Federalism

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Is France justified in invading New York City to force the latter to get rid its rent control legislation? Would it be compatible with libertarianism for California to forcibly prevent the US government from imposing a draft on California citizens? The federal government physically attacks Mississippi in 1950 for its Jim Crow legislation; Mississippi resists. Which side does the libertarian root for? The U.S. (or the state of Louisiana, it matter not which) forces Canada to give up its Sunday shopping restrictions. Several Crips members physically prevent several members of the Bloods gang from raping an innocent woman. State policemen stop a robbery in progress. A member of the Murder Inc., on a busman’s holiday in the U.S. (or in Mexico), shoots down a member of the armed forces of that country who is in the act of kidnapping an innocent person. Brazil invades the U.S. because of the protective tariffs of the latter. Little Rhode Island (think The Mouse that Roared) forces the U.S. government to leave Iraq. How should the libertarian analyze these occurrences?

We take it as non-debatable within libertarian circles at least that the following are improper: rent control, a military draft, Jim Crow legislation, Sunday shopping restrictions, rape, robbery, kidnapping, tariffs and the U.S. intervention in Iraq. We also take it as non-debatable within (at least anarcho capitalist) libertarian circles that the following are also illegitimate: the governments of France, New York City, California, the U.S., Mississippi, Louisiana, Canada, the Crips, the Bloods, state policemen, Murder Inc. and the governments of Mexico, Brazil and Rhode Island.

Thus, in all these cases there is one illegitimate institution attacking another illegitimate institution. Further, in all instances mentioned above if the initiators of the violence, call them all, A, succeeds, and B, the recipients of it, fail, the world, all other things equal, will be a more libertarian place. That is, there will be less bad things (rent control, a military draft, Jim Crow legislation, Sunday shopping restrictions, rape, robbery, kidnapping, tariffs and U.S. imperialism) going on.

Thus, libertarians must favor all these incursions. It cannot be denied that most if not all of these incursions would be undertaken by groups that are themselves illegitimate. But, let us abstract from this issue, and focus solely on the act itself, and ignore the status of the person or group itself. Thus, we may readily concede that the Bloods and government of Louisiana are both illegitimate institutions. Both engage in robbery on a massive scale (the latter far more than the former). Yet, in the specific instance mentioned above, both are doing good works. The Bloods stops a rape, and the state of Louisiana ends Canadian restrictions on Sunday shopping. If we focus narrowly on these two acts alone, it is difficult to see why the libertarian should oppose them.

On the other hand, and there most certainly is an "other hand" in the matter, the crucial supposition "all other things equal" certainly does not hold true. Rather, were all these incursions to take place, this would be a recipe for unjustified violence on a truly monumental scale. This scenario would imply mayhem; chaos on a scale never before even contemplated. Think the U.S. war on Iraq, multiplied, say, one million fold. Were this scenario ever to occur, it might really mean the end of virtually the entire world, with all or almost all of the entire world’s population being consumed in the conflagration. We take it that this too is incompatible with libertarianism.

Governments, in particular, are truly vicious organizations. It is bad enough that they continually maul their own citizens. At least let us strive to keep them confined to their own territories. For when each poaches on that of the others, rights violations are multiplied enormously.

So what is going on here? Do we libertarians side with the federalist centralizers, or the anti federalist de-centralizers? Well, neither or both. The point is, these two groups are speaking past each other. Some are focusing on one crucial element of the situation, their own, and ignoring the insights of the other.

Is France justified in invading New York City and thereby ending its rent control? Well, the government of New York City would seem to have little ground for complaint, and the liberated victims would surely not complain. New York’s housing regulation has done all sorts of harm not only to landlords, but also to tenants. This is true in the short run, and if nothing else changes. On the other hand, any such act on the part of the French will inevitably set up a chain reaction leading to horrendous conclusions, even apart from the precedents set up by any such move.

Henry Hazlitt in his Economics in One Lesson tells us: "The art of economics consists in looking not merely at the immediate but at the longer effects of any act or policy; it consists in tracing the consequences of that policy not merely for one group but for all groups." No words could be truer of the present case.

In the immediate short run, the federalist centralizers are indeed correct. Saddam was indeed a bad man, and if the U.S. invasion of Iraq could be confined to the one element, with no "collateral damage" and no precedents set up by it, such an act would be undoubtedly libertarian. (Again, we are ignoring, arguendo, the fact that the U.S. army is financed in a manner incompatible with libertarianism.) When Brazil assaults the U.S. and forces it to give up its protective tariffs, this, too, promotes freedom, in the short run. Interferences with trade are quintessentially unlibertarian.

But when we take into account the implications of these deeds that are good in the short run and from a narrow perspective, it is difficult to see how they can be reconciled with libertarianism. The anti-federalist de-centralizers would have to get the nod from this point of view.

So which is the correct perspective from which to look at these events? The long run or the short run? Unfortunately, economics vouchsafes us no answer to this perplexing question. It is all a matter of time preference, which, as Austrian economics teaches us, is inherently a subjective matter.

Notice, no mention was made, above, of the U.S. or any other constitution. This is because, along with Spooner, we regard this document as of "no authority."

But this is hardly the end of the matter. There is more to be considered, much more.

First, if France invades New York City to stop rent control, as a practically inevitable matter, France would necessarily be killing innocent New York City civilians too. The French cannot just attack the New York City government. Also, France would necessarily aggress against its own citizens to attack New York City, by taxing and/or conscripting them. 

Secondly, the real question at issue is this: If a dangerous state is already set up, but which claims to derive its authority from a document that grants it powers, but also limits them, then is it useful, from the libertarian point of view, to try to hold them to this document, that is, to try to keep them within the limits even the state admits it is bound by?

We believe it is imminently sensible and libertarian to tell such a government — “Hey, waitasec — you yourself said you are only permitted to do A, B, and C, and that you cannot do X, Y, and Z — and here you are doing X, so you had better start playing by your own rules.”  In other words, the federal government purports to be defined by the Constitution. The Constitution, illicit as it is, as written would not permit it to force one of the states to drop its rent controls (for example). So if we as libertarians advocate that the federal government engage in an unconstitutional action to force New York to drop its rent controls because that result is a libertarian one, the immediate and accompanying cost is that we are advocating the principle that the feds can disregard the Constitution. That means we are advocating getting rid of one of the few institutional features that as a practical matter does put some limits on the central state.

Think of it like this: you have a dangerous dragon chained to a mountain. You want him to attack a roving gang of bandits, but to do this, you have to unchain him. So you unchain this monster, and he flies up and attacks the bandits, killing a couple of them. But to keep the analogy accurate, only some of the bandits are killed, not all of them, since the state is notoriously inefficient. We would say this is a good thing, for the dragon to have killed some of the bandits.

But is it a good thing to unchain such a beast? The acts are intertwined. Both the means, and the ends, of the action must be libertarian. The end (killing bandits) is libertarian, but is the means, unleashing a dangerous monster? Likewise with the federal government: the end nullifying New York’s rent control laws, etc, is good, but the means chosen, loosening the restrictions on a monster, is clearly unlibertarian. And here we dovetail back to the point about considering the short run vs. the long run, which is analogous to the choice between means and ends. 

Thirdly, libertarians in our view ought to be honest and above board. Whatever our views are of what would be a more libertarian system or situation, honesty and integrity calls for us to accurately identify our current system. If it is obviously libertarian for the feds to nullify a New York rent control law, the honest libertarian would then simply have to say he is glad of the result, glad the Supreme Court did what it did, even though it is not constitutional. It is dishonest in our view to come up with twisted makeweight arguments that the action you prefer just happens to be constitutional. It is just too much of a coincidence that when the centralist libertarians like a result of a given federal action, it just happens to be squared with the Constitution. It would be better to simply admit that the federal action is unconstitutional but then say “so what." 

Fourth: while as wertfrei economists we might not be able to choose between short and long run preference, as humans with values, and as libertarians, we think we can say that it is sensible to give the long run at least some weight. One does not want liberty for 15 minutes only.

One last thought: If a Constitutional Convention were in session as we speak, and a bunch of uppity Franklins and Madisons were planning a new government, should a libertarian be in favor of the new central state having limited/enumerated powers? Of course, it would be understood that if the new central state has only enumerated powers, in some cases it will be unable to intervene to stop the constituent states from engaging in certain unlibertarian practices. We would definitely favor such a structure — to enumerate the new central state’s power and limit it to only those powers. The alternative is for the new central government to have unlimited powers. What libertarian could be in favor of setting up an unlimited government? So we would choose, and be in favor of limiting that government’s powers, even if it meant that later on, it would have diminished ability to stop the constituent states from doing bad things.

And this holds true even if, in the future, we would try to get the central government to violate its constitutional limitations for the sake of liberty in a particular situation. The fact that we would adopt a more ad hoc or results-oriented approach on a case-by-case basis does not mean we oppose having limits as a general principle.

Washington D.C. stops New York City’s rent control, and ends New York State’s wine tariffs. Looked at in isolation, this sounds pretty good to libertarian ears. But from a deeper perspective, looking at the long run implications, such acts are highly problematic.

Dr. Block [send him mail] is a professor of economics at Loyola University New Orleans. His website is WalterBlock.com. Stephan Kinsella [send him mail] is an attorney in Houston. His website is StephanKinsella.com.

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