May 24, 2005

Federalism and Liberty

I refuse to sympathize with the people who think that intervening in state affairs is automatically a question of federalism. It isn't. Federalism is at most a matter of law and balancing, neither of which trumps natural liberty. If a natural liberty is being violated, there is no natural state right to protect the violator or continue the violation. In point of fact, there is no natural state right to anything, since a state by definition exists only outside the state of nature. So states rights are whatever we write the laws to say and whatever public opinion and political behavior refine de facto.

If a state is protecting, funding or furthering slavery - as it does when it pays to capture fugitive slaves or when it protects slave-owners and slave commerce - then natural rights are being violated. By the same token, if a state is violating the right to life, to property or to whatever else, then it can and must be stopped. This is no different whether the Supreme Court strikes down a law or the Congress acts to change the law.

So when you hear libertarian criticism of the Republicans as being soft on federalism, ask what they mean. Is there a state right to kill people? No? Then I guess it'd be okay to ban abortion or work to save Terri Schiavo. Federalism means a balance. Some people want different balances, and the Constitution seems to dictate a pretty heavy balance toward the states. But both the Fourteenth Amendment and the Privileges and Immunities Clause seem to send one message:

states' rights are ALWAYS subservient to human rights

Again, I refuse to sympathize with the idea that federalism trumps freedom. The idea that Maine or Minnesota has a higher claim to freedom than living, breathing people is absurd. States' rights are artificial, created solely to protect us from government by setting our leaders into conflicting relationships. They exist because they can help protect human liberty. If there were no human liberty to protect, states' rights would be moot - nothing more than an arbitrary organizing principle without any merit.

The paleo-conservative impulse to drastically over-value traditional federalism is a throwback that will eventually extinguish itself out of its own stupidity. It enjoys popularity now for three reasons: 1) it lets Democrats appeal to a principle, to seem like they were abstaining from the Schiavo affair instead of colluding in her murder, 2) it lets certain libertarians think they're both principled and socially progressive, instead of intellectually apathetic about the right to life, and 3) it seems to fit in the general theme of criticizing the Republicans for abandoning traditional principles of the party.

Of course, the Republicans are rapidly retreating a short distance from center-right capitalism to center-capitalism, so they deserve criticism to return to their founding principles from 1856. But would anybody say the Republicans violated states' rights when they freed the slaves? They changed the Constitution to free the slaves; they committed a perfectly lawful action to free tons of people. How is it any different from the Schiavo incident, aside from the scope? Granted, there are distinctions, but the parallels are striking.

If anybody complained that abolishing slavery or fighting Jim Crow was a violation of states' rights, we'd be liable to view them as racists - after all, what's the point of having a government if it doesn't protect liberty? By that point it'd just be a device for killing foreigners and taxing us. Government exists to protect liberty, and everybody realizes that by accepting that federalism bows to the abolition of slavery.

And yet, if you simply changed your point of view slightly - namely, that slaves aren't people or don't have natural rights - then it would very possibly be a violation of states' rights, perhaps even a violation of an individual's right to own slaves. And so it is with the right to life. If Terri Schiavo isn't a person, if fetuses aren't persons, then there's no legally appropriate reason to protect the incapacitated or the unborn. After all, if they're just animals or lumps of flesh, then no liberty is attached.

Of course, real libertarians would go further if they were really committed to this; if this is a personal decision to euthanize or abort, why do states have the prerogative to ban it? Why is it that the feds can't intervene on behalf of individuals, whether to protect their rights or stop their transgressions? Well, nobody would disagree with that proposition in the main. But restricted to controversial issues like the right to life, squishy libertarians appear.

They're squishy because they're uninterested in the rights of the incapacitated or the unborn. It seems uncouth to side with the religious people and overly aggressive to stand next to the Planned Parenthood types. Rather than picking a real side, they hide behind federalism, because it seems like a good principle and it lets the squishies avoid deciding the issue. The answer, though, can't be that states' have the choice.

That negates libertarianism by negating the individual's right; either you have the right to kill people in comas and wombs or all levels of government have the right to stop you on behalf of those same people.

I remember federalism butting its nose in as a false front to protect other forms of intellectual apathy. I can recall many a conversation with conservatives through the years who refused to directly answer what they thought of gay marriage. When asked, they'd say it's a state issue and there's a state right for states to decide what's good for themselves. Of course, that doesn't answer the question, so then you have to ask what they would want from their state, and what they would pick for other states, ideally. Most still referred me back to states' rights, unwilling or unable to understand that ‘states' rights’ doesn't mean 'no opinion.'

It was a shield to deflect the question entirely, which is happening more often with the right to life. It's a controversial issue, often one that nobody wants to deal with. You have one side calling you a murderer and associating abortion - correctly - with infanticide, Eugenics and slavery. Then the other side is associating opposition to abortion with religious zealots, luddites and misogynists. So either you support horrible crimes or you're a horrible person. Rather than taking flak from one side or the other, it's far easier to throw up your hands and talk about the war on terror or social security.

The problem is that liberty doesn't care whether we wage a culture war or not. Liberty is not negated because you're too cowardly to pick a spot. Some people genuinely end up in a middle position, and though I disagree strenuously I do not include them with the squishies. The squishies are disinterested in educating themselves on a subject, yet continue to espouse the abstentionist position.

Look, if you can't be bothered to figure out whose liberty is at stake, then don't give an opinion on a subject; what's the point of abstaining if you have to tell everyone about it?

It's indefensibly un-libertarian to say that a matter of individual liberty ought to remain a state-by-state issue. Individuals have the liberty, and the organization of government, whether federal, unitary or confederal, is solely tasked at preserving that liberty.

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