 15% is 85%. We can NEVER expect the mainstream parties to represent our interests, no matter who we vote for, because the money is in the center, not at the edges.

The alternative is a parliamentary-style proportional representation system. If we truly are 15% of the electorate, we would be able to gain a sizable chunk of the legislative body and we would force the Republicans and Democrats to work with us to govern. In today’s system, they only work with us until the campaign ends.

No, you shouldn’t vote. Validating the system of direct representation with your vote is a losing strategy. That doesn’t mean you shouldn’t be active. I’m not saying you can’t make an impact. If I believed that, I wouldn’t be blogging. What I’m saying is that if you want to make a difference, focus everywhere except the ballot box. You actually have some likelihood of doing good that way.

Yes, There Are Reasons Why Libertarians Should Vote Democratic

vote-democratic-button-94172

It’s no secret that there are very few issues that Democrats and libertarians can align on. The modern Democratic party is awful once they have a position of power. The Democratic party is reflexively hostile to free enterprise, embraces crony capitalism, has a strong nanny state component, is awful on civil liberties, have proven themselves to be even worse on foreign policy than neocons, and have contributed the current state of affairs which has created a Federal government that is highly dysfunctional. If you’re looking for a policy alignment between Democrats and libertarians, you won’t find it outside of very few social issues.

Having said all that, there are still some reasons why libertarians should consider voting Democrat, although I won’t be taking my own advice.

The Republicans are running on nothing:

What are the Republicans running on this year? Where is this year’s Contract With America?  The GOP released something last month called the Principles for American Renewal, which are essentially talking points. The only concrete pledge the GOP is making is to try and pass a balanced budget amendment. Why should a party running on nothing but “Obama sucks” be rewarded with control of the Senate?

The GOP Contains The Most Useless Politician In America:

The Republican Party is home to the most useless politician in America. That man is none other than Senator Ted Cruz. A vote for the Republican Party is a vote for Ted Cruz and to allow him to increase his power. Ted Cruz released his own set of talking points in October which reads like a reactionary manifesto. If you want to reform the Republican Party, you have to defeat Ted Cruz. The only way to defeat Ted Cruz is for him to lose power, which can only happen if the GOP loses the midterms. Just an illustration of how powerful Ted Cruz is, last year he shutdown the government in order to promote himself. As long as Cruz is in a position of influence, he can sell conservatives and Republicans on false hopes that Obamacare will be repealed, gay marriage can be stopped, and everything will go back the way they used to be. A vote for Democrats will help marginalize Ted Cruz.

If Republicans Fail, Maybe They’ll Have To Change:

Doug Mataconis wrote a good article over at Outside The Beltway about a what might happen if Republicans don’t take the Senate. Mataconis argues that it would the beginnings of a no holds barred civil between the hard-right Ted Cruz/Tea Party wing of the GOP and the establishment and more moderate conservatives. Unlike many liberty Republicans, I don’t view Ted Cruz and the Tea Party as allies because they’re pursuing a hard-right, exclusionary agenda. Perhaps this would make Republicans acknowledge the need to reach out and broaden the party’s appeal to more than just old white males.

Long story short, libertarians should vote Democratic to force the Republican Party into the 21st century and punish it for its lack of an agenda. At least with Democrats, you know what you’re getting.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Why Libertarians Should Vote Republican

vote-republican

America is a bit of a rarity in modern politics in that it is a two party system with so little penetration by independent and minority party politicians that it is difficult to attract qualified candidates to any alternatives. Of the billions spent on electioneering in the U.S., mere millions go to Libertarian, Reform, Constitution, and Green Party candidates, let alone pure independents, unless they have the explicit backing of the Democrats or Republicans. In almost every state in the union, Libertarian candidates struggle to draw enough signatures on petitions to even appear on the ballot, and even when they do, they rarely pick up more than a few percent of the vote. In the face of such a rigged system, it is hard for Libertarians not to become bitter and frustrated with the process, abstaining from the vote, voting for Libertarian candidates in protest, or even using their vote as a weapon against the GOP for keeping them from the podium. I, myself, have felt such a desire myself on occasion. Although I am closing to core republicanism than most of the contributors here, I don’t consider myself a member of the party and have a number of issues where I lean more Libertarian. But here’s the thing that should stop us from walking out on the GOP – here is the reason we need to vote Republican, at least for now.

Voting Republican is Working

If you’ve been paying any attention to the Republican Party of late, you know that much is being said about a “Republican Civil War.” The media is no doubt eager to cover our internal squabbles, waiting in the hope that the party splinters, yielding a permanent liberal plurality in command of the Capital. While the headlines may be a bit overblown, they’re not based on outright fabrications, and here’s the thing – the battle of ideas within the GOP doesn’t just come from the Tea Party (the populist flank). Libertarians are making their mark on conservatism as surely as they ever have – and their impact is much more viable, politically, than that of the Tea Party. Libertarians are winning the argument on multiple key issues.

Foreign Policy

Prior to the Reagan presidency, Republicans were not the party advancing the theory of Communist containment, nor were they particularly inclined to use American military might very proactively. Reagan successfully fused American fears about Communism’s international reach with a doctrine of expanding American concepts of liberty and free trade for the betterment of our economy, but he also ushered in an era of Republican military aggression. It became “red meat” in the Reagan years for conservative candidates to promise a strong national defense. From Reagan to Bush to Dole, Bush Jr. and McCain, the GOP grew synonymous with hawkish calls for a defense based on strong offense. Libertarians have long questioned this use of our resources, but ask yourself this – when was the last time you heard a competitive Republican fighting for a national elected post whose campaign was centered on an aggressive foreign policy? Did Romney spend more of his time than I remember talking about his plans for nation building abroad? Are this year’s GOP senate candidates proposing an all-out offensive against ISIS? George W. Bush’s ‘State of the Union’ address in 2004, heading for election season, was roughly 60% national defense and the war on terror. Romney’s campaign was roughly 90% domestic policy. If you’re attempting to advance the Libertarian goal of speaking softly but carrying a big stick in reserve – or forcing the world at large to start spending some money solving their own problems – the GOP is right there with you now, at least at the national level.

Gay Marriage

The national party has not come around on this issue as of yet, but even ten years ago, the thought of a gay Republican group at CPAC would have been out of the question, and the fact that, since DOMA was struck down by the Supreme Court, the GOP no longer makes mention of Gay Marriage unless pressed to do so by the media, and then only reluctantly do its candidates offer a plea for traditional marriage should tell you something. If you believe that liberty should include the liberty for gay adults to make contracts of their free choosing but that churches should not be forced to participate – the GOP is right there with you in spirit, and voices like Rand Paul are yanking it in that direction in policy.

Ending the War on Drugs

I remember, when I was growing up, that it was local and state level GOP candidates leading the charge – playing on the “security” voters (married couples with children especially) with promises of laws meant to crack down on drug use. The national GOP has never made this a top priority outside of the Reagan administration, but continues to maintain a position against legalization of marijuana at this time. But for how long will that remain the case? The core GOP voting bloc – even evangelicals – rate the war on drugs as among their lowest priorities in exit polling nowadays and the GOP is not actively pursuing any meaningful legislation on the issue. Sooner or later, libertarian voices, now by far the most passionate advocates in any direction on drugs within conservative ranks, will win out here as well. When the libertarian position on drugs reaches Paul Ryan, and he starts executing decriminalization concepts and jail population reduction plans in his latest round of budget plans, you know your ideas have reached critical mass within the GOP.

Deficit Spending and Government Downsizing

W. Bush’s ‘Compassionate Conservatism’ (because we all know that libertarians have no compassion, right? /sarc) is now rightly seen by both the Tea Party and the libertarian flanks of the GOP as one of the greatest betrayals in the party’s history. They’re flat outnumbered on this and, if they get a majority in the legislature in 2014, they will be forced to consider actual cuts to government spending and actual tax hikes or face the wrath of the electorate in 2016. Not a libertarian will be rooting for higher taxes, but enough of the middle class is willing compromise now to get the government to reduce spending that it will be incumbent on the GOP to abandon their “no tax hikes ever!” pledge and forcus on reducing taxes on small businesses while increasing taxes on the very wealthy and simplifying the tax code for all. That is if they ever want to be seen as a party that can govern. But even if they fail in that regard in the next few years, they remain a libertarian’s best hope to some day see reason.

Civil Liberties

Here again, the Tea Party and libertarians see eye to eye and have outflanked the establishment wing of the GOP. The leading voices against NSA spying, the use of drones against Americans, the suspension of due process for those accused of sexual assault, the imposition of the IRS on political speech, etc – they’re all Republican. Liberals are united in their indifference to these things, at least in Washington. The McCain wing of the GOP continues to support such actions as the Patriot Act, but they are fast decline and will soon “age out” – both in the electorate and in Washington.

I’ll close by asking, honestly, is the existing Libertarian Party – unsupported as it is, a strong enough body to affect change on its own and bring about an era of increased liberty and prosperity? And which of the major parties is most likely to seek such a noble goal? Small “l” libertarian voices, to a much greater degree than Libertarian voices, are having their say – the system is working, albeit slowly. As the elderly conservative base begins to die, a whole generation of millennial voters who are, by their nature, DEEPLY skeptical of big government AND big business, are primed to come home to conservatism if it puts on a more libertarian face. If libertarian voters of today want to see such a new era, they must keep the current Republican Party afloat and work to change it from within. There won’t be a country left worth saving if the progressives currently running the Democrat Party are ushered in by libertarian support (direct or through abstaining).

I advise libertarians to stay the course – our system is designed to change slowly – be patient and the GOP is yours to inherit.

Vote Libertarian, Because Not All Politicians Are Smart, But All Politicians Can Count

libertarian-party-logo

Thus proclaims Arvin Vohra, Vice Chair of the Libertarian National Committee and a candidate for Maryland’s fourth congressional district. Vohra and I are in agreement that the only effective way to tell politicians they must shrink the size and scope of government is to vote for libertarian candidates (“small l” intended).

Not voting at all accomplishes nothing more than making one’s opinions irrelevant to the people who hold political power. Voting for the “less bad” of the two contenders is guaranteed to continue the policies of the last two administrations.

In contrast, consistently voting only for libertarian candidates pulls the two major parties toward more libertarian positions. That, standing alone, is reason to vote libertarian.

We know the strategy works because it is working! Twenty-five years ago, mainstream journalists rarely mentioned libertarians. Now, not a day goes by that the word is not featured in the headlines of big-name publications or crossing the lips of mainstream commentators.

Google the words “libertarian moment,” and witness how shrilly both the left and the right deny that one is occurring.

Their foot-stamping to the contrary, Republicans are fundraising for openly gay candidates. Donors are pressing the party to stay out of marriage altogether. Republican candidates are campaigning to make birth control available over the counter. The first U.S. Senator has come out in favor of marijuana legalization.

Thanks for these shifts goes in some degree to the people who consistently prove their motivation to visit the polls, while simultaneously refusing to cast votes for statist candidates in either party. More people today identify as independents than either Republicans or Democrats. Fifty-nine percent of voters self-identify as “fiscally conservative and socially liberal.” Even under conservative estimates, 15% of voters can be treated as consistently “libertarian” in their positions.

Libertarians (“small l”) have become a swing-voting block as powerful as the religious right.

