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The Unique American Federal Government

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.


What Brayton and his ilk don’t seem to realize is that our federal structure is unique. Our federal state has fewer powers than most normal states; it may not outlaw murder, for example, even though murder is definitely a crime. When a state is created that is defined by and authorized by a Constitution, its self-proclaimed authority is also conditioned on its adherence to the limits placed on it in that Constitution. If that Constitution does not authorize the state to stop another given state from doing something bad, then it simply does not authorize it, even if we might want it to; and if it ignores this limit, then the danger is now that it has established the principle–and we have ratified it–that it is not really bound at all by the limits placed on it. That is, that it is an unlimited state. Brayton and Sandefur may have no problem with an unlimited state–but we libertarians do. (They may protest that they are in favor of constitutional limits on the state–that is, that the state limit itself. Yeah. Good luck. The only real limit would be external to the state: which is exactly what vertical checks and balances (federalism) is all about, which Brayton and Sandefur reject.)

The Great Gun Decision: Dissent

Posted by Stephan Kinsella on June 26, 2008 04:08 PM

Huebert (and Butler), I think the decision is much more of a mixed bag. I agree that it is good that the Court finally explicitly recognized what the Second Amendment has always meant. The four dissenting liberal “justice” are craven liars. They are not trying to be judges; it is obvious to anyone with a brain that the Second Amendment was meant to protect an individual right to bear arms from infringement by the federal government.

And that is the problem with the decision. First, although the Second Amendment has not yet been enforced against the states via the dishonest incorporation doctrine into the squalid Fourteenth Amendment, as Huebert notes, that may be next.

Second, as Kevin Gutzman notes, the Bill of Rights provides limits on the power of the federal government–not states, and not DC. So, as with the majority in the Kelo case, the dissent would have had the right result for the wrong reasons. In Heller, the majority is correct in how they construe the meaning of the Second Amendment; the liberals are blatantly, dishonestly wrong. But both sides incorrectly believe that the Bill of Rights applies to DC.

Of course, pointing these things out is likely to cause some quasi-libertarians to dissent or pitch a fit. But what is despicable is that we think of the feds, and nine of their employees, as having the authority to determine what our rights are.For those who are shocked by the idea that the Bill of Rights does not apply to DC–well, most people are shocked that the Bill of Rights was never meant to, and until judicial “innovation” in the 1920s, did not, apply to the states–consider the following:

In 1789, the Constitution was ratified. It did not at that time contain a Bill of Rights. This was not added until 1791, two years later. No one at the time thought that in 1790 it would have been constitutional for the feds to censor speech, or ban private ownership of muskets. This is because the federal government was one of limited and enumerated powers, and there was simply no power granted to the federal government to legislate in these matters. The Bill of Rights was merely added as an exclamation point; it was supposed to merely be for extra caution, but really just redundant with the limited powers scheme of the Constitution. It was added at the insistence of the Anti-Federalists who just did not trust the federal government to not exceed its delegated powers (gee, I wonder why?). (See my Supreme Confusion; In Defense of Evidence; and Taking the Ninth Amendment Seriously; also see McAffee, A Critical Guide to the Ninth Amendment (p. 66), Federalism and the Protection of Rights: The Modern Ninth Amendment’s Spreading Confusion and The Bill of Rights, Social Contract Theory, and the Rights “Retained” by the People.)

But the point is the real point of the Bill of Rights is just an additional limitation on federal power. The federales have no constitutional authority to infringe on free speech rights because that power is not grantednot because the First Amendment mentions a right to free speech. The Bill of Rights was meant to be redundant and irrelevant. The primary mechanism to limit federal powers was not a listing of rights, nor even the Ninth Amendment; it was the very scheme of limited, enumerated, delegated powers that was meant to keep the feds from getting out of hand. Because of this scheme, the federal government does not have what is sometimes referred to as “plenary” or general legislative power, as most states (and as the individual States of the US do) do. In fact, it is because States do have plenary police or legislative power that is is more important that their powers are explicitly limited by a bill of rights.

(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).)

Now, it is true that Congress has today assumed very broad, almost plenary, legislative power by interpreting its power to “regulate commerce” very broadly. And for this reason the Bill of Rights has assumed a greater role than it would have, had the feds not exceeded its limited delegation of powers.

But back to my point. Under the original constitutional scheme, not only did Congress have no power to infringe various rights, it also didn’t have the power to stop many types of rights violations, such as murder. Thus, a federal law outlawing murder would have been as unconstitutional as one outlawing drugs. This is one of the reasons it makes no sense to apply the Ninth Amendment to states but makes sense to apply it to the feds: the open-ended nature of the “rights” of the Ninth Amendment corresponds to the limited powers scheme of the federal government. Since the feds only have limited powers, this means there is an infinite body of “rights” that serve as limits on its power: that is, everything the feds are not authorized to do, is like a “right” or limit on what it can do. But since states do have plenary legislative power, a concrete listing of rights–limitations on this broad array of powers–makes sense, but not an open-ended listing of rights as in the Ninth Amendment (because this an open-ended grant of power and an open-ended list of limitations on power conflict with each other; it does not make sense).

I think all this buttresses Gutzman’s argument that DC has to be treated, for purposes of the Bill of Rights, like a “quasi-state”. Why? Because DC has general legislative power. Unlike the federal government, DC can outlaw murder and rape and theft. But how can this be? After all, the federal government itself has no authority to outlaw murder. Yet DC does. So just as the Bill of Rights was never intended to apply to the states; and just as it makes no sense to apply the Ninth Amendment to the States, which have plenary legislative power, but only to a state that has limited power (like the feds)–so it makes no sense to apply the Bill of Rights to DC.

