Libertarians on Twitter

Someone tweeted to the effect that government protection of public safety is tyranny. I responded, initiating a couple of days of sporadic back-and-forths with tweeters who called themselves libertarians. The context was the defiance of restrictions on public gatherings, which was happening in various ways in California, Texas, and Michigan.

First, I mentioned that promoting safety is an object for which the Declaration of Independence (=Thomas Jefferson) says people organize their governments. Tweeter said it wasn't in the Declaration, so I gave him the link and told him where to find it. Properly chastened, he noted that it isn't law. So I gave him law. Multiple quotes from the Massachusetts Constitution (drafted by John Adams). My point, of course, was that protection of public safety was clearly part of the police powers of government according to the political philosophy of the founders and the form of government they established.

At this point others joined in. State law didn't matter. States couldn't ignore the Constitution. They seemed to think that States' powers are granted by the Constitution (or at least to be found in federal statute). So I pointed out that the federal government didn't create the States or give them their powers. States already existed and had their powers before the Constitution was adopted. But they reminded me that the States were bound by the First and Second Amendments. I noted offhand that it was a Supreme Court interpretation, not an explicit text, which found that those Amendments applied to the States.

Someone suggested that I didn't know the purpose of the Second Amendment, so I quoted its opening words, "A well regulated Militia." Apparently some tweeters don't believe what the Constitution says, because they continued to "like" the tweet that said I didn't know the purpose of the Amendment. Here we encounter the belief — never expressed directly but apparently behind their viewpoint — that the right to bear arms was intended to enable the people to overthrow a tyrannical government. Actually, as I learned by looking more closely at Article I, Section 8 of the Constitution, one of Congress's powers is to call forth the Militia, organized by the States, to "suppress insurrection." The discussion petered out after I called that to their attention.

Meanwhile, though, there were some further tweets from me about the difference between poor judgment in the exercise of lawful powers, and tyranny; about the availability of remedies other than insurrection, such as court cases and elections; about the difference between their ideology verging on anarchism and the founders' belief in government providing for ordered liberty. Early on, I told two of them, "I'll take Jefferson and Adams over you any day of the week and twice on Sunday."

Somebody said he had never consented to the Constitution. To which the basic answer is, if you don't like it you're free to leave, but if you don't leave, you have no right to overthrow what the rest of us consent to.

There was also the person who complained that he needed to be free to earn a living to support his family. First I mentioned the bailouts enacted by Congress. I could also have mentioned unemployment insurance and food pantries. I.e., there is no need for his family to starve. But instead, I went full on sarcastic and reminded him that for decades people have been saying you need to prepare to survive on your own. If he's still unprepared to go into the forest and shoot a deer, he has been pathetically irresponsible.

At the end a tweeter from California "followed" me. I checked out his tweets and found him pretty balanced, so I decided to follow back. I also commented that unfortunately "nobody" understands or cares about Federalism, limited government, or separation of powers any more; and the gun nuts only know one word of the First Amendment, "assemble" and two words of the Second, "bear arms."

A New Birth of Federalism

The response around the United States to the coronavirus pandemic has given prominence to the governors and to differences between States. Perhaps this could be an occasion for people to become more aware of federalism as one of the basic elements of our polity, and maybe even to think about it.

When I was in school, I learned about our founding: the revolutionary war, the inadequacy of the Articles of Confederation, the Constitutional Convention, the ratification of the Constitution, and our history under the Constitution. Central to this study was the work of the Constitutional Convention. The delegates recognized the need for a stronger federal government than that established by the Articles of Confederation, but they knew that they must prevent the central government from becoming a monarchy. To prevent a monarchy or a tyranny from arising, they developed three principles for the federal government: limited government, separation of powers, and federalism. Limited government meant that the federal government's authority would be limited to the areas specified ("enumerated") in the text of the Constitution. Separation of powers meant that the powers of the federal government would be divided among three branches of government — legislative, executive, and judicial — each independent of the others and each having only some portion of the overall authority of the government. And federalism meant that the States, having held sovereign power before the adoption of the Constitution, retained full governmental sovereign power except for the enumerated powers granted to the federal government.