The best use of that power is to end the conspiracy of false choice and emotional partisanship that operates to keep the two-party oligarchy in power.

The Republocrats have given us federalized schools; a morass of unfunded entitlements and dependency; wild inflation in the cost of education and healthcare; the Drug War, the highest incarceration rate in the world, militarized police, and asset forfeitures; welfare and cronyism for corporations, agribusiness and green energy; a national debt in the trillions; the surveillance state and the erosion of the fourth amendment; expensive, immoral, ineffective and deadly interventions overseas; and restrictions on political speech.

If the foregoing is not convincing enough, consider the following. When Republicans are in power, Democrats support balanced budgets, oppose unfunded spending and resist increases to the debt ceiling. As then-senator Barack Obama said in 2006:

This rising debt is a hidden domestic enemy, robbing our cities and States of critical investments in infrastructure like bridges, ports, and levees; robbing our families and our chil- dren of critical investments in edu- cation and health care reform; robbing our seniors of the retirement and health security they have counted on.

*     *     *

Increasing America’s debt weakens us domestically and internationally. Leadership means that ‘‘the buck stops here.’’ Instead, Washington is shifting the burden of bad choices today onto the backs of our children and grandchildren. America has a debt problem and a failure of leadership. Americans deserve better.

When the Republicans are in power, they simply trade positions. Republicans complain about spending and Democrats oppose balanced budgets.

Or consider this example from Robert Sarvis, Virginia’s libertarian candidate for U.S. Senate:

In 2008, when Republicans were the ones supporting the Export-Import Bank, candidate Barack Obama called it little more than corporate cronyism, but in 2014, it was Democrats lining up to support it. Virginia’s Democratic Senators Mark Warner and Tim Kaine introduced the reauthorization bill, and President Obama signed it.

Republicans are keeping the bank going until 2015 when they can figure out who is is in power, so they know which position to take.

How anyone keeps falling for this shtick is beyond me.

Spoilerism is a feature of third party voting, not a glitch. It communicates to mainstream politicians that we’re here, we vote, and if they want to beat their opponent, they need us to do it. The libertarian moment is nigh. Stay the course.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

How far we have fallen…

Reading the point/counterpoint posts on the question of how the supreme court would decide on Obamacares constitutionality, was quite disturbing to me in several ways.

On the one hand I was heartened, because clearly both Brad and Doug are sane and rational folks with a reasonably solid background in both law and politics, and a foundational understanding of the constitution…

Of course, that only highlights how many people in this country are not.

Any reading of the constitution… of the very intent of the founding of this nation… makes it clear that our federal government is meant to be one of of limited and enumerated powers. If the government can mandate this, they can mandate anything. This is the fundamental argument about the necessity for a limiting principle to any government act.

And anyone who doesn’t want unlimited, unconstrained government can see that. Sadly, it seems that the idea of unlimited, unconstrained government is quite popular in some quarters… even with some supreme court justices.

The basic liberal/progressive/leftist argument for socialized medicine is “we should do this even if it IS illegal and unconstitutional, because it’s the right thing to do so the supreme court should uphold it”.

I.E. “It’s good because we want it, and therefore it should be legal because it is good; and we need to get rid of this whole “limited government” thing, because it gets in the way of us doing what is right and good.”

What I also find heartening is that both Brad and Doug both seem to have a good sense of all of this…

But that is also disturbing…

Because both of them seem to share the same actual opinion:

Both believe that Obamacare is ACTUALLY unconstitutional, and should be struck down…

…It’s just that Brad is cynical enough about the supreme court and the political aspects of the decision that he thinks enough justices will be able to argue themselves into ignoring the constitution and doing what they want to do, rather than what is right.

… and Doug believes that there’s a good possibility of that as well; he just has a bit more hope that they won’t.

… and if you look around the commentariat, that’s pretty much the split of positions that every other knowledgable observer has as well.

And if that isn’t disturbing to you, then you really have no idea what is going on, do you?

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Counterpoint: The Supreme Court Will Find The Individual Mandate Unconstitutional

Earlier this week, Brad Warbiany started out the latest in our occasional series of Point-Counterpoint exchanges by arguing that the Supreme Court will ultimately uphold the Constitutionality of the Patient Protection And Affordable Care Act’s individual mandate. I’ll start off by saying that this is not an all implausible. Indeed, I’ve argued myself in the past that the odds were quite good that the Supreme Court would uphold the constitutionality of the mandate. Moreover, as Brad notes, the history of the Supreme Court’s Commerce Clause jurisprudence has been one where the Court has essentially been nearly completely deferential to Congressional exercises of authority in this area. If one were making a bet, the safe bet would be the one that says the mandate would be upheld. Nonetheless, as I argue below I believe that the Supreme Court will in the end strike down the mandate, although the fate of the rest of the PPACA remains far from certain.

The Mandate Forces Citizens To Act In A Manner Never Before Seen In American History

Brad argues against the assertion that the mandate is unique in American history because it forces citizens to purchase a product from a private seller by pointing to examples of other things that the government forces people to do, such as the military draft and jury service. It’s correct that these programs are, at least theoretically, authorized by various provisions of Article I, Section 8. However, that’s very different from what the mandate purports to set in place, which is a requirement that every person in the United States engage in a specific commercial transaction whether they choose to or not. As more than one legal commentator has noted, this is unprecedented in American history and likely one of the main reasons that the PPACA itself has aroused the ire of such a large segment of the American public. As a general rule, Americans don’t like being told what to do by the government and, for many people, this was a bridge too far.

The question is whether it is authorized under the Constitution, and I think the case in favor of it is far stronger than the supporters of the law have been willing to admit up until last week’s hearings.

The Commerce Clause

As I noted above, the Supreme Court has, at least since the New Deal Era, been very deferential to Congressional assertions of authority under the Commerce Clause. This started, as Brad notes, with the case of Wickard v. Filburn in which the Court upheld a provision of the Agricultural Adjustment Act that allowed Federal authorities to bar a farmer from growing “excess” wheat even though he would not be selling it and would solely be using it for personal use on his farm. The Court reasoned that this was acceptable because the farmer’s actions had an impact on Interstate Commerce, even though it might only be a small one. It’s a decision that has always aroused the ire of advocates of limited government and it’s implications are wide ranging. Thanks to Wickard, the Court spent some 50 years rubber stamping Federal assertions of authority under the Commerce Clause. Indeed, after the New Deal Era there were very few challenges to such laws that even made it to the Supreme Court.

Then, in the late 90s things took a surprising change. In Morrison v. United States, the Court struck down several provisions of the Violence Against Women Act which purported to make domestic violence a matter for federal law enforcement under certain circumstances. The Court held that there was no evidence that domestic violence had any connection at all to interstate commerce that would justify giving the Feds police authority that is properly the authority of state governments. Several years later, in Lopez v. United States, the Court struck down the Gun Free School Zones Act on the ground that there was not a sufficient nexus with interstate commerce. Suddenly, it seemed, the Court was finding limits to the Commerce power. There seemed to be a setback when the Court upheld Federal drug charges against a California medical marijuana dealer in Gonalez v. Raich, but there’s a good argument to be made that this case is distinguishable based on the fact that it dealt with illegal drugs and that the Court was unwilling to issue a ruling that would have thrown every single Federal drug law into Constitutional doubt. Had Gonzalez dealt with any other commodity, it’s quite conceivable that it would have gone the other way.

It’s been said by PPACA advocates that striking down the mandate would require the Court to overrule 70 years of Commerce Clause precedent, but Morrison, Lopez and even Raich, show that this isn’t necessarily true. Each of the courts that have struck down the mandate have held that the problem with the mandate isn’t that the Courts have been wrong for the past three-quarters of a century about the Commerce Clause, but that even those precedents do not authorize what Congress wishes to do in this particular case. Indeed, it is perfectly easy to distinguish Wickard and its progeny from the PPACA mandate in a way that preserves precedent and yet compels the conclusion that the mandate is a Constitutional bridge too far.

This is what I expect the Supreme Court to do when it issues its opinion in June. Much to the relief of liberals and the chagrin of conservatives, striking down the individual mandate will not mean that the New Deal will be rolled back. What it will mean, though, is that, as in Lopez and Morrison, the Court will be drawing a line and saying that Congress cannot cross it because it does not have the Constitutional authority to do so. It will, in other words, further articulate a limiting principle for the Commerce Clause.

Which brings me to the next part of Brad’s argument I need to address.

Limiting Principles

Brad is correct that the Court could construct a limiting principle if it ends up saying that the mandate is Constitutional. Perhaps this is what it will end up doing. However, it is worth understanding the importance of the failure of the Government to articulate a limiting principle when asked for one by the Court. For one thing, this isn’t the first time that the Court has failed to do so. Reviewing the transcripts of oral argument in many of the lower court proceedings, one runs into other occasions when Judges inquired of the attorneys for the Government whether they believed that there was any limit on the Commerce Power given their arguments in favor of the mandate. In no case were the attorneys willing or able to do so. In some cases, this was cited by Judges as a reason that the mandate cannot be upheld, in others it wasn’t (athough it is worth noting that lower Court judges are bound by precedent from the Supreme Court in a manner that Supreme Court Justices are not).

As a purely tactical matter, it strikes me that an attorney who is unable to provide an answer when a Judge asks “If I rule in your favor, what guarantee is there that I won’t be establishing a precedent to do X” is potentially damaging their case. Most judges are not, by their nature, radicals.Meaning that if they can avoid issuing an opinion that could have far reaching consequences they are likely to do so. It was quite evident from the questioning during last week’s oral argument over the individual mandate that the Court, and specifically Justice Kennedy, has some concerns about the future implications of issuing an opinion upholding the mandate. The Solicitor General’s failure to provide an answer may end up being fatal to the Government’s case.

The Necessary And Proper Clause

This is perhaps the strongest argument that Brad raises. Under the broadest interpretation of the Supreme Court precedents on this case, anything that is necessary for Congress to carry out one of it’s authorized powers is Constitutional. Indeed, this is pretty much what the Supreme Court said when it authorized the creation of the First Bank Of  The United States in McCullough v. Maryland. For that reason alone, it’s interesting that there was so little discussion of the necessary and proper clause during the oral argument last week. Partly, this may be because the law here is pretty much settled and has been for nearly two centuries but one would have thought that Paul Clement, the attorney for the states would have been subjected to some strong questioning on this topic by the Justices on this issue. He really wasn’t, although there was some discussion about whether the health care market was “unique” in some way that made this mandate permissible.

The problem with this argument that it still leaves the Court searching for a limiting principle. If Congressional power under the Commerce Clause to regulate the interstate health care/health insurance market is so broad that it can enact a law that includes a requirement that all Americans purchase insurance, then does that mean that its power to regulate the interstate automobile market is so broad that it can enact a law requiring Americans to buy only American made cars? Even if the Court were to decide that the Necessary and Proper Clause was sufficient authorization for the mandate, it would still be left with the limiting principle question. And my reading of the Court at this time is that there is a majority right now that is unwilling to issue an opinion that would essentially be an open door to Congressional intrusion in even more aspects of the economy, and an end to any hope that there could be limits imposed on Washington, D.C.