Moreover, the precautionary nature of the Bill of Rights, their nature as just reinforcing already-existing limits on federal power, and the fact that in 1790, before the Bill of Rights, just as in 1792, after it, the feds would have equally been unable to enact a law banning murder or cocaine, shows that the result of the application of the Constitution should be the same whether the Bill of Rights is present or not.

Let’s take an example. Imagine (1) a federal statute banning murder, (2) a federal statute banning firearms, (3) a New York law banning murder, and (4) a New York law banning firearms.

What would be the result in 1790, before the Bill of Rights? Well, both federal laws (1) and (2) would be unconstitutional, since the feds have no enumerated, delegated power to outlaw murder, or to outlaw firearms. But state laws (3) and (4) would not violate the federal constitution, since for (3), states have plenary legislative power and were supposed to be the ones protecting against crime; and for (4), the feds had no delegated power authorizing them to interfere with state law.

What about in 1792, after the Bill of Rights? Again, the same results, since the Second Amendment only limited what Congress could do, not States. So we see that a proper interpretation of the limited powers nature of the Constitution means that the Bill of Rights is superfluous when analyzing the actions of either the federal or state governments.

So let’s pretend the Bill of Rights had never been ratified, and take a look at the DC gun ban issue. The results should be the same as if there were a Bill of Rights–to hold otherwise is to maintain that the purpose of the Bill of Rights was not to limit the States (since it did not limit the States originally) nor even the feds (since it was only redundant)–but to limit DC internal policy!–clearly an absurd position. So: under what grounds could the Court strike down a DC gun ban? It could not say it violated the Second, or Ninth, amendment, since those limits on federal power are not in the Constitution (in this hypo). So one would have to say that since there is no power granted in the Constitution to ban guns, DC, as a creature of the federal government, cannot ban guns. But by this argument, DC cannot outlaw murder either, just as the feds cannot. However, DC may outlaw murder, since it has broader legislative power than the feds have. But if it does, it also has the legislative power to ban guns, just as states do (from the perspective of the federal Constitution).

In other words, the “limited powers scheme” that is meant to restrain the federal government, and make it unique in the world in being a state that does not have plenary power, clearly does not, and cannot, apply to a government that does have plenary legislative power. And since the Bill of Rights is only a reiteration of this limitation on federal power, it, too, does not apply to DC, just as it does not apply to the states. Ergo, we must conclude that DC is, in fact, like a state–a quasi- or pseudo-state, as Gutzman called it. The only argument I can think of that makes sense, would be to argue that DC itself is unconstitutional; but this seems belied by Art. I, Sec. 8, of the Constitution, which does authorize the formation of the District of Columbia. Of course the District must have and was contemplated to have plenary legislative power, since there would be no State there to outlaw crimes like murder etc., and since Congress has no power to outlaw such crimes.

Liberty and Power Ban–reversed!

by Stephan Kinsella on November 28, 2005[edit]

in Uncategorized

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.

Jefferson on Nullification

July 11, 2005 8:16 PM by Stephan Kinsella (Archive)

I’ve recently posted some links on federalism, Kelo, and related matters. One of them is the 1799 Kentucky Resolution (2), written by Thomas Jefferson.

The meat of the final resolution adopted in 1799 is fairly short, and beautifully eloquent. Take a look at it–it’s not too hard to follow, even with the antiquated, flourishing English. Those who attack us libertarian advocates of federalism as being some kind of troglodyte neoconfederates would also have to attack this eloquent, intelligent attempt to maintain the original structure of the federation so as to keep the new central state within limits. Libertarians who caricature and impugn the motives of those of us who have a respect and fondness for federalism ought to be ashamed of themselves. Note how many of the warnings and predictions here came true.

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who adminster the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiesecence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST.

It is just beautiful and sensible. The federal union was created for purposes, but it should not be “permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained.” For if it is permitted to disregard the limits placed on it by delegating only certain powers to it–that is, if it seizes powers not granted to it–then “annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence”. In other words, the purpose of “states’ rights” or state governments, from the point of view of the union, was to prevent the new, limited, federal government from becoming a “general consolidated one”–that is, a large, unlimited, central state of plenary powers.

The Resolution notes that the idea “that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who adminster the government, and not the constitution, would be the measure of their powers.” This is eminently sensible. If the feds are the own judges of the limits on their powers, then those limits will surely be gradually eroded, and they will gradually declare themselves to have powers never really delegated to them.

So who is it that can determine whether federal law is constitutional? “That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.” In other words, it is the states, the ones who created the new federal government by means of the compact (Constitution), and who are parties with each other to that compact, who have to be the judge of Constitutionality, not the new state itself.

Then, having established its right to judge the constitutionality of federal actions, Kentucy declares “that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution.” And what libertarian can disagree?

What a shame that some libertarians not only reject these principles, which were designed to keep the federal government in check–they not only reject these principles, but they malign modern advocates of similar views as being racist throwbacks fighting progres. What a shame. What an embarrassment.

re: The problem with “government”: The rejection of federalism by libertarian centralists

January 21, 2007 11:52 AM by Stephan Kinsella (Archive)

I noted recently how many libertarians ignore or disregard the federalist aspect of our Constitution–e.g., when they use the term “government” to mean state and federal government. Including both state and fed governments in the term “government” is a subtle way to put forward the centralist idea that the Fourteenth Amendment gives all kinds of power to the feds to police state actions. I gave as an illustration the use by Tim Sandefur saying that “On June 23, 2005 [in the Kelo case], the United States Supreme Court held 5–4 that government can seize private property and transfer it to developers to boost local economies [italics added].” Notice this use of “government” here in a manner that implies that the feds have the right and obligation to oversee all levels of “government.”

