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State and Religion

From LRC, 2004

State and Religion

Posted by Stephan Kinsella on November 2, 2004 10:08 AM

Often you hear even libertarians say that the First Amendment protects your right to free speech and to freedom of religion; or that the Second Amendment protects your right to bear arms. This formulation is irksome. First, it assumes the rights apply to the states and the feds; and second, it ignores the fact of private crime.

As I’ve pointed out before, the US Constitution was designed primarily to provide various structural limitations on federal power, not on state power. Thus the First Amendment limited only the feds, not the states. Most mainstreamers and even libertarians just assume, for example, that a state law establishing religion would be “unconstitutional”. They are completely ignorant of the background of the Constitutional federalist scheme and our history. In fact, several states had state-supported religions at the time of the founding and for years after the Bill of Rights was ratified in 1791. For example, “Congregationalism remained the official, state-supported religion in Massachusetts until 1833,” and Virginia collected taxes to support the Anglican church; see also As post 30 by Kevin Curry here.To say that a right is protected by its being enshrined in the federal Constitution simply ignores the fact that a right can be invaded by a private criminal, by the state, or by the feds. Specifying a right in the federal constitution is meant to protect that right from being invaded by the feds. Provisions in state constitutions are meant to protect that right from being invaded by the state itself. And provisions in state criminal law (and the state’s police forces etc.) are meant to protect that right from being invaded by private criminals. So it is just confusing to say that the listing of a right in the federal constitution gives or protects a certain right; at most, it is an attempt to prevent that government–the federal–from invading that right. But it does not prevent private criminals, for example, from violating your rights; for that, you need a police force and laws aimed at criminals.

Most libertarians, for example, would say you have a right to not be murdered. If the state convicts and executes you for a crime of which you are innocent (or for a victimless crime), that is one type of murder. Therefore we would support limits in the state’s constitution designed to prevent the state from murdering its own citizens–due process rights, limits on victimless crime laws, proportional punishment requirements, presumption of innocence, rational laws of evidence, and so forth. Given that we are under the jurisdiction of both the federal and our state government, and are thus endangered by each, we would presumably want similar protections built into the federal constitution as well. But the limits placed on the federal government’s actions in its founding document would not protect your “right to not be murdered” in general; it would only be aimed at preventing the feds from murdering you. The provisions limiting the state’s power in its own constitution would be aimed at preventing the state from murdering you.

But even if these provisions worked perfectly, they would not stop a private criminal, or a foreign state, from murdering you. To protect your right to life against these interlopers, you need police and army. Therefore, it’s just confusing to say that the First Amendment “protects your right” to free expression. It does not. It protects your right to free expression from being infringed by the feds; that is all.

Further, it is really irrelevant whether the Second Amendment meant to cover a “personal” right to bear arms or not. Even if the anti-gun nuts are right, all this means is that the Second Amendment does not enumerate a right to bear arms. But the Ninth Amendment says that this fact cannot be construed to deny or disparage other rights. That is, the mere fact that a right is not listed in the first 8 amendments does not imply that the right does not exist. In other words, if the Second Amendment does not contain a right to bear arms, this does not mean the right is not “there”. In fact, the federal government is nowhere empowered to regulate gun rights, which means the right to bear arms (against infringement by the feds) is provided by the limited and enumerated powers structure of the Constitution itself.

Of course this point is lost when we think of rights in the Constitution as being some kind of general rights applicable to the states too, since the states do have plenary police power–they have authority to legislate in general, e.g. to regulate firearms, so viewing the protection of rights as absence of authority to legislate at the federal level does not work as well at the state level. Therefore the attempt to apply rights in the bill of rights to both state and federal governments has led to confusion and, utltimately, to the loosening of enumerated-powers limits on the feds.

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