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Palmer v. Kinsella on Federalism–hnn Kelo thread

My reply to Palmer from an hnn thread–reprinted below in case the pinheads over there delete me.

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Palmer first says:

It is worth remembering that taking of property is explicitly mentioned in the Constitution, which stipulates that, if taken, it shall be for public use, with due process of law, and with just compensation: “nor shall private property be taken for public use, without just compensation.” The Fifth Amendment does not stipulate, unlike the First, that “Congress shall make no law…,” but that private property shall not be taken, except under the conditions stipulated. States may have the constitutional authority to ban marijuana (they certainly do have such authority with regard to alcohol), but they do not have the authority to steal Anthony’s house to give it to Tom because they like Tom more or because Tom is richer and could pay more taxes.

Here Palmer implies that the Fifth Amendment on its own applies to the States. That is, that it applied to the States in 1791. That it did not need the 14th Amendment to apply it to the States. This contradicts what almost any educated person of the time, or even now, understood about the Constitution and the Bill of Rights. And it contradicts what he says later, when he implies that he realizes the 14th amendment is why the 5th applies to the States.

And he also implies States don’t have “the authority” to take property in the way he describes. I can only take this to mean he believes States derive their authority from the Constitution. If so, where, pray tell, are their powers enumerated?

As a libertarian, I don’t think States have the right, or “authority” if you will, to violate rights–which would include any taking of private property, for any purpose. But when Palmer says the State does not have the “authority,” what he means by this is that the feds have “the authority” to police this and to stop it. But of course, since the feds have only enumerated powers, they need a power to do this. Moreover, the courts need the power, not just the Congress, by the language of the 14th. And even if the feds had the jurisdiction to do this, it does not mean they are the sole or final authority for interpreting the Constitution. Just as the 3 branches of the federal government have equal and independent capacity and obligations to abide by and interpret the Constitution, so the States do as well (see Jefferson and Madison, the Kentucky and Virgina Resolves).

In any event, the point is P-dog is equivocating about what “authority” means. First, he uses it in a moral or libertarian way to act shocked that I think states have “the authority” to, say, enslave or rob people. But this usage means some moral conception of “authority,” as in a “right”. Of course States don’t have a “right” to violate “rights.” But then, he shifts, having used “authority” in the “rightful” sense, to assuming that “authority” means “authorized by the Constitution”–which implies that the Constitution is the source of state powers and also that the feds are empowered to judge the states, and are the sole and final decision maker.

This is a sneaky, flawed argument. In short, what Palmer is trying to do is argue that because a state action is a violation of rights, this automatically means the feds must have a power to stop it–otherwise the states would be “authorized”–have a “right”–to do it. But this latter usage is akin to what liberals do when they say, “but how can you ‘let’ people starve?” By Palmer’s terminology, if the UN World Court fails to overturn the US Supreme Court’s Kelo case, it is “authorizing”–horrors!–the New London eminent domain practice.

Palmer states that lynchings by states are unjust. Sure. “Does it have to be genocide for it to be unjust? Surely that can’t be right.” Of course. But this implies nothing about the division of power between the states and the feds. “Rights inhere primarily in individuals, not in groups,” he writes. Of course, T-dog. We all know and agree with this. But as your boy Gene Healy noted in this exchange with other libertarian centralists:

When a libertarian decentralist calls a federal action a violation of “states’ rights,” he means that the federal government has transgressed its enumerated powers and is claiming jurisdiction over an area that the Constitution reserves to the states. In a similar fashion, we can speak of NATO’s lawless assertion of jurisdiction over a civil war in Yugoslavia as a violation of Yugoslav “sovereignty,” without thereby conceding to Slobodan Milosevic’s government a god-given natural right to kill Kosovar Albanians.