I suppose that this was widely taught to members of my generation in history and civics classes. Every "boomer" should have learned it. Unfortunately, I fear the lesson has been lost or forgotten over the decades with the result that now most people look to the federal government to solve all major problems, and tend to consider the president responsible for everything that the federal government does. There are several factors for this development. The first goes back many generations. The Civil War, with its emphasis on preserving the Union, shifted people's focus from their States to the Union. Nowadays, virtually nobody would feel the kind of loyalty to his State which was commonplace in 1860, an example of which is Robert E. Lee's decision — as a Virginian — to join the army of the Confederacy. A second factor is the expanding reach of the federal government, especially as the economy became more unified — for example the Interstate Commerce Commission. There were also such things as Social Security and the establishment of the Department of Health, Education, and Welfare. Finally, it seems to me that civics education is no longer mandatory in schools, with the result that recent generations have grown up with many people unaware of limited government with enumerated powers, separation of powers, and federalism as fundamental to our form of government. I fear that Donald Trump spoke for many in his generation and following ones when he stated that the authority of the president is total.

In all this, the prominence of governors and the recognition that it is appropriate for different states to have different rules provides a reason for a bit of hope. If influential people with wide audiences begin to speak seriously about federalism, perhaps the principle can again become on which guides political thought and action — to the benefit of liberty. It will probably require academics to make themselves heard on talk shows. If enough manage to do it, the message can become heard and discussed even among those who are inclined to look first and always to Washington.

The Confirmation of Justice Kavanaugh

I think it was necessary for the good of the country that Justice Kavanaugh be confirmed. It was necessary not because he is the only person fit for the seat on the Court, or even necessarily the best available. It was necessary in order to defeat the opposition.

Those who opposed him did so because they were afraid of what positions he would take on certain cases that may come before the Court. In my opinion, it is wrong for the Senate to try to tip the scales of justice, to assure a certain outcome of a case yet to be litigated. Their job is to see to it that the nominee is qualified to serve on the Court. In that regard, before the hearings began, the American Bar Association gave him their highest rating.

It is true that both parties have recently opposed nominees on the grounds of overall philosophy — originalist or expansionist — but focusing on specific issues as a basis for opposing a nomination violates our constitutional separation of powers. It is senators attempting to decide cases. Yet that is what has happened here, as well as in some earlier hearings.


Senator Ben Sasse gave an insightful speech on how the nomination process has become so politicized. He sees it as stemming in considerable measure from the Court becoming politicized, which in turn is the result of Congress's passing laws that are unclear. Whether better legislative practice is the solution, it is clear that there are cases in which legislatures have declined to pass legislation some people wanted, and people brought a case claiming that the Constitution compelled the result they desired, and the Court agreed — e.g. abortion, same-sex marriage. This in turn, creates a situation where one side in the debate hopes that the Court will reverse its decision and the other side fears reversal. There can also be questions —e.g., legislative apportionment — where one side hopes for a change in law by judicial means and the other opposes it.

When Senators come to see it as their right to determine the outcome of cases they consider important, they also tend to see it as legitimate to use all tactics at their disposal to defeat nominees they consider a threat. Interest groups who agree with them also use all tactics at their disposal. This includes distortion of the nominee's record, personal vilification based on those distortions, and apocalyptic speculation about the consequences of the nominee's being confirmed.. (Mischaracterization of decisions was Kennedy's standard tactic against Bork.) Having misrepresented the nominee, they then find it easy to incite campaigns — letter-writing, e-mails, telephone calls, angry demonstrations, face-to-face physical intimidation, screaming from the Senate Gallery.