Conclusion

I could end up being totally wrong about this, of course. This case is so closely dividing the Court that it’s impossible to guess how it will turn out. I will say that I think that if the mandate is struck down we are looking at a 5-4 decision because there is just no way that I can see Breyer, Ginsburg, Sotomayor, or Kagan going over to the side of the conservatives on this issue. However, if the mandate is upheld I would not be surprised to see it be a 6-3 decision for a very specific reason. Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

However, if the Court were to strike down the mandate, I believe I’ve laid out a perfectly rational, Constitutional basis on which they would do so. That doesn’t mean there won’t be a political firestorm, of course, but there is going to be a political firestorm no matter how the Court rules. I don’t think there’s ever been a time in American history when such an important case was in the hands of the Court in the same year as a Presidential election. Especially an election where the very issue the Court is dealing with, the limitations on the authority of the state contained in the Constitution, were also the central issue in the Presidential election. It’s going to be a very interesting opinion regardless of which way it comes down.

Point: How The Supreme Court Will Find The Individual Mandate Constitutional

This is part of The Liberty Papers’ continuing Point/Counterpoint series, where two contributors (or a contributor and a guest) argue competing sides of an issue. In this installment, I will argue that the Supreme Court has a realistic defensible argument to find the Individual Mandate in ObamaCare Constitutional. Tomorrow, Doug Mataconis will respond with a rebuttal. Links will be updated in each post as they appear.

UPDATE 4/4: Doug’s rebuttal is available here.

As always, we’re constantly looking for good debate topics for this series, and qualified guest posters to argue one side against one of the contributors.

————————————————

Stipulated up front — I believe that ObamaCare is a severe affront to individual rights, limited government, and the ideals upon which our Republic was founded. In my own view of Constitutional jurisprudence, overturning the law is a no brainer. But as with most things our government does, they’re not listening to me, so the question is simple:

Does the Supreme Court have enough precedent to find the individual mandate Constitutional?

I think they do. And the argument has several elements.

Forcing You To Act

One of the first points of contention is the question of regulating activity versus regulating inactivity. The question being whether or not the Congress can force you to act if you choose not to. Many claim that Congress forcing you to purchase a good from a private seller is a bridge farther than they’ve ever gone before.

But taking the question of “buying from a private seller” out of the equation, is anyone suggesting that the government can’t force you to do something under threat of fine or jail? Ever heard of the Selective Service? I’d say a government that can force me to report for military service to die for my country is asking something a fair bit more serious than demanding I have health insurance. The government in this case can COMPEL you to do something within its rightful power — the power to raise armies. Or on a subject less likely to result in ending up full of lead, there’s Federal jury service. The government can COMPEL you to do something within its rightful power — the power to raise courts and ensure defendants a fair trial judged by their peers.

The question isn’t whether or not the government can force you to do something — Republicans, Democrats, Presidents, and Supreme Court Justices have all agreed that it can. The question is whether or not forcing you to buy health insurance falls within the power of what they can force you to do.

The Commerce Clause

Most of the debate so far has centered around whether the mandate — a regulation of inactivity, not of activity, is within Congress’ commerce clause power. We’ve had cases like Wickard v. Filburn, where the Court has ruled that someones activity can be regulated whether or not it directly engages in interstate commerce, because the act of growing your own wheat [and not buying it from the market] may have an affect on interstate commerce. We’ve even had Gonzales v. Raich, where the Court has ruled that the grasp of Congress extends even to activities which affect an interstate market in goods the government would prefer have no market at all.

The Government’s lawyers in this case say that the mandate is Constitutional because not buying insurance may affect interstate commerce. The opposition states that Congress can regulate activity related to interstate commerce, but regulating inactivity is a bridge too far. Supporters of ObamaCare, however, do have a point here. It can hardly be argued that refusing to purchase health insurance means that you’re not impacting the US healthcare system. Unless you have an ironclad “do not treat” waiver stapled to your forehead at all times, I’m pretty certain that if you’re in a car wreck and unconscious, you’re going to become a participant in the healthcare market. And if you don’t have insurance, that’s likely to bankrupt you, cost the taxpayer a hefty sum, or both. In this case, your supposed inactivity really is activity.

But this isn’t the only argument. One of the key points that is not argued is whether or not the US Congress has the authority to regulate the US Healthcare market at all. And the reason that’s not being argued is that it’s flatly assumed that Congress can regulate the healthcare market. In fact, even most pro-liberty Constitutionalists agree that if Congress had simply voted for a single-payer system, current Supreme Court jurisprudence wouldn’t have any cause to overturn it. So this brings us to our next point:

The Necessary and Proper Clause

This is really the crux. The clause says that Congress has power to make all laws “necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” A long time ago, that limited the government significantly. In fact, in the fight over the First Bank of The United States, the Feds argued that the Bank was necessary to engage in all the things that the government legitimately and Constitutionally needed to do. The opponents argued that while the Bank may be convenient and helpful to the government to do what it needs to do, it was hardly necessary. They took a very strong view that the word “necessary” meant what it said — if you could accomplish the goal without doing X, then X didn’t meet the Constitutional requirement of necessity.

Sadly, the Necessary & Proper clause was one of the first to get ignored by the Supreme Court, as Randy Barnett (a lawyer opposing ObamaCare in this case) pointed out in his book Restoring the Lost Constitution. One of the key growths in Government power over the early days of the Republic was to grant deference to Government lawyers if they said something was necessary.

In this case, much of the oral arguments centered around whether ObamaCare could stand without the individual mandate. Both sides agreed that Congress has the power to regulate healthcare, but they didn’t agree that the individual mandate was, on its own, Constitutional. After all, if they can mandate you purchase insurance, which might help restrain the growth of healthcare costs, might they not also mandate you purchase broccoli, as the health effects thereof might help restrain the growth of healthcare costs?

Many ObamaCare opponents cheered at the lines of questioning whether ruling the mandate Unconstitutional would cause the entire law to fall. Those opponents believed that it was a way for the Court’s conservative wing to ensure that they could toss out the whole law, rather than simply severing the mandate. But looking at the argument another way, it proves that the mandate is necessary to the law.

So let’s look at the “necessary and proper” test. First is propriety — laws made by Congress are only proper if they relate to one of its Constitutional powers. While I might not think Congress has legitimate authority to make sweeping healthcare legislation, I think we’ve well established that current Court jurisprudence is untroubled by the idea that Congress has commerce clause power to regulate healthcare. So the test of propriety is cleared. The second is necessity: is the mandate necessary to fulfill Congress’ authority to regulate the interstate commerce of healthcare. And I think the oral arguments proved, regardless of what side you’re on in this debate, that the mandate is absolutely necessary to the structure of the law. Get rid of the mandate, and you might as well throw the whole thing out.

So if regulating the healthcare market is a legitimate authority of Congress, within their purview granted by the commerce clause, then the question becomes whether this mandate is necessary for them to exercise their authority. I think the answer, as shown by oral argument, is yes. So the government clears the bars of both the Commerce Clause and the Necessary and Proper clause.

Limiting Principles

A final argument by the opponents has been that if the mandate stands, it grants Congress ultimate power, which the Court will not allow to happen. And they’ve been encouraged by some lines of questioning in oral argument, where the “broccoli test” showed that the Government’s lawyers were unable to articulate a limiting principle of their argument.

But as loath as I am to agree with Kevin Drum on something (or whoever he borrowed the argument from), the Government doesn’t need to articulate a limiting principle. It’s up to the Court to determine whether THIS action is Constitutional. And they could very easily craft a limiting principle that allows the individual insurance mandate but doesn’t allow for an individual broccoli mandate.

How simple is it?

Q. Is the individual insurance mandate absolutely necessary to the very structure of Obamacare?
A. Yes.
Q. Is the hypothetical broccoli mandate absolutely necessary to the very structure of Obamacare?
A. No. Are you f’ing serious?

The Court already has the “necessary & proper” clause as its limiting principle. If they accept the basic structure of ObamaCare as Constitutional, extending to Congress a provision that might be Unconstitutional on its own, but necessary as part of a wider power, would not be a shock.

Conclusion

I’m not going to claim that the above argument suggests that the Court will find ObamaCare Constitutional. I’m a firm believer in the idea that the Justices often decide — like people in all other walks of life — what they want to do and rationalize an argument into it afterwards. And I think we have a pretty decent idea how 8 of the 9 Justices will decide in this case, a 4-4 tie broken by Anthony Kennedy.

Should Kennedy vote to overturn the mandate, I expect the majority opinion to fall to one of the solid conservative justices. Should Kennedy vote to uphold, he very well might pen the majority opinion. For Kennedy to accept the mandate, I think he has to see a legitimate limiting principle — and the necessary & proper clause provides both the grounds for upholding the mandate and the inklings of a limiting principle in one fell swoop. Oh, and in case you followed the oral arguments, Kennedy was *very* interested in the concept of severability and seemed to assume, whether he votes to keep it or toss it, that the mandate was necessary to the structure.

I don’t know which way this thing’s gonna go, but I’m not as confident as other libertarians, conservatives, and small-government Constitutionalists. I see a very plausible rationale for upholding it, and thus I think we’re hoping that one oft-flighty Justice happens to come down on our side of the vote.

Counterpoint: Democracy Doesn’t Mean Collective Responsibility

This is part of The Liberty Papers’ continued Point/Counterpoint feature. Specifically, this Counterpoint is the response to Jeff Molby’s post yesterday suggesting moral equivalency between Arabs cheering in the streets after 9/11 and Americans cheering Sunday night at the killing of Osama bin Laden.

————————————————

A lot of what Jeff said yesterday made sense. We have been intervening militarily in the Middle East for many decades. I’m not going to give a Rudy Giuliani response and act as if blowback doesn’t exist, nor that his charge that it’s a long line in the “Hatfield-McCoy” ongoing feud between cultures is incorrect. I’ve become a non-interventionist over the years not because I think other countries are behaving well in the world or to their own citizens, but rather because I don’t trust government to actually accomplish what they intend on the world stage.

In short, while I doubt that the long-term safety of Americans from terrorist acts is meaningful affected by the death of Osama bin Laden, I found myself filled with an internal cheer on Sunday night. I’ve never been the type to go jump up and down in a crowd over such things, but I had much of the same motivation in my heart that I believe they do. And I don’t consider the response to be rationalizing away a bad emotion — I believe the emotion is justified. Further, and to the point, I believe the emotion is justified in a way that those in the Middle East cheering after 9/11 cannot claim.

Jeff’s essay contains what I consider to be a fundamental error of collectivization, and it was on that basis only that I worked with him when he submitted his post to make it a Point/Counterpoint. The response is too much for the comments section.

It is never moral to cheer the deaths of innocent people. I think we can all stipulate that Osama bin Laden appears to have full guilt as the mastermind of Al Qaeda for perpetrating 9/11, and that anyone working to continue to keep him hidden in that compound was complicit in the guilt as well. We’re not talking about a collateral damage problem here.

So we’re left answering a question on which Jeff and I disagree:

So were the 9/11 victims innocent?

Lest anyone try to twist my words, let me be absolutely clear that the responsibility for the 9/11 attacks lies entirely with the perpetrators of those attacks. That does not make us innocent bystanders, though. We choose our representatives and give them a ton of money with which to do our bidding. We are responsible for the countless civilian deaths that our government has caused over the decades. You. Me. The 9/11 victims. Every American old enough to work and vote. It takes hundreds of millions people working together to great the largest killing machine the world has ever known. We did it together and most of us were proud of it every step of the way. Many of you are probably furious with me right now because you’re still proud of the weapon we’ve created.

