Category Archives: Point/Counterpoint

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 The Hayride.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.

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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.

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