Sandefur got a case of the vapors over this on his blog; but as I noted in the comments to this thread, I did not imply he was ignorant, which he gets so indignant about; and I think his use of the term was a good illustration of his point.

Now Sandefur’s co-blogger Ed Brayton provides another example. He writes:

Even where the language appears to be unequivocal, we all recognize inherent limitations on them; for example, though the first amendment clearly says that Congress shall make no law abridging freedom of speech, we recognize as legitimate a whole range of such abridgments in cases such as libel or fraud.

Well. Libel and fraud are prohibited and regulated by state law. So if Vermont penalizes libel or fraud, this is not a case of Congress making a law at all. In fact, Congress has no power to criminalize libel or fraud, or even murder or rape, for that matter. So actually, the First Amendment, in saying Congress shall make no law abridging freedom of speech, can be read unequivocally. At least, Brayton’s example does not show that it cannot be. Now I do not deny that his general point is invalid, and that other, better illustrations of it could be found. But Brayton’s choice of this bad illustration is a good illustration of how centralists simply think of states as just subdivisions of a unitary central state having plenary legislative power.

Bookmark/Share | Comments (10)

  • Stephan Kinsella

    Black Bloke:

    Stephan Kinsella said on January 21st 2007: “I did not imply he [Tim Sandefur] was ignorant…” Stephan Kinsella said on January 5th 2007: “As I’ve noted before, many libertarians display… ignorance of the federalist aspect of our Constitution… Case in point… Tim Sandefur…” Nope, no implications of ignorance there…

    This is dishonest since what I said was: “many libertarians display disregard for or ignorance of the federalist aspect of our Constitution, often manifested as references to federal constitutional limits on “government,” where “government” is used to mean state and federal government.”

    Black Bloke excised the “disregard for” part. I gave Sandefur as an example of the monolithic use of government. I don’t think Sandefur is doing this because he is ignorant, but because he disregards the importance of federalism because of his different view of the Constitution.

    Regarding Sandefur’s explanation of why he used “government” as he did: “Seems like pretty reasonable explanation of his recounting of the SCOTUS decision.” Sure. So what? IT’s still a good illustration of my point.

    Published: January 22, 2007 11:21 AM

  • Stephan Kinsella

    Brayton has replied here; the reply I posted there is pasted below:

    Stephen Kinsella and Timothy Sandefur have had a long running feud over some basic matters of libertarian legal theory, a feud that Kinsella has now brought me in to with this post on the Mises Institute blog. The crux of the dispute revolves around the issue of federalism and it highlights a very basic split among libertarian-minded legal theorists. It is my position, and Sandefur’s, that if rights are indeed inalienable then they may not justly be violated by any government; Kinsella and his ideological brethren take the position that some governments – states and local governments – can violate our rights at will,

    This is simply false. I also believe that no government MAY “justly violate” our rights. I have argued strenuously for this in many fora. It is in fact why I am an anarcho-libertarian. Just because I do not believe the federal Constitution authorizes the central state to, say, outlaw murder, or even to prevent states from violating rights, does not mean I believe the acts or murder, the rights violations by states, are “just”. In fact they are not. But the issues are separate ones.

    and further that if the Federal government prevents them from doing so, then the Federal government is being tyrannical.

    Well, not necessarily: but it is the case that if a dangerous state that claims it derives its authority from a written Constitution and is therefore also abide by limits on its authority, if that state just disregards these limits, then this is troubling and dangerous, even if it vindicates rights when it seizes powers never granted to it.

    Kinsella is one of the group that Sandefur likes to call “doughface libertarians.” Their philosophy seems to be quite popular among southern nationalists in particular, men like Thomas Woods, who still argue, bizarrely, that ending slavery was tyrannical because it was the Federal government telling the states that they couldn’t violate the rights of the individual.

    These smears are despicable and betray either dishonesty or thorough brainwashing on your part. Ending slavery itself was not tyrannical and to imply that those who maintain that the Civil War was illegal and immoral are pro-slavery or neo-confederates is malicious lies.

    I’m no southern nationalist and personally dislike the rebel flag yeehaw types. So?

    They genuinely seem to think that liberty does not belong to the individual as a matter of right but that rights reside with state governments to protect or crush at their will.

    This is of course not true. The states have no right to violate rights; no government, or individual on the earth, has a right to violate rights. But this does not imply that a semi-criminal central state has a constitutional authority to go around policing this.

    A simple example will show the absurdity of that position: what would they do in a nation that did not have a federalist structure?

    This is inane. Basically every state in the world, and all 50 United States, have this structure. In these states, someone like me (like most libertarians throughout history) would as a general matter prefer, ceteris paribus, decentralized structures (sometimes called subsidiarity etc.). But if I were talking about, say, France, or even Canada, or Louisiana, where (I assume) there the central state has *plenary* legislative power, I would of course be in favor of rules at the top level of that government aimed at limiting that government itself.

    What Brayton and his ilk don’t seem to realize is that our federal structure is unique. Our federal state has fewer powers than most normal states; it may not outlaw murder, for example, even though murder is definitely a crime. When a state is created that is defined by and authorized by a Constitution, its self-proclaimed authority is also conditioned on its adherence to the limits placed on it in that Constitution. If that Constitution does not authorize the state to stop another given state from doing something bad, then it simply does not authorize it, even if we might want it to; and if it ignores this limit, then the danger is now that it has established the principle–and we have ratified it–that it is not really bound at all by the limits placed on it. That is, that it is an unlimited state. Brayton and Sandefur may have no problem with an unlimited state–but we libertarians do. (They may protest that they are in favor of constitutional limits on the state–that is, that the state limit itself. Yeah. Good luck. The only real limit would be external to the state: which is exactly what vertical checks and balances (federalism) is all about, which Brayton and Sandefur reject.)