The fact that America is a representative democracy does not make us all complicit in everything our government does. This is true for multiple reasons:

  1. Electoral party politics are a package deal. One cannot vote for a specific basket of political positions. One must pick and choose which are most important, and every-day domestic concerns will always drive decisions more than abstract foreign policy.
  2. Jeff mentions that the last President & Congress to NOT engage in foreign war was Hoover. It seems that the non-interventionist position was not exactly on the table.
  3. One can claim that the non-interventionist position WAS on the table. Yet George W Bush was voted in on a policy that he wasn’t interested in nation-building. Obama was voted in as an ALTERNATIVE to GWB — Hope and Change. Yet he’s doubled down in both Iraq and Afghanistan and embarked on a whole new war in Libya.
  4. The people who voted for the policies 20, 40, or 60 years ago are not the same voters today.
  5. Some of victims didn’t vote for the winners, they actually voted *for* the [losing] anti-war candidates, or their candidates won but were outvoted in Congress.

Democracy doesn’t mean that Americans are all the same, nor that we are all complicit in the guilt for a history of Hatfield-McCoyism. Some of those killed on 9/11 were undoubtedly in favor of the military-industrial complex. Many were not. Some were Americans who had voted for politicians embarking on those policies. Many had voted for the losers in each of those elections. Some of those killed on 9/11 were Americans. Many were not — meaning they had no ability to influence American foreign policy.

Americans cheering at the killing of Osama bin Laden were cheering for a specific, concrete act of retribution against someone who was a stated enemy of us as a collective [the Great Satan] and as individuals [infidels]. It would be the same as Muslims cheering at the killing of specific Americans who suggest that we should wipe Mecca off the map because Islam itself as a religion of death. Both are be acts against individuals who had proven their desire to kill high numbers of people.

But that’s the minority. Most Americans and most Muslims are peaceful people trying to make their way through the world, working towards a better life for themselves and their families. At the end of the day the questions aren’t really who to vote for, the questions are how to budget for college and get the kids braces, how to put food on the table and afford the rent or mortgage.

Americans know, for the most part, that they have almost zero control over their government, and act accordingly. While Jeff tries to paint the brush that “the government is us”, Americans have internalized that what “those guys in Washington” do is not exactly “us”. Muslims watch their governments (who they have much less control over than even Americans) oppress the people, and throw up their hands in despair while they try to live. They get tarred with the “Osama bin Laden is a Muslim, therefore all Muslims support terror” brush too often, and I don’t believe it’s much appreciated.

I’m not saying we’re the Bad Guys. I’m just saying we’re not the Good Guys either. We’re simply active participants in a Hatfield-McCoy-esque feud whose root cause is long since forgotten. We’re wrapped up in a nasty affair with enough blood to cover everyone’s hands.

American politicians and the leaders of the Muslim world are engaged in this feud. Regular Americans and Muslims are distant cousins who left the county decades ago and look upon those Hatfields and McCoys with opprobrium. The fact that these politicians were voted into office over the years doesn’t mean a majority of Americans support the specific foreign policy measures that made this a Hatfield/McCoy event, much as the rebels in Libya today are not responsible for Gadhafi’s terrorist attack on American interests 30 years ago. We even see today that there appears to be internal disagreement within Pakistan’s government (the civil government vs. the Pakistani military) over the hiding of bin Laden. It is quite possible that the military or ISI knew of his existence but was keeping it a secret from the rest of the government. Is all of Pakistan responsible for those internal interests that were working to hide Pakistan?

At the end of the day, Arabs who cheered the 9/11 attacks on the WTC were cheering against the deaths of individual innocent people who had no direct relationship to the long history of warfare and strife between the American government and governments/terrorist groups of the Middle East. Americans who cheered for the death of Osama bin Laden were cheering for retribution against someone who was directly involved in planning, funding, and organizing the event that killed innocent people.

To claim that representative democracy makes those situations morally equivalent is a false application of collectivism, and it deserves not to remain unchallenged.

Point: You Cheering In The Streets Is No Different Than When They Do It

The following is a continuation of The Liberty Papers’ “Point/Counterpoint” series. In this feature, two contributors (or, as in this case, a contributor and a guest) of semi-like mind debate a specific point of view. Today’s Point is provided by regular reader and commenter Jeff Molby, who wrote in response to a friend and offered to submit it here as well. Tomorrow Brad Warbiany will present a Counterpoint (now available here).

————————————————

After posting a Facebook link to this article which disapproves of the American jubilation in response to the news of Osama’s death, a friend of mine made the following comment:

“There is a BIG difference between groups cheering when innocent Americans have been killed and cheering when the person responsible for killing those same innocent Americans has been killed.”

Before I go any further, I want to make it clear that I don’t condone any of the violent acts by either side. I condemn our efforts to install and arm puppet governments. I condemn the terrorist attacks. Both have been going on so long that I don’t even give a damn which one “started it”. Like a couple of pissed-off five year-olds, you either have to send them both to their rooms or step back and let them duke it out.

Personally, I think we’re way overdue for some de-escalation. I understand that many others think we need to do just the opposite, but for the purposes of this conversation, we can just agree to disagree on that point.

My only point in all of this is that this is an old, nasty conflict and there’s a ton of blood on everybody’s hands. It’s been many decades since we’ve had any sort of moral high ground when it comes to our involvement in the Middle East. 9/11 could have changed that if we had responded magnanimously, but instead we resorted with the same base reactions that we condemn our enemies for.

You’ve probably noticed that I haven’t acknowledged that the civilians killed in the towers were “innocent” and therefore different. In a way, they were. In a way, they weren’t. You can call them innocent because most of them never touched a gun in their lives and wished no harm on anyone. At the same time, though, our government has done much harm in our name and here is the double-edged sword of democracy: we elect our government and we are responsible for its actions.

Do you know who was the last President that didn’t engage in overseas warfare? Hoover. The last 13 Presidents and 44 Congresses — with every permutation of Republicans and Democrats you can imagine — have all steadily cultivated the military-industrial complex that has shed the blood of innumerable innocent individuals that we blithely refer to as “collateral damage”.

At every step, we rationalize it. It’s easy to do and we have to do it; we’d be unable to consider ourselves human if we didn’t. “We do our best to minimize ‘collateral damage’, but it’s impossible to avoid it completely and we have to kill them before they kill us.”

It sounds good and logical until you confront the fact that our enemies use the same rationalizations. They look to their lost fathers and mothers and seek vengeance just as we do. They look upon the deaths of enemy non-combatants with the same feelings of righteous self-defense and inevitability. They feel they have to kill us to protect themselves.

And so we swim in the bloodiest of whirlpools.

So were the 9/11 victims innocent?

Lest anyone try to twist my words, let me be absolutely clear that the responsibility for the 9/11 attacks lies entirely with the perpetrators of those attacks. That does not make us innocent bystanders, though. We choose our representatives and give them a ton of money with which to do our bidding. We are responsible for the countless civilian deaths that our government has caused over the decades. You. Me. The 9/11 victims. Every American old enough to work and vote. It takes hundreds of millions people working together to great the largest killing machine the world has ever known. We did it together and most of us were proud of it every step of the way. Many of you are probably furious with me right now because you’re still proud of the weapon we’ve created.

I’m not saying we’re the Bad Guys. I’m just saying we’re not the Good Guys either. We’re simply active participants in a Hatfield-McCoy-esque feud whose root cause is long since forgotten. We’re wrapped up in a nasty affair with enough blood to cover everyone’s hands.

As I said earlier, I think it’s past time for the violence to come down, so I can’t share in the celebration of another death. For those of you that disagree, I understand your viewpoint and I won’t begrudge you your victory celebration. I just want you to realize that it’s no different from the celebrations your enemies hold when they win a battle.

Counterpoint: Civil Disobedience Or Not, Nullification Is Unconstitutional

In his post that started this debate, Brad Warbiany makes this point about the idea that the individual states have the power, or at least the right, to make declarations as to the Constitutionality of Federal laws:

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

(…)

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Taking this view of nullification, I don’t necessarily disagree with Brad on the value of state’s, and their citizens, weighing in on what they believe to be a usurpation of Federal power. After all, this is something that has a long and noble history in America. When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, which were resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believe the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,'” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since March challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.

So, basically, that leaves “nullification” (and personally I don’t like the word because of it’s historical associations with secessionists and segregationists) in the category that Brad would put it; a method by which the citizens can, through their state legislatures and the Courts if necessary, petition Congress for a redress of grievances.

However, when nullification is discussed today, it isn’t the “civil disobedience” variety that Brad favors that’s being advocated. In his new book, Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods essentially argues for a full-throated right on the part of the states to ignore Federal laws if they choose to do so:

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

Now this is a vast simplification of the argument that Woods makes, you can get a better idea of what he means in this interview:

I have yet to read Woods’ book, and still want to, but it’s fairly clear that his argument suffers from the fact that there just isn’t any historical support for his idea that the Constitution grants states the right to essentially break Federal law by ignoring it if they believe that it is unconstitutional. Any reliance on the Virginia and Kentucky Resolutions, for example, is easily rebutted by Madison’s own admission that the Resolutions were expressions of opinion rather than something that had the force of law.

History after the Resolutions doesn’t really provide any support for Woods’ argument either. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

In other words, if nullification of the type Woods advances actually existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. Therefore, Woods’ nullification is little more than a professorial fantasy.

In closing, I don’t necessarily object to the kind of “civil disobedience” nullification that Brad favors. Let’s just not pretend it has the force of law.

Point: Nullification Is The Civil Disobedience of Federalism

This post is a part of our continuing series Point/Counterpoint. I am taking the position that state Nullification of federal law is a legitimate action, and Doug Mataconis will respond tomorrow with a rebuttal. In memory of James Kilpatrick, we’ll dedicate this installment to him.

In federal politics, states are party to an uneasy compact with other states under the guise of a superior government.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

As such, they cede many powers to that national government, but one must think that they do not cede all of their own powers. Something must be held in reserve. The question is what? After all, this “Supremacy Clause” Constitution only grants supremacy to those laws made in pursuance of the Constitution itself — anything not permitted by the Constitution must not be considered to be Supreme. The real question, then, is who decides what is Constitutional?

Since 1803 and John Marshall, half of that question has been decided. The US Supreme Court is the arbiter of what is, and what is not, Constitutional. Further, a critical tool of state protection against the overreaches of the national government, the state appointment of Senators, was stricken in 1913 by the Seventeenth Amendment. Thus, the only legal method of appeal to Constitutionality available to the States is appeal to the Supreme Court, a body that hasn’t found many overreaches of national government since the New Deal.

Nullification, the doctrine that states can disregard federal laws, declaring them unconstitutional, is a provocation somewhere between fighting a battle at the Supreme Court level and secession.