The mistake Palmer makes is in believing–or adopting the pose of believing, after all, how could anyone else ever believe anything else–that we all agree that if you can show some state action to be unjust that this necessarily implies some other state must be authorized by its own constitution to intercede. We decentralist libertarians are quite aware that not everyone agrees with us. We are quite aware that we are a minority. We are quite aware that most libertarians are either too ignorant or too unprincipled to oppose the current system, or that they are resigned to working within it and see no point of pointing out any more that the Emperor has no clothes. But it is extremely frustrating when libertarian centralists not only differ with us, but insist on calling anyone who is in favor of limited federal government “neo-Confederates” or apologists for slavery. Or when they adopt the faux-innocent pose, pretending like it never occurs to them that the states and feds can be seen as co-equal sovereigns in a federal compact, each with delimited roles. What they are doing is what modern socialists do to libertarians: they pretend to be shocked when anyone suggests something like abolishing social security or public school, so as to snidely and subtly try to paint their opponent as having such outlandish notions that are beyond the pale of reasonable discussion. Now their little tactics here won’t work, but it is a sad sign to see such disingenuity and related desperate tactics resorted to again and again.

As for pointing out that the emperor has no clothes, I in particular mean doing what I did in my Kelo article: pointing out that the Supreme Court has no constitutional authority to review state eminent domain laws.

Now I have said many times that I can sympathize with, even admire, maybe even agree with, the libertarian who says, “To hell with the Constitution–we are at such a state of Hobbesian lawlessness that I don’t care about it, I’d rather snatch liberty in small bits and pieces where I can.” This is a perfectly respectable position. I even share it to some degree. Where I differ with most of those who have this view is that I would be honest about this view. I would not feel compelled to attack those pointing out what the Constitution says, because I am favoring an action regardless of what the Constitution says. I would not feel compelled to pretend that my view just so happens to be supported–what a coincidence–by the Constitution. And I would not so cavalierly disregard the significant costs of such a policy: such as, the dangers of the central state adopting the principle that it is simply not bound by the Constitution’s limitations.

Apparently unlike most libertarians, I happen to actually prefer a limited federal government to one that is virtually unlimited or limited only by malleable, “evolving” standards that it has the discretion to interpret. I am actually coming to the view that many libertarians are just idiots or ignorant, and for some reason are not bothered by the idea of unlimited government. I used to think favoring unlimited government was practically a requirement of being a lib
ertarian. Apparently it is replaced nowadays with Randian myths about our near-perfect American Utopia and naive platitudes, almost a Marxian belief that we can transform man’s nature to finally, finally, tweak the system enough to once and for all get it right. Bah. Ridiculous.

P-dog continues:

In other words, Mr. Kinsella would indeed object, on constitutional grounds, to the federal courts intervening to stop a state from executing people on the grounds of their race or religion.

Palmer cannot separate the issues involved here (Roderick Long does a good job doing this here). One question is: would this be constitutional? Now I am the first to admit–as an anarchist–that the Constitution is not perfectly libertarian, and I am happy to have it disregarded in some cases. But we happen to have a Constitution that, IF it were followed, would limit federal violations of rights, which have been imense. And the feds seem to give lip service to their obligation to abide by the Constitution. Therefore it seems to me that we libertarians ought, ceteris paribus, to favor the rule “federal officials must not violate the limits placed on them, or go beyond the powers granted to them, in the Constitution.” Because the alternative is the principle that the feds are not really bound by the Constitution. As I noted, I myself, as a libertarian, prefer limited federal government to an unlimited or relatively less limited one. Why any libertarian would disagree with this, I have not the foggiest.

But back to T-dog’s question: I have not looked into this matter closely, but I imagine a state executing people on the basis of their race might fall under the equal protection clause. So if Congress had exercised the power granted to it in the 14th to address this issue, I suppose the federal courts could act based on it. Of course, the state could secede if it chose, but so long as it stayed in the union, it would be subject to those rules. And of course, the state is also competent to construe the Constitution, so it would be possible, in theory, for there to be deadlock or constitutional crisis–just as is possible now if the President strongly disagrees with the Court, for example (remember Nixon v. the Court…). The risk of such deadlock is considered to be worth the gain of the checks and balances of horizontal separation of powers, and of course this would be true of vertical separation of powers as well.

So, in sum, probably the feds would be able to get constitutional jurisdiction over a case of state discrimination, due to the equal protection clause of the 14th–subject to the caveats above, and ignoring that the 14th was illegally ratified; we must take it as a de facto standard now, and it is not really in principle fundamentally more unjust than the Constitution itself, which is also “illegal” according to various standards one might apply.