    There are many nations small enough that they don’t have a federal/state distinction.

    So? The US central state is bound by its Constitution, which sets up a federal gov’t having only defined and enumerated powers. It is not a government of plenary legislative power.

    If the rightful authority to destroy individual rights is purely a matter of which level of government is undertaking the destruction, would the national government in those countries have the rightful authority to violate such rights or not?

    In a smaller state, ideally as many limits on that state’s power to become tyrannical as can be imagined should be placed on it–these include written constitutions, horizontal and even vertical separation of powers, even democracy to some extent, bills of rights, rights to secede, etc.

    My position is simple and consistent: all rights are individual rights, derived from the principle of self-ownership.

    So? All libertarians believe this.

    Those rights are inalienable, which means that no government, whether it is located 15 miles from us or 1500 miles from us, may justly violate those rights.

    “Inalienable” seems to add nothing; rights are in fact alienable. If you commit murder you alienate (or forfeit) your right not to be put in prison; that is why it is just to punish a criminal.

    I would simply say no one has a right to violate individual rights; that is, private and public criminality are all unjust.

    Governments are formed in order to secure those rights,

    No, they’re not; they’re formed as power grabs and are inherently criminal. They are *sold to the duped people* as being done to secure rights; but this is just PR.

    and when the government fails to do so we are obliged to replace it with one that will do so.

    This is like saying, if the mafia on your block does a bad job you are obligated to replace it with a better mafia. How about the mafia being obligated not to subjugate people, and people having a right to fight them off, despite their PR?

    If we are indeed endowed with – that is, born with – inalienable rights that may not justly be violated, then why would it be acceptable for a state government to violate those rights?

    It is not “acceptable”. But how does its lack of acceptability mean that the feds are, or even should be, empowered to stop these rights violations? Are you in favor of a one-world state that will stop “unacceptable” violations by every member state? Who will stop the overlord state from doing “unacceptable” things?

    To allow state governments to do so

    Who wants to “allow” them to do so?

    is to say that such rights aren’t really inalienable at all but exist at the whim of the majority which may violate them at any time as long as they do it one state at a time. And that was largely true in this country until the passage of the 14th amendment.

    Ridiculous. So there were no rights until 1866! hahahahhaha

    When Madison proposed what became the 1st amendment, he wanted it applied to the states as well as to the Federal government; he was voted down in that regard.

    Yep; but most people on your side are ignorant of this.

    At the time, the states were zealous to retain their identity and their authority to violate the rights of the individual through such impositions as official state churches and slavery.

    This is somewhat true; states cannot be trusted, including the central state you are so enamored of for some reason. I think the main reason was however ot keep the new central state from passing a federal religion to encroach on the local state religions etc. This is just competition between states. So? There is a *reason* the feds were not granted plenary powers. So what? Their power is nonetheless not plenary and strictly enumerated.

    There was no way to pass the Constitution without preserving such authority, so it remained a partial victory for liberty until after the civil war.

    It would have been a full victory for liberty to empower the new central state to have total control over the States, to treat them like administrative units? that is, every movement in the direction of centralization of power is a good thing, and decentralized power structures should never be used as a way to limit state power and thus promote liberty? Wow.

    For the doughface libertarians, there is a curious logic: I don’t like the 14th amendment, therefore I’m going to pretend it doesn’t exist.

    It’s the other way around, actually: the utoptian, centralist libertarians want the feds to be able to regulate the states, so they contort the 14th amendment’s vague and limited powers in this way. It’s very dishonest. I have no trouble admitting when a given law or constitutional provision is unlibertarian; there is no doubt that the income tax is constitutional, for example, despite its immorality. If the 14th amendment really incorporated the bill of rights, I would oppose it on strictly libertairan grounds: I would say it was a *bad idea* but I woudl be happy to acknowledge it. In fact, if someone–Randy Barnett promises more study of this–can demonstrate that the 14th really did mean to limit the states as broadly as modern centralist libertarians calim, and give such a broad power grant to the feds (basically ending federalism), I would happily acknowledge this. But it appears to me that it is wishful (and often dishonest) thinking on the part of centralist libertarians.

    But of course it does exist and its intent and language is clear.

    Oh, it is? Even Barnett, in his article, writes:

    “I am also sympathetic with his conclusions about the unconstitutionality of prohibitions on abortion, but will not address the substance of this issue here. Discerning and applying the original meaning of the Fourteenth Amendment is a tricky business and I intend to do more work on this subject in the future. For one thing, originalism properly done requires a careful attention to evidence; it is not enough that a particular interpretation is a plausible fit with the text.”

    It is not at all clear; as the Slaughterhouse cases themselves show. What is disgusting is that these naive, amateur, lying, semi-statist punks feel compelled to distort and personally smear those who hold a different substantive view on constitutional, legal, and political matters.

    After its passage, the states no longer had the authority to destroy the rights of those living within their borders.

    Yeah, it just took 50 or so years for the Supreme Court to recognize this and start incorporating selected parts of the Bill of Rights. So I guess for 5 or so decades the states did still “have the authority” to “destroy the rights of” those living within their borders. So the federal gov’t you are so willing to trust is apparently inept? Wow.
    And you are apparently not an anarchist, meaning you do believe government is legitimate and has the right to make decisions about people’s lives, tax them, etc., which does imply the right to violate rights. Wow.