Appeal to the Supreme Court is basic and need not be addressed here. Secession is a far more drastic measure, far more controversial, and an area where I believe Doug and I disagree, so it does require some treatment. Secession is often equated with violence, and treated as “violent revolution”, but I would say that most instances of violence were continued by the government trying to retain their subjects, not by those trying to withdraw. In the American Revolution, nothing that I’ve seen suggests that had the British peacefully withdrawn their troops, the colonists would have had any cause for continuation of violence. Even in the US Civil War, it is unlikely that, had the North allowed the South to secede, that the South would have ridden on Washington to impose slavery back upon the North. Secession is not overthrow of the government, it is withdrawal therefrom. Of course, Doug and I agree that, whether they had the right or not, the South’s secession was for morally unconscionable reasons — the continuance of the despicable practice of slavery. But the South’s secession was no different than the American Revolution in that they were NOT attempts to overthrow a government outside of the territories that wanted their freedom, they could have been peaceful separations. The breakup of the Soviet Union is a good example. While it was only peaceful because the Russians didn’t have the power to hold it together, it was a peaceful secession nonetheless.

So at this point we’ve sketched out two responses to potentially unconstitutional overreaches by a national government. The first is the relatively weak appeal to the Supreme Court — asking the government to self-regulate. This is a difficult option. A Senate prior to the Seventeenth Amendment might take seriously their “Advice and Consent” role in judicial nominations to only nominate those who would respect state sovereignty and Constitutional limits, but that ship has sailed. In its wake, it’s left a court with an expansive view of national government authority. Secession, on the other hand, is all-or-nothing. And while it may not be a violent act, history has shown that it often will be. As Doug pointed out in all three posts I read of his referencing secession, Jefferson in the Declaration of Independence said that taking to arms should not be done “for light and transient causes”.

Leaving only these two options is a fool’s game. Secession will only be legitimate in the face of absolutely unconscionably abuse, and appeal to the judiciary is impotent and unlikely to succeed [and further, the structure of the direct election of Senate and the Supreme Court nomination process makes it unlikely this will change]. If one wants to give the national government limitless power, asking only that it police itself, having only these two options is the roadmap…

…which is why we need nullification.

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

I’ll give an example. Here in California, we have legalized marijuana for medical purposes. This is in DIRECT contradiction to the Controlled Substances Act, an act that empowered the regulation to be written that declares marijuana a Schedule I drug — with no medical use whatsoever. This is nullification in action. This is civil disobedience. California is not denying the Federal government’s power to enforce the drug laws — but it is denying its compliance with those laws and its assistance to the Feds in such power.

What will the result of this action be? Well, this (and potentially the follow-on Proposition 19) forces the people of California address the question of marijuana. Several states have followed on with their own medical marijuana laws. We now have a body of medical marijuana users which can be called upon to testify that marijuana does have medical use. We have families who have watched their loved ones, battling horrible diseases which sap their appetite, who have been able to eat enough to keep their strength. Hopefully the result of this action will be the government backing down and taking marijuana off Schedule I.

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Undoubtedly, Doug will respond that nullification can be used for nefarious purposes, much like secession. I cannot disagree. Arizona is willing to prove that, as if there haven’t been enough historical examples already. Nullification is a tool, and it is the one who wields the tool who is important.

The national government appropriates power to itself, and it has built structures to weaken or remove legal impediments to that power. In response, we need illegal, but peaceful, impediments. Non-violent resistance carries with it a moral weight that legal Supreme Court wrangling never will, and that is a tool that we in the fight for liberty do NOT want to cede.

Nullification may not be legal, but it is legitimate.

CounterPoint: Yes, Virginia, States Really Do Have Rights

This is a segment in The Liberty Papers’ continuing “Point/Counterpoint” series. This post is the rebuttal to my co-contributor Michael Powell’s post here, making the point that “states’ rights” are an antiquated and poisoned concept.

When I saw Michael’s post this morning, I was a little bit surprised. I was expecting him to make the argument that States’ Rights don’t exist. In fact, I was waiting for one specific statement that I’ve heard from those who attack the notion of states’ rights many times over. Thankfully, two comments in, commenter John222 made the point:

States don’t have rights, individuals do. Better would be to say, “The interest of the State in protecting the rights of it’s citizens”.

This is a common statement among libertarians, and although I’ve probably used it in the past, there have been points where I’ve become troubled by it.

Michael made some very important points in his post, and these are points that must be answered. However, to begin, we must have an understanding of the origin, the nature, and the limitations of states’ rights. Only by setting this groundwork may I refute Michael. But first, a caveat. In order to make the points I must make, I must work with two critical assumptions:

  1. Natural rights of individuals exist.
  2. Constitutional democratic government is legitimate.

For those that have read my previous work, it should be understood that I believe neither of these assumptions. I am a philosophical anarchist, and while I can construct a non-theistic basis for natural rights theory, I view them as artificial constructs, not incontrovertible truths. However, we must work within the framework we have, and thus I will concede these points for the purposes of this post. For the purposes of discussion and comments, please try to take these two premises at true, and if you have a problem with the argument flowing from those premises, attack the argument.

Let’s start at the beginning:

We hold these truths to be self-evident, 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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here’s the base. Natural rights are the area where we say to government: “Over this line you may not tread.”

Individuals have certain natural rights, and they empower governments to help them protect these rights. The statement that “States don’t have rights, only individuals do” does not account for what we consider the social contract. Individuals enter into an implicit contract with their government, offering to entrust some of the rights they hold in the “state of nature” to their government in order for cooperation and protection of those rights. Those governments do not gain *new* rights as governments, but they inherit the rights of those they are designed to protect.

Natural rights theory does not hold that individuals give up their rights to the government, the rights are retained. It is best to be understood as a legal contract — individuals freely, by exercise of their rights, create their government. They voluntarily empower their society — their government — to protect their rights. A government that reaches beyond the legitimate power of protection of those rights, as Jefferson himself states, deserves no longer our assent or our support. If said government treads beyond the lines defined above, that government has violated the social contract.

“Government”, of course, is not a singular entity. Governments are hierarchical, competitive, and numerous. In many cases, we are under the jurisdiction of several governments — entities within entities. In many cases, the governments we live under must make compacts with other governments outside our territory — treaties — in order to help complete the tasks which we have empowered them. Each of these agreements are contracts or compacts. Rights of the citizens of the government are not abridged, they are retained — at least if the government empowered to act on behalf of its inhabitants are legitimate.

How, then, do we describe the relationships between these levels of government or between competing governments? How do we define the lines over which they may not tread? Let’s take one example: borders. What are borders, other than the territorial lines defining the government which protects the rights of its inhabitants? What do we call a government’s relation to its borders? Territorial rights! Now, of course, these rights are not that of “the government”, but they are the territorial rights of which the individuals supporting that government have ceded to their government to protect.

Likewise, how do we define our US Government’s relationship to the United Nations and the nations of the world? We use the term sovereignty: the inviolability of our government to the others of the world — the statement that our government has “rights”, i.e. lines over which those other governments may not tread.

The nature of the United States Government and its relationship to its constituent States is a tricky one, historically. The United States Constitution — our governing document — is a compact between states, not a contract directly between the federal government and the people. Historically, the people of the several States entrusted their governments — the entities to which they had entrusted their rights for protection — to form a federal republic. One may support the claim — at least until 1865 — that the States retained sovereignty, and that they had contractual RIGHTS as constituent members of that federation.

These rights are not inherent to them, as States. These rights are the rights entrusted to them by their inhabitants, and the rights they are protecting are not the rights of the State as State, but a collective bargaining arrangement to protect the rights of their inhabitants. Regardless of how you define this, though, the rights exercised are contractual rights exercised by the States on behalf of their inhabitants. The States drew a line, and told the United States Government “over this line you may not cross.” For the United States Government to cross that line would allow the State, if it so chose, to exercise its sovereignty and break the contract — secede.

These rights are not without limit, though. We previously stated that government is created by individuals in order to secure their natural rights. But those rights are retained. A government which does not secure those rights — a government in fact which violates them, is not a legitimate government at all and may be disbanded. Likewise, federal governments or supra-national bodies do not have super-natural powers — they are still only as legitimate as the rights of their constituent states (and thus the rights of their constituent inhabitants). If the United States Government attempts to violate the sovereignty of the states in order to violate the natural rights of its constituent inhabitants, it is just as illegitimate as if the individual state takes that action…

…which finally brings me back to Michael’s post!

Specifically, this country is, and always has been, a work in progress. I said it was illegitimate for a federal government to violate the sovereignty of its constituent States and if a federal government were to do so, it would justify secession. However, while Michael says he wouldn’t cry crocodile tears if the South had been allowed to secede, the South’s secession would not have been justified under States’ Rights theory. Why? Because slavery — a State deliberately violating the natural rights of its inhabitants — is not a legitimate government, and thus the Southern States did not have true sovereignty. A government which violates the natural rights of its inhabitants as a matter of design cannot be granted the authority to act on behalf of its citizens.

The Fourteenth Amendment, in the wake of the Civil War, finally codified this statement. Prior to this, the United States Constitution did not have a method for the Federal government to impede the States from abridging the natural rights of its citizens. (Of course, one can infer from this that the Civil War was illegal, but the destruction of slavery in the South can hardly be described as immoral). It should be stated that Michael’s quote from George Wallace was not truly a defense of States Rights. Those rights of States to discriminate by law against their citizens had long been removed via the Fourteenth Amendment. If he truly believed that the right of the State was inviolable (I doubt this to be the case — I personally think it likely that “States’ Rights”, like patriotism, just happened to be the last refuge of a scoundrel), he was simply wrong.

Michael is correct, of course, that in the intervening century, the term “States’ Rights” was used by all manner of racists, supporters of Jim Crow, and people who are “defiant of settled law”. In American politics, terminology tends to have this problem — terms become appropriated by unsavory characters, and the terms themselves pick up unsavory connotations. We “libertarians” constantly bemoan the fact that our previous label, “liberal”, as appropriated by big-government Democrats. We had to abandon the term completely and build a new one. States’ Rights has some of that connotation, but by definition that doesn’t not negate the concept of those rights.

The term “States’ Rights” may, in fact, be coming into a renaissance. As Michael points out, individual states are fighting the Feds on medical marijuana, and California — the state where we both live — has a ballot measure in November to legalize marijuana entirely. This is in direct contravention of the Controlled Substances Act, but more importantly, this is a state protecting its citizens from the overreaches of Washington!

But again, look at the nature of government. A State government that violates the natural rights of its inhabitants is acting illegitimately. At the same time, a Federal government that violates the natural rights of its inhabitants is acting legitimately. In this case, it is right for the inhabitants of a State to pool to their rights collectively — using their States’ rights — to protect themselves from the Federal government on their behalf. Individuals often have little recourse against the Federal leviathan. They need all the help they can get.

Either way, I think that Michael did not prove, as I thought he would attempt, that states don’t have rights. He did make some valid points that the terminology of states rights had been hijacked for the last century by those State governments who wished to protect their racist fiefdoms. But he belied his own point by bringing up the fact that the very same terms are also being used by States to protect the liberty of their inhabitants from Federal overreach.

Point: “State’s Rights” A Misnomer

This is a post in our continuing “Point/Counterpoint” series, where TLP contributors and/or guest posters debate a topic. In this installment, Michael Powell argues against the existence of “states’ rights”. Tomorrow, Brad Warbiany will defend states’ rights, and his post can now be found here.

During the twentieth century, there were several confrontations between federal authorities and those proclaiming “state’s rights.” The most notable were those of Arkansas Governor Orval Faubus, in 1967, who called on his state’s National Guard to block several African American youths from attending high school and Alabama Governor George Wallace, who literally stood in the way of troops sent by the Kennedy Administration to escort students Vivian Malone and James Hood (both instances being unforgivable offenses in the Deep South) in 1963. The state was blatantly violating not only individual rights of its citizens but also the legal authority of the U.S. Supreme Court and the executive branch.

