Positive Liberty

Stephan Kinsella once again fails to respond to my invitation to explain how Thomas Jefferson could have favored secession when we know from his writings that he believed the Congress even under the Articles of Confederation was authorized to coerce states. Not only does Kinsella not respond to this point, but he even implies that James Madison would have supported his view of the Constitution! Is it any wonder that I accuse this man of dishonesty?

Kinsella thinks that I call him dishonest “because I have a substantive disagreement with him.” Well, no, Mr. Kinsella; I call you dishonest because you continue to claim that Jefferson would have favored secession, when we have good reason to believe the opposite, and because you fail to acknowledge this fact while continuing to cite Jefferson. And you’ve compounded this with the even greater dishonesty of suggesting that Madison (a far greater constitutional thinker even than Jefferson) supports your view that the Constitution is a league of sovereign states—when in reality Madison was probably the most outspoken opponent of that view before the Civil War. Since you insistently and angrily argue for something that is unambiguously false, and continue to ignore my repeated demonstrations of its falsehood, you can only be arguing from ignorance or dishonesty. At first, I thought it was the former. You have proven it to be the latter. If I am so obviously wrong, why not just put up a blog post to show that I’m wrong? Shouldn’t take that much time if I’m just a silly twit. And yet you don’t do it.

Now, in the same blog post in which he criticizes me for “trust[ing] the constitutional policy analyses of ‘neutral’, mainstream, modern law professors more than those of, oh, I don’t know, Thomas Jefferson or James Madison,” Kinsella quotes a neutral, mainsteam modern law professor, Ian Brownlie—not an American or an expert on American constitutional law—to support his contention that the Constitution is a league among sovereign states. Brownlie writes that the relation between states and the federal government have some characteristics of international bodies, because the federal government “originated as a union of independent states.” But, of course, we know from the Federalist (those of us who have read it, that is) the Constitution is neither wholly (con-)federal nor wholly national. It is true that states may enter into agreements with other nations, with the federal government’s consent. Were the states sovereign, of course, they would not need Congressional consent; they would be free to make agreements with foreign nations on their own. But, as Rufus King explained at the Philadelphia Convention in 1787, the states lacked this essential element of sovereignty even before the Constitution was written:

The states were not “sovereigns” in the sense contended for by some. They did not possess the peculiar features of sovereignty,—they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war…. If the states, therefore, retained some portion of their sovereignty [after declaring independence], they had certainly divested themselves of essential portions of it.

Madison later echoed this thought:

What can be more preposterous than to say that the States as united, are in no respect or degree, a Nation, which implies sovereignty, altho’ acknowledged to be such by all other Nations & Sovereigns, and maintaining with them, all the international relations, of war & peace, treaties, commerce, &c, and, on the other hand and at the same time, to say that the States separately are compleatly nations & sovereigns, although they can separately neither speak nor harken to any other nation, nor maintain with it any of the international relations whatever and would be disowned as Nations if presenting themselves in that character.

(emphasis mine). In fact, while the document was being considered for ratification, Hamilton made the point even clearer:

There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty…depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations…. In the early part of the [eighteenth] century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized…. [T]hey were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated….

But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens,—the only proper objects of government.

If Brownlie or any other modern, mainsteam, foreign law professor believes that the federal union is an organization of essentially independent states, then he is as clearly wrong as Kinsella. But Kinsella—who complains that I rely on modern law professors rather than on Madison and his contemporaries—remains silent as to the meaning of statements like these from Madison and his contemporaries, and relies instead on an implication from a 20th century text, not about constitutional law, written by a moderate, modern law professor in England.

Kinsella also tries to cover for the dishonesty of others, writing that “it was DiLorenzo who told me about [Napolitano’s] reliance on his work, and knew I was going to blog it. He was not hiding it!” Um, then why didn’t DiLorenzo mention it? The charge, after all, is that it violates the standards common among book reviewers, to praise a book that relies largely on one’s own work without mentioning that fact. That DiLorenzo mentioned it to Kinsella, expecting Kinsella to mention it, hardly absolves DiLorenzo of this latest irregularity.