And so it happened that Democrats and interest groups were opposing the nominee before he had been selected. No nominee would be acceptable to them, regardless of qualifications, and they used any weapon that came to hand. Finally when it was clear that their tactics were not working, someone betrayed Dr. Ford and made her their weapon (seemingly) of last resort. If Dr. Ford's allegation could have been substantiated, Senators would have needed to decide whether an attempted rape by a high schooler countervailed an adult record of distinguished public service. But, as it was, there was no substantiation beyond Dr. Ford's own testimony, and in the estimation of 51 Senators, that was insufficient to conclude that Judge Kavanaugh was unfit to serve on the Court. The argument was raised and continues to be raised, that the confirmation sends the wrong message to women, namely, that their testimony is disregarded. That is clearly false on its face. Dr. Ford's testimony was respectfully heard and considered, to the extent of reopening the FBI investigation. More broadly, this was not a decision about women, it was about one man. To try to make it about all women, or all victims of assault, is a politically motivated misrepresentation of the case

Under those circumstances it would have been wrong to let the tactics of the opposition succeed in this case. It would also be bad because of the encouragement it would give them to continue to use these tactics.

What we ultimately need is for both sides to return to the role of assessing a nominee's qualifications based on the quality of his/her work, not how they hope/fear the nominee will decide cases that may come before the court. For now, it is essential that Republicans continue to control the Senate until Democrats agree to abide by that standard. What about Republicans agreeing to it? I think enough already do for it to be not a problem in the overall scheme of things. I'd suggest that if the nomination of Merrick Garland had been permitted to come to the floor of the Senate, a number of Republicans would have recognized his fitness to serve, and he'd have been confirmed. The only way Mitch McConnell, taking the politicized approach, could prevent confirmation was to keep the nomination from ever coming up.

I want to see originalists on the Court, but if a president nominates someone qualified who holds a different judicial philosophy, I'll say, "Dang!" and move on. I might write an e-mail to my Senators, but I won't demonstrate, sit in, shout, or engage in other disruptive behavior —  even if some organization encourages me to. And I'll continue to try to find qualified candidates for president who promise to appoint originalists to the courts.

Parkland, Florida, School Shootings

The killing of 17 people at the high school in Parkland on February 14 has led to renewed calls for various forms of gun control, including measures to prevent those with mental health problems that make them dangerous from having access to firearms. There have also been people who have said, "Let's not politicize the tragedy." Speaker Ryan cautioned against a "knee-jerk reaction" before all the facts and data are known.

My response to Speaker Ryan is, "If you won't do anything about Parkland, there are many previous mass shootings about which all the facts and data are known. Do something about them."

As for politicizing the issue, the question is what is meant by "politicizing." If it means, "seeking solutions through governmental action," there is clearly nothing wrong with doing that. That is part of our rights as citizens. If it means "attempting to win advantage for one political party over another," the real possibility that some people will politicize the matter is not a sufficient reason for others to ignore the problem. Such hyper-partisanship is an increasing problem in our politics*, but rather than yielding to it, we should refuse to let it stop people of good will from seeking to resolve problems.
       
       *The fiasco on February 15 in the Senate on immigration legislation, leaving the Dreamers unprotected is the most recent example.


The proposals I'm aware of include general restrictions on sales of guns — background checks, banning sales at weapons shows, waiting periods, etc. — banning certain types of weapons and accessories frequently used in mass shootings, such as AR-15 rifles and bump stocks; and restrictions on persons, preventing dangerous individuals from owning or purchasing firearms. I think all approaches have merit, and I see no validity in saying only one facet — sales, weapon types, or mental health — is the problem. All contribute to an intolerable situation, and all should be addressed.

Some people will claim that the Second Amendment prevents some of the proposed actions. But the courts have already recognized that the Second Amendment is not absolute. It would be absurd to suggest that individuals have a right to possess nuclear devices or guided missiles. When there are types of arms unknown to the framers of the Amendment, it is at least questionable whether the original intent of the Amendment was to include them. Therefore, it is proper for legislative bodies to consider whether they can be restricted and for courts to decide whether such restrictions are constitutional.


The response of the students themselves gives me real hope that this time something will be different. In addition to grieving the loss of life and honoring those who responded heroically, this time they are angry, and they are articulating that anger powerfully in a clear demand for long overdue action. I believe that this anger-driven demand for action is likely to a effective movement driving politicians to respond with legislation, not just the empty pieties that have followed past acts of this sort.