The “right” for the state to discriminate against the individual in defiance of federal law (and human decency, which is another matter and not a concept that is very popular in Alabama or other deep southern states) was precisely what George Wallace cited explicitly in his speech at the University of Alabama on June 11, 1963:

The unwelcomed, unwanted, unwarranted and force-induced intrusion upon the campus of the University of Alabama today of the might of the Central Government offers frightful example of the oppression of the rights, privileges and sovereignty of this State by officers of the Federal Government. This intrusion results solely from force, or threat of force, undignified by any reasonable application of the principle of law, reason and justice. It is important that the people of this State and nation understand that this action is in violation of rights reserved to the State by the Constitution of the United States and the Constitution of the State of Alabama. While some few may applaud these acts, millions of Americans will gaze in sorrow upon the situation existing at this great institution of learning.

Personally, I would not cry crocodile tears if the South had been let go during the Civil War. My ancestors fought in the Confederate Army but my personal life has been filled with people of color. The South has not simply been racist; it has been the closest region in the Western World to pre-industrial feudalism. Its ugly history of public executions, terrorism, exclusion from employment and education of massive portions of the population (including not just people of color but poor whites, women and those who stood against the Southern Christian traditionalist grain), intellectual rejection, ethno-nationalism, proud ignorance and aggressive religiosity is more reflective of the worst regimes in the Middle East than the enlightened industrial democracies of Western Europe, North America and Asia. Just as is the case with the Middle East, the rich natural resources of the South have been the primary reason for keeping the impoverished backwater area in the sphere of the United States.

If it hadn’t been for slavery, racism and the South, the “state’s rights” argument may have more standing validity. Unfortunately, for those who bring back its spectre it brings to mind Jim Crow laws, lynchings, segregation and war. Just as the swastika, which actually has a relevance to Buddhist philosophy, has been defiled by the actions of German National Socialism, “state’s rights” has been defiled by the actions of Southern political actors.

For issues in which “state’s rights” would be a logical defense, especially regarding marijuana, where states like California seek to protect the individual rights of drug users in defiance of prohibitionist federal intervention, I have to beg the question: Why is it an issue of state governance and not simply the right of the individual to do as he wishes?

This isn’t simply a historical, theoretical argument either. States are still today violating individual rights, with the federal government acting as an intervening force of justice. Arizona’s immigration law, SB 1070, which effectively legislated racial profiling and declared war on undocumented workers who are critical to the American economy, is being set upon by the Obama administration’s Justice Department.

I have worked in Latin American foreign policy, so I would like to add that, while I stand in firm opposition to SB 1070, I understand completely why it was implemented. We are in really bad economic shape, as I surely don’t have to inform anyone here. That is exacerbated by the perception by people that don’t understand economics that Hispanic immigrants are “stealing” their jobs and the horrendous mob violence that has been implemented on the border by drug cartels. I reject Kantian ethics that proclaim motivations to paramount to results, however, and a mob of fearful people hardly ever makes the right decision. In American history, “state’s rights” has been a flag that has often been waved by populist demagogues while “individual rights” has been waved by judges and executives with a better grasp of the law. “State’s rights” is a misnomer which is usually used to defend defiance of settled law. It doesn’t deserve or necessitate revival in our political discourse.

Counterpoint: The Tea Parties Portend A Liberty Movement Ceasing Its Silence

This post is the second portion of a feature we offer here at The Liberty Papers called “Point-Counterpoint”. In this feature, Kevin argued the Point yesterday that Tea Parties are ultimately damaging to the libertarian movement. Today, Brad responds with the below.

My boss is a mainstream Republican in his mid-40’s. He’s got a small crush on Sarah Palin. He recently took the Political Compass and ended up with a score of (+7.00, -0.67). He’s an accountant by training and salesman by profession. He’s not a protester by nature. In short, he’s a part of Nixon’s “silent majority”, the group described by wikipedia as not having “the ability or the time to take an active part in politics other than to vote.” His wife falls under the same general heading. My boss couldn’t make it to the April 15th Tea Parties — work was more important at the time — but strongly wanted to attend. His wife was able to make it to a Tea Party. These are people who are NOT the type to protest the actions of the government publicly. They are, IMHO, much more representative of the types of people who attended these current protests than those who are protesters by nature.

This is not the protester you're looking for.

This is not the protester you're looking for.


Oh, you’ve heard of those groups, I’m sure. These are the types that Kevin alludes to when he says the anti-war protests became anti-Bush protests. These are professional protesters (by professional, I mean that they don’t have day jobs that get in the way). They get their protest groove on before they even know what they’re protesting. Anti-war? Go away, fascists! Anti-WTO? Fine, you dastardly multinational capitalists! Anti-GMO? Leave my food alone! Anti-Bush? Selected, not elected! Described in the movie PCU as “causeheads” by character Droz (Jeremy Piven), they’re the career protesters that you find more often on the left:

“These, Tom, are the Causeheads. They find a world-threatening issue and stick with it for about a week.”

The Tea Parties, at least traditionally, haven’t been dominated by Causeheads. They’ve been attended by regular people — like my boss’ wife — who see that in modern America, the train has derailed and they’re afraid of the carnage to come. It’s people who understand that something is very, very wrong — but they aren’t yet sure why or how to fix it. It is a protest movement in its infancy, and it’s largely populated by people who are more likely to eventually follow the side of someone like Ron Paul* than the “birthers”.

Yes, there are a lot of elements trying to grab hold of the Tea Party movement for their own purposes. But I believe that the modern Tea Party movement can largely ignore those elements, because the Tea Party movement is an effect, not a cause. It is not Joe the Plumber dragging people to Tea Parties; it is their own sense of morality and outrage at what is going on. It is a group of people who is sick and tired of government meddling, but endured in silence for several years while “their party” was in power. When Bush at the end of his term and Obama ever since have hit the throttle on government spending and control, they simply couldn’t take it in silence any more.

The Silent Majority is speaking up.

Stephen Gordon wrote a pretty expansive round-up of Tea Parties that he attended and that he had knowledge of for the Independence Day protests. Throughout that post, it’s clear that this is a grassroots movement, although that in some places it’s more dominated by the local GOP political establishment than in others. In many of these protests, elected officials were barred from speaking, allowing individual non-political Americans to speak.

That is a recipe for a true grass-roots movement. Of course, letting anyone with an opinion speak is also a recipe for a few of them to say things that you may not entirely support. Giving everyone who wants a microphone access to one makes for a bit of a messy message — just look at the blogosphere! When you get that many people together, you may not be 100% comfortable with everyone. Imagine if I’d attended a Tea Party protest. Would your typical mainstream Republican be happy being associated with a radical atheist anarchist who wants to legalize all drugs, let gays get married, and thinks Sarah Palin is the worst thing to happen to the Republican Party since the atrocious George W. Bush? I’d like to think of myself as a consistent advocate for liberty in the face of our government, but I would think that many mainstream republicans would be put off by the views I espouse.

But all that doesn’t change the fact that what is animating these protests is not birthers, or truthers, or Joe the Plumber. The animating force behind these protests is a latent hostility to big activist government that has been piqued by bailouts, stimulus, and the understanding that you must have confiscatory taxes or widespread inflation down the road to pay for it.

We are at a tipping point when it comes to these protests. April 15th was the first shot in a fight against obscene spending and painful taxes. The July 4 protests are a difficult case, however, because they were more of a protest to keep the fires stoked than anything else. On July 4, I think it was more about having a protest than it was about protesting a concrete action. That will soon change. There are strong rumors of a second stimulus**. We have seen the House pass Cap and Tax. We are watching Congress move forward on government health care. These are specific proposals that any advocate of limited government must fight vigorously.

Americans are seeing the Democrats move forward with the same big-government agenda and top-down central planning that we know does not work. We watch as the Republicans either compromise by only enacting the big-government agenda 80% as fast as the Democrats want, or by cutting pork-laden deals to get something in exchange for going with the flow. Nobody in this debate is standing up for the taxpayers, and that means that you can expect more of these Tea Parties in the future.

Will these Tea Parties be good for liberty? These Tea Parties are the effect of liberty-minded individuals expressing their ideals in concrete action, not a cause of those ideals. Thus, for all the efforts of Joe the Plumber, the birthers, or avaricious politicos to manipulate the Tea Parties for their own ends, the fact still stands: the Tea Parties aren’t about these sideshows. Their presence doesn’t change the ideals of those who attended, and in the grand scheme of things, will not materially affect the fight for liberty.

The Tea Parties have one benefit that hasn’t been discussed. If my account is accurate — that these protesters are the “silent majority” speaking up — the Tea Parties are working to mobilize and connect a group of people that largely exist below the political radar. The biggest difficulty I had as a libertarian prior to widespread internet activity was the feeling that maybe I was the outsider and that nobody else agreed. But through blogging (in general, and The Liberty Papers in particular) I am now connected to like-minded people and am building the networks and connections to make real change. The Tea Parties have the same affect on those who believe in small government. In these protests, friendships are made. Connections are forged. The on-the-ground networks that will one day help us to rein in the excesses of our leaders begin to take shape. This, above anything else, is what I hope we will see as the legacy of the Tea Party movement.

As for whether the Tea Parties will ultimately be successful, I cannot be sure. There is a large contingent of this country that wants the government to be their nanny and has no problem forcing the rest of us to pay for it, and I’m not entirely sure that they can be stopped at this late stage. If that contingent is successful, we may someday point at the Tea Parties in hindsight and say “if only they did X, or Y, we might have won.” But as it stands today, they’re one of the only concrete ways for us to get Congress’ attention, they’re one of the ways that the movers and shakers of the future will forge their networks, and they’re serving their purpose despite Joe the Plumber and the “birthers”.
» Read more

Point: The Tea Parties Are Ultimately Bad For Liberty

This post is the opening salvo of a feature we occasionally offer here at The Liberty Papers called “Point-Counterpoint”. In this feature, Kevin is arguing the Point that Tea Parties are ultimately damaging to the libertarian movement. Tomorrow, Brad will respond to this argument with his Counterpoint (response here).

The so-called Tea Party movement has been upheld by some as a movement of Americans fed up with overtaxation and excessive spending by the Federal government. These supposedly disgruntled ordinary Americans have been having rallies all across the country to show their disgust with the fiscal shape of the country. However, there is more beneath the surface of the Tea Party movement. In reality, the Tea Party movement has become a platform for assorted kooks, Republican party operatives looking to regain credibility with the American people, and libertarian and conservative activists who frankly should know better than to associate with the above.

Many of the featured Tea Party speakers this weekend were either tax hiking, big government politicians themselves or can be safely classified as kooky.

One of the cases in point is none other than celebrity Joe the Plumber aka Samuel Wurzelbacher who turned an Austin Tea Party into an anti-immigration rant:

“I believe we need to spend a little more on illegal immigrants get them the (expletive) out of our (expletive) country, and close the borders down,” Wurzelbacher said. “We can do it.”

“We’ve got the greatest military in the world and you’re telling me we can’t close our borders- that’s just ridiculous.”

Another group of kooks gathered in Duval County, Florida at an event organized by the county’s Republican Party.

