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Liberty and Power Ban–reversed!

As you may recall, I was banned some time back from the Liberty & Power blog. Well, I’m ba-a-a-ack. Thanks to the kind intervention of several L&P; peeps including Aeon Skoble, David Beito, Wendy McElroy, Roderick Long, Anthony “Tee-Boy” Gregory, and William Marina, they let me back in.

And on this topic–see my recent comments on the topic of the ninth and tenth amendments in reply to one of Aeon Skoble’s posts. My comments are pasted below, sans context:

I have pointed out before that the entire notion of “privacy” in terms of rights, seems confused. For example, even the term “private property” seems a bit misleading–the essence of property is that it is a scarce resource that has been acquired, homesteaded and brought into the homesteader’s ownership; property requires publicly ascertainable borders, and acquiring unowned resources means embordering it (as Hoppe perceptively argues–on the nature of ownership, see Hoppe’s A Theory of Socialism and Capitalism, chs. 1, 2, esp. pp. 5–6, 8–18, discussing notions of scarcity, aggression,
property, norms, and justification, and ch. 9, esp. pp. 130–145;
also links in this post).

So property is in a sense necessarily “public”–the very function of property rights is to establish intersubjectively ascertainable borders that others can see and avoid, in order to avoid conflict.

But this is sort of a semantic point.


Mark–good comments.


“So if there is no explicit power to violate privacy given to the government, which there isn’t, then we retain our natural right to privacy.”

Aeon, I respect what you are trying to do, but in my opinion, you do here what too many libertarians do, when discussing the federal Constitution–you use “the government” in a generic way, that would include the states too.

But this is contrary to your reasoning, which is sound, more or less, I think–your point is that if a power is not enumerated, then because the fed gov’t is one of strictly enumerated powers, then it does not have the power to do it. yet of course this does not apply to the states, which are governments of general or plenary legislative power, not enumerated powers.

Also you use the 9th amendment to buttress your point that the fed gov’t is one of limited and enumerated powers–you don’t really use it to argue for unenumerated rights, as you seem to start to do. You basically are arguing that if there is not a power enumerated to infringe on a right, then it must be part of the 9th’s unenumerated rights.

I think this is a bit confused. Hear me out.

You would be better to point to the 10th Amendment if you are going to make the argument that lack of an enumerated power to violate the right to privacy means they don’t have the power. This argument (IMO) has little to do with the 9th.

I view the proper structural reading of the Constitution as follows. First, as the 10th and its history and structure shows, the feds have only enumerated powers; if a power is not granted, the feds have no power. You don’t even need to point to a right. The rights listed are just safeguards, sort of a secondary system. They are trumps, or side-constraints. So for example, Congress has no power to censor speech in the first place; but if they try to do it, the 1st amendment would be violated too. It is a backup. You only need to constrain a power that is assumed to exist.

But what if Congress tries to violate an unenumerated right, like right to “privacy”? Or the right to marry who you want? Etc.? Well again, the first argument is: Congress has no enumerated power to legislate in this field. If that fails, what is the backstop argument–the 9th amendment? I suppose, but this is loosey-goosey. How do you konw what is an enumerated right?

Consider this case: Congress passes a law banning murder. This is clearly unconstitutional because there is no power enumerated for this. But suppose the Court finds a power somewhere–in the interstate commerce clause, say. Notice that you cannot find a right now as a backup; the only way to do it would be to say, well the 9th amendment must protect an unenumerated right to commit murder. But obviously no one would argue this. Why not? It’s logically the same as using it to argue there is a right to privacy. In both cases, (a) Congress has no power delegated to it to regulate “privacy” (or abortion etc.) and it also has no power granted to it ot regulate murder; and (b) none of the enumerated rights cover the right to privacy, or a right to commit murder. What is the difference between these cases? How could you, by merely relying on the enumerated-powers scheme of the Constitution, and the rule of constrution laid down in the 9th Amendment, to distinguish between them?

In my view, the 9th amendment is largely worthless except as (a) reinforcing, in tandem with the 10th amendment, the idea that the feds have only limited powers: only those enumerated and delegated to them (I discuss some of these issues re the 9th and 10th here); and (b) perhaps providing some kind of presumption of liberty to force the feds to bear the burden of justifying any given law that infringes on some kind of common law liberty interest, as Randy Barnett argues, if I recall. I am, however, skeptical of (b) since, although I like the idea as a libertarian, it just seems too much of a later invention by modern, libertarian, wishful thinking; a substitution of what the Constitution really says for what one would like it to say; it’s hard to believe this is a natural implication of the original understanding of the Constitution’s text and structure.

(I must say, btw, the notion of a right to privacy seems ridiculous to me. It’s vague and undefined. Why is this part of libertarianism, or even consistent with libertarianism. We support individual rights which are in essence property rights; and we oppose aggression, or the invasion of those rights. What has this to do with a “right to privacy”? But this is neither here nor there.)

In any event, I would not oppose the 9th setting up a presumption of unconstitutionality whenever any liberty is infringed (as I believe Barnett proposes), but notice that this presumption would be reached only if we pass the first test, which is asking if there is a Congressional power enumerated.

It seems to me that if there is no power enumerated, then the Court would either recognize this, and strike the law down (in which case it does not need to look at the “rights” in the Bill of Rights); or it ignores this and implicitly assumes that there is a power enumerated. In this latter case, if you do presume Congress has power to legislate, it’s hard to say there is an unemerated right standing in the way of this power. In other words, if the Court recognizes that Congress indeed has limited powers, then the Bill of Rights, including the 9th amendment, is unnecessary; and if it does not recognize this, then the 9th amendment, at least, is going to be useless (as it has proven to be).


“we by nature have _all_ (negative) rights, and governments only have those powers given to them to secure those rights.”

Aeon, as I noted in the longer post here–this use of “governments” is treating states like the feds. But it is simply not true that state governments have “only those powers” given to them to secur
e those rights. States in fact have general (sometimes called plenary) legislative power. This does not mean, as some unfairly and dishonestly suggest, that states have unlimited power; but it does mean that they have a wide range of power to regulate various actions, not just those that secure our natural rights.

In other words, U.S. States are simply not libertarian minarchist states. A minarchist state has strictly limited and defined powers, but states are not so limited. U.S. states–indeed, all modern states in the world today, have much broader powers than permitted even by libertarian minarchist theory. The one exception is the US federal government: it actually has less power than a minarchist state would (in some areas): for example a minarchist state could outlaw and prosecute murder; the federal government may not. (Of course there are things the feds are empowered to do that a minarchist state would not be, e.g. tax, draft, build roads, coin money.)

So you can think of modern states as having a wide set of powers, which is a superset of the powers of a minarchist state. The US federal government, by contrast, has a set of powers that only intersects with the minarchist set of powers–it has some powers a libertarian state would not; but it lacks some powers that a libertarian state would have, due to the uniquely federal and limited nature of the federal government’s original charter.

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