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Libertarian Centralists


In another post, I made the offhand comment that the recent Supreme Court marijuana decision shows that libertarian centralists are naive in hoping to get justice from federal courts. Tibor Machan complained that I am not naming names. The issue of "libertarian centralists" has been discussed at length. See the post Healy on States' Rights and Libertarian Centralists, which contains many links to many discussions of this topic.

Federal Review-Fourteenth Amendment

To clarify and elaborate a bit, what I mean specifically are those libertarians who are in favor of centralizing more jurisdiction at the federal level so that the federal courts can strike down "bad" state laws. I include here the libertarians who (a) believe that the Constitution does permit the federal courts to review state laws for compliance with the rights implicit in the Bill of Rights; and (b) believe that it's a good, libertarian idea for the feds to have the power to do this. These libertarians include those who think the privileges or immunities clause is a very open-ended source of federal power to do strike down bad state laws.

Constitutional scholar Roger Pilon holds this view. Randy Barnett, a significant libertarian legal thinker whose work I also greatly respect, seems to hold a similarly open-ended view of the power granted to federal courts, under the privileges or immunities clause and the ninth amendment (I discuss this in Barnett and the Fourteenth Amendment). I think prominent Objectivist legal theorist David Mayer also holds a similar view—see, e.g., his comments endorsing the Lawrence decision (which decision I have criticized, on libertarian grounds).

I respect all these thinkers, but I do think their constitutional views are wrong; the original federalist system and even the 14th amendment did not contemplate such broad powers of review in the hands of the federal courts; and I also think shifting power up, more centrally, in the hopes that the central decision-maker will be "better" than the lower levesl of government is unlibertarian and naive.

What I do disagree with is the illegal and illiberal 14th amendment being ridiculously construed to permit federal courts to strike down state laws that violate the Bill of Rights—which was only meant as a limit on federal power. As I noted in Cato on Federalism, Pilon even seems to endorse the clearly unlibertarian and unconstitutional Civil Rights Act of 1964 since it abolished (state) Jim Crow laws, even though that law also outlaws discrimination in the private workplace on the basis of race, color, religion, sex, or national origin (see also this piece by Pilon). Also, as noted by Gene Healy in The 14th Amendment and the Perils of Libertarian Centralism,

In the Cato Handbook for the 105th Congress, Pilon declares that Congress has "often failed in its responsibility under the Fourteenth Amendment to police the states. Here is an area where federal regulation has been, if anything, too restrained." ... In that piece, and a June 18, 1996 Washington Post op-ed, Pilon argued that Congress has the power under Section Five to step in and protect basic individual rights when states "fail to secure them against private violations." Astute observers will note in that constitutional theory an opening wide enough for Congress to drive through a truckload of federal hate crimes laws. And in fact, in his Cato Handbook chapter [Sec. 3] and Post op-ed, Pilon declared that the Fourteenth Amendment would allow the passage of a particularly egregious hate crime law, the Church Arson Prevention Act of 1996. Congress passed the Church Arson Prevention Act in June 1996, in response to national furor over a purported wave of black church burnings in the South. In the Post and the Cato Handbook, Pilon chided Congress for relying on the Commerce Clause in enacting the anti-arson statute. Instead, he argued that Congress should have federalized the crime of church-burning pursuant to its authority under Section Five of the Fourteenth Amendment. "If the facts had warranted it," he wrote, Congress would have had "ample authority" under Section Five to pass the Church Arson Prevention Act.

I side here with the federalist view of libertarian Gene Healy, legal scholar Raoul Berger, and Thomas Jefferson.

Randians and One-World Government

I also mean some Randians, who seem to have a rosy view of America and American justice and our Constitutional system, and who also hold views that seem to logicaly imply one-world government (the ultimate in centralism), despite stating elsewhere that they oppose one-world government. Objectivists seem obsessed in rationalist-constructivist manner over the alleged need to have a "final arbiter" who can settle disputes (apparently, whether the final decision is right or wrong—so long as it's "final"), and have a their rabid opposition and hostility to anarchy because of the possibility of disputes between independent states.

If anarchy is flawed because of the problems of competing defense agencies who are not subject to the authority of a final arbiter, the Randian is logically committed to favoring an end to the current international anarchy of 200 nations not subject to a unified, "rational" government. Rand herself was explicitly against one world government, but the implications of Randians' hatred of anarchy and their arguments in this regard would seem to support increasing centralization wherever possible. See, e.g., the comments of my old friend, Objectivist Bob Bidinotto: here (my comment to which he was responding):

"For a government to operate legitimately, i. e., in accordance with individual rights, presupposes the existence of a supporting culture, one respectful of the philosophic premises at the base of the rule of law and individual liberty: reason, individual rights, constitutionally limited government. Today, such an Enlightenment-based cultural infrastructure may be possible at the level of single nations. But globally? A precondition of a legitimate one-world government would be the existence of a global culture endorsing these Enlightenment premises.
While that may be theoretically possible in the future, it certainly doesn't exist, and it's highly unlikely. And for us to endorse a "one-world government" in a world that rejects Enlightenment premises is suicidal. For all those reasons, the "final arbiter" of conflicts among Americans must remain within U. S. borders, at the federal level. Conflicts between us and those in foreign lands can be addressed, where possible, by treaties — but not treaties that undermine U. S. sovereignty and the rights of U. S. citizens."

Notice here Bidinotto speaks of the road blocks that prevent us from having one-world government. But he speaks of it as if it would be something that might be a good idea, if e.g. we had more universal respect around the world for "Enlightenment premises." See also Roderick Long's Bidinotto-Long debate on anarchism.

Libeling, Hysterical Opponents of Federalism

I also mean those libertarians libertarians who seem to have a virulent opposition to federalism and to equate advocates of federalism with defenders of slavery. This includes the likes of Tom Palmer and his ilk (see links in this post).

Coda: See also the following posts regarding federalism: Healy versus Bolick and the Institute for Justice; and my article on Kelo (discussed here).

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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