The Republican Party of Duval County is backing away from their promotion of an event that featured numerous controversial comparisons of President Barack Obama with German Dictator Adolf Hitler. The event, a Tea Party held at the Jacksonville Landing on July 2, was organized by the First Coast Tea Party. However, the Duval County Republican Party promoted the event with e-mails that stated “Paid by Republican Party of Duval County.” Duval Republican Party Chairman Lenny Curry also broadcasted live from the event on the party’s weekly radio broadcast hosted by AM 1320.

The event, which was attended by Florida State Representatives Lake Ray, Charles McBurney and Mike Weinstein and Florida State Senator Stephen Wise, drew about 1,000 people to the Jacksonville Landing. Local party officials were on stage, along with numerous members of the Jacksonville business community.

While partisan rhetoric at any rally is expected, controversy has arisen over numerous signs that were prominently displayed at the gathering, including two that featured Barack Obama in Nazi garb. One sign, in fact, had altered Obama’s appearance to resemble Hitler. Other signs compared ACORN, the community organizing group accused of voter registration irregularities, with the SS—the Nazi organization responsible for enacting the Holocaust and the group responsible for most of the crimes against humanity committed by the Third Reich.

In short, the Tea Parties have become less about opposition to bailouts and reckless spending and instead have begun to resemble the “anti-war” rallies of the Bush years. The “anti-war” rallies were generally nothing more than “We Hate Bush” rallies and the Tea Parties have become “We Hate Obama” rallies where every phony outrage and faux scandal about Obama are aired to a country that is rejecting them. The Tea Parties have lost their original purpose of promoting fiscal responsibility in most of the country and the movement has come to the point where it harms the liberty movement by continuing to associate with them.

Plus, while original supporters of bailouts, higher taxes, and higher spending are being booed at some events, other tax and spend hypocrites are being welcomed as speakers and are cheered because they’re playing for the right team aka the GOP. By cheering on the same politicians who created the fiscal mess our country is in, the Tea Party movement continues the same fiscal mess they claim to oppose.

If the only purpose of the Tea Parties is to elect more Republicans then we have failed. Instead, we as libertarians must let this movement lose steam and fade away, like all populist movements do. Especially when we start seeing talk of the Tea Party movement nominating Sarah Palin, who is an enemy of everything classical liberalism stands for, to be its presidential candidate. If the point is to gain publicity for our causes, we are failing in this because the media is focusing on the fringe participation and the Republican party sponsorship of these events.

In short, libertarians and the Tea Party movement must divorce if the liberty movement is to survive. Or the Tea Party movement must clean its own house and get back to its core issues of fiscal responsibility.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Counterpoint: The “Living Constitution” Is The Road To Serfdom

In his opening post, our Guest Blogger Derek Hammer states that the United States Constitution is, and should be considered to be, a living document.

In at least one interpretation of that phrase, I agree with him.

As we sit here, less than three months shy of the 220th anniversary of the date that the Philadelphia Convention sent the Constitution to the States for ratification, it is clear that the document itself is alive and that, notwithstanding several decades of bad decisions by the Supreme Court and lower Federal Courts, the core protections of individual liberty that were created in Philadelphia in 1787 remain intact.

However, the debate over a “living Constitution” vs. strict constructionism is far more complicated than that.

Derek’s core argument, which I agree with on many levels is this:

The Constitution is a living document. However, I must stress that a living document does not mean that the government has free reign to do what it wishes! Instead, power must stay consolidated with the people, as was the intent of the Founders, and the people are the only ones that should be able to relinquish their power to the government. The government should not direct the lives of people nor should it abuse the flexibility of the Constitution. Instead, I believe that the Constitution’s flexibility should be considered minor leeway for the Congress instead of a free-ranging usurpation of power from the people. Major changes to the Constitution should not be, and cannot be, overruled by the laws of Congress. Instead, amendments should be made in order to change the Constitution itself.

Also, the Commerce Clause and the Elastic Clause are being abused by the Congress and the federal government. In the 9th and 10th amendments, the powers that are not enumerated to the Congress are reserved to the states and, ultimately, the people. Universal healthcare does not “promote the General Welfare,” it enforces it! Such a law would restrict the freedoms of the people–the very freedoms that are reserved to the people. Congress does not have the authority to do this even under a living Constitution.

This argument is not entirely unlike the argument that legal scholars like Randy Barnett have made in favor of what amounts to a libertarian version of judicial activism. Put a bunch of libertarians on the Supreme Court, give them the 9th and 10th Amendments to work worth, and let hell break loose.

The problem with that argument is that ignores political, and in some sense, legal, reality.

The natural tendency of the state is to expand it’s power.

This is not an original insight on my part, it’s been noted by classical liberal/libertarian thinkers since the Enlightenment. A legal theory that asserts that the founding document of the nation, in this case the U.S. Constitution, is open to interpretation based on contemporary standards, is an open invitation to the expansion of state authority over the individual.

Quite honestly, this isn’t even a matter of academic argument. It’s a matter of what has actually happened. Beginning even with Marbury v. Madison, the case that established the Supreme Court’s authority to declare a law passed by Congress unconstitutional despite the fact that no such authority was granted by the Constitution itself, the process of removing the reality of authority in the United States from what the Constitution actually said had begun. The process continued with cased like Dred Scott and Plessy v. Ferguson and then reached their height in the New Deal era when the Supreme Court, temporarily at least, had the audacity to tell Franklin Roosevelt that he didn’t have the authority to turn the United States into a semi-socialist state. And then, he challenged them, and though he failed, they caved and the result is history.

I could go on, but the point is this. The history of the idea of the “Living Constitution” is a history of the expansion of the power of the state and the shrinking of individual liberty and autonomy.

And, to paraphrase William F. Buckley, Jr., I’d rather be governed by the words written 220 years ago by a group of American Patriots than by the whims of several hundred Federal Judges.

Point: The Constitution Is A Living Document

In the United States, a document–the Constitution of the United States, the Supreme Law of the Land–binds us, the people, when we are granted citizenship. By becoming citizens of this great nation, we assure ourselves the protections outlined by this document. Unfortunately, many citizens forget these inalienable rights.

However, there are some that have not. There are still many scholars of the Constitution and between these informed citizens there is a debate that has raged since the days after the Civil War. This debate–the debate over the elasticity of the Constitution–is a healthy discourse that defines the heart of the American philosophy. On one side of the debate, there are scholars that declare that the Constitution is rigid, that only a strict interpretation of the Constitution is acceptable. Supreme Court justices such as the late Chief Justice Rehnquist and constitutional scholar Ron Paul support this argument. On the other side, though, many scholars also say that the Constitution is a “living document” that has a certain amount of elasticity to it. Again, several Supreme Court Justices and constitutional scholars agree with this point of view. So, who is right?

While the “strict interpretation” argument has several solid points, I believe that the evidence falls heavily in the favor of the “living document” argument. The legal system in the colonies, the words of the framers, the fears of the Constitution’s opponents, the Supreme Court’s solidification of its own power and even the framework of the Constitution all point to a “living document.”

However, before I delve into details about each one of those evidence points, I must point out that “living document” is unjustly correlated with “judicial activism.” Judicial activism is a situation where a judge tries to impose his own political views into a ruling–usually by completely disregarding any acceptable ruling logic. Thus, any judge, whether she has a “strict constructionist” or “living document” view, can be a “judicial activist.”

The first point to be made to support the living constitution rhetoric is that the colonies all had legal systems that were similar to the Great Britain legal system. In Great Britain, citizens were protected under the Magna Carta. This British “bill of rights” was a document that is not unlike our own Bill of Rights, though it was less extensive and less restrictive on the British government. However, there was a practice in Great Britain that was called “Common Law.” This law was flexible law that was aggregated by using all of the court cases to determine what is lawful and what is not. The Founders practiced this sort of flexible law in the colonies and, afterward, in the states. It is reasonable to say that they expected the Federal government’s legal system to act in much of the same way.

The Framers are also on record describing the powers of the judicial branch. Alexander Hamilton wrote in Federalist No.78 that “exercise of judicial discretion” is the “province of the courts” of which he gave a specific example of “two contradictory laws” where the courts have the power “to liquidate and fix their meaning and operation.” This “province of the courts” to “exercise judicial discretion” sounds familiar to the Common Law practices of the colonies and Britain, as discussed before.

The opponents of the Constitution wrote a series of letters that are now in a collection called the “Antifederalist Papers.” These letters were written to oppose the Constitution and are useful in attempting to discover what the Founders feared about the Constitution and government in general. It can also be used to determine the intent of the Constitution, as the arguments written in these letters elaborate on each part of the Constitution more than the Constitution does itself! In Brutus 5, one of the opponents of the Constitution declared:

    In the 1st article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence, and general welfare of the United States.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare.” — And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper.

He argued that the Congress would have power to do what it wished with the elastic clause (which, sadly, has not been restricted and Brutus has been proven correct). This is evidence that the founders intended for the document to have some elasticity.

In 1801, John Marshall was appointed Chief Justice of the Supreme Court. Before his appointment and during his first two years as the nation’s top Justice, the Court had no real power. The Court’s decisions reached no further than the individual cases which were brought before it. However, Chief Justice Marshall changed that in Marbury v. Madison, 1803. In this case, Marshall declared that the judiciary branch has the power of judicial review–the same concept that was exercised in state judiciaries as well as in the judiciaries of the colonies. This power was not directly outlined by the Constitution but it was declared shortly after the Constitution was ratified and it was during the times of the founders. To my knowledge, not one of the Founders criticized the decision (though, Jefferson was angry. But, it was for different reasons other than Constitutionality).

For my final point of evidence, the framework of the Constitution itself creates an aura of openness and flexibility. The words of the Constitution are very vague. In some instances, certain powers are left open to interpretation–the judicial branch had nearly no direction from the Constitution! Also, the Bill of Rights weren’t properly ratified and added to the Constitution until 1791! The vagueness of the Constitution can be seen when compared to other constitutions. For example, the length of the Constitution, in words, is 4,543. By comparison, the South African Constitution has over 50,000 words! By all counts, the South African constitution is specific while the United States Constitution is vague. The vagueness of the United States Constitution leaves for flexibility in the government.

The Constitution is a living document. However, I must stress that a living document does not mean that the government has free reign to do what it wishes! Instead, power must stay consolidated with the people, as was the intent of the Founders, and the people are the only ones that should be able to relinquish their power to the government. The government should not direct the lives of people nor should it abuse the flexibility of the Constitution. Instead, I believe that the Constitution’s flexibility should be considered minor leeway for the Congress instead of a free-ranging usurpation of power from the people. Major changes to the Constitution should not be, and cannot be, overruled by the laws of Congress. Instead, amendments should be made in order to change the Constitution itself.

Also, the Commerce Clause and the Elastic Clause are being abused by the Congress and the federal government. In the 9th and 10th amendments, the powers that are not enumerated to the Congress are reserved to the states and, ultimately, the people. Universal healthcare does not “promote the General Welfare,” it enforces it! Such a law would restrict the freedoms of the people–the very freedoms that are reserved to the people. Congress does not have the authority to do this even under a living Constitution.
As one last point, whether the Constitution is a living document or not is a great argument to research and learn about. Many scholars would disagree with me on my stance that the Constitution is a living document. In fact, most of my conservative friends would completely disagree with me. However you feel, though, I think that promoting such a discussion is beneficial for all. No matter whom is right, we all win; we win back the defining principle that makes Americans uniquely American: public discourse. If we don’t fight for our Constitution, living or dead, it will slowly disappear into oblivion. None of us want that.