In my article, “How Libertarians Ought To Think About The U.S. Civil War,” I contend that the notion of a right to secede—that is, of a state unilaterally to remove itself from the union without doing violence to the Constitution—must be distinguished from the right of revolution—the right of any people to throw off government which has become oppressive. I explain, then, that the former is an illusion, based on erroneous readings of the Constitution like Kinsella’s—while the latter is a retained right under the Constitution, but was not properly exercised in 1861. I could not be clearer about this argument. But it’s too much for Kinsella’s brain. He writes, “As far as I can tell, he attaches great significance to the difference between saying there is a right to revolultion [sic], and a right to secede.” Very good, Mr. Kinsella. What tipped you off? Perhaps it was in the first page of my article, where I write, “[i]t is essential to keep in mind the distinction between secession and revolution.” You are a scrupulous reader, ain’tchya?

But Kinsella claims to have “utterly demolished” my argument in this 2003 article. In that article, Kinsella describes my contentions, and then adds the following—and this is the entirety of his “utter demolition” of my argument:

slavery is completely irrelevant to Sandefur’s argument. Here’s why. Sandefur repeatedly states that legitimate revolution is one that is in response to invasions of rights by the federal government. As he writes, “revolution is justified only as a form of self-defense against rulers who have engaged in a train of abuses and usurpations against those individual rights which just governments protect. This alone distinguishes an act of revolution from a mere criminal conspiracy.”

According to this theory, even if none of the United States had had slavery in 1861, it would still have been a “mere criminal conspiracy” for the South to secede, without permission from Congress. This is because the South, according to Sandefur, would not have been “able to point to a long train of abuses pursuing the design of reducing them to despotism”. In other words, even if slavery had already been abolished, the Union would be justified in using armed force to subdue a seceding State, unless the State was engaged in “revolution” in response to acts of “despotism” by the Union.

Sandefur’s real position is that, barring acts of despotism by the central government, it may legitimately use armed force to prevent the secession of its States.

As I told Kinsella at the time he wrote this article, this is half right. Slavery is irrelevant to the question of secession, which is illegitimate in all cases; but it is absolutely essential to the question of revolution. In cases of despotism by the federal government, it is the right of the people to alter or abolish that government and institute new government. This would be revolution. Since there is no constitutional right of secession, a state may not leave the union unilaterally; the people may, however, engage in an act of revolution against the federal government whenever (as the Declaration says) a long train of abuses evinces a design to reduce them under absolute despotism.

Revolution (being an act of force) is justified only as an act of self-defense. Thus, only in self-defense could the people of a state legitimately seek to throw off the power of the federal government by force. Otherwise, we would find ourselves arguing that states (i.e., collectives) could legitimately initiate force whenever they wanted, even in defense of their policy of initiating force. And nothing could be more obviously contrary to the basic libertarian principle of non-initiation of force. Yet this is precisely what the Confederacy did in 1861, and it is precisely what Kinsella is defending. Yet he accuses me being a false libertarian.

Just where does Kinsella believe himself to have “utterly demolished” my argument? Evidently in this sentence: “[t]his view would find even fewer libertarian adherents which is, I venture, the reason why he focuses on the evil of slavery – to mask the true implications of his theory.” That must be it, because nowhere else in his article does he even attempt to respond to my argument. Yet this sentence is, at best, the fallacy of “Appeal to Consequences,” merely one beast in his large managerie of illogical arguments. Yes, Mr. Kinsella, this is what I argue. Now, kindly explain to the good folks where I am wrong. Oh, I forgot, it’s not worth your time to respond to a twit like me.

Of course, the only thing that exceeds Kinsella’s capacity for illogical “thinking” is his capacity for hypocrisy. On top of attacking me for relying on modern day law professors—while he himself relies on modern day law professors—and criticizing me for not relying on the works of Madison and his contemporaries—when Madison and his contemporaries are almost uniform in their opposition to Kinsella’s own theory—and on top of calling me a false libertarian—when he defends the right of collectives to enslave their citizens and initiate force against others so as to keep doing so—Kinsella then claims that my blog post “is devoid of substance,” and that I engage in “name-calling and ad hominem, and whining….” This from a man who has taken to calling me “Little Timmy,” a “faux-libertarian Lincoln idolator” a “lover of centralism,” “bizarre,” “smug,” a “self-important twit” who is “not…worth responding to,” and so forth! Oh, consistency, thou art indeed a jewel!

Again, I invite readers who are interested in the truth—instead of watching Kinsella’s childish little fits—to read my article, and decide for themselves whether Kinsella and his fellow Stooges have refuted it.

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