That truth should be silent I had almost forgot.
Antony and Cleopatra,  Act 1, Scene 2

Unsilent Truth
January 16, 2004


A talon is caught ...



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Constitutionalism's friends keep reinforcing my reasons for rejecting constitutionalism. To explain, and for the purposes of this discussion, I am going to pretend that Lysander Spooner has not demonstrated that the U.S. Constitution has no authority whatever. I am going to pretend that it is authoritative and that laws passed in accordance with it are legitimate; the flip side is that laws passed that are not in accordance with it are not legitimate.

Recently, I came across this item on The Objectivist Center's Website:

The principles of jus ad bellum also demand that a war be openly and properly declared. This requirement demands only two things: that the proper authority declare the war, and that the fact of war be made public. In the United States, this injunction demands that the Congress and President publicly announce their intention to wage war, to both the American public and to the enemy. That Congress has not made a formal declaration of war does not, in itself, violate the principles of jus ad bellum. Over the past sixty or so years, Congress has delegated a number of powers to the Executive that obviate the need for a formal declaration of war. This delegation is almost certainly a mistake, but it does not change the fact that a legitimate authority has openly declared the war. Semantic questions of the kind that cause some to debate whether Vietnam, Korea, or the Gulf War were "wars" or "police actions" address a very limited context of constitutional legality. They do nothing to change the fact that each conflict was a war, and neither do they address the justice or injustice of any of those wars. ("The Justice of War," by Patrick Stephens; found at the Atlas Society)

(A list of the standards for a just war may be found at www.newadvent.org/cathen/15546c.htm. Readers will note that the compiler of this list includes conditions that Stephens did not discuss in the rest of his article.)

Objectivists do not normally resort to euphemisms, but in the sentence "This delegation is almost certainly a mistake, but it does not change the fact that a legitimate authority has openly declared the war," the word mistake is nothing if not a euphemism. And the word for which it is a euphemism is illegal. The corresponding action by a president accepting the power so delegated is also not a mistake. It is a usurpation. One would never expect to read such a cavalier euphemism if an Objectivist were writing about Congress's delegating law-writing powers to a regulatory agency (e.g., the Commerce Department or the FCC).

But when it comes to war and the putative defense of the nation, Stephens is content to accept an illegal action on the one hand and a usurpation on the other as retaining the full moral quality of a "legitimate action." Would he be willing to say that antitrust laws are enforced by a "legitimate authority"? It leads me to wonder what it would take for Stephens to consider an open declaration of war illegitimate. What does a constitution have to say in order for actions that do not satisfy its conditions to have no legitimacy?

(A good discussion of what constitutional declarations of war actually look like can be found in Sheldon Richman's "More Like Them Than We Care to Admit," Freedom Daily, March 2003.)

A similar question arises from a reading of Randall G. Holcombe's "Government: Unnecessary but Inevitable" (Independent Review, Winter 2004: 325-42). (I will be discussing Holcolmbe's argument that the existence of governments is inevitable in another article.)

Holcombe begins: "Ludwig von Mises, Friedrich Hayek, and Milton Friedman, perhaps the best-known twentieth-century academic defenders of liberty, envisioned a role for limited government in protecting liberty." So far, so good. But the next words out of his mouth are: "Friedman's (1962) defense of freedom includes proposals for a negative income tax and school vouchers."

One might be forgiven for wondering just how a negative income tax (also known as the "guaranteed annual income") and school vouchers protect liberty. Friedman is also notorious for other questionable proposals, e.g., the so-called privatization of Social Security and a continued low-level inflation that is said to be necessary to stabilize the currency and that requires the existence of some kind of central bank. And, of course, as a Treasury employee during World War II Friedman helped craft the system of withholding income for the purposes of collecting income taxes.

I am not now arguing whether Friedman's work has earned him a reputation for being one of the "best-known academic defenders of liberty." Policy-wonk defenses of these recommendations by him attempt to defend that reputation; certainly his series (with his wife) Free to Choose and his eye-opening chapter on medical licensing in Capitalism and Freedom would have to be counted in his favor.

Holcombe starts by talking about a "defense of freedom" and finds himself considering welfare payments and federal control of the schools as something that can be "included" in that defense, rather than as something that contradicts that defense. But even that is not my focus here.

My focus here is that phrase limited government. Holcombe concludes his article by saying that "it is worth studying how government institutions can be designed to minimize their negative impact on liberty." He does not specifically mention a constitution as one part of that study, but if "the rule of law" said to be provided by a constitution is not part of it, it is difficult to anticipate what he might mean. And the phrase limited government normally suggests a constitution that is supposed to do the limiting.

The point of listing Friedman's departures from what is derogatorily called "pure" libertarianism or the "pure" free market is that it does not seem to bother his libertarian admirers that those departures are also — one and all — unconstitutional.

Let us concede that, prima facie arguments to the contrary, a negative income tax advances the cause of liberty or that a central bank actually serves the working of a free market. Let us make similar concessions in respect of Friedman's other recommendations. Where are the voices that object, "They may be good ideas, but the U.S. government has no authority to implement them"? Where are the voices that reply, "These are excellent proposals. Let us pass an amendment to the Constitution so that they will be legal"?

Maybe I've missed them, but I don't remember ever hearing them. I hear voices urging that such measures be passed into law, but laws that are passed by a Congress exceeding its authority are not legitimate, even on constitutional grounds. Or perhaps I should say, especially on constitutional grounds.

In other words, modern libertarians are able to look at unconstitutional acts and proposals and not be troubled by their unconstitutionality if — on some other grounds — they think the acts and proposals are good ideas.

It is bad enough that most writers, politicians, and citizens don't much care whether political proposals or actions are illegitimate. We have come to accept this, more or less, or at least to expect it. But that champions of limited government can just shrug these usurpations off, apparently not even noticing that they are usurpations, is another nail in the coffin of constitutionalism as a viable theory of government.

It also illustrates what I have written elsewhere: that constitutions are just an attempt at "law control," and they work just as well as other forms of regulation. It illustrates, too, the truth of the Russian proverb "A talon is caught; the bird is lost."

© 2004 by WTM Enterprises. All rights reserved.


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