From Guest Blogger Derek Hammer

Counterpoint: Sometimes Intervention is Necessary

(Responding to Brad Warbiany’s post here)

After reading Brad’s arguments opposed to interventionism, I found many more areas of agreement than I expected. Brad makes the point that he does not favor isolationism or pacifism and points out that force is sometimes justified, though he does not explain the circumstances where he believes force or “intervention” is justified. I believe that the real question Brad, myself, and many others are grappling with is this very question, not so much if the U.S. should adopt either an interventionist or non-interventionist foreign policy. To offer these as the only two choices is to fall prey to an either/or fallacy. Rather than generally arguing in favor of intervention, I will instead argue for intervention under very limited and specific circumstances.

Under most circumstances the U.S. should neither intervene militarily nor otherwise be involved in the internal affairs of other sovereign states. It is probably safe to say that the U.S. has significant policy differences with every other country on the planet but very few of these differences require any kind of military action or other intervention. If I were to hazard a guess, I would guess that in 95% of these cases, the U.S. should not use military force. But what should be done about the other 5%? At what point should the U.S. use military force against Iran, North Korea, or other states which harbor terrorists who are credible threats to our national security?

Brad is mostly correct in his assessment that America’s intervention in other countries over the past 60 years has been an abject failure. Misadventures in Cuba, Vietnam, South America, Africa, and the Middle East come to mind as being among some of the most obvious examples of failed and/or unjustifiable interventions. Indeed we are now dealing with the consequences of the U.S. support of the Taliban in the Afghan War and Saddam Hussein during the Iraq/Iran war and we will continue to deal with the consequences for the foreseeable future. But is it really fair to say that every intervention has been a failure or has not yielded some positive results for the U.S. and the world?

Consider that over this same span of time that we witnessed the fall of the Soviet Union and successfully drove Saddam Hussein out of Kuwait. Both of these required intervention on the part of the U.S. and the world is better off for it.

I would further argue that interventions in Iraq and Afghanistan have also delivered some positive results which have been downplayed by the MSM and those who oppose these interventions. In the case of Afghanistan, the Taliban was driven out of power and has given the Afghanis their best opportunity to pursue freedom. Roughly 1/3 of the Afghan people and 40% of eligible women participated in the 2004 elections with minimal violence.

In Iraq the U.S. deposed a dictator and his heirs. Since that time Iraq has had several elections (with much greater participation than we could expect in our own elections) and wrote a constitution supported by 79% of the Iraqis (however imperfect). More recently, even the Sunnis who have been part of the insurgency have begun to join forces with the coalition to fight al Qaeda elements in Iraq. Even the bipartisan Iraq Study Group Report , which on balance paints a grim picture, admits that only 4 of Iraq’s 18 provinces (home to 40% of the Iraqi population) are considered “highly insecure.” The report also cites “encouraging signs” of improvement in the Iraqi economy, especially in regard to its currency reserves, consumer imports (especially computers, cell phones, and appliances), and opening of new businesses (especially in more secure areas).

This isn’t to suggest all is well in these two crucial fronts in the war against Islamofascism—far from it. But if the troops were to leave now, most if not all of the progress would be lost and our brave men and women who have died in these missions would have died in vain. To make matters worse, the Islamofascist terrorists would become emboldened and focus their energies on U.S. soil.*

Many on my side of the debate have made the mistake of responding to the other side by falsely suggesting that hindsight is 20/20. Hindsight is no closer to 20/20 than foresight. To say that hindsight is 20/20 in regard to were we are in the war against Islamofascism is to suggest that we know for certain what would have happened had the president and the congress opted not to go to war in Iraq and Afghanistan. In the same way we do not know what would have happened had the U.S. stayed out of World War I, limited U.S. involvement in World War II to Japan, or opted not to drop the atomic bombs in Hiroshima and Nagasaki, we have no way of knowing what would have happened if the U.S. kept Saddam Hussein in power. For all we know, Europe could have emerged from the first World War more peacefully (and thereby avoid the second World War), Nazi Germany may have been defeated without the help of the U.S., the Japanese may have surrendered after a few more U.S. victories, and Saddam Hussein may have decided not to reconstitute his WMD program and limit his rein of terror to his own people. It is also possible that Europe would have remained at a perpetual state of war, that Hitler would have taken over Europe and eventually the world, that the U.S. may have suffered up to 500,000 casualties (at least by some estimates) in taking Japan’s mainland, and that Saddam Hussein would have reconstituted his WMD program to destabilize the Middle East even further. The possibilities of what might have happened in any of these cases are almost infinite.

Those who argue in favor of non-intervention in the Middle East or elsewhere fail to realize that there are potential negative consequences for non-intervention as well as there are for intervention. Ron Paul seems to believe that had the U.S. never intervened in any capacity in the Middle East, we would not be targets of the Islamofascists. Rudolph Giuliani believes the Islamofascists simply hate us for our freedoms. Paul and Giuliani are both right and wrong. I believe Paul is right in terms of the ways the Islamofascists have used past interventions in the Middle East to stoke the flames of hatred of Western culture; Paul is wrong to suggest that such flames of hatred did not already exist toward Western culture prior to U.S. interventions. Giuliani is right to suggest that the Islamofascists hate us because of our freedoms but is wrong when he suggests that the U.S. has never interjected itself in the Middle East (whether justified or not) to the detriment of ordinary people in these countries.

The reason why we have this “reverse King Midas” phenomenon is due to the politicians running the war instead of the generals. Our government is composed of what Thomas Paine referred to as “sunshine patriots and winter soldiers” (meaning individuals who are gung ho about fighting for a cause when things are going well but defeatist when things are going poorly). Politicians (arm chair generals) have further placed the troops in impossible situation of acting as police officers rather than soldiers (cops Mirandize, soldiers vaporize). Overly burdensome rules of engagement (i.e. no attacking “holy sites” even when these sites are used as fortresses by the enemy), a failure of President Bush to better manage the expectations of the American people (he should have stuck to his “long, hard, slog” line and should have continued to warn everyone that this war would likely last decades rather than his two terms in office) and a lack of clarity of the mission have contributed greatly to the challenge of defeating Islamofascism. Things were not always this way. American interventionism helped beat back the forces of Nazism, Fascism, and Communism to make the world much more like the world we “wished it to be” (to borrow a phrase). Clearly, something has changed since that time, but there is no reason why we cannot relearn how to make the world safer for America and the world.

To end on yet another point of agreement with Brad, I also believe that we should be looking for ways to decrease foreign intervention whenever possible. Intervention, especially military intervention, should always be a last resort. But intervention should never be taken off the table entirely.

*I concede Brad’s point about the argument myself and others have made: “either we fight them over here or we fight them over there.” This too is an either/or fallacy and I should take this moment to clarify my point. My point is we have to be vigilant on both fronts. If we abandon the fight “over there,” then it stands to reason that the terrorists will concentrate their activities “over here.”

Point: The Case For Non-Interventionism

Time for the inaugural Point/Counterpoint. The topic will be a debate between the philosophy of a non-interventionist foreign policy versus the policy of fighting the war on terror through an offensive military war to expand freedom in the Middle East. It’s been suggested that the case for non-interventionism should be the opening case, which I disagree with (I think non-interventionism is the more doctrinaire Libertarian position), but I’ll be arguing the point. I would immediately point out, though, that I am not arguing isolationism or pacifism. There are times in life, whether on a personal or national level, where force is justified. My argument is against the attempt to stick our nose into the internal business of other nations through military means or threats. Stephen Littau’s response is here.

————————————————————

My journey towards libertarianism, like many others, came from a pro-defense Republican standpoint. Thus, the idea that I’ve taken the charge to cover the non-interventionist point was almost a surprise to me. But for the life of me, it seems that the pro-interventionist Libertarians are falling victim to a fatal conceit: that man can shape the world around him according to his wishes.

Now, it all sounds wonderful. I’d like to believe that our government is capable of utilizing force in a fair and just manner to drain the swamps in Middle Eastern countries, put those countries on a path to democracy, and eventually transform our world into a much more peaceful place. Unfortunately, we’re talking about government, and I can’t say their track record of meeting their goals is quite exemplary.

The governance of most of the Middle East and Arab-Islamic world is desperately in need of a Reformation. It is a land dominated by secular and religious dictatorships, Sharia law, and all sorts of monstrosities unimaginable to those of us in the west. I used the term “swamp” earlier with a purpose. Nobody wants to live in a swamp. It’s miserable, and the people in that swamp might be a little upset about living in a swamp simply seeing people in the West basking in opulence that they cannot attain in a world without solid capitalism or private property rights.

But American foreign policy is not about trying to trade with the people of that swamp and raise their standard of living. It’s not about trying to create a rising tide to lift boats that even their own dictators are trying to sink. America’s foreign policy, at least over the last 60 years, has been a combination of propping up those dictators and dropping bombs on the swamp. For 60 years, we have been pursuing an interventionist foreign policy, and for 60 years we’ve watched as we haven’t seen any positive results in that part of the world. In fact, I think it’s clear that our interventionism has painted a big target on our backs, and yet hasn’t come close to improving our security among the nations of that part of the world.

Now, we’re being told that our way out of the mess we’ve gotten ourselves into is to throw more interventionism after failed interventionism. It’s couched in terms such as “spreading democracy”, by a President who doesn’t understand that allowing people who we’ve trained to hate us to vote will result in them voting for leaders who hate us. It involves putting our own citizens in the armed forces in harms way, trying to mediate an internal power struggle, smoldering and waiting to blaze into a true civil war. All through this, our leaders are telling us that we need to give up our liberties to remain safe from terrorism, when the best rationale that they can offer for this war in Iraq is that it will attract all the terrorists to Iraq to fight us “over there” instead of on our own shores. Yet at the same time they crow about all the terror plots they’ve foiled at home, suggesting the terrorists’ actions aren’t limited to “over there”.

My criticism of foreign interventionism is simple. Interventionism, when pursued by the government, is like any other government program: it’s going to cost more than advertised, it’s not going to achieve the stated objectives, and it’s going to be filled with mountainous unintended consequences that will make the original problem look like an anthill. And like any other government program, when it fails our politicians will tell us the only solution is more government. I’m not arguing against the goals of interventionism, because I see that the people in the swamp need help to drain the swamp. I just don’t see any reason to believe that government and military are capable of the task.

I say it’s time to stop. Extricating ourself from the situation we’ve created abroad is not going to be easy, but I believe we need to be looking for solutions which decrease our interventionism abroad, not increase it. There are problems all over the world, but when the US government can’t solve a single problem it tries to solve at home, why would we believe that we can solve the problems of other cultures, on the other side of the world, by sending men with guns?

Hayek used the term “fatal conceit” to describe socialists who believed they could remake society in order to how they believed it “should” operate. I fear that pro-interventionist libertarians have the same fatal conceit. Despite all evidence to the contrary on a wide host of issues, they believe that government will do what it promises when it comes to foreign interventionism. Government, though, is the reverse of King Midas: everything the government touches turns to shit. I think the burden of proof is on the pro-interventionists to explain why it will be different this time.

1 2