This subject often gets heated. I know I’m at least as guilty as anyone else for that. The subject raises passions because it touches a lot of buttons: race, injustice, freedom, the Constitution, history, tradition—I get that. Moreover, I also once believed that secession was legally justified. I thought slavery was evil, of course; that much is obvious. But I had read the Kentucky Resolutions, and that persuaded me that the Constitution is basically a treaty among sovereign states, who retain the right to leave the union if they want. It’s like a club, right? If you’re in a club, and you decide to leave the club, you should be free to go—even if you choose to do that for an immoral reason, right? That, at least, was how that Ted Turner movie put it....
I know first-hand how plausible the secession argument appears to be. I understand where you’re coming from. I know how non-libertarians typically don’t really see the issues you’re talking about, and aren’t really interested in the values you’re concerned with, and often just throw around accusations of racism and so forth. But I for one am convinced that libertarians must think about these issues with greater depth. And I am confident that if you will study them, and question what you’ve been told by some loud, but not particularly scholarly, writers, you’ll come to agree with me. Please at least read what our side has to say. If the secession argument is that strong, then it should be able to withstand that kind of scrutiny, right? I beseech you, in the bowels of Christ, think it possible you may be mistaken.
Readers of Freespace know that I am amongthe mostoutspoken critics of that wing of the libertariancommunity. But what deserves emphasis here is that libertarians have a far stronger claim to the legacy of the antislavery movement than either liberals or conservatives today. As I argue in The Conscience of The Constitution, libertarians are the inheritors of the political philosophy that eradicated slavery and put the kibosh on the authoritarian dogma of “states rights.” It’s a heritage libertarians ought to celebrate.
When people think of abolitionism today, they typically think of the anti-constitutional radicals like William Lloyd Garrison. Garrison was, indeed, a brave and eloquent man, a great American defender of liberty who railed on the profound immorality of slavery and was heard, as he said he’d be. But even more important than Garrison were the pro-constitutional abolitionists, more properly called the antislavery constitutionalists, who argued that pro-slavery forces were perverting the Constitution to their own ends. Beginning with John Quincy Adams, and including people like Charles Sumner, Salmon Chase, William Seward, Frederick Douglass, Joel Tiffany, Lysander Spooner, and, of course, Abraham Lincoln, these men articulated a constitutional theory that began with the presumption that all people are entitled to liberty. They interpreted the Constitution in light of the principles of the Declaration of Independence—which pro-slavery forces denounced.
The antislavery constitutional theory had two primary elements. First, Americans are citizens of the nation first, and only secondarily of a state. Second, American citizenship brings with it protections for natural rights, constitutional rights, and the rights of the Anglo-American common law. These rights—the “privileges and immunities” of American citizenship—could not be justly abridged by any state.
The reason that national citizenship took priority was because the Declaration was the basic foundation document of the American nation. It not only made the nation a sovereign entity, but it limited that sovereignty in light of the natural rights of all mankind. That was the argument of Adams’ epochal work, The Jubilee of the Constitution. His followers would advance this interpretation of the Constitution in courts and legislatures over the next thirty years. When at last a President was elected who believed in these principles, and who articulated a plan to end slavery peacefully and gradually, southern states chose to start a war—to initiate force—rather than to allow slavery to be peacefully ended.
They did so on the basis of quintessentially anti-libertarian principles. Defenders of slavery held that states are sovereign—not on account of the consent of the governed, but because they are fundamentally sovereign entities—and that states have the legitimate authority to give or withhold “rights” (i.e., privileges) to the people. Slavery’s defenders ridiculed the principles of the Declaration, denied the existence of an American nation, demanded greater federal subsidization for slavery, insisted on a new Fugitive Slave Act and a national slave code that would have transformed the nation into a police state—and, indeed, ran their own states as proto-totalitarian societies. Pro-slavery ideology was communitarian, traditionalist, positivist, gradualist, and anti-Enlightenment.
It was antislavery radicals—Garrisonians at first, and then those who would found the Republican Party—who put an end to all this. Their greatest triumph came with the ratification of the Fourteenth Amendment, which, they hoped, would forever put the “states rights” heresy to rest. National freedom, and federal protection for the natural rights, constitutional rights, and common law rights of all Americans, would be every American’s birthright. And no state government could claim any legitimate authority to trample on these individual rights in the name of collectivist principles of autonomy. The purported “right” of states to tyrannize over individuals would come, they hoped, to an end.
