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WestPundit
Wednesday, July 05, 2006
 
A Libertarian By Any Other Name

Over at Volokh, David Bernstein and Ilya Somin are revisiting the question of the meaning of libertarianism. It occurs to me that I covered this in some depth, on my opening post back at Samizdata. It has gotten pretty hard to ferret-out my old Samizdata stuff, as they seem to have eliminated their author archives when they changed format. So I figured I'd reprint it here, for ease of future reference:

Many of you know me already. As I have been haunting the blogosphere for the last three years through comments, emails, and guest articles. Those of you that do not will in due time, so I will skip the typical bio/Curriculum Vitae stuff. I was going to post a Micklethwaitian tale of my 50 mile journey of Southern California's quite righteously maligned public transit system to Brian Linse’s blogger bash, where I met Perry & Adriana face-to-face for the first time. But that got a bit longish for a forum such as this, so I guess I will have to save it for a chapter in my memoirs.

One of the subjects which has piqued my fancy recently is the concept of N-dimensional variants on the classic Nolan chart. This was initiated a few weeks ago when I read this TCS article by Eugene Miller, on a link from Virginia Postrel. In it Miller attempts, quite successfully, to typify political philosophies on a Nolanesce grid – embrace of change forming one axis, and the need for control over change forming the other.



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It occurred to me that one could map this function on top of the typical Nolan chart by equating 'liberty' with 'change'. Further analysis led me to sumise that this conjunction of the two concepts was better expressed in differentials. But, for the purposes of both brevity and accessibility, we will spare that dissertation for another day.

Further indulgence of my curiosity led me to this article by Kelley L. Ross. Therein, Ross expands upon the basic Nolan chart with another dimension of what form of government safeguards what liberties (or not). It’s an interesting read. But the average Samizdata.net reader would likely find the first ten pages review, and should skip right to Liberties in Three Dimensions. Although, this little graphic, concerning the US Supreme Court is rather interesting:


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The final seven or so pages constitute the meat of the article, where he makes the point that democracy is no guarantor of liberty. In it, he makes an interesting and rather open-ended point with this:

A Republican form was envisioned by people like James Madison, who wished to impose practical, and not just theoretical limits on government by the use of the Separation of Powers and a system of Checks and Balances. This worked well enough but was ultimately undermined by one grave oversight: The United States Constitution provided no mechanism for its own enforcement. That task was soon taken up by the Supreme Court, but Thomas Jefferson realized that the Supreme Court, as a part of the federal government, could not be trusted to faithfully maintain the limits to the power of the federal government itself: "How can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear?" [Autobiography]

In the end, especially during the Civil War, World War I, the New Deal, and the Sixties, the Supreme Court began to concede extra-Constitutional powers to the federal government simply on the principle that it wanted them. The only mechanism that existed to check the failures of the Court was the torturous avenue of Constitutional Amendment, politically impossible when so many people had begun to believe that unlimited power for the federal government was actually a good thing. And then again, it is hard to know how a newer version of the 10th Amendment could be more plainly worded than the old one. A new Amendment would have to descend to the ignoble level of contradicting specific Supreme Court pronouncements that the original Amendment was simply a "tautology" or "truism" that wasn't really meant to limit federal power. (See Two Logical Errors in Constitutional Jurisprudence.) An effectively updated Constitution would have to address all the sophistry and dishonesty that was used to undermine the original one, besides providing for such additional checks and balances as would abolish the dictatorial powers of the Court.

Indeed, how does one establish practical limitations on power within a republic? Jefferson's answer was to have an armed revolution every twenty years or so. Serious talk of that today will get you twenty years or so behind bars.


 
Comments:
The easiest way to limit power would be to enforce the Constitution.

I don't mean to be flip, but the New Deal was unconstitutional. Overturn Wickard and eliminate income tax withholding and much of the rest would correct itself.
 
I don't know if you "get it" or not, Britely. This is a "who will watch the watchers" situation. The Federal courts, for all the bluster about "checks and balances," are - in the end - part of the Federal government, and will be naturally predisposed towards the expansion of same.

And the process has become more and more rigged. The power of incumbency has become virtually insurmountable. And there is no Constitutional provision for the plebiscite. And just how does one call a "Constitutional Convention?

Of course, in a monarchy, revolt or coup d'état is a fact of life. But, in a "republic", such is seen as inherently evil. Thus, the tyranny of the majority holds sway.
 
While you may be correct that a democracy does not guarantee liberty, it necessitates two things: 1) a continuous process of peaceful change [a self-corrective feedback loop], and 2) the opportunity for any one person to try to convince others of a better way to do things. No other form of government offers that.

Which means that the first cycles of democratic activity may be ugly, but the potential always exists to maximize the balance of liberty and responsibility.
 
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