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Palmer the Federalist?

In responding to Mark Brady’s hnn post and Lew Rockwell’s column about the Supreme Court decision freeing up interestate wine sales, Palmer writes:

Section 2 of the 21st Amendment states “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” That does imply that the states have the (lamentable) power to prohibit intoxicating liquors. It does not imply that they have the power to discriminate between producers or shippers that are in state and those that are out of state. Article I, Section 8 states that “The Congress Shall Have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The states can either ban liquor and forbid producers both within the state and outside of the state from distributing it in the state, or not ban liquor. But they can’t create a privilege for those within the state to sell liquor while those outside of the state are forbidden to engage in commerce across state lines in an otherwise legal product.

That’s a matter of constitutional interpretation. As a matter of political economy or public choice, I see no warrant in the claim that the use of a higher-level political authority to invalidate the unjust invasions of rights by a lower-levle political authority is necessarily wrong or that it tends over the long run to undermine liberty. If the state of North Carolina invalidates, on the grounds of the state constitution, the unjust invasion of rights by a city or county government, would Rockwell or Brady object? On what grounds? That the county or city had the right to violate rights? Similarly, if the federal government invalidates, on constitutional grounds (and the grounds for the court’s decision were quite strong, based on the commerce clause and Section 2 of the 21st Amendment), oh, say, coercive segregation and the lynchings of disfavored minorities who are not accorded protection by the state governments, I see nothing contrary to a proper constitutional order in the federal government doing so and a great deal to say on its behalf. There is nothing magical about the states that gives their politicians the power to violate rights. What is behind the opposite view, it seems, is the view that somehow the states are preexisting corporate bodies that have a mystical existence that individuals don’t have. It is incipient collectivism, both incompatible with the American constitutional order and incompatible with libertarianism.

The good work of the Institute for Justice has struck down a state imposed cartel and advanced individual liberty. It was consistent with a perfectly reasonable reading of the constitution and a vindication of the rights of individuals to engage in trade.

I reprint my reply post here, in case some misanthrope takes it down:

“As a matter of political economy or public choice, I see no warrant in the claim that the use of a higher-level political authority to invalidate the unjust invasions of rights by a lower-levle political authority is necessarily wrong or that it tends over the long run to undermine liberty.”

The history of this own country is a good illustration of this.

“If the state of North Carolina invalidates, on the grounds of the state constitution, the unjust invasion of rights by a city or county government, would Rockwell or Brady object? On what grounds? That the county or city had the right to violate rights?”

Anyone who advocates any degree of limited power of a state entity, or federalism, does not thereby say the lower entity had a “right” to violate rights. If the Texas has no authority to invade Belgium to overturn “bad” Belgian laws, does this imply thaat Belgium has a “right” to violate rights? Or does it simply imply Texas has no authority to invade Belgium for such a purpose? Likewise, if the US has no authority to overturn bad state laws, it only means the US was not granted unlimited power, which would seem to be a good thing from the point of view of liberty.

But in our constitutional scheme, of course, states have plenary police power; the feds do not. It is unconstitutional for the feds in most cases to strike down even evil state laws, because federal power is limited and enumerated; it is not unconstitutional for states to overturn “bad” laws of their own political subdivisions, since state constitutions do not limit the states to only enumerated powers.

However, a true federalist does politically advocate federalism “all the way down”–as Hans Hoppe explains in his book on Democracy.

“Similarly, if the federal government invalidates, on constitutional grounds (and the grounds for the court’s decision were quite strong, based on the commerce clause and Section 2 of the 21st Amendment), oh, say, coercive segregation and the lynchings of disfavored minorities who are not accorded protection by the state governments, I see nothing contrary to a proper constitutional order in the federal government doing so and a great deal to say on its behalf.”

Well, there is the matter of federalism and strictly enumerated federal powers–none of which grant the feds the power to stop racist laws and policies and actions by the states, any more than the feds have the power to invade Israel to prevent it from discriminating against non-Jews. (Some argue the 14th Amendment gives the feds the power to stop such state laws, but as Cato’s Gene Healy has shown, this is not so.)

“There is nothing magical about the states that gives their politicians the power to violate rights.”

Sure. States have no right to violate rights. That does not imply that every government on the face of the earth is somehow authorized and justified in attacking a given state whose laws violate rights.

“What is behind the opposite view, it seems, is the view that somehow the states are preexisting corporate bodies that have a mystical existence that individuals don’t have. It is incipient collectivism, both incompatible with the American constitutional order and incompatible with libertarianism.”