    And are you in favor of a UN, say, having the power to prevent, say, the US from violating individual rights of its own citizens? If not, would you say that until that glorious day, the US has the “authority to destroy the rights of” Americans? (And if so, why would you want this rights-destroyer to be granted power to police the States??)

    And that was precisely the intent of the amendment, to apply those protections for individual rights found in the Constitution to the states and prevent state governments from doing what the Federal government could not do.

    Only partially; see Raoul Berger.

    The language of the amendment is plain enough: … “Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    Is it plain? If so, what does “privileges or immunities” mean? If it means a broad set of rights, why was the word “rights” not used? And why would due process and equal protection be added separatlye, wouldn’t that be included in P/I?

    And if the P/I clause incorporates the rights in the bill of rights, why is due process separetly enumerated–after all, it’s already in the 5th amendment, so would be applied to the states via incorporation, right? So isn’t it strangely redundant to list it again?
    And why did we have to have subsequent amendments giving blacks, and women, the right to vote, if the equal-protection clause was as broad as the utopians would read it now? After all, if you read it like these guys propose, granting only white males the right to vote clearly violates the equal protection clause. Why then, did we need to pass separate constitutional amendments to guarantee this? Could it be–gasp!–that these limits were narrow and not as broad as utopians might want to believe?

    When the 14th amendment was proposed, there was no doubt that it was intended to apply the protections found in the Bill of Rights to state actions.

    hahahahha! no doubt!! hahahahha Read Berger. Read the Slaughterhouse cases.

    Kinsella’s position strikes me as absolutely bizarre; he is essentially arguing that preventing the states from depriving its citizens of life, liberty and property somehow reduces our liberty,

    No. I am all for any state being smashed or limited. What reduces our liberty is the pack of public criminals that people like Brayton and Sandefur legitimize. Both local States, and the central federal state, are threats to our rights and liberty; and in fact each violates our rights on a daily basis, from taxation to regulation to criminalization of victimless crimes. We have some solace that some of these states pay lip service to paper limits placed on them. When they disregard these limits and do things forbidden to them or assume powers never granted, this is a threat to our liberties, surely, for the very reason that an unlimited state is worse than a limited state.

    that if the states are not allowed to destroy our freedom then, in a fit of Orwellian illogic, our freedom will be destroyed.

    I don’t want the states to be allowed to do this. How does maintaining that the feds are not constitutionally empowered to stop this mean it should be allowed? Do you think Zimbabwe should be empowered to invade Massachussetts to stop blue laws? If not, does that mean you think Massachussetts’ blue laws should “be allowed”? Your argument is like that of the soft-headed liberal who thinks that if the state does not have food-welfare it is “allowing” people to starve.

    But if the Declaration of Independence is correct in arguing that all people are endowed with rights as individuals – and I think it is – then it is tyrannical for any government to violate those rights.

    Sure it is. but you are the one who is in favor of states and their necessary invasions of rights.

    Kinsella is simply wrong when he claims that our statements show that we “think of states as just subdivisions of a unitary central state having plenary legislative power.” We think of state governments as governments, plain and simple. And like all governments, their legitimate authority is limited by the rights of the individual.

    Sure. Which means, no state is legitimate, since states necessarily violate rights by existing.

    All government actions which violate the rights of the individual are illegitimate actions, whether that government is seated in Lansing or Washington DC.


    If the Federal government puts homosexuals in prison, for example, that action is illegitimate; it’s illegitimate because it violates the right of self-determination that is endowed to each individual as their birthright. If a state government takes the same action, I maintain that the action is equally illegitimate and unjust for the very same reason.

    Of course. And if China, or Brazil, or Sorrento, Italy, does it, it’s “illegitimate”–or, rather, simply criminal. So?

    Kinsella, on the other hand, believes that it’s unjust for the Federal government to do so but just fine for the state government to do so. And that’s why he’s wrong.

    Of course it’s not just fine; it’s criminal. It takes a mind steeped in nationalist thinking to come to this conclusion.

    Published: January 31, 2007 3:24 PM

Bolick on Judicial Activism (more on libertarian centralism and “the government”)

April 4, 2007 9:53 AM by Stephan Kinsella (Archive)

I’ve noted before, in Objectivism and Federalism and other entries linked there, “how many libertarians and Objectivists simply seem unable to appreciate the virtues of our federalist system; and that this is rejected implicitly when libertarians use ‘the government’ to refer to both state and federal government”.

We see this yet again in Clint Bolick’s Wall Street Journal editorial, A Cheer for Judicial Activism. (Thanks to Bruce Korol for the link.)

Does a libertarian-federalist have a problem with courts “enforcing liberty”? Well, it depends on what you mean. Given that our federal system is a tripartite one and each branch has an obligation to abide by the Constitution, and given that the Constitution only empowers the federal government to do certain enumerated things, I have no problem with “judicial activism” insofar as it amounts to the federal judges refusing to enforce unconstitutional laws–that is, laws for which no power is granted to Congress. Each branch should be able to nullify actions of the other two, in effect, having vetoes on each other. This implies a type of judicial activism, I suppose.

But it does not imply that the federal government’s limited and enumerated powers include the power of the federal judiciary to strike down unlibertarian laws enacted by the States, any more than the Constitution authorizes the Supreme Court to “strike down” illiberal Chinese laws. If anything, the states have the power to strike down unconstitutional federal law, due to the vertical separation of powers and checks and balances inherent in our federal system.

