Positive Liberty

Amusingly, three of the leading Doughface Libertarians at the Lew Rockwell blog have taken time to comment on (without linking to) my recent mention of their various errors in Constitutional interpretation. Let’s take them one at a time.

First up is Thomas DiLorenzo, who says that I lie about his work. Well, here’s what I said. I said that DiLorenzo published a review of Andrew Napolitano’s Constitution in Exile without mentioning that DiLorenzo’s work is heavily relied upon by Napolitano. This is considered improper among people who write book reviews, and for good reason. Now, in my post, I wrote that DiLorenzo’s writings were “almost the exclusive foundation for the book under review.” Now, I should have said “for the relevant chapter in the book under review,” because, as DiLorenzo rightly claims, it is only the chapter on secession that relies almost exclusively on DiLorenzo’s amateurish and misleading work. This was a mistake on my part, although a completely irrelevant one, since this is the chapter relating to the subject at hand (and the one DiLorenzo calls “the most brilliant chapter”). DiLorenzo, by contrast, purposely failed to acknowledge that the book he was praising so highly relies heavily on his own work, and therefore that he was essentially applauding himself in the face of the public—something that, again, is considered improper among book reviewers, without at least a disclaimer. That, after being called on this stunt, DiLorenzo would then call me a “lying little twit” is simply ridiculous. But it is unfortunately, not unusual for DiLorenzo, who is well known to make fast and loose with the truth when doing so suits his bombast.

Second comes Thomas Woods, author of The Politically Incorrect Guide to American History, who argues against my contention that the Constitution is not a league among sovereign states. I make this argument (among other places) in my recent Reason Papers article, and back it up with citation after citation and example after example, among which is the following exchange which occurred at the Virginia Ratification Convention:

Patrick Henry: “Who authorized [the Constitutional Convention] to speak the language of We the people, instead of We, the States? States are the characteristics, and the soul of a confederation”

James Madison: “Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large. In this particular respect, the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people…. Thus [the Constitution] is of a complicated nature; and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”

(If Dr. Woods would like to look this up, he can find it at 2 B. Bailyn, Debate on The Constitution 596-619 (1993) (emphasis added)).

Yet, ignoring incidents like these, Dr. Woods writes that the “Federalists—that’s right, Tim, [the] FEDERALISTS” convinced “the entire Virginia ratifying convention,” that the Constitution was “precisely a LEAGUE AMONG STATES.” He provides no citation, no quotation, no evidence whatsoever to support this foolishly unqualified, not to mention wholly untrue, claim. This is, alas, all too common with Dr. Woods, for whom evidence has never mattered very much.

He then goes on to claim that Virginia reserved a power to secede “if anything more than what [Virginia] expressly delegated to the federal government were attempted to be exercised.” Of course, Virginia never delegated any powers to the federal government; the people of Virginia chose to delegate some of their power to the federal government, and other power to the state government. This may seem a subtle distinction, but it is an essential one. As the The Federalist (that’s right, Tom, The FEDERALIST) tells us, the Constitution was written precisely to end “[t]he great and radical vice in the construction of the [Articles of] Confederation,” which was “the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist.” The Constitution was therefore not created by the states or ratified by state legislatures, but was ratified by the people in special conventions, to be binding on and derived from, the people, and not the states.

But let’s assume that Woods is right; that there is such a thing as a conditional ratification (which there isn’t), and that Virginia had the right to secede if the feds exceeded their powers (which it doesn’t). Now the question is, what act on the part of the federal government exceeded these bounds in 1861? According to the seceding states, the answer was, the threat to prohibit the extension of slavery into the western territories—a power which the federal government undeniably possessed under the Constitution. So, even under Woods’ faulty constitutional theory, the claimed right to secede was invalid.

It’s amusing to see Woods reaching for, of all things, a secondary source making claims about the (notoriously waffling) views of Edmund Randolph, and ignoring the views of James Madison, Alexander Hamilton, James Wilson, and many others, including the anti-federalists (yes, Tom, the ANTI-FEDERALISTS) whom I quote in my Reason Papers article. What did the anti-federalists say?

“[s]uch is the anxiety manifested by the framers of the proposed constitution, for the utter extinction of the state sovereignties, that they were not content with taking from them every attribute of sovereignty, but would not leave them even the name.—Therefore, in the very commencement they prescribe this remarkable declaration—We the People of the United States” (1 Bailyn at 118-19).

“when the people [of each state] shall adopt the proposed…it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States…” (1 Bailyn at 275).

“if it is ratified, [it] will not be a compact entered into by the States, in their corporate capacities, but an agreement of the people of the United States as one great body politic…. It is to be observed, it is not a union of states or bodies corporate; had this been the case the existence of the state governments might have been secured. But it is a union of the people of the United States considered as one body, who are to ratify this constitution, if it is adopted” (4 P. Kurland & R. Lerner eds., The Founders’ Constitution 237 (1987)).

If even the anti-federalists understood the Constitution as a Constitution, and not as a treaty, how much harder it is for Woods to claim that somehow Americans were “sold” a lie in 1788. There is a difference between a Constitution and a treaty, and the Constitution is—obvious to any fair-minded observer—the former, and not the latter. And, alas for Woods, Edmund Randolph never promised anything like a right to secede (nor could he have). As Akhil Amar writes (and my apologies to Stephan Kinsella for quoting a non-libertarian expert on the Constitution): “no major proponent of the Constitution sought to win over states’ rightists by conceding that states could unilaterally nullify or secede in the event of perceived national abuses. The Federalists’ silence is especially impressive because such a concession might have dramatically improved the document’s ratification prospects in several states” (Akhil Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1462 n.162 (1987)).

Finally, we come to Kinsella. Here’s the substance of his comment: Sandefur is a “faux-libertarian Lincoln idolator and lover of centralism”; a “bizarrely smug, self-important twit,” who is “not…worth responding to.”

Evidently not! After all, in the post that provoked the Stooges so much, I was complaining that Kinsella continues to claim that Thomas Jefferson endorsed secession, when in fact, we know from his writings that he did not—and that, despite my repeated invitations, Mr. Kinsella has failed to come forth with any kind of response or retraction. And here, once again, Kinsella proves my point about his intellectual dishonesty, by responding to my perfectly valid point with “Ha ha ha…[&c]…ROTFL!” Now, there’s a name for this logical fallacy, just as there are names for the other logical fallacies that Woods and DiLorezno engage in. But for me to cite them would probably make me smug and self-important and whatnot.

I am reminded of the famous story of Thomas Huxley’s debate about evolution with Bishop Wilberforce. Wilberforce got up and demanded that Huxley tell the audience whether he was descended from an ape on his mother’s side or his father’s side. Huxley responded that he would rather be descended from that noble animal than from a man who introduces ridicule and levity into a serious scientific proceeding. The Doughfaces, alas, embarrass both themselves and their readers with such “arguments,” and, like Wilberforce before them, essentially confess the emptiness of their beliefs.

Update: Comments are open.

Trackback URI |