This seems disingenuous to me. It implies that wanting the most powerful state in history to have limits by means of a constitution with enumerated powers …. is collectivist. Hogwash. The proper libertarian view is that neither the feds nor the states have the “right” to violate rights; that when they do so, they are to that extent criminal and tyrannical…. and that each state that does exist ought to have various structural and other limits on its ability and tendency to violate rights, one important feataure of which, in a union, is vertical separation of powers (federalism), combined with strictly enumerated and limited powers.

Moreover, it is libertarian to focus most on the most powerful and most dangerous and most centralized state around–which is the federal government, not the states. As an example–I moved to Texas and thereby avoided state income taxes from Pennsylvania and Louisiana. Not so easy to move to another country to avoid US income taxes.

Does Palmer have a problem with horizontal separation of powers (the tripartite system of independent legislature, executive, and judiciary) and checks and balances, or only vertical separation of powers?

IMO, it is bad enough for libertarians to casually dismiss important structural constitutional limits on federal power…. it is worse to imply that those who appreciate such limits are some kind of collectivists, mystics, racists, or
proponents of criminality.

A follow up point: I myself am in favor of the Jeffersonian idea that the states themselves have the constitutional authority to nullify federal laws in the state’s territory. The logic of those, like Palmer, who seem to see little reason for federalism to restrain the central state from striking down bad state laws, would also support states striking down bad federal laws. But notice you don’t hear them advocating this. You don’t hear them saying Texas ought to prevent federal IRS stormtroopers from enforcing federal income tax law on Texas soil; you don’t hear them saying Massachussetts ought to physically prevent federal agents from enforcing the draft against Mass. citizens; nor that states should simply disregard federal affirmative action mandates and laws; nor that California should prevent FBI agents who try to arrest medical marijuana users, and so on.

Why the deafening silence in favor of nullification of bad federal laws by the states?

It’s just amazing that Palmer would so openly disregard federalism, a central idea in the liberal tradition. If you reject federalism you give up any principled case against one-world government, as exhibited by many monomaniacal Objectivists whose desire for a “final authority” to settle disputes leads many of them to admit that their ideal would in fact be a one-world “Objectivist” state.

***

Coda: My further response to Palmer’s reply:

Palmer hurls personal insults–calling me deaf and blind and a fantasizer, insinuating I am not “a serious person” and that I am somehow callous to blacks, which hints at racism–and why? For holding a rather pedestrian and standard view long common among conservatives and libertarians–the simple view that we happen to have a federal system in which the central state was supposed to have only enumerated powers.

No need to reply to personal insults. I’m happy to let Palmer’s tactics speak for themselves. On to the substance of Palmer’s comment, which I think is largely confused.

Palmer says, “Mr. Kinsella’s reading [of the Constitution] seems to think that it places no constraints on the powers of the states. That’s clearly not the case, as there are numerous constraints on state power.”

I do not believe this at all, nor did I state or imply it. I can only assume Palmer is basing this charge on my assertion that the states have plenary police power in contrast to the feds which do not. But this comment is just a standard comment any law student would make. Plenary police power is simply the general power to legislate. See, e.g., the 1920 US Supreme Court case Rhode Island v. Palmer (referring to states’ “plenary police power”) and US v. Lopez (quoting the 1819 case McCulloch v. Maryland: “The [federal] government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted.”, and quoting Gibbons v. Ogden for the proposition that “The enumeration presupposes something not enumerated”; and further stating: “The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation). Roger Pilon has written on this very case.

In short, it is not radical or innovative to recognize that in our system, the states are seen (like all other states in the world) as having plenary police power–the power to legislate in general–, which is not necessarily unlimited, but which is general legislative power; but that the federal government does not have plenary police power, but only the power to legislate on specifically enumerated subjects. States can pass laws on nuisances, murder, rape, robbery, torts, contracts, pollution, guns, whatever, subject to certain limits. The feds can only enact legislation if they can first find an enumerated power, and then only if it is not limited by a right specified in the Bill of Rights or elsewhere. That is why there is no general federal law against murder or rape. Such a law would be unconstitutional. Recognizing (or favoring) the fact that the feds can’t outlaw rape does not make one pro-rape, though at this point I wouldn’t be surprised at a libertarian centralist making such an argument.