But so what? P-dog asked the wrong question. For I would grant that the feds have no power to stop states from doing other things–like establishing, oh, say, Congregationalism as the official state religion. Nothing in the Constitution prohibits it. Now recognizing this does not automatically mean I would “opppose” the feds from intervening–it just means I don’t pretend it would be Constitutional. As it so happens, I would oppose this, because I want to keep the feds limited. And also, because I see no reason to assume ahead of time that the feds will make “better” decisions, so there is no reason to vest the “final” authority in the US Supreme Court rather than the state’s supreme court. In fact, because the central state is more distant, more powerful and larger, and has less competition, we can expect its decisions to systematically tend to be worse than those of more local, smaller, less powerful states.

Why not broaden Palmer’s question? What if Massachussetts outlaws interracial marriage? And what if the Mass court, and the Supreme Court, all fail to overturn this? I will assume that Palmer would not say that we have to vest power NOW in the UN World Court to overturn municipal laws that it believes violate “human rights” (such as those in the UN Declaration of Rights). If he does, he is in favor of world government, which I think is pretty clearly unlibertarian (no offense, certain Objectivists–oh wait, Objectists spurn the “word” “libertarian” in the first place, afraid of it ya see–so I guess they would not be offended by my implication they are unlibertarian). So I’ll assume he is not now in favor of the UN having a world court that sits atop the US court. So if this is the case, I could just say to him,

In other words, Mr. Palmer would indeed object to the UN World court intervening to stop a state from banning interracial marriage.

Or let’s take an actual example today:

In other words, Mr. Palmer would indeed object to the UN World Court having the jurisdiction granted to it ahead of time to permit it to intervene to stop a state from having public schools and taxing over 50% of its citizens’ wealth.

Are we supposed to open our mouths agape and point with a shriek at Palmer as in Invasion of the Body Snatchers’ final scene, as if he is a ghoul, just because he would presumably not be in favor of a one-world state that “could have” forced America to lower its taxes? What is this emotion-laden question really supposed to show? That someone is “bad” or “wrong” if they–gasp–don’t have the ability to stop all tragedy in the world? Is it evil–is it bigoted or anti-semitic or slavery-apologizing–to recognize there are immense costs to liberty and rights to empowering these huge beasts willy-nilly just in the longshot hope that this newly empowered and strengthened monster will use this power to beat down other, smaller monsters that also threaten us?

In [K-dog’s] view, federalism implies a federal power to tax, but not a federal power to protect rights, despite the language of the 14th Amendment and other elements of the Constitution.

This is just confused. Palmer has elsewhere reacted with scorn and derision to my suggestion that states ought to be able to nullify unjust federal laws, on their territory. I could say to him,

In Palmer’s view, our constitutional system implies states have the power to tax, but not a power to protect rights (from federal invasion), despite the fact that the States were seen in our federal order as the primary agents of protecing citizens’ rights from violation.

So let me explicit. The states have broad police or legislative power, so they can outlaw things like murder, robbery, trespass, and enforce contracts, marriages, property rights, etc. This was seen as their role. That is one reason the feds do not have broad legislative power, and only enumerated power: they don’t need to be able to outlaw, say, murder–the states are presumed to take care of this. The feds have functions and powers related to national issues–dealing with other countries, settling disputes between states, establishing a large free trade zone internally, national defense. So the states have broad powers, to protect citizens’ rights. The states are limited as well, by their own constitutions primarily, and to some degree by the federal Constitution, to try to keep them from abusing these powers. So the states’ role in our system IS to protect our rights.

The feds are also granted enumerated powers, also to protect our rights–from invasion by a foreign country, for example. They are also limited severely, to keep them from trampling citizens’ rights.

What is to keep the feds from violating citizens’ rights? Several things. Horizonal checks and balances. The power of judicial review–Jefferson’s concurrent review, really, so that any of the 3 branches can boycott an unconstituional federal action. Also, the Bill of Rights. Also, the right of a state to secede if necessary. Etc. But there is no ”
overlord” state, like the UN, that can force the feds to comply with the Constitution.

Now, what is to keep the States from violating citizens’ rights? Well, they, too, like the feds, have constitutions that limit their (broad) powers. Having a federal union where state citizens can easily emigrate to another state–competition–also helps keep a state in check. Ther are also some limits on states in the federal constitution, but not as many as Palmer thinks. And even if there were NO limits on states in the federal constitution, this does not mean the states are “unlimited”–any more than the feds are “unlimited” solely because the UN has no jurisdiction over them or because the States don’t have supervisory authority over the feds.