Now libertarian centralists routinely cover this up by using “the government” in a general way that does not distinguish between state and federal. So they’ll say, there’s nothing wrong with the federal judiciary limiting excesses of “the government.” The problem is that this may be true, to an extent, if “government” means federal government–since, as noted, the federal judiciary is an equal and independent branch of the federal government and is independently bound not to help enforce unconstitutional federal actions. But when “government” means state government, this now implies a power held by the feds, and the federal judiciary, over the states–a power that was not granted to them. Note that the feds “striking down” an unconstitutional federal law does not really require a special power; it follows from the judiciary’s equal and independent status and obligation not to participate in unconstitutional acts. But to strike down a state’s law requires a specific grant of power. Even if this power can be found in the 14th Amendment, treating the federal judiciary’s ability to refuse to go along with unconstitutional federal legislation as the same as nullifying the actions of a separate government, as the same, is simply confusing and disingenuous.

So let’s see how Bolick does this: in his article he never distinguishes between state and federal levels of government. He implies that those who object to the federal judiciary’s ultra vires assertion of power over states “would reduce the judiciary’s constitutional scrutiny of the actions of other branches of government”. Notice that “branches of government” really is a term that applies to the three branches of the federal government. The states are not a ‘branch” of the federal government. They were independent states (countries) that formed, by compact (treaty), a new state (the federal government) having only certain specified powers. It is akin to two people forming a corporation and then someone claiming that the people are “branches” of the corporation.

Then Bolick says: “judicial activism — defined as courts holding the president, Congress, and state and local governments to their constitutional boundaries — is essential to protecting individual liberty and the rule of law.”

Notice he does not say federal courts, but this is implied. Why isn’t it “essential to protecting” liberty that, say, state courts–or Canadian courts–“holding the president [and] Congress … to their constitutional boundaries”? Why not say that to protect liberty, Alabama judges must “of course” be able to review the actions of the Alaska legislature; and that Brazil’s legislator’s must have the power to strike down bad Zimbabwean laws? Why, in our intertwined federalist system, does Bolick not want state courts and state governments to be able to “hold” the federal government to its “constitutional boundaries”?–including preventing the federal judiciary from engaging in the “lawlessness” Bolick also complains of?? Such “nullification” was good enough for Jefferson–why not Bolick? Why such a libertarian-centralist fetish for and faith in the very federal judiciary that he has just accused of lawlessness?

And more: “Judicial review, the power to invalidate unconstitutional laws, was essential to the scheme of republican government established by our Constitution.”

The constitutional scheme implies the power of the judiciary to effectively “invalidate” actions of the executive or legislature that the courts believe to be in violation of the federal constitution, because of each of the three branch’s independent obligation to abide by the charter (treaty) that defines the federal government’s powers and limits. But this does not imply a power to strike down laws of the states–in fact, at best, this is a new power granted by the (illegally adopted) 14th Amendment, but was clearly not implied in the original Constitution, as Bolick here implies. He goes on:

The courts, declared James Madison, would provide “an impenetrable bulwark against every assumption of power in the executive and legislative” branches, and “will naturally be led to resist every encroachment of rights expressly stipulated for in the constitution by the declaration of rights.”

Note that the Madison quote refers to the judiciary (of one government) serving as a check on the other two branches of that government.

Bolick continues: “Courts that merely rubber-stamp legislation or executive branch decisions out of bland, or blind, “deference” evade their essential constitutional role.”

Yes, this is true, just because federal judges swear an oath to abide by the Constitution. They cannot participate in helping to enforce what is an unconstitutional action by the other two branches of the federal government.

The most explosive growth in local governments in recent decades has occurred in special districts and regional authorities that typically are accountable (if at all) to politicians, not voters. Ironically, courts typically defer to the “expertise” of regulatory bodies, rather than carefully scrutinizing their actions for compliance, not only with constitutional commands, but even to the vast legislative and executive powers that have been delegated to them.

It may be true that there is an explosion of illiberal legislation at the state level. How this implies that the federal judiciary has the power to “invalidate” state laws is beyond me. There may also an explosion of socialist regulations in Venezuela. That does not imply that other states’ judiciaries are authorized to intervene.

At bottom, liberal and conservative attacks on judicial activism are hopelessly subjective and inconsistent. Take two cases from the 1990s. In one, the U.S. Supreme Court struck down a Colorado law that forbade local governments from enacting antidiscrimination laws that protected homosexuals. In another, the Court struck down a New Jersey law that forbade the Boy Scouts from excluding homosexuals. In both cases, the Court protected freedom of association, finding an exercise of democratic power at the state level unconstitutional. Similar cases, similar principles, identical results.Most liberals supported the result in the first case, condemning the second as judicial activism; most conservatives did precisely the opposite. What critics on both left and right really object to is the neutral application of constitutional principles when it hampers their own desired policy outcomes.

This may be so. But the proper, libertarian-decentralist approach to this is that the Supremes have no authority to strike down either law. And on the local level: the Colorado law is compatible with libertarianism (the state preventing its localities from enacting unlibertarian anti-discrimination laws: note that the states are not organized like the federal government is; the state governments have plenary legislative and police power, unlike the federal government); the NJ law is unlibertarian. Regardless, the Supremes have no authority to invalidate either; it’s simply out of their jurisdiction.

While judicial activism is the subject of spirited attack, the far greater problem is judicial abdication of its core constitutional duty to protect individual rights. Courts routinely apply a presumption of constitutionality to most governmental enactments that skews the playing field against individuals whose rights are violated. Far worse, courts have read out of the Constitution vitally important protections of individual rights, such as the constraints against government interference with the sanctity of contract and the privileges or immunities of citizenship.

