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

Tags Big GovernmentInterventionism

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.


Stephan Kinsella

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