If you realize that the feds and states are both sovereign states, each having powers, and limits, just like all other states in the world, you will realize that there is no apriori reason to assume that there need to be ANY limits on the states in the federal Constitution. The problem of states is that whatever the “top” state is in the pyramid, it is going to be unlimited (see on this de Jasay’s great book, Against Poltics, summarized in my review). But this is just the problem of state power in general; and it is why some of us are anarchists. Nonetheless, I am sure Palmer would say that, to the extent his vision of the American system is that it is a decent system, thre are many states in the world that are decent in some sense–the “civilized” states of Europe, for example, some in Asia, Canada, Australia, etc. But none of these states is supervised by another state. None of them has “limits” placed upon them–in the sense of being supervised by an overlord Court as the American States are by the US Supreme Court; and for those that do, e.g. EU countries and the EU human rights courts–then that court iself or the EU is not itself limited by a higher power. There is some state “top” level that is always not limited by a higher, supervisory state. Apparently Palmer does not recoil with horror at this notion. Yet, and yet, the idea of an American state that is not limited by the federal government gives him conniptions. He just can’t even conceive of them being limited only by their own constitution and political processes, like every other state in the world–indeed, like the very federal government itself.

Personally, I cannot see how libertarians can advocate any state; for states are all, essentially, unlimited. This is the problem of states. But for libertarians who are minarchists and thus favor some state, or who tolerate them, it is bizarre to think that of all the states in the world, American states MUST have supervision by some overlord state–but that it’s okay for all other states to lack this supervision. This is indeed a puzzling view.

I could actually understand a libertarian who realized the danger of unlimited states–who watches the watchers–but who nonetheless thought states were necessary (or at least inevitable) wanting the states to try to limit each other. And lo and behold, he might come up with some notion of separation of powers, checks and balances. In a sense, in a tripartite system, the executive, judicial, and legislative branches are like separate governments, each with some veto and other powers over the other. So they help “review” each other. Why not try it, hell. Let states –or sub-components of a state–check each other. So who wathches the watcher? No one can watch an all-powerful watcher. So why not use 3 watchers instead, each with partial powers over us, and over each other. That way, none of them is unlimited, and they all sort of supervise each other. Of course this is not guaranteed to work, but better than nothing. Imagine MAD, the policy of the US-USSR nuclear standoff–mutually assured destruction: each in essence pointed a weapon at the other that would fire the other’s weapon. So these checks and balances restrained each state from attacking the other.

Likewise, in a federal union such as ours, with large, pre-existing constituent states, why would any libertarian want only to limit the lower states, by giving some limiting power to the central state? That creates an overlord over the lower states and makes the overlord central state even more powerful. This is like Russia having nukes pointed at America, but America having none. What about the central state itself? What is to limit it? Its Constitution? But the presumption of Palmer in insisting the feds must limit the states, is that a mere constitution itself is not enough to “really” limit a state. If it were, the state’s constitution would suffice. If it does not suffice, why assume the federal one will? So wouldn’t it make sense for the states to have some kind of political power or threat against the feds? How about the right to leave? How about the right to nullify federal law in the state’s territory? How about the right to retain certain spheres of authority, while the feds have others as strictly enumerarated? Etc. All these things make perfect sense. We limit the States, and the feds, with their own constitutions; then, because these paper limits are doomed to fail (or at least be imperfect), woulnd’t it make sense to have each one have some (political) power over the other? I.e., vertical separation of powers. So the feds can insist on, say, internal free trade and stop a state from taxing interstate trade. The states can leave the union if they wnat, and so on.

So, what is a mystery is why Palmer and his ilk react in bug-eyed fashion to any sincere libertarian advocating such views, as if to want reciprocal limits on power is tantamount to yearning for the antebellum days of slavery. Or why the very idea of the states not being subject to review by the feds drives them batty, when every other damned state in the world is NOT subject to some overlord state’s review. I don’t get it. Does Palmer think the US States are some uniquely evil regime in the sweep of human history that alone need some parental supervision? and no, T-boy, I am not saying the South’s slavery or racial discrimination are no big deal or okay, but heck, seems to me most states in history are as bad as, if not worse than, the US states. If it’s okay for allllll of these to run around on the loose with no overlord collar, why not for the relatively decent US states?

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