The fight over the expansive reading of the interstate commerce clause is that it has been used to basically give the feds plenary legislative power, since, ever since Wickard v. Fillburn in 1942, they can ridiculously argue that anything they want to legislate “affects” interstate commerce and is “therefore” within the purview of Congress. Lopez and some other recent cases choked back slightly on the expansive reading of the IC clause, thereby recognizing that the feds do not have plenary power to legislate. They have to find an enumerated power to legislate. This is unlike the states: the states need only ensure that whatever legislation is passed does not violate limits placed on it (by either its own constitution or the federal one), and perhaps a more general due process type test that the power be exercised for some general public purpose.

As is well known, having plenary police power does not imply that the power is without limits, obviously; as I of course recognize, and have written many times, state constitutions clearly limit state power. Having plenary police power does not mean that the power is unlimited.

It is clear that recognizing this widely known distinction does not mean holding that states are unlimited–either by their own constitution or the federal one. So Palmer is just off base here.

And of course the federal Constitution also places limits on the States. Some of the ones Palmer lists are indeed limits on states. It means something to have a Union, after all. So Palmer is wrong again in saying I believe the Constitution does not limit the States — although I do believe States have a constitutional right to secede, which makes any “limits” placed on them by the Constitution voluntarily imposed ones that can in principle be nullified at any time by the State seceding–it would be like agreeing not to do certain things while employed by a given employer; so long as one wants to stay in the relationship, the limits are there; but one can just quit if the limits become too onerous. So the limits placed on States only operate so long as the State is a member of the Union, which it can leave if it so wishes (woops–may, not can).

However, in my view, the Constitution does not place as many limits on the States as Palmer apparently believes it does. For instance, the 14th Amendment puts fewer limits on the states, in my view, than Palmer thinks it does. Palmer speaks of “the clear text of the 13th, 14th, and 15th amendments” as if this settles the issue. The main debate between so-called libertarian “centralists” like Roger Pilon (whom I respect) and others such as Michael Kent Curtis, and apparently Palmer, on the one hand–and others, primarily Raoul Berger and libertarians such as Gene Healy, myself, Lew Rockwell, and many more — is how the “privileges and immunities” clause of the 14th amendment is interpreted. Theorists like Curtis and Pilon believe the Privileges or Immunities clause is a sweeping set of rights, similar to those enumerated and implied in the federal Bill of Rights. Others, such as Berger, do not. I think the issue is not nearly as clear-cut as Palmer claims it is. The text of the 14th Amendment and the P or I clause is anything but
clear. My own view is that it puts only narrow limits on what states can do, but does not clearly mean to place on them all of the limits that the Bill of Rights applies to the federal government itself. This issue can be debated, or at least I think so, even if some of the libertarian centralists don’t want to admit it’s a debatable issue.
Palmer writes, “Why is Mr. Kinsella deaf to the claims of violated rights by black Americans, whose rights were taken from them?”

Palmer seems to be implying that an emotional approach is the right one–that we ought to twist the words of the Constitution to support the right result in a given case; that if the Constitution would not permit the feds to stop the states from denying certain rights, that we ought to pretend otherwise. I would prefer a more honest approach. I prefer to identify what the law and Constitution is–to admit where it is unlibertarian, and where it is good. And where it is unlibertarian, to deny its legitimacy, to urge or favor change. Not to pretend that it really is libertarian. (And then we can debate whether a federal system is more “libertarian” than a centralized, nationalist, top-down one… unless Palmer et al. think that, too, is not debatable either. Some of my own views on this are here: Supreme Confusion, Or, A Libertarian Defense of Affirmative Action.)

So I am not “deaf” to the claims of victims of state action; I have written many times that I would myself use whatever weapon at my disposal to fight against the state harming me. If I could sue a state in federal court to make the state stop taxing me, I would do it. But that does not mean that as an honest commentator, and as someone considering which institutional features are most likely to limit state violation of rights, that I have to oppose any constitutional limits on federal action.

In fact, I have read the opinion in the wine-sales case at the root of this thread. The issue, like much of Con law, is muddy; but I find Clarence Thomas’s dissenting opinion, as is often the case, to be the more persuasive. Read it and see if you don’t agree. You will, I believe, see that his reasoning is more honest, simpler, and less results-oriented. The majority wanted to overturn the wine restrictions and found a way to do it. You can see this in their opinion. Thomas was earnestly and honestly trying to accurately construe what the Constitution means, and I think he got it right. I suppose Palmer would not call Thomas a racist, but you never know–there are apparently lots of “self-hating” types around.

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