Note here the use of “governmental enactments” and “government interference” to skip over the difference between actions of state, and federal, governments, for purposes of the legitimacy of federal judicial review.

Bolick writes that “‘deference’ to legislators and other government entities results in a free-for-all, with private property taken from citizen A and transferred to citizen B — precisely the danger against which the framers tried to protect us.” But the federal government is one created by the states, and has only certain powers granted to it; it is not “deference” to the legislatures of states to refuse to invalidate their laws: it is a willingness to exercise only the powers given to that branch in the Constitution that establishes the federal government in the first place.
Bolick writes, “Unfortunately, the “privileges or immunities” clause of the Constitution’s 14th Amendment — designed precisely to protect freedom of enterprise from government interference — had been eviscerated more than a century ago in the Slaughterhouse Cases of 1873.” In other words, the P-I clause really was meant to give a broad grant of individual rights protection to citizens of states at the federal level–such as those listed in the first 8 amendments of the Bill of Rights. But if this is so, why did “due process” need to be mentioned separately in the 14th amendment–after all, isn’t it part of the batch of “individual rights” we have (it’s listed in the Vth amendment)? And why did it require subsequent amendments to give blacks, and then women, the right to vote–after all, if the provisions of the 14th are so broad, the equal protection clause should have prohibited discrimination against blacks and women in the right to vote; or the P-I clause should have included the civil right to vote as part of the huge batch of rights that “privileges or immunites” really refers to (though inexplicably without using the simple word “rights”!).

“Properly wielded, a court gavel can be David’s hammer against the Goliath of big government.”

Again, “government” used to indiscriminately refer to both state and federal.

“The Rehnquist Court began to restrain unconstitutional exercise of government power…” Again.

“It remains to be seen whether the Roberts Court will proceed to boldly protect liberty, as the Constitution intended.” The Constitution intended the constituent parts of the federal government to abide by limits set on them in that foundational document.

“We all have a stake in seeing that it does, for as government inexorably expands, our freedom depends on the willingness of courts to rein in its excesses.” Again. And note, by “courts” he means federal courts, not state courts. Why not write it like this: “We all have a stake in seeing that it does, for as state governments inexorably expand, our freedom depends on the willingness of federal courts to rein in its excesses.” Because this might make some people wonder–hey, why is is necessary for federal courts to rein in state governments–why not state courts? And what about state courts reining in excesses of the federal government? Why isn’t that mentioned as a possibility?

“For better or worse, the courts are the last line of defense against government running roughshod over individual liberty.” Again. What courts, Mr. Bolick?

“When judges swear fealty to the Constitution, they must be mindful of the danger of exceeding the proper confines of judicial power, but as well the even greater danger of abdicating it.” Wow. What impressive sleight of hand.

From What We Mean by Decentralization:

  • Stephan Kinsella


    The constitution does not give the supreme court any right to intervene in a case like Kelo. However, nothing prevent the justices from speaking their mind. If the state then wishes to follow the unconstitutional ruling, that is their decision. If they don’t want to follow the it, they just have to ignore the verdict.

    Sure; the Court could have said: “We have to dismiss this case since the Fifth amendment is a limit on congress only. So unfortunately, we are unable to strike down this law; an unjust law plainly in violation of Connectitcut’s own constitution, and which their state supreme court was too cowardly or socialistic to strike down themsleves. Connecticut citizens ought to lynch the lawmakers, judges, and planning commission scoundrels behind this.”


    I agree with the article, I just don’t see how it applies to Kelo. If the decision really were a victory for decentralization I would applaud it but I do not believe it is. To me it just goes to show that the Federal government will intervene when it serves its own interests, but if non-intervention better serves it, then it will choose not to intervene. True decentralization as laid out in the constitution is long dead and I don’t think Kelo is an attempt to ressurect it.

    Kelo is not a victory. But libertarions who oppose it wanted the Court to overturn the law, which would have been unconstitutional. Lew is saying the opponents of Kelo shouldn’t criticize it for this reason; but for failing to simply refuse to apply the Fifth Amendment in the first place.


    Concerning the section of the article on the Bill of Rights placing the restrictions on what the federal government may do, I find it to be flawed by over simplifying the purpose of the Bill of Rights with respect to the original Constitution.

    The structure of the original unamended Constitution itself is the primary restraint on what the federal government may do. The debates concerning the ratification of the original Constitution often provides that the delegated powers to Congress are to be interpreted narrowly. In all truth, the Bill of Rights is really another expression of the principles of the original Constitution. The problem is that over time all branches of the government (and even the people themselves) have interpreted the powers of the federal government to be larger than they were ever intended by falsely interpreting the Bill of Rights as the only limits to the powers of the federal government and contradicting the original interpretation of Framers and those in the ratification debates.

    Your comment is confusing. You seem to acknowlede the purpose of the Bill of rights was to limit the feds; but that it is not the only limit. Rockwell would agree; he says the BoR limits the feds; as does the very structure of the Constitution which grants them only enumerated powers. Where is the simplification?


    Apropos the earlier post about the Kelo decision (why not link to it?), you have your eye on the wrong ball. In celebrating a sort of victory for local government over the federal government you overlook the oppressiveness of local government.

    “Overlook”? Who is overlooking anything. We decentralist (that is, non-centralist) libertarians–we libertarians who actually favor limited federal power, unlike, apparently, centralist libertarians–we are actually opposed to eminent domain altogether (unlike some centralist opponents of Kelo who advocate eminent domain when used “properly”–yeah right). The states don’t have a “right” to take private property. But that does not mean the Constitution gives the right to decide to Congress.

    What is bizarre is that most advocates of federal supervision of the States have no problem with the federal government being unsupervised–or with the other 200 or so states in the world being “unsupervised” by an overlord state. Why are only the American States so infantile and childlike as to need paternal supervision by the feds? Why is there an assumption that we are better off if the feds have final say-so over state law, than if state courts do? Interesting that centralist libertarians never answer this question.

    The ridiculous yelps and whining by libertarins over this case, as if it’s the end of private property, are embarrassingly ignorant. First, the decision only slightly expanded the scope of what counts as a public use; the limit was not eradicated. Second, this view presumes that the federal courts are our only guarantor of liberty and rights. Bah. Ridiculous. If the fed courts fail to protect the right, mabye the state courts will. If the state courts fail, maybe the state legislature will. And so on. The view that this case means there are no rights presupposes that all our rights come from and are protected by the courts and the courts alone; it is to partake in the Court-glorifying and worshipping mentality that has infected our society.


    While we might be able to agree that an autocratic approach may not be the optimal solution for the libertarian movement (and probably an impossible one), we need to evaluate our current progress in the decentralized model. Government spending and employment at all levels are at all time highs. Social security will claim several lifetimes of work, and the federal deficit and debt are out of control…

    Yes, and this is in part due to the erosion of federalism, hastened drastically by the demolition of the constitutional right to secede in the War to Prevent Southern Independence. Arguing for further ignoring of federalism makes no sense.

    So, given the facts of our current status and trends, if the decentralized model is the optimal one, please explain the end game to me—or share what you’re drinking so it looks successful to me as well.

    If the Courts and the other parts of the fed gov’t would start abiding by the limits placed on them in the Constitution, they would be unable to do 95% of the things you complain of. Those who want the fed courts to ignore limits placed on them just to achieve the goal of the moment ought not be surprised when the Court says, “Yeah, I agree, we are NOT really bound by the Constitution, are we?”

    With regard to Kelo, whether one likes the fact that a federal government exists or not, it clearly fell down on the job under the Constitution by endorsing an arbitrary taking of private property.

    Er, no, it did not, since its “job” is not to prevent “the governemnt” from taking property unjustly. It is to refuse to go along with its own government–you know, the federal one–doing such things.


    Maybe the 14th amendment “(doesn’t) magically (transform) the whole Bill of Rights to mean the exact opposite of its original intent,” as Mr. Rockwell observes, but I can’t quite see how interpreting the negative rights set forth in the constitution as a “floor” below which no state can sink with respect to how it treats its citizens would be “opposite” of the founders vision.

    Because the founders wanted the states to have plenary power to protect citizens’ rights, and to be free from federal interference. The first amendment limits Congress’ power in part ot prevent Congress from establishing a natioanl religion or from stopping states from having their own state relgions; in fact 9 of the 13 colonies had a form of established religion in 1791. The courts don’t jsut “set a floor”; they don’t just have a mere veto power over state laws. Ever heard of forced bussing? Hellooo? These bastards FAIL to strike down federal laws that prevent STATES from letting their citizens have marijuana for medical purposes. They FAIL to stop the feds from doing all number of things. You expect them to benevolently use the power NOT granted to them, to strike down only “bad” state laws? Like waht, abortion laws?

    Moreover: look at what the feds do with fedearl highway funds: they threaten to withold it from states to force them to, say, increase their drinking age to 21. After all, it’s only a negative power. Yeah right. If anything the states ought to be able to nullify and reveiw federal laws and legislation. The states ought to be the final authorities on interpreting the constitution.


    If I were in Africa, and I came upon a lion and crocodile fighting, I would try very hard not to interrupt.

    Since at the moment we have two evils, I prefer they fight each other than me.

    How does this logic demonstrate (a) that the Cosntitution authorizes the feds to review state laws? wishing does not make it so. or (b) that if we set up a fed gov’t, it is better to set it up with limited powers than with unlimited ones? Why are libertarians unable to separate the issues and keep emotion out of this.

    As neither SCOTUS or the individual state governments are likely to respect anything I would recognize any more than the lion or the crocodile, I can only hope for individual victories at an entirely pragmatic level. As much as I believe in principle, it doesn’t exist in any way before the court, so when it ends up that liberty wins, even for the wrong reason, it is a win. It will never win for the right reason with the current setup.

    How does this imply that the constitution authorizes federal review of of state law? how does it imply that when setting up a central state we ought not to care about placing limits on their power?

    Published: July 21, 2005 11:26 PM

Stephan Kinsella


S. Kinsella writes: “If anything the states ought to be able to nullify and reveiw federal laws and legislation. The states ought to be the final authorities on interpreting the constitution.”

Exactly. State judges should be striking down federal laws they find objectionable, and just to make sure things stay good and “decentralized,” the feds ought to keep striking down state laws that clearly violate individual liberty – like, for example, those that prevent people of different races or sexes from marrying, or which establish a “right” to own slaves, or, for that matter, allow local governments to take private property from an unwilling “seller” and hand it over to a well-connected mercantilist scum for a subsidized song.

To say the feds ought to strike down bad state laws assumes that the feds ought to disregard the principle: “you should not violate the limits placed on you in the Constitution.” In other words, to advocate federal review of state law is to advocate the feds NOT being limited by the Constitution. Call me crazy, but I happen to prefer a limited federal government. Apparently, I am almost alone among libertarians. Sad.

Update: See On “States’ Rights”

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