Against Libertarian Centralism

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This
letter, from libertarian legal scholar Healy, responding to attacks
on his position, was published in the February 2000 edition of Ideas
on Liberty
.

Clint
Bolick begins by trotting out the states-don't-have-rights-states-have-powers
straw man from his 1993 book Grassroots
Tyranny
. (John McClaughry apparently also found the phrase
irresistible and irrefutable.) But here Bolick confuses natural
rights, and legal rights. No oneu2014no libertarian, at leastu2014who speaks
of a violation of "states' rights," thereby seeks to ascribe
natural rights to an artificial, noncognizant entity like a state.
When a libertarian decentralist calls a federal action a violation
of "states' rights," he means that the federal government
has transgressed its enumerated powers and is claiming jurisdiction
over an area that the Constitution reserves to the states. In a
similar fashion, we can speak of Nato's lawless assertion of jurisdiction
over a civil war in Yugoslavia as a violation of Yugoslav "sovereignty,"
without thereby conceding to Slobodan Milosevic's government a god-given
natural right to kill Kosovar Albanians. I'm curious, would Bolick
and McClaughry respond to critics of Nato's cluster-bomb humanitarianism
with "states aren't sovereign, only individuals are sovereign"?

Bolick
suggests that the idea of states' rights has always been anathema
to libertarians. Not so. Libertarian decentralists can draw on a
host of classical-liberal thinkers who embraced divided sovereignty
and viewed centralization in the name of liberty with intense skepticism.
Among them: Thomas
Jefferson, Lord Acton, Albert Jay Nock, and Felix Morley. In fact,
Bolick must know that "states' rights libertarianism"
is not oxymoronic, because he is familiar with Felix Morley's work.
In Grassroots Tyranny, Bolick repeatedly cites Morely's classic
Freedom
and Federalism
despite Morley's
embrace of states' rights and wholesale rejection of Fourteenth
Amendment activism. (Morley, who viewed Thad Stevens as an American
Robespierre, would also have taken issue with Bolick's belief that
the pro-tax, high-tariff, corporate statists in the Radical Republican
junta constituted the "most libertarian Congress in history.")

As
for John Calhoun, Murray Rothbardu2014who after all knew a thing or
two about libertarianismu2014would have been bemused by Bolick's notion
that Calhoun was far too politically incorrect to be of service
to libertarians. Rothbard called Calhoun "one of America's
most brilliant political theorists," and quoted him at length
in For
A New Liberty
.

If
Bolick wants his position on libertarianism and federalism to remain
the party line, then when that position is challenged, he ought
to respond with something more than a few sound bites and a dismissive
tone. He ought to make an argument or two.

To
his credit, Roger Pilon has made an extended argument on behalf
of a strong Fourteenth Amendment, in which he grapples with some
of the tough issues that position presents. Pilon's argument, and
my response thereto, will appear in a forthcoming issue of Liberty
magazine.

In
his letter to The Freeman: Ideas on Liberty, Pilon objects
to my use of the term "libertarian centralism." I remain
comfortable with characterizing Pilon's position in that fashion.
The interpretation that Pilon gives to the Fourteenth and Ninth
Amendments confers federal jurisdiction over each and every rights
violation committed at any level of government, whether it be a
municipal recycling program or a local zoning ordinance. If this
isn't centralism, the word has no meaning.

Political
power being what it is, centralism in the name of liberty is quite
unlikely to lead to liberty. Far too much of Roger Pilon's argument
for a strong Fourteenth Amendment rests on the words "properly
understood."

But
properly understood, the Commerce Clause, to take one example, merely
eliminates interstate trade barriersu2014it provides no justification
for the mammoth administrative state erected in its name. Nonetheless,
any antifederalist transported to late-twentieth century America
would consider himself vindicated on seeing what centralism in the
name of liberty has wrought.

Murray
Rothbard well understood the fragility of parchment barriers to
state power. In For A New Liberty he wrote of "the inherent
tendency of a State to break through the limits of its written Constitution."
Rothbard quoted none other than John Calhoun to make the point:
"it is a great mistake to suppose that the mere insertion of
provisions to restrict and limit the powers of the government…will
be sufficient to prevent the major and dominant party from abusing
its powers."

Pilon
sees in the Fourteenth Amendment an effective check on such abuses.
I see it as a source of further abuses. Collectivists in Congress
and on the federal bench will seize on the expansive construction
of the amendment Pilon urges to subvert the very liberties he seeks
to secure. In so doing, they are unlikely to be restrained by what
Pilon views as the proper understanding of the amendment.

Fragmentation
of political power, evenu2014perhaps especiallyu2014when such power is invoked
in the service of our natural rights, is a surer guarantor of liberty
than the goodwill of federal legislators and judges. I'd have thought
that this was a respectable position for a libertarian to take.
But if, as Bolick and McClaughry suggest, this be heresyu2014then make
the most of it.

Gene
Healy is an attorney practicing in Northern Virginia.

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