by Robert Wicks on February 8, 2012 @ 8:27 am · 3 comments
in History, Immigration, Legal System, Libertarian Theory, Police Statism, Political Correctness, Racism, Statism, Taxation, The Left, The Right, Vulgar Politics
Many libertarians, perhaps most notably Thomas E. Woods, support the decentralization of power from the federal government, including the power of nullification. Many people fear and denounce this power, often because they like the immense power of the central state and are supporters of big government. There are, however, some very real concerns by people who desire freedom as their highest political goal. A simple question, which is asked in various forms is “if decentralization leads to more freedom, why did African slavery thrive in a more decentralized America, and only go away (well, sort of) when the central state forced it to go away?” Similar statements could be said of Jim Crow.
Tom Woods briefly addresses a critical point which bears emphasis: a major problem with decentralization is that decentralizing power may have huge negative effects for people who cannot vote. The very people who are most obsessed with them not having political power are the people who are most empowered by the receding power of the central state. This points to the people that libertarian activists should concentrate on protecting: non-citizens (including both legal and illegal immigrants) and convicted felons in states which strip them of the franchise. As most minorities have the ability to exercise the vote, the greatest evils of the past have no chance of being repeated. And some unprecedented benefits may come about. Without the significant support of the federal government, individual states could not maintain the murderous drug war at the levels at which it is currently prosecuted. Family and morals-destroying welfare programs would have to be greatly scaled back without the ability to print money. Taxes would have to be levied to pay for these things, forcing citizens to carefully evaluate just how much they wish to impoverish themselves in the attempt to eradicate various victimless crimes.
The benefits don’t end there. Freedom would be catching in this country for several reasons. Our national myths support the value of freedom. The proximity of states and the freedom of movement among them, in the face of massive differences in the amount of liberty inside them, would mean that the most inventive, industrious people would tend to leave less free areas and go to more free ones. This would impoverish the most oppressive states, further pressuring them to liberate. Perhaps the single most important factor which would allow liberty to really catch in the United States is that the US military would not be looking to crush these efforts, as it does in other countries. If liberty is to be permitted by any government, it is likely that it will have to be permitted in the USA, as the American government is among the world’s most fervent supporters of foisting government on people, whether they like it or not, in the name of “stability.”
Just a couple days ago the New York City council voted to ban the practice by sanitation workers to sticker the window of vehicles that were violating the alternate-side street cleaning rules. Whilst the vehicle’s owner would still receive a parking violation fine, they are no longer allowed to punish drivers by defacing their vehicles with the hard-to-remove stickers. While I find the ban agreeable, I have a bone to pick with the general legislative approach.
One of the problems with positive law is that the mindset it encourages is antithetical to what should otherwise be a presumptive prohibition of aggression and the security of both property and personal liberties. Unlike the “negative” rights of common law, the legislative process of positive law will all too often err and enshrine legal principles that are unjust. This is not to say that legislators do not get it right sometimes– for example laws that prohibit murder, theft and fraud are all [potentially] perfectly just laws.
With a positive law mindset, actions that are not yet defined in the statutes lie in a grey area neither prohibited nor permitted “under the law”. And later, if ever, when the statutes are codified, the result could be in having laws that don’t prohibit or permit enough, or in fact laws that prohibit or permit too much. This is a problem inherent to a process that tries to encapsulate the entire range of possible actions and to explicitly codify them into the written law.
The presumptions now change- anything not explicitly forbidden is arguably permissible. Actions which are now prohibited lie beyond the reach of justice if they were carried out before the law was passed under the legal principle ex post facto. Of course it doesn’t necessarily have to be this way– laws that forbids theft and injury could already be understood to include all forms of theft, damage and injury without the codification of specific actions, i.e. “killing with a knife in the right hand using a stabbing motion”. What the positivist mindset encourages is the tendency to look at the codified word as the source of justice, so that one could then hair-split it so that the actual action is not specified and thereby not prohibited.
That said, property defacement should be considered a forbidden action (regardless of the actual codified law) and therefore there was no actual need for a specific law to ban the stickering practice. Instead the government could have enforced the already existing laws against property defacement to stop this punitive, vindictive crime.
In the Winter 2012 Independent Review, I review David Bernstein’s Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Here’s how it starts:
Few Supreme Court cases receive more scorn in U.S. law schools than Lochner v. New York (198 U.S. 45), the 1905 decision that struck down a New York law limiting the number of hours that bakers could work as a violation of the Fourteenth Amendment’s Due Process Clause. It’s safe to say that most legal academics and judges today believe that the Lochner Court engaged in extraordinarily outrageous “judicial activism” motivated by a devotion to extreme libertarian ideology, big business, or both.
In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, George Mason University law professor David Bernstein makes the case that the conventional view is wrong. He provides persuasive evidence that Lochner does not deserve to be singled out as an especially activist or offensive case and that Lochner‘s Progressive critics were the real activists with a much more disturbing agenda.
Read the rest.