Yes, that triumph was betrayed. But that fact doesn’t lessen the triumph. And it doesn’t tarnish the libertarian heritage and its roots in the antislavery movement.
Conservatives, of course, fought in the years that followed to undo that achievement, by undermining Reconstruction and restoring state autonomy—and reinstituting slavery by another name. These conservatives were initially grouped within the Democratic Party. Republicans, meantime, lost much of their enthusiasm for protecting civil rights in the south. By the end of the century, both parties would become infatuated with the rising tide of Progressive political thought, which rejected the idea of natural rights entirely, and embraced the idea that rights are just privileges government can grant or withhold at will. Although the 1960s would bring important qualifications and realignments, this still remains largely true. The intellectual leadership of both conservative and liberal ideologies hold that government is presumptively sovereign, and that individual rights are permissions granted to individuals to suit the needs of society—more or less the same view held by those who resisted the abolition movement in the years leading up to the war. Today, liberals and conservatives agree on one thing, whatever their differences: individual freedom is a gift the government gives people, when and how the collective decides to do so.
That, of course, is just what the antislavery movement fought against—and what today’s libertarians still combat.
I think it’s a shame that many people have been confused by the arguments of the neo-Confederates at the Mises Institute, and people like Ron Paul. It is my hope that people will come to understand not only that those arguments are false and dangerous—and not only that libertarians are the champions, and not the enemies, of equal rights for all—but that libertarianism rightly understood is the true inheritor of the antislavery legacy.
IPAB is an agency created by Obamacare to regulate Medicare reimbursement rates. This group of bureaucrats is required by the statute to promulgate “recommendations” as to how to reduce Medicare costs—except that those “recommendations” go into effect automatically, without Congressional or Presidential approval. On the contrary, the law specifically forbids Congress or the President from altering these “recommendations” (except in one limited sense: Congress can replace those “recommendations” with new ones, so long as they achieve the same reductions as the originals.) And Obamacare even attempts to make IPAB immune to repeal. It allows Congress to abolish the agency only by passing a joint resolution during a narrow one-month window in 2017—and that resolution must receive the most extreme supermajority ever required in American law. Courts are prohibited from reviewing IPAB’s actions, also. In short, IPAB is an autonomous lawmaking body that operates without Presidential, Congressional, or Judicial checks or balances.*
Given its extreme degree of independence from popular control, it’s not surprising that opponents of the law labeled IPAB a “death panel.” The law’s defenders called that an exaggeration because the law expressly forbids IPAB from “rationing care.” But the law also doesn’t define what “rationing care” means—and since IPAB’s actions are immune from judicial review, it’s hard to see how courts could stop it from doing so.
Laws are not commands; however, we need not go into their differences here. For both laws and commands presuppose a conception foreign to low morality: that of an external authority capable of imposing a sanction for noncompliance. Commands (from individuals) and laws (from legislatures) are speech acts that are infelicitous unless the utterer is a person (natural or corporate) invested with competent authority to initiate punishment for disobeidence. Further, commander and subordinate, lawgiver and subject, are distinct persons.
None of these features holds in the relation between morality and the moral person, unless metaphorically. The requirement of low morality is not experienced as imposed from without, much less as expressing the will of an external authority. It is more analogous to aesthetic judgment. Guilt or remorse does not feel like the consequence of having disobeyed an authority or of having failed to carry out a command; it is, rather, self-loathing for not living up to the model of humanity that one has put before oneself. This at any rate is how Aristotle and Spinoza looked at the matter, though not how Saint Paul and Saint Augustine did.
But not only does the concept of command involve these three notions—authority, penalty, and externality that are foreign to low morality; it is also the case that command lacks the basic moral character of normativity. Anything that is possible to do can be commanded, and its being good, bad, indifferent, virtuous, or wicked has no effect on its status as command. To equate moral rules to commands is therefore to remove their normative halo. It can then be put back only as Thomas Hobbes did, via the implausible and ad hoc doctrine of “might makes right.”
Wallace Matson, Grand Theories And Everyday Beliefs 188-189 (2011).
Some years ago, Raleigh started a moving business in Lexington called Wildcat Moving. What he didn’t know was that if you want to start a moving company in Kentucky, the law requires you to basically get permission from all of the state’s existing moving companies.
I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era.There's one aspect of this story that I didn't have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate.
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.