The Institute for Justice is one of my very favorite organizations. They litigate for liberty, for justice, for rights. The New York Times (requires simple registration) has a piece today on their work to defend the rights of property owners not to be robbed, dispossessed, and shoved out by city councils that prefer a “higher class” of subjects. The piece highlights the good work of one of my favorite warrior goddesses for liberty, Dana Berliner, shown here in a jaunty pose:
P.S. If you’ve got a few bucks after paying your taxes this year and you’re wondering where to send them….the Institute for Justice is a good place. After the Cato Institute, of course.
Ah, I still remember Stossel making Donald squirm when he tried to justify getting Atlantic City to force Ms. Coking out of her house. Luckily IJ stopped Donald cold.
While we’re on the topic of people who deserve our money, let me suggest Dr. Norman Borlaug of Texas A&M University. So far he’s saved at least one billion (!) people from starvation, and he’s still at it at age 90.
I should also mention Stanislav Petrov, a former colonel in the Soviet Strategic Rocket Forces and living Avatar of Vishnu. If you can read this, it’s because Stan exercised good judgement on a tough day.
What exactly has this Dr. Borlaug done. And what did Petrov do?
Petrov was commanding a Soviet early warning radar station in 1983 when sensors indicated that five US Minutemen missiles were inbound for Moscow. It is my understanding that Col. Petrov showed an unusual (and in the Soviet hierachy, undesirable) amount of initiative in concluding that something was amiss, and chose not to initiate the doomsday machinery. It was later determined that the sensor readings were the result of flaky equipment.
Norman Borlaug has been involved in many improvements in agricultural technology and techniques, and is known as the father of the Green Revolution. It is estimated that one billion people (1/6th of the worlds population) are being kept alive as a result of Borlaug’s research and activism. (Note that this is a much stronger claim than what I made above.)
His most important single development has probably been the development of dwarf corn. Dwarf corn has a faster growing cycle than normal corn. This is important in the monsoon-prone regions of India and Bangladesh where heavy rains tended to wipe out the corn crops before they could be harvested, leading to mass starvation on the order of tens of millions of people. Borlaug not only developed dwarf corn, but he personally distributed the seeds and instuctions for their use in the affected regions after encountering resistance and apathy from the local governments.
At present he’s trying to solve the problem of starvation in Africa. His primary problem is getting the corrupt African governments to allow him to work without severe restrictions.
Each of these men have individually saved more people than were killed in all of the wars of the 20th century combined.
A humorous account of Borlaug’s actvities can be found in Season of Bull!@#t with CATO fellows Penn and Teller.
The IJ does some good work, but unfortunately, they seem to endorse the idea that the federal government has somehow been empowered to strike down state laws it believes “violate rights”. For example, in this IJ case, http://www.ij.org/first_amendment/ca_internet_real_estate/11_22_04pr.html , “a federal judge in Sacramento ruled in favor of web publisher ForSaleByOwner.com and the Institute for Justice in a First Amendment lawsuit challenging California’s demand that websites obtain a real estate broker’s license to publish real estate advertising and information. The court concluded that the law, which requires websites to obtain a license but specifically exempts newspapers that publish the same information, was “wholly arbitrary” and violated the First Amendment guarantees of free speech and freedom of the press.”
But the First Amendment only prohibits “Congress” from taking certain actions; and arguments that the First Amendment’s protections are “incorporated” into the Fourteenth Amendment are, in my view, flawed and inconsistent with libertarian principles such as federalism and other structures aimed at limiting centralized power.
I cannot blame any individual victim from using whatever weapon at his disposal to protect himself from depredations of the state. I would sue a state in federal court if I thought I could use this means to vindicate my rights. Nevertheless, the federal government has no right under the Constitution to overturn such state laws, and libertarians should not refrain from recognizing this just because they like the results in particular cases.
Additionally, IJ appears to fight for vouchers, http://www.ij.org/schoolchoice/index.html , which are also problematic from a libertarian point of view, as they mean increased taxation and education-welfare expenditures and increased state control of private schools.
I’ve always been puzzled by the notion that libertarianism (understood broadly as a concern for human freedom) has anything to say about the level of government at which decisions are made. Federalism can be, and often has been, a useful tool for preserving freedom, but it is just that — a tool. A slavish devotion to federalism overlooks the fact that the greatest advancement of human freedom the United States has achieved in its history resulted from a federal protection of individual rights against an entirely more disturbing brand of “slavish” devotion practiced by certain States.
Further, as far as courts’ abilities to overturn state legislation, it’s completely clear that, as an original matter, the Fourteenth Amendment was intended to force states to adhere to the guarantees of the Bill of Rights; as a textual matter, the Fourteenth Amendment forces states to respect certain basic freedoms (such as, in the cited California Department of Real Estate case, the ability to publish without prior government licensure); and, as a practical matter, the Constitution SHOULD require states to respect certain individual rights. The notion that individual liberty is in some way served by specifying that (all other things being equal) Group X, rather than Group Y, gets to prescribe the rules of my conduct is, frankly, absurd.
It’s worth taking a look at the Fourteenth Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html), Section 1 of which reads:
“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.”
Now reasonable people may differ over precisely what that amendment requires, but it is far from obvious, as Mr. Kinsella seems to think it is, that the phrase “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” has no restrictive power over the states.
For Mr. Kinsella and his friends at the Ludwig von Mises Institute (and their little cluster of groups and publications), “federalism” (which, in any case, most of them don’t like, since they would prefer to be living under the Confederacy) means that the federal government simply has no responsibilities at all. The states can (and maybe even should) engage in all kinds of restrictions of the “rights” (the use of scare quotes by Mr. Kinsella around the phrase “violate rights” is informative) of the people living there. Yet the federal constitution not only contains the Fourteenth Amendment, but also Article IV, Second 2, Clause 1 of which reads,
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Section 4 of Article IV reads,
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
So even the unamended Constitution guaranteed the rights of Americans to a republican form of government (with which, arguably, vicious forms of racial oppression were inconsistent) and to the privileges and immunities of citizens in the several states. Add to that the protections of the Thirteenth, Fourteenth, and Fifteenth Amendments and you have a quite unmistakable role for the federal government to stop the states from infringing on rights. In a federal system, the federal government has restrictions placed on its powers, but it also has powers to protect rights. Otherwise, what justifiction could there be for it at all?
RJM: “I’ve always been puzzled by the notion that libertarianism (understood broadly as a concern for human freedom) has anything to say about the level of government at which decisions are made. Federalism can be, and often has been, a useful tool for preserving freedom, but it is just that — a tool.”
Sure. And as I said, I don’t blame individual victims today of State action from using federal courts if it works. But the idea is that centralized state power is, other things being equal, more dangerous than dispersed power.
Moreover, as a matter of fact, the federal government is the biggest danger to us, and as a matter of fact they were limited by the Constitution to enumerated powers; and when they simply ignore the limits in the document that they claim also gives them their legitimacy, they become all the more dangerous.
“Further, as far as courts’ abilities to overturn state legislation, it’s completely clear that, as an original matter, the Fourteenth Amendment was intended to force states to adhere to the guarantees of the Bill of Rights”
Actually, it is not clear at all that this was what the 14th originally meant. There is, at the least, lots of debate on this. Even now, the entire Bill of Rights has not been incorporated.
“as a practical matter, the Constitution SHOULD require states to respect certain individual rights”
I don’t agree at all; any more than the federal Constitution should have a clause purporting to order, say, Indonesia to respect certain rights.
“The notion that individual liberty is in some way served by specifying that (all other things being equal) Group X, rather than Group Y, gets to prescribe the rules of my conduct is, frankly, absurd.”
Tell it to the Founders.
Palmer:
“Now reasonable people may differ over precisely what that amendment requires, but it is far from obvious, as Mr. Kinsella seems to think it is, that the phrase “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” has no restrictive power over the states.”
I don’t think this at all (unless you argue that the 14th is null and void because it was illegally ratified). Even Raoul Berger said it restricts the states in some way; and I tend to lean toward his interpretation which is that it limited the states only regarding certain narrow rights having to do with national citizenship. It seems obvious to me that if the 14th had clearly stated that it incorporates most of the rihts from the Bill of Rights and authorizes Congress to tell states what to do (e.g., to nullify Texas’ sodomy law), then it would not have been ratified. Therefore the original understanding of the 14th was NOT clearly that it empowered the feds to nullify state laws that violate the first 8 amendments.
(Further: there is the logical problem that the 14th explicitly subjected states to a due process requirement similar to that of the 5th amendment; there would be no need to do this if the P-or-I clause incorporated the 5th already!)
It seems to be very very clear that at best, the original udnerstanding of the P-or-I clause was uncertain–some thought one thing, others thoght another. Given this, it seems to me that it shoudld not be construed to grant many new powers to the feds. Just as real estate can only be sold by a written agreement, so such a fundamental change to the existing federal-states structure–espeically one that moves in the direction of greater centralization of power–should be effected only by an explicit amendment, not one that is ambiguous.
“For Mr. Kinsella and his friends at the Ludwig von Mises Institute (and their little cluster of groups and publications), “federalism” (which, in any case, most of them don’t like, since they would prefer to be living under the Confederacy)”
the pejorative “little” is cute, but out of place, distracting and insulting.
Actually I would prefer to be living under a minarchist or anarcho-capitlaist socieyt; but yes, I do believe we would be better off had the Union not prevailed in their war to prevent southern independence. We probably would not have entered WWI as we did, and Hoppe explains in his Introduction to his Democracy book how that intervention in WWI arguably helped contribute to the rise of Hitler, WWII, and Naziism, communism, and the cold war.
” means that the federal government simply has no responsibilities at all.”
Well, I don’t agree. To the extent we have a federation or union, the federal governemnt does have some duties–national defense, and even striking down internal trade barriers under the interstate commerce clause (with abuse by the feds limited by the right to exit, or secede).
“The states can (and maybe even should) engage in all kinds of restrictions of the “rights” (the use of scare quotes by Mr. Kinsella around the phrase “violate rights” is informative) of the people living there.”
Mr. Palmer, this is uncharitable and unfair, and just wrong. States should NOT violate individual rights; and in fact I support STATE judges striking these laws down, under a concurrent review theory. I would even be in favor of changing state constitutions to deny them general police power and making THEM states of enumerated powers. Etc. The quotes around “violate rights” was not scare quotes for purposes of expressing doubt about the fact that states do violate rights, but only to indicate that the feds might decree something to be a rights violation which is not.
Take the TExas sodomy case. I disagree with the Court’s reasoning in the Lawrence case (as I explained here), and also disagree that the decision is a libertarian one, because it erodes the important structural limits on central power of federalism as well as enumerated powers. But if a Justice on the highest court in Texas in criminal matters, the Court of Criminal Appeals (and I did run for this on the LP ticket a few years back, got 71,000 votes), I would have voted to acquit the defendants accused of violating the anti-sodomy law on at least 2 grounds: 1, that the law violated the STATE constitution; and 2, that the law is immoral aggression and I have a duty as a human being not to participate in enforcing aggression.
“So even the unamended Constitution guaranteed the rights of Americans to a republican form of government (with which, arguably, vicious forms of racial oppression were inconsistent) and to the privileges and immunities of citizens in the several states.”
Well–it depends on what you mean “guaranteed the rights” of someone. The question is whether the mention of a right confers a POWER on the feds, or a limit (or both). Clearly it’s a limit on federal action. Whether it also conveys a power on the feds to interfer with states, is another matter. It is clear for example that the mention of “rights” in the first 8 amendmnets of the Bill of Rights did not grant to Congress or the federal gov’t a power to stop the states from infringing these rights. This is not disputed by anyone serious. There were state established religions (Congregationalism in Mass., e.g.) in effect in 1791. Therefore, it’s clear to me that listing a right in the Constitution is just another way of limiting the feds from invading it; or making it clear the feds are not granted this power in the first place.
Moreover, think about this. The fed gov’t was based on enumerated powers; the ninth and tenth amendmnts make this clear. The ninth amendment makes it clear that the rights listed are not exhaustive. This is compatible with the idea that the fed gov’t only has the powers enumerated; and no otherse.
But the states had general police power. It would be confusing to say the ninth amendment applies to states (states did later adopt versinons of it in their own constitutions, but I contend this is just confusion) because the ninth amendment is compatible wiht enumerated powers, but seems to conflict with the idea of general police powers. If you read the ninth amendment literally, it would basically denude the states of their general police powers.
My point anyway, is that the recognition of a right in the Constitution is not necessarily a grant of power to the feds to regulate the states in this regard. Just as it is not a grant of power to regulate China’s affairs. I can write a private contract with my wife that says, “the right to freedom of speech is recognized” but that mere declaration does not purport to give me the authority to force China to respect those rights. Likewise with the feds and the sovereign states.
” Add to that the protections of the Thirteenth, Fourteenth, and Fifteenth Amendments and you have a quite unmistakable role for the federal government to stop the states from infringing on rights.”
No; on some rights only, not on rights in general, and not on all those listed in the Bill of Rights.
“In a federal system, the federal government has restrictions placed on its powers, but it also has powers to protect rights. Otherwise, what justifiction could there be for it at all?”
Mr. Palmer I know you are too familiar with our revolutionary history to be unfamiliar with the answer. The feds could have a role in national defense, even in ensuring internal free trade; and in settling disputes between States, or between States and other nation-states. That does not imply that they need to have the power granted to them to force states to abide by certain standards. The founders all thought of the states and the state constitutions as the primary protection of individual rights.
Do you honestly believe the founders, or even the framers of the 14th amendment, would have voted for ratification if they had thought the federal government would have the right to strike down state laws like this? I think it is clear that they would not; and this is an indication of waht the original understanding was.
Further, if there were a grant of powers, it needs to be clear and express, not just implied from a statement recognizing a given right. And as I have noted, while the 14th and other provisions do grant the the feds some additional powers over the states (undermining your other argument that the original P-I clause grants the feds powers–for if it did, why is it restated in the 14th?), these powers are limited. Where it is ambiguous or not express, we should ere on the side of less centralization of power.
What is unreasonable or racist about any of this, Mr. Palmer, even if you don’t agree with all of it?
links did not make it through: some of them are:
Hoppe’s democracy introduction: http://www.hanshoppe.com/publications.php#democracy
my article on the Lawrence sodomy case: http://www.lewrockwell.com/kinsella/kinsella11.html
my run for Texas justice: http://www.stephankinsella.com/election2002.php
“Further, if there were a grant of powers, it needs to be clear and express, not just implied from a statement recognizing a given right. … Where it is ambiguous or not express, we should ere on the side of less centralization of power.”
I disagree, because I put libertarian results above decentralist results. It’s a question of which construction principle ought to be used, and since I hold libertarian values in the highest regard, those ought to be used in construction.
Decentralism is not a bulwark against government wickedness, which even a cursory glance at American history reveals.
– Josh
Peg: “I disagree, because I put libertarian results above decentralist results. It’s a question of which construction principle ought to be used, and since I hold libertarian values in the highest regard, those ought to be used in construction.
“Decentralism is not a bulwark against government wickedness, which even a cursory glance at American history reveals.”
The question is whether, when *setting up* an institution, which one is more likely to generate more libertarian results. A system where the central state is limited by a written constitution to certain enumerated powers (implying that other powers are left to the states, or to the people), is one good technique, at least to the extent the central state abides by the limits set on it in its authorizing document.
What has become clear is that a written Constitution is not really a very good way of limiting the state, since it simply disregards or twists the express provisions limiting its powers. What is worse, it has taken provisions meant to limit its powers–like the listing of rights in the Bill of Rights–and now uses them as *grants* of powers. It is not surprising the state will always try to twist things in its favor, but what is surprising is to see libertarians endorsing this.
I do not say that a libertarian should oppose the result of a particular case where the federal government disregarded limits on it to nullify an unlibertarian state law; but the libertarian should also have qualms that the means used to achieve this (good) result are also harmful to rights. The libertarian who not only cheers the results of Lawrence but the Court’s reasoning and the Constitutional right to do this is basically advocating tearing down Constitutional limitations on the feds; he is advocating a rule that the central state does not need to abide by limits placed upon it.
A post I tried was for some reason rejected; I posted it offsite, here: http://ancapistan.typepad.com/the_palmer_periscope/2005/02/palmer_on_the_f.html
Interesting no one is able to refute my 14th amendment arguments.
Mr. Kinsella is wrong that vouchers would mean more money devoted to education. In fact, most studies suggest that private schools cost about half as much as public schools in tuition. In my state, that’s $9000 for the public school, and about $4500 for a private school.
I’ve got news for Mr. Kinsella. Public education is not going to be abolished any time soon. However, it could be whittled down to nothing and the states could save significant amounts of money if parents could get their children out of public schools and into private schools.
Of course, public money introduces distortions into the market. But the current system is abysmal, and there’s no reason to think that vouchers necessarily lead to more statism. That’s an open question.
I don’t know why Mr. Kinsella’s post was rejected, unless it was because of too many URLs, which the system automatically rejects. (I don’t know how to correct this, other than to go to the master page and approve the posting, which I did for Mr. Schuster.)
I’m at Duke University and just finished some hours of talking about free trade. But I wish to address one point in Mr. Kinsella’s posts above: he conflates an “original intention” approach to constitutional interpretation with an “original meaning” approach. They’re significantly different. “The Founders” (the drafters? the ratifiers? who?) may not have “intended” this or that outcome, but the “meaning” of what they wrote may encompass more than they intended. Randy Barnett treats that issue quite elegantly in his work on an “originalism for originalists” and in his book *Restoring the Lost Constitution” (http://www.amazon.com/exec/obidos/ASIN/0691115850/qid=1107577988/sr=2-1/ref=pd_ka_b_2_1/103-2447442-6709449 ).
In resopnse to Mr. Palmer: I did not mean to conflate original meaning from original intent, and do not believe I did so, at least not explicitly. My view is that “original understanding” (as argued persuasively by Bork, in one of his coherent arguments) is what matters. Original intent is just evidence for what the original understanding was. Of course the Founders’ and Framers’ understanding and interpretation of a provision at the time of its enactment/ratification is relevant to what they were voting on was taken to mean!
This is a question that always seems to be dodged. It is clearly relevant to understanding what a given provision is supposed to mean, that those who ratified it would NOT have dones so if they had thought it meant what is being suggested years later.
For anyone who thinks language means anything, or that contracts, agreements, treaties, Constitutions, and other binding documents have any meaning that is related to their text and purposes … then I can only think of 2 responses to an argument that the founders would have voted against it if it had stated explicitly the interpretation being urged now: (a) the original understanding does not matter, because the Constitution is a “living document”; or (b) the Framers WOULD HAVE voted for it if it had been made explicit.
I hope Mr. Palmer has not gone so far down the modernist road that he would urge (a). As for (b), it does not pass the laugh test. It is just outright stubbornness; those ignorant high school students educated on Cap’n Crunch and Saturday Morning propaganda like I’m Just A Bill, might believe Congressmen just after the War to Prevent Southern Independence would have voted for a law permitting the feds to overturn state laws prohibiting homosexual sodomy–just like they believe the Emancipation Proclamation freed the slaves, or that Women’s Suffrage is terrible and should be banned. Anyone with any sense at all knows that the 14th Amendment would have lost virtually unanimously if the ratifiers had thought it would mean this. That does not mean I agree with their unlibertarian sentiment; but it seems clear beyond cavil to me that this is so. Given this, this is mighty powerful evidence that the meaning of the words of the 14th Amendment do not and cannot mean what the Libertarian Centralists (in Gene Healy’s words) want it to mean.
What baffles me is the lack of honesty in Constitutional discourse. I personally wish the Constitution did not permit Congress to enact patent and copyrihgt laws. I wish it did not have a 14th amendment at all. I wish it listed more rights in the Bill of Rights. I wish the Ninth were clearer. I wish that income tax were not authorized. But in honesty, I have to admit that unfortunately, what I wish is not the case. The Constitution is not a perfectly libertarian document. Where it is not libertarian, I will declare it and advocate that it be either changed, or disregarded… or at least, recognized as being nonlibertarian.
The centralist libertarians WANT the feds to be able to strike down unlibertarian state laws. That is understandable (though I have qualms about this for structural reasons); but it does not mean this is what the constitution SAYS. Look, I even grant you that you guys at least do have an argument. Barnett’s arguments re the 9th amendment, Roger Pilon’s and David Mayer’s and Michael Kent Curtis pro-14th amendment arguments… are respectable, if I think incorrect (and a bit biased and nonobjective… too results-oriented, or makeweight). I think the overwhelming weight of argument lies on our side. But the pro-14th Amendment side ought to grant that the issue is not 100% clear, and that the libertarian opposition to their expansive reading of the 14th is also respectable–from both a Constitutional, AND libertarian perspective. To pretend that the “issue is settled” is either ignorant or dishonest. And to imply that opponents of the expansive reading of the 14th amendment are racists or slavery-apologists is utterly despicable and a sign of desperation. When no substantive arguments are left any more, someone cornered either admits defeat, or resorts to ad hominem or personal attacks.
http://www.anzwers.net/hot/newmens/hqwovrym/ complimentwhosewondered
Bookmarks newest
Tsewen, bookmarks